JUDGMENT :

1. Learned counsel for the applicants is permitted to make necessary correction in the memo of the application during the course of the day.

2. The case is taken up in the revised call.

3. Heard Ms. Jigyasa Singh, learned counsel for the applicant, Mr. Amit Singh Chauhan, learned AGA for the State and perused the records.

4. This application under Section 482 Cr.P.C. has been filed to quash the order passed by learned Sessions Court, Bhadohi-Gyanpur dated 06.06.2019 in Criminal Revision No. 106 of 2018 (Manju Srivastava Vs. State of U.P. and others) as well as summoning order dated 18.10.2022 passed in protest petition by Judicial Magistrate-II, Bhadohi, Gyanpur in Case Crime No. 0125 of 2016, Case No. 5673 of 2016 (State Vs. Tadaknath and others), under sections 302, 427, 447 of Indian Penal Code, Police Station Koirauna, District Bhadohi and the entire criminal proceeding in the aforesaid case crime.

5. This Court without issuing notice to opposite party no. 2, is deciding the issue on purely legal questions in the present matter.

6. The fact of the case is that the opposite party no. 2 has lodged an FIR against the applicants for the offence under section 302, 323, 504, 506, 427 and 447 IPC. After investigation charge sheet has been submitted on 20.09.2016 for the offence under section 323, 504, 506 IPC. Being aggrieved by the charge sheet the opposite party no. 2 filed protest petition as Case No. 5673 of 2016 (Sate Vs. Tadaknath and others) before the concerned Magistrate on 26.10.2016 and the same was opposed by the applicants. The aforesaid petition was dismissed by the learned Judicial Magistrate-II, Bhadohi-Gyanpur vide order dated 02.11.2018, against which the opposite party no. 2 filed revision before the concerned court as Criminal Revision No. 106 of 2018 (Manju Srivastava Vs. State and others). The aforesaid criminal revision was allowed by the learned Sessions Judge, Bhadohi-Gyanpur vide order dated 06.06.2019 and the matter was remanded back to lower court for reconsideration, therefore, the matter was reheard by the concerned Magistrate and vide the order dated 18.10.2022 the protest petition was allowed, summoning the applicants under sections 302, 427 and 447 of Indian Penal Code.

7. Learned counsel for the applicants submits that the Magistrate cannot add or subtract any offence other than the offence for which charge sheet has been filed. The addition or subtraction of any offence is not permissible at the stage of summoning and it is permissible by the trial court only at the time of framing charge. In support of her argument she has relied upon the judgment of Hon'ble Apex Court in Case of State of Gujrat Vs. Girish Radhakrishnan VardeAIR 2014 Supreme Court 620. The relevant portion of the said judgment of the Apex Court reads as follows:-

"14. The question, therefore, emerges as to whether the omplainant/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 IPC 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 cannot be allowed to suffer prejudice by ignoring exclusion of the sections which constitute the offence if the investigating authorities for any reason whatsoever have failed to include all the offence into the chargesheet based on the FIR on which investigation had been conducted. But then a further question arises as to whether this lacunae can be allowed to be filled in by the magistrate before whom the matter comes up for taking cognizance after submission of the chargesheet and as already stated, the magistrate in a case which is based on a police report cannot add or substract sections at the time of taking cognizance as the same would be permissible by the trial court only at the time of framing of charge under section 216, 218 or under section 228 of the Cr.P.C. as the case