JUDGMENT :

1. Heard Shri. Awadhesh Kumar Singh, learned counsel for applicants, Shri. Rakesh Kumar Singh, learned counsel for informant and Shri. Chandan Agarwal, learned A.G.A. Perused the records.

2. By means of this application, applicants have prayed for setting-aside the impugned judgment and order dated 29.9.2021 passed by Additional Sessions Judge, Court No.3, Hathras in Criminal Revision No.106 of 2020, (C.N.R. No.UPHT010030162020) Smt. Shalu Vs. State of U.P. & Ors.

3. Complainant/opposite party No.2, Shalu lodged an F.I.R. No.0333 dated 9.11.2019 at Police Station-Hathras Junction, district-Hathras against her husband Rohit Kashyap (applicant no.2), her Jeth Rishi, her father-in-law Amar Nath, her sister-in-law (wife of dewar and applicant no.1) and Arvind Kumar (Relative) for allegedly committing offence under Sections 498-A, 504, 506, 120-B, 342, 377, 376 I.P.C. and 3/4 D.P. Act

4. After investigation, a charge-sheet No.188/2020 dated 1.9.2020 was filed only against Rohit, Rishi and Amar Nath for offence under Sections 498-A, 504, 506 I.P.C. and 3/4 D.P. Act.

5. At the stage of cognizance, complainant filed an application before Judicial Magistrate, Hathras, alleging unfair investigation.

6. The complainant being aggrieved filed a Criminal Revision No.106 of 2020 that charge-sheet was filed on lesser offence, whereas no charge-sheet was filed for offence of grievous nature despite sufficient evidence being on record.

7. The learned Magistrate partly allowed the Revision Petition by impugned order dated 29.9.2021 interalia that :

"there is prima-facie evidence to summon Rohit under Section 377 I.P.C."

and

"there is prima-facie evidence to summon accused Shalini under Sections 498-A, 406, 504, 506 I.P.C. and 3/4 D.P. Act."

and

"there is no prima-facie evidence to summon Shalini and Rishi under Sections 376, 342 and 120-B I.P.C."

and

"There is prima-facie evidence to summon Arvind under Sections 498-A, 406, 504, 506 I.P.C. and 3/4 D.P. Act."

8. Learned counsel for applicants has submitted his argument in two folds.

9. Firstly, he submitted that the Magistrate cannot add or substract any offence other than the offence for which charge-sheet is filed.

10. Learned counsel for applicants submitted that in the present case, learned Magistrate took cognizance on offence other than the offence for which charge-sheet was filed and in this regard, he has placed reliance upon the judgment of Supreme Court in State of Gujarat Vs. Girish Radhakrishnan Varde, (2014) 3 SCC 659. Relevant paragraph nos.14, 15, 16 and 17 thereof are extracted hereinafter :

"14. But if a case is registered by the police based on the FIR registered at the Police Station under Section 154 Cr.P.C. and not by way of a complaint under Section 190 (a) of the Cr.P.C. before the magistrate, obviously the magisterial enquiry cannot be held in regard to the FIR which had been registered as it is the investigating agency of the police which alone is legally entitled to conduct the investigation and, thereafter, submit the chargesheet unless of course a complaint before the magistrate is also lodged where the procedure prescribed for complaint cases would be applicable. In a police case, however after submission of the chargesheet, the matter goes to the magistrate for forming an opinion as to whether it is a fit case for taking cognizance and committing the matter for trial in a case which is lodged before the police by way of FIR and the magistrate cannot exclude or include any section into the chargesheet after investigation has been completed and chargesheet has been submitted by the police.

15. The question, therefore, emerges as to whether the complainant/informant/prosecution would be precluded from seeking a remedy if the investigating authorities have failed in their duty by not including all the sections of I.P.C. on which offence can be held to have been made out in spite of the facts disclosed in the FIR. The answer obviously has to be in the negative as the prosecution