# Nisha Kushwaha v. State of U.P. & Anr

- **Citation:** (2025) 4 ILRA 800
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-04-21
- **Case number:** Application U/S 528 BNSS No. 44720 of 2024
- **Bench:** Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nisha-kushwaha-v-state-of-u-p-anr-53264
- **Pages:** 12

## Headnote

Law
-
Cognizance
-
Magistrate's Power to Add or subtract any
section - Code of Criminal Procedure, 1973
- Sections 190(1)(b), 204, 216, 218 & 228
- Bharatiya Nagarik Suraksha Sanhita,
2023 - Section 210 - Indian Penal Code,
1860 - Sections 376/511, 406, 354, 498-A,
4 All. Nisha Kushwaha Vs. State of U.P. & Anr.
801
323, 504 & 506 - Dowry Prohibition Act -
Sections 3/4, Magistrate, while taking
cognizance u/s 190(1)(b) Cr.P.C., can take
cognizance of all offences constituted by
the facts reported by the police which also
include
the
offences
which
are
not
mentioned in the charge-sheet - Not
bound
by
Investigating
Officer's
conclusion
-
may
take
independent
decision
regarding
cognizance
of
an
offence on the basis of material available
with the police report - Constitution Bench
in Dharam Pal held Magistrate can issue
process on basis of police report though
accused not named - Magistrate has
discretion under S.190(1)(b) CrPC/210
BNSS to take cognizance beyond IO's
conclusions.(Para - 10,14,18,19,22,23)

Applicant lodged an FIR under Sections 498-A,
354, 323, 504, 506 IPC and Sections 3/4 of
Dowry Prohibition Act - On submission of
charge-sheet - she filed a protest petition
seeking cognizance under Sections 376/511 and
406 IPC based on her statement u/s 164 Cr.P.C.
- Magistrate rejected her plea citing lack of
prima facie material - Present application under
Section 528 BNSS was filed challenging that
order.(Para - 2,3,4,24)

HELD: - Magistrate can take cognizance of an
offence based on the police report's material,
regardless of the Investigating Officer's opinion.
This power includes (i) Summoning unnamed
accused persons. (ii) Taking cognizance of
offences under different sections than those
mentioned in the charge-sheet. (iii) Dropping
sections if there's insufficient material in the
report.
Court does not find any illegality in
the impugned order passed by the learned
Magistrate by which it refused to take
cognizance of the offence u/s 376, 511 and
406 I.P.C. .(Para - 22,25)

Application U/S 528 BNSS dismissed. (E7)

LIST OF CASES CITED: -

## Text

_Characters 0–39,416 of 40,084. This is a partial read: ask again with offset=39416 for what follows._

800 INDIAN LAW REPORTS ALLAHABAD SERIES
being declared a juvenile. This malpractice
undermines the integrity of the justice
delivery system and calls for stricter
scrutiny and penalties for submission of
false documents.

2. Failure of Police Authorities in
Age Verification:

Despite clear provisions under Section
94 of the Juvenile Justice (Care and
Protection of Children) Act, 2015 ? which
mandates that the age of a person claiming
to be a juvenile must primarily be
determined on the basis of documentary
evidence ? law enforcement agencies
routinely fail to conduct proper age
verification by ossification test in the
absence of such documents. This laxity
reflects a serious neglect of statutory duty
and results in miscarriage of justice.

3. Inaction by Health Department
Due
to
Lack
of
Radiologists/Infrastructure etc.:

In cases where documentary evidence
is unavailable, the Act allows for medical
tests to determine age. However, in the
district of Ballia, such procedures are
rendered impossible due to the absence of a
qualified Radiologist since long. This lapse
in healthcare infrastructure not only delays
justice but also affects the credibility of the
juvenile justice system.

Recommendations:

The above situation reveals a chain of
administrative and procedural failures. It is
imperative that:

(i) For developing a mechanism
for stringent verification of documents
submitted for age determination, the police
is directed to strictly adhere to Section 94
of
The
Juvenile
Justice
(Care
and
Protection of Children) Act, 2015 and be
trained accordingly.

(ii) Immediate steps be taken by
the Health Department to appoint or depute
at least one Radiologist in the district of
Ballia to ensure compliance with the
provisions of the Act.

Failure to address these issues
may lead to continued abuse of legal
provisions intended to protect genuinely
vulnerable
juveniles,
thereby
eroding
public trust in the justice system.

33. Let a copy of this order be sent to
the Principal Secretary for Medical Health
and
Family
Welfare,
Uttar
Pradesh
forthwith.
----------
(2025) 4 ILRA 800
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.04.2025

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Application U/S 528 BNSS No. 44720 of 2024

Nisha Kushwaha ...Applicant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicant:
Ronak Chaturvedi

Counsel for the Respondents:
G.A.

(A)
Criminal
Law
-
Cognizance
-
Magistrate's Power to Add or subtract any
section - Code of Criminal Procedure, 1973
- Sections 190(1)(b), 204, 216, 218 & 228
- Bharatiya Nagarik Suraksha Sanhita,
2023 - Section 210 - Indian Penal Code,
1860 - Sections 376/511, 406, 354, 498-A,
4 All. Nisha Kushwaha Vs. State of U.P. & Anr.
801
323, 504 & 506 - Dowry Prohibition Act -
Sections 3/4, Magistrate, while taking
cognizance u/s 190(1)(b) Cr.P.C., can take
cognizance of all offences constituted by
the facts reported by the police which also
include
the
offences
which
are
not
mentioned in the charge-sheet - Not
bound
by
Investigating
Officer's
conclusion
-
may
take
independent
decision
regarding
cognizance
of
an
offence on the basis of material available
with the police report - Constitution Bench
in Dharam Pal held Magistrate can issue
process on basis of police report though
accused not named - Magistrate has
discretion under S.190(1)(b) CrPC/210
BNSS to take cognizance beyond IO's
conclusions.(Para - 10,14,18,19,22,23)

Applicant lodged an FIR under Sections 498-A,
354, 323, 504, 506 IPC and Sections 3/4 of
Dowry Prohibition Act - On submission of
charge-sheet - she filed a protest petition
seeking cognizance under Sections 376/511 and
406 IPC based on her statement u/s 164 Cr.P.C.
- Magistrate rejected her plea citing lack of
prima facie material - Present application under
Section 528 BNSS was filed challenging that
order.(Para - 2,3,4,24)

HELD: - Magistrate can take cognizance of an
offence based on the police report's material,
regardless of the Investigating Officer's opinion.
This power includes (i) Summoning unnamed
accused persons. (ii) Taking cognizance of
offences under different sections than those
mentioned in the charge-sheet. (iii) Dropping
sections if there's insufficient material in the
report.
Court does not find any illegality in
the impugned order passed by the learned
Magistrate by which it refused to take
cognizance of the offence u/s 376, 511 and
406 I.P.C. .(Para - 22,25)

Application U/S 528 BNSS dismissed. (E7)

LIST OF CASES CITED: -

1. Pramatha Nath Mukherjee Vs St. of W.B.,
1960 SCC Online SC 76

2. Dharam Pal & ors.Vs St. of Har. &
anr.,(2014) 3 SCC 306
3. Nahar Singh Vs St. of U.P. & anr., (2022) 5
SCC 295

4. Balveer Singh & Anr. Vs St. of Raj. & anr.,
(2016) 6 SCC 680

5. St. of Guj. Vs Girish Radhakrishnan Varde,
(2014) 3 SCC 659

6. Dablu Kujur Vs St. of Jhark.,(2024) 6 SCC
758

7. Sadab Vs St. of U.P. & anr., 2023 SCC
Online All 30

8. Fakhruddin Ahmad Vs St. of Uttaranchal &
anr., (2008) 17 SCC 157

9. Kishun Singh Vs St. of Bihar,(1993) 2 SCC
16

10. Ranjit Singh Vs St. of Punj., (1998) 7 SCC
149

11.
U.T.
of
Ladakh
Vs
J&K
National
Conference, INSC 2023 (804)

(Delivered by Hon'ble 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
802 INDIAN LAW REPORTS ALLAHABAD SERIES
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 coaccused 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 nonreturning 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 police report
itself. It is also submitted that the issue in
Dharam Pal (supra) was whether the
Magistrate can take cognizance against the
person who was mentioned as accused in
the column of accused in the charge-sheet
but in the present case, the issue is different
whether the Magistrate can add or subtract
any section after receiving the charge-sheet.
Therefore, the case of Dharam Pal (supra)
is not directly applicable to the present
case.

6. Learned A.G.A. has also relied
upon the recent judgement of Apex Court
in the case of Dablu Kujur Vs. State of
Jharkhand, (2024) 6 SCC 758 wherein the
Apex Court in paragraphs nos. 13 and 14
has observed that once the police report is
4 All. Nisha Kushwaha Vs. State of U.P. & Anr.
803
submitted, the Magistrate can accept the
report and take cognizance of the offence
and issue process, but if he disagrees, he
can direct for further investigation, or he
may discharge the accused or drop the
proceeding. Therefore, the Apex Court
clearly observed in this case that at the time
of taking cognizance, the Magistrate has to
decide whether, on the basis of the chargesheet, the offence appears to have been
committed or not with regard to the offence
under particular sections.

7. Learned A.G.A. has also submitted
that the issues in the case of Girish
Radhakrishnan Varde (supra) and in the
case of Dharam Pal (supra) are totally
different.
Therefore,
the
judgement
delivered by the coordinate Bench in the
case of Sadab Vs. State of U.P. and
another, 2023 SCC Online All 30 while
delivering the judgement in the case of
Girish Radhakrishnan Varde (supra), the
Apex Court did not consider the judgement
of Dharam Pal (supra), appears not to be
correct as the issue was totally different in
both the cases.

8. After hearing the submissions of
learned counsel for the parties and perusal
of record, the question which arises for
determination is whether the Magistrate at
the time of taking cognizance can add or
subtract any section regarding offences on
the basis of material available along with
the charge-sheet?

9. The Apex Court, in the case of
Girish Radhakrishnan Varde (supra) has
decided the issue that the Magistrate at the
time of taking cognizance cannot add or
subtract the section mentioned in the
charge-sheet and further observed that in
case the relevant section has not been
mentioned despite availability of material
on
record
then
proper
course
is
consideration of this issue at the time of
framing of charge u/s 216, 218 or 228
Cr.P.C. Paragraph nos. 14 and 15 of Girish
Radhakrishnan Varde (supra) is being
quoted as under:-

14. But if a case is registered by
the police based on the FIR registered at
the police station under Section 154 CrPC
and not by way of a complaint under
Section
190(1)(a)
CrPC
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
charge-sheet 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 charge-sheet after
investigation has been completed and
charge-sheet 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
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
804 INDIAN LAW REPORTS ALLAHABAD SERIES
constitute the offence if the investigating
authorities for any reason whatsoever have
failed to include all the offences into the
charge-sheet 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 charge-sheet and as
already stated, the Magistrate in a case
which is based on a police report cannot
add or subtract 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 Sections
216, 218 or under Section 228 CrPC as the
case may be which means that after
submission of the charge-sheet it will be
open for the prosecution to contend before
the appropriate trial court at the stage of
framing of charge to establish that on the
given state of facts the appropriate sections
which according to the prosecution should
be framed can be allowed to be framed.
Simultaneously, the accused also has the
liberty at this stage to submit whether the
charge under a particular provision should
be framed or not and this is the appropriate
forum in a case based on police report to
determine whether the charge can be
framed and a particular section can be
added or removed depending upon the
material collected during investigation as
also the facts disclosed in the FIR and the
charge-sheet.

10. The Apex Court, in its earlier
judgement of two Benches of Apex Court
in the case of Pramatha Nath Mukherjee
(supra), has specifically held that the
Magistrate, while taking cognizance u/s
190(1)(b) Cr.P.C., can take cognizance of
all offences constituted by the facts
reported by the police which also include
the offences which are not mentioned in the
charge-sheet. Paragraph nos. 3 and 4 of
Pramatha Nath Mukherjee (supra) is
being quoted as follows:-

3. It is quite clear that in deciding
whether action shall be taken by him under
sub-section (2) or sub-section (3) of Section
251-A the Magistrate has to form an
opinion whether there is any ground for
presuming that an accused has committed
an offence triable under Chapter XXI or
there is no such ground. When his opinion
is that there is ground for a presumption
that the accused has committed an offence
punishable under Chapter XXI which the
Magistrate is competent to try and which
could be adequately punished by him he
shall proceed with the trial. But when he
forms the opinion that there is no ground
for presuming that an offence punishable
under Chapter XXI has been committed by
the accused his duty is to discharge the
accused. The real question is, when an
order of discharge is made by the
Magistrate in exercise of the powers under
sub-section (2) of Section 251-A is the
discharge in respect of all the offences
which the facts mentioned in the police
report would make out? The answer must
be in the negative. When the Magistrate
makes an order under Section 251-A(2) he
does so as, after having considered whether
the charge made in the police report of the
offences triable under Chapter XXI is
groundless he is of opinion that the charge
in respect of such offence is groundless; but
the order of discharge has reference only to
such offences mentioned in the chargesheet as are triable under Chapter XXI. It
very often happens that the facts mentioned
in the charge-sheet constitute one or more
offences triable under Chapter XXI as
warrant cases and also one or more other
offences triable under Chapter XX. The
4 All. Nisha Kushwaha Vs. State of U.P. & Anr.
805
order of discharge being only in respect of
the offences triable under Chapter XXI
does not affect in any way the position that
charges of offences triable under Chapter
XX also are contained in the police report.

4. But, says the learned counsel
for the appellant, the Magistrate cannot
proceed with the trial of these other
offences triable under Chapter XX because
no cognizance has been taken of such other
offences. He contends that only after a
fresh complaint has been made in respect of
these offences triable under Chapter XX
that the Magistrate can take cognizance
and then proceed to try them after
following the procedure prescribed by law.
This argument ignores the fact that when a
Magistrate takes cognizance of offences
under Section 190(1)(b) CrPC, he takes
cognizance of all offences constituted by
the facts reported by the police officer and
not only of some of such offences. For
example, if the facts mentioned in the
police report constitute an offence under
Section 379 IPC as also one under Section
426
IPC
the
Magistrate
can
take
cognizance not only of the offence under
Section 379 but also of the offence under
Section 426. In the present case the police
report stated facts which constituted an
offence under Section 332 IPC but these
facts necessarily constitute also a minor
offence under Section 323 IPC. The
Magistrate when he took cognizance under
Section 190(1)(b) CrPC of the offence
under Section 332 IPC cannot but have
taken cognizance also of the minor offence
under Section 323 IPC Consequently, even
after the order of discharge was made in
respect of the offence under Section 332
IPC the minor offence under Section 323 of
which he had also taken cognizance
remained for trial as there was no
indication to the contrary. That being an
offence triable under Chapter XX CrPC the
Magistrate rightly followed the procedure
under Chapter XX.

11. The process of taking cognizance
has been mentioned u/s 190 Cr.P.C.
(corresponding Section 210 B.N.S.S.),
which prescribes that the Magistrate can
take cognizance either on complaint or on
police report or on the information received
from any other person other than police
officer or upon his own knowledge. Section
210 B.N.S.S. is being quoted as follows :- .

Section 210 in Bharatiya Nagarik
Suraksha Sanhita, 2023

(1) Subject to the provisions of
this Chapter, any Magistrate of the first
class, and any Magistrate of the second
class specially empowered in this behalf
under sub-section (2), may take cognizance
of any offence-

(a) upon receiving a complaint of
facts, including any complaint filed by a
person authorised under any special law,
which constitutes such offence;

(b)
upon
a
police
report
(submitted in any mode including electronic
mode) of such facts;

(c) upon information received
from any person other than a police officer,
or upon his own knowledge, that such
offence has been committed.

(2) The Chief Judicial Magistrate
may empower any Magistrate of the second
class to take cognizance under sub-section
(1) of such offences as are within his
competence to inquire into or try.

12. The Magistrate at the time of
taking cognizance on any of the three
modes mentioned in Section 190 Cr.P.C.
makes an opinion that there is sufficient
ground for proceeding, then he issues
process, i.e. summons/warrant u/s 204
Cr.P.C. for the appearance of the accused.
806 INDIAN LAW REPORTS ALLAHABAD SERIES
In the present case, we are concerned with
only
190(1)(b)
Cr.P.C.
regarding
cognizance of police reports.

13. From the perusal of Section
190(1)(b) Cr.P.C., it is clear that the
Magistrate takes cognizance of any offence
on the basis of the fact mentioned in the
police report.

14. In the case of Fakhruddin
Ahmad Vs. State of Uttaranchal and
Another, (2008) 17 SCC 157, the Apex
Court observed that when the police report
is submitted before the Magistrate, the
Magistrate is not bound by the opinion of
the Investigating Officer, and he may take
cognizance of any offence on the basis of
material available with police report
irrespective of the view expressed by the
police in their report and decide whether an
offence has been made out or not.
Paragraph no. 12 of Fakhruddin Ahmad
(supra) is being quoted as under:-

12. Thus, it is trite that the
Magistrate is not bound by the opinion of
the
investigating
officer
and
he
is
competent to exercise his discretion in this
behalf, irrespective of the view expressed
by the police in their report and decide
whether an offence has been made out or
not. This is because the purpose of the
police report under Section 173(2) of the
Code, which will contain the facts
discovered or unearthed by the police as
well as the conclusion drawn by the police
therefrom is primarily to enable the
Magistrate to satisfy himself whether on the
basis of the report and the material referred
therein, a case for cognizance is made out
or not.

15. The judgement of Girish
Radhakrishnan
Varde
(supra)
was
delivered by the Apex Court on 25.11.2013
but prior to the delivery of this judgement,
the Constitution Bench of Apex Court had
also delivered its judgement in the case of
Dharam Pal (supra) on 18.07.2013,
wherein the Apex Court observed that the
Magistrate, after receiving the police
report, may disagree with the same and
issue process and summon against the
accused on the basis of material available
with police report and take cognizance of
offence and summon the person as accused
though his name was not mentioned in the
charge-sheet as accused but in column 2 of
the report. It is further observed by the
Constitution Bench that if the Magistrate
decides to proceed against a person though
he was not nominated as an accused by the
police then the Magistrate would have to
proceed on the basis of police report itself.
Paragraph nos. 35, 36, 39, 40 of Dharam
Pal (supra) are quoted as under:-

35. In our view, the Magistrate
has a role to play while committing the
case to the Court of Session upon taking
cognizance on the police report submitted
before him under Section 173(2) CrPC. In
the event the Magistrate disagrees with the
police report, he has two choices. He may
act on the basis of a protest petition that
may be filed, or he may, while disagreeing
with the police report, issue process and
summon the accused. Thereafter, if on
being satisfied that a case had been made
out to proceed against the persons named
in column 2 of the report, proceed to try the
said persons or if he was satisfied that a
case had been made out which was triable
by the Court of Session, he may commit the
case to the Court of Session to proceed
further in the matter.

36. This brings us to the third
question as to the procedure to be followed
by the Magistrate if he was satisfied that a
4 All. Nisha Kushwaha Vs. State of U.P. & Anr.
807
prima facie case had been made out to go
to trial despite the final report submitted by
the police. In such an event, if the
Magistrate decided to proceed against the
persons accused, he would have to proceed
on the basis of the police report itself and
either inquire into the matter or commit it
to the Court of Session if the same was
found to be triable by the Sessions Court.

39. This takes us to the next
question as to whether under Section 209,
the Magistrate was required to take
cognizance
of
the
offence
before
committing the case to the Court of
Session. It is well settled that cognizance of
an offence can only be taken once. In the
event, a Magistrate takes cognizance of the
offence and then commits the case to the
Court of Session, the question of taking
fresh cognizance of the offence and,
thereafter, proceed to issue summons, is not
in accordance with law. If cognizance is to
be taken of the offence, it could be taken
either by the Magistrate or by the Court of
Session. The language of Section 193 of the
Code very clearly indicates that once the
case is committed to the Court of Session
by the learned Magistrate, the Court of
Session assumes original jurisdiction and
all that goes with the assumption of such
jurisdiction. The provisions of Section 209
will, therefore, have to be understood as the
learned Magistrate playing a passive role
in committing the case to the Court of
Session on finding from the police report
that the case was triable by the Court of
Session. Nor can there be any question of
part cognizance being taken by the
Magistrate and part cognizance being
taken by the learned Sessions Judge.

40. In that view of the matter,
we have no hesitation in agreeing with
the views expressed in Kishun Singh
case [Kishun Singh v. State of Bihar,
(1993) 2 SCC 16 : 1993 SCC (Cri) 470]
that the Sessions Court has jurisdiction
on committal of a case to it, to take
cognizance of the offences of the persons
not named as offenders but whose
complicity in the case would be evident
from the materials available on record.
Hence, even without recording evidence,
upon committal under Section 209, the
Sessions Judge
may summon those
persons shown in column 2 of the police
report to stand trial along with those
already named therein.

16. In the case of Dharam Pal
(supra), three Judge Bench, on finding
the judgement of Kishun Singh Vs. State
of Bihar, (1993) 2 SCC 16 conflicting
with the judgement of Ranjit Singh Vs.
State of Punjab, (1998) 7 SCC 149
regarding authority of Magistrate u/s 193
Cr.P.C. in the case triable by Sessions
Court, referred the matter to larger
Bench. Thereafter, a Constitution Bench
was formed, which framed six questions
as mentioned in paragraph no. 7 of
Dharam Pal (supra) which is as follows :-

7. The questions which require
the consideration of the Constitution
Bench are as follows:

7.1. Does
the
Committing
Magistrate have any other role to play
after committing the case to the Court of
Session on finding from the police report
that the case was triable by the Court of
Session?

7.2. If the Magistrate disagrees
with the police report and is convinced
that a case had also been made out for
trial against the persons who had been
placed in column 2 of the report, does he
have the jurisdiction to issue summons
against them also in order to include their
names, along with Nafe Singh, to stand trial
808 INDIAN LAW REPORTS ALLAHABAD SERIES
in connection with the case made out in the
police report?

7.3. Having decided to issue
summons against the appellants, was the
Magistrate required to follow the procedure
of a complaint case and to take evidence
before committing them to the Court of
Session to stand trial or whether he was
justified in issuing summons against them
without following such procedure?

7.4. Can the Sessions Judge issue
summons under Section 193 CrPC as a
court of original jurisdiction?

7.5. Upon
the
case
being
committed to the Court of Session, could
the
Sessions
Judge
issue
summons
separately under Section 193 of the Code
or would he have to wait till the stage
under Section 319 of the Code was
reached in order to take recourse thereto?

7.6. Was Ranjit
Singh
case [Ranjit Singh v. State of Punjab,
(1998) 7 SCC 149 : 1998 SCC (Cri)
1554] , which set aside the decision
in Kishun
Singh
case [Kishun
Singh v. State of Bihar, (1993) 2 SCC 16
: 1993 SCC (Cri) 470] , rightly decided or
not?

17. The Constitution Bench finally
held that decision in Kishun Singh
(supra) is correct and decision in Ranjit
Singh (supra) does not lay down correct
law in respect of power of Sessions Court
after committal of case to it.

18.

The
judgement
of
the
Constitution
Bench
of
Dharam
Pal
(supra) was also considered in the case of
Balveer Singh (supra) wherein it was
observed
that
the
Magistrate,
after
receiving the police report, can take
cognizance of an offence on the basis of
material available with the police report
even if the same is not mentioned in the
charge-sheet. Paragraph no. 12 of Balveer
Singh (supra) is being quoted as under:-

12. In view of the aforesaid
provisions, the question that arises is as
to whether the Magistrate can take
cognizance of an offence which is triable
by the Court of Session or he is to simply
commit the case to the Court of Session,
after
completion
of
committal
proceedings as it is the Court of Session
which is competent to try such cases. On
the one hand, Section 190 of the Code
empowers
the
Magistrate
to
"take
cognizance of any offence" which gives
an impression that such Magistrate can
take cognizance even of an offence which
is triable by the Court of Session. On the
other hand, when the case is committed to
the Court of Session by the Magistrate,
Section 193 of the Code stipulates that
the
Court
of
Session
shall
take
cognizance "as a court of original
jurisdiction"
which
shows
that
the
cognizance is taken by the Court of
Session as a court of original jurisdiction
and, thus, it is the first time the
cognizance is taken and any order passed
by the Magistrate while committing the
case to the Court of Session did not amount
to taking cognizance of the offence which is
triable by the Court of Session.

19. The Apex Court again, in the case
of Nahar Singh (supra) after considering
the five Judge Bench judgement of
Dharam Pal (supra) as well as Balveer
Singh (supra) observed that on receiving
the police report, the Magistrate is not
bound by the opinion of the Investigating
Officer mentioned in the charge-sheet. He
can independently apply his mind to the
material available with the police report
and take cognizance of an offence even
against the person who was neither
4 All. Nisha Kushwaha Vs. State of U.P. & Anr.
809
mentioned as an accused nor mentioned in
column 2 of police report, and it was
further observed that it is the duty of the
Magistrate to bring a person to trial against
whom there is material in the police report.
Paragraphs nos. 25, 26 and 27 of Nahar
Singh (supra) are being quoted as under:-

25. Jurisdiction of the Magistrate
to take cognizance of an offence triable by
a Court of Session is not in controversy
before us. The course open to a Magistrate
on submission of a police report has been
discussed
in Dharam
Pal [Dharam
Pal v. State of Haryana, (2014) 3 SCC 306
: (2014) 2 SCC (Cri) 159] . In para 39 of
the Report in Dharam Pal case [Dharam
Pal v. State of Haryana, (2014) 3 SCC 306
: (2014) 2 SCC (Cri) 159] , such power or
jurisdiction of the Magistrate has been
spelt out. We have quoted this passage
earlier in this judgment.

26. The other difference so far as
this case is concerned in relation to the
factual basis on which the decision of the
Constitution
Bench
in Dharam
Pal [Dharam Pal v. State of Haryana,
(2014) 3 SCC 306 : (2014) 2 SCC (Cri)
159] as also the judgment in Raghubans
Dubey [Raghubans Dubey v. State of Bihar,
(1967) 2 SCR 423 : AIR 1967 SC 1167]
were delivered is that in both these cases,
the names of the persons arraigned as
accused had figured in Column (2) of the
charge-sheet. This Column, as it appears
from
the
judgment
in Raghubans
Dubey [Raghubans Dubey v. State of Bihar,
(1967) 2 SCR 423 : AIR 1967 SC 1167] ,
records the name of a person under the
heading "not sent up". In that case, the
person concerned was named in the FIR.
But that factor, by itself, in our opinion
ought not to be considered as a reason for
the Court in not summoning an accused not
named in the FIR and whose name also
does not feature in charge-sheet at all.
These judgments were delivered in cases
where the names of the persons sought to
be arraigned as accused appeared in
Column (2) of the police report. In our
opinion, the legal proposition laid down
while dealing with this point was not
confined to the power to summon those
persons only, whose names featured in
Column (2) of the charge-sheet.

27. In Dharam
Pal [Dharam
Pal v. State of Haryana, (2014) 3 SCC 306
: (2014) 2 SCC (Cri) 159] , the second
point formulated (para 7.2) related to
persons named in Column (2), but the issue
before the Constitution Bench related to
that category of persons only. This is the
position of law enunciated in Hardeep
Singh [Hardeep Singh v. State of Punjab,
(2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86]
and Raghubans
Dubey [Raghubans
Dubey v. State of Bihar, (1967) 2 SCR 423 :
AIR 1967 SC 1167] . In the latter authority,
the duty of the Court taking cognizance of
an offence has been held "to find out who
the offenders really are and once he comes
to the conclusion that apart from the
persons sent up by the police some other
persons are involved, it is his duty to
proceed against those persons". Such duty
to proceed against other persons cannot be
held to be confined to only those whose
names figure in Column (2) of the chargesheet.

20. So far as the judgement of the
Apex Court in Girish Radhakrishnan
Varde
(supra)
is
concerned,
that
judgement appears to have been passed
without considering the earlier judgment of
the Apex Court in the case of Pramatha
Nath Mukherjee (supra) as well as
constitutional Bench judgement in the case
of Dharam Pal (supra). The law is well
settled that the judgement of a larger Bench
810 INDIAN LAW REPORTS ALLAHABAD SERIES
would be binding. Similarly, the Apex
Court in the case of Union Territory of
Ladakh
Vs.
Jammu
and
Kashmir
National Conference, INSC 2023 (804)
has also observed that in case of conflicting
judgements of equal Bench on an issue then
the judgement that is earlier in time, will be
binding. Therefore, judgement in the case
of Pramatha Nath Mukherjee (supra)
would be binding.

21. This issue was also considered by
coordinate Bench of this Court in the case
of Sadab (supra). In that case, His
Lordship Hon'ble Sameer Jain, J. also
observed that Constitution Bench of the
case of Dharam Pal (supra) was not
placed before the Bench hearing the case of
Girish
Radhakrishnan
Varde (supra).
Therefore, in view of the Constitution
Bench judgment of Dharam Pal (supra),
concerned Magistrate has jurisdiction to
take cognizance of any offence on the basis
of material available with the police report
though section of that offence may not be
mentioned in the charge-sheet.

22. From the above analysis, it is
clear that after receiving the police
report, the Magistrate can exercise its
power u/s 190(1)(b) Cr.P.C. and take
cognizance of any offence against a
person on the basis of material available
with the police report without being
influenced
by
the
opinion
of
the
Investigating Officer. This power of the
Magistrate
at
the
time
of
taking
cognizance includes summoning the
person who was not named as an accused
in the police report, cognizance of an
offence under a particular section(s) even
though that section has not been
mentioned
in
the
charge-sheet
or
dropping a section by not taking
cognizance in that section on the ground
that there is no material in the police
report regarding that offence.

23. In the judgement of Dablu Kujur
(supra) relied upon by the learned A.G.A.,
the Apex Court also observed that at the
time of taking cognizance after receiving
the police report, the Magistrate may
disagree with the report and may take
cognizance and issue process against any
person.
That
judgement
also
further
supports that Magistrate is not bound by the
opinion of the Investigating Officer and
may take independent decision regarding
cognizance of an offence on the basis of
material available with the police report.
Paragraphs nos. 13 and 14 of Dablu Kujur
(supra) are being quoted as under:-

13. We are more concerned with
Section 173(2) as we have found that the
investigating officers while submitting the
charge-sheet/police report do not comply
with the requirements of the said provision.
Though it is true that the form of the report
to be submitted under Section 173(2) has to
be prescribed by the State Government and
each State Government has its own Police
Manual to be followed by the police
officers while discharging their duty, the
mandatory requirements required to be
complied with by such officers in the police
report/charge-sheet are laid down in
Section 173, more particularly sub-section
(2) thereof.

14. It may be noted that though
there are various reports required to be
submitted by the police in charge of the
police station before, during and after the
investigation as contemplated in Chapter
XII CrPC, it is only the report forwarded by
the police officer to the Magistrate under
sub-section (2) of Section 173 CrPC that
can form the basis for the competent court
for taking cognizance thereupon. A charge-
4 All. Bandu Ram Vs. State of U.P.
811
sheet is nothing but a final report of the
police officer under Section 173(2)CrPC It
is an opinion or intimation of the
investigating
officer
to
the
court
concerned
that
on
the
material
collected
during
the
course
of
investigation, an offence appears to
have been committed by the particular
person or persons, or that no offence
appears to have been committed.

24. Coming back to the facts of
the case in hand, from the perusal of the
impugned order, it is clear that while
passing the same, learned Magistrate
has
considered
the
statement
of
complainant u/s 161 and 164 Cr.P.C.
The opposite party no. 2 in her
statement
u/s
161
Cr.P.C.
made
allegation of outraging the modesty
against her father-in-law but in her
statement u/s 164 Cr.P.C., she made
allegation of attempt to rape against her
father-in-law with further allegation that
same could be verified from CCTV camera
footage but neither the police has recovered
the CCTV camera footage nor the first
informant has given the same to the
police.
In
such
circumstances,
the
Magistrate took cognizance u/s 354
Cr.P.C. on the basis of an uncontroverted
allegation.
Similarly,
there
is
no
allegation of beating against the sister-inlaw. The only allegation against them is
that they used to taunt her. So far as not
taking cognizance u/s 406 I.P.C. is
concerned, from the perusal of statement
u/s 161 and 164 of opposite party no. 2,
there is no such allegation which prima
facie attracts the offence u/s 406 I.P.C.

25. Therefore, this Court does not
find any illegality in the impugned order
passed by the learned Magistrate by
which it refused to take cognizance of the
offence u/s 376, 511 and 406 I.P.C.

26.

Accordingly,
the
present
application is dismissed.
----------
(2025) 4 ILRA 811
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.04.2025

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE PRAVEEN KUMAR GIRI, J.

Criminal Appeal No. 275 of 1986

Bandu Ram ...
 ...Appellant
Versus
State of U.P.
 ...Respondent

Counsel for the Appellant:
Sri R.N. Lal, Sri Akshay Kumar Shukla, Sri
Gaurav Singh, Sri Ravindra Pal Singh Kashyap

Counsel for the Respondent:
A.G.A.