Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(All) 2315

IN THE HIGH COURT OF ALLAHABAD
ARUN KUMAR SINGH DESHWAL, J.
Nisha Kushwaha - Applicant
Versus
State of U.P. and Another - Opposite Parties
Application U/S 528 BNSS No. 44720 of 2024
Decided On : 21-04-2025

Advocates Appeared:
For the Applicant : Ronak Chaturvedi.
For the Opposite Party : G.A.

The Magistrate can take cognizance of all offences in the police report without being bound by the Investigating Officer's conclusions, but cannot modify charges at the cognizance stage.

Headnote:(A) Code of Criminal Procedure, 1973 - Section 190(1)(b) - Dowry Prohibition Act - Sections 3 and 4 - Application to set aside order rejecting protest petition - The Magistrate is not bound by the conclusions of the Investigating Officer and can take cognizance of offences based on material in the police report, even if not included in the charge-sheet. - The court ruled that the Magistrate cannot add or subtract sections at the time of taking cognizance, which should be addressed at the trial stage. (Paras 8, 9, 22, 24)

(B) Judicial Discretion - The court affirmed that the Magistrate has the discretion to assess the material presented and decide on the cognizance of offences beyond those specified in the charge-sheet, aligning with established principles from previous Supreme Court judgments. (Paras 10, 20)

Facts of the case:
The applicant filed a protest against the rejection of her plea for additional charges of attempt to rape and non-return of dowry, following an FIR and charge-sheet against the accused under various IPC sections. (Paras 3, 4)

Findings of Court:
The court upheld the Magistrate's decision not to take cognizance of the additional charges, finding no prima facie case for such offences based on the statements provided. (Paras 24, 25)

Issues: Whether the Magistrate can add or subtract offences when taking cognizance based on the police report. (Para 8)

Ratio Decidendi: The court determined that the Magistrate has the authority to take cognizance of all offences constituted by the facts in the police report, irrespective of the Investigating Officer's opinion, but cannot modify the charges at the cognizance stage. (Paras 22, 24)

Result: Application dismissed.

Judgement Key Points

The legal document discusses the authority of a Magistrate to take cognizance of offences based on police reports and the scope of modifying charges at the cognizance stage. The key points are as follows:

The Magistrate has the authority to take cognizance of all offences that are constituted by the facts presented in the police report, irrespective of the conclusions or opinions expressed by the Investigating Officer (!) (!) . This means that the Magistrate is not bound by the police officer’s opinion and can independently assess the material to decide whether offences are made out (!) (!) .
The Magistrate cannot add or subtract sections or offences at the time of taking cognizance. Such modifications are to be addressed at the stage of framing charges or during trial proceedings (!) (!) (!) .
The scope of cognizance under Section 190(1)(b) of the Criminal Procedure Code allows the Magistrate to proceed on the basis of the material in the police report and to take cognizance of any offence that the facts support, even if not explicitly mentioned in the charge-sheet (!) (!) .
The Magistrate’s discretion includes the power to summon persons not named in the police report or charge-sheet and to proceed against them if material indicates their involvement (!) .
The law is settled that the Magistrate can exercise independent judgment to take cognizance of offences beyond those explicitly mentioned in the police report, based on the material available (!) (!) .
The Magistrate’s role includes examining whether there is sufficient ground to proceed with the case, and this authority is independent of the Investigating Officer’s conclusions (!) .
The decision to take cognizance involves the Magistrate forming an opinion on whether the facts constitute an offence, and not necessarily adhering to the police’s opinion or the contents of the charge-sheet (!) (!) .
The Court emphasizes that the proper stage to include or exclude specific sections or offences is during the framing of charges, not at the stage of cognizance (!) (!) .
The Magistrate’s independent authority allows for the initiation of proceedings against persons not named in the police report if the material warrants such action (!) .
Overall, the legal principles affirm the Magistrate’s broad discretion and authority in the initial stages of criminal proceedings to assess the material and decide on the offences for which to proceed, without being limited by the police report’s conclusions or the charge-sheet’s contents.

Table of Content
1. the application seeks to challenge the rejection of a protest petition. (Para 2 , 3)
2. arguments presented regarding the magistrate's authority to take cognizance. (Para 4 , 5 , 6 , 7)
3. clarification on the magistrate's discretion in taking cognizance. (Para 8 , 9 , 10 , 11 , 12)
4. discussion on the precedence of legal judgments affecting cognizance. (Para 13 , 14 , 15 , 16 , 17 , 18 , 19)
5. emphasis on the magistrate's independent decision-making regarding cognizance. (Para 20 , 21 , 22 , 23)
6. analysis of the impugned order's legality based on evidence. (Para 24)
7. final dismissal of the application challenging the magistrate's order. (Para 25 , 26)

JUDGMENT :

Arun Kumar Singh Deshwal, J.

1. Heard Sri Ronak Chaturvedi, learned counsel for the applicant and Sri Pankaj Saxena, learned A.G.A. for the State.

2. The present application has been filed to partly set aside the order rejecting the protest petition dated 23.11.2024 passed by Judicial Magistrate/Civil Judge (J.D.), FTC, (CAW), Jhansi in Case No. 25936 of 2024 (Misc. Case No. 839 of 2024) (State Vs. Gaurav and others) arising out of Case Crime No. 5 of 2024 u/s 498-A, 354, 323, 504, 506 I.P.C. and 3/4 of Dowry Prohibition Act, Police Station- Mahila Thana, District-Jhansi, by which application for taking cognizance u/s 406, 376/511 I.P.C. has been rejected.

3. The issue involved in this case is that an F.I.R. was lodged by the applicant against opposite party no. 2 and other co-accused persons on 16.01.2024 u/s 498-A, 354, 323, 504, 506 I.P.C. and 3/4 of Dowry Prohibition Act. The police, after investigation, has submitted a charge-sheet against opposite party no. 2 u/s 498-A, 354, 323, 504, 506 I.P.C. and 3/4 of Dowry Prohibition Act while the charge-sheet was filed against other co-accused, Gaurav and Smt. Meera u/s 498-A, 323, 504 1.P.C. and 3/4 of Dowry Prohibition Act. The present applicant, who is the first informant, had filed a protest petition with the plea that in her statement, she made a specific allegation of an attempt to rape and non-returning of her streedhan by the opposite party no. 2, therefore, cognizance might also be taken u/s 376/511 and 406 I.P.C. This application was rejected by the learned Magistrate by the impugned order, which is under challenge.

4. Learned counsel for the applicant has submitted that while taking cognizance of the chargesheet, the Magistrate is not bound by the conclusion of the Investigating Officer. In support of his arguments, he has relied upon the judgement of Apex Court in the case of Pramatha Nath Mukherjee Vs. State of West Bengal , 1960 SCC Online SC 76, judgement in the case of Dharam Pal and others Vs. State of Haryana and Another , (2014) 3 SCC 306 , judgement in the case of Nahar Singh Vs. State of Uttar Pradesh and Another , (2022) 5 SCC 295 and judgement in the case of Balveer Singh and Another Vs. State of Rajasthan and Another , (2016) 6 SCC 680 . It is further submitted by learned counsel for the applicant that u/s 190(1)(b) of Cr.P.C., the Magistrate can take cognizance on the basis of fact available on the record with the police report. Therefore, the Magistrate, on the basis of material, can add or subtract the offence if material shows that the offence under other sections is also made out.

5. Per contra, Sri Pankaj Saxena, learned A.G.A. for the State has vehemently opposed the prayer on the ground that the Apex Court in the case of State of Gujarat Vs. Girish Radhakrishnan Varde , (2014) 3 SCC 659 clearly observed in paragraphs nos.13, 14 and 16 that if charge-sheet is filed under certain sections then the Magistrate cannot include or add any section which is not mentioned in the charge-sheet. It is further submitted by learned A.G.A. that even in paragraph no. 36 of judgement in the case of Dharam Pal (supra), it is clearly observed by the Apex Court that if after receiving the police report, Magistrate is satisfied with the prima facie case then he has to proceed on the basis of pol