# Sadab v. State of U.P. & Anr

- **Citation:** (2023) 2 ILRA 686
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-28
- **Case number:** Application U/s 482 No. 28523 of 2022
- **Bench:** Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sadab-v-state-of-u-p-anr-49730
- **Pages:** 9

## Headnote

Criminal Law- Code of Criminal Procedure,
1973-
Section-190(1)(b)
Cr.P.C.-
Magistrate is having authority to disagree
with the police report and if from the
perusal of the report submitted under
Section 173(2) Cr.P.C. he arrives at the
conclusion that an offence exclusively
triable by the court of session is made out
against the accused then he can commit
the case to the Sessions Court after taking
cognizance and Magistrate is not bound by
the police report submitted under Section
173(2) Cr.P.C. - Magistrate can ignore the
conclusion arrived at by the Investigation
Officer and he should apply his mind
independently to the facts emerging from
the investigation -If a Magistrate can
proceed against a person against whom
charge-sheet has not been filed then it
cannot be said that Magistrate is not
empowered to take cognizance of an
offence, in which, charge-sheet was not
submitted although from the police report,
such offence also discloses.

As the Magistrate is empowered to take
cognizance against a person against whom
chargesheet has not been submitted by the
investigating agency, then the Magistrate can
also take cognizance of an offence not
mentioned in the chargesheet.

Precedent-
Not
Binding
Precedent
-
Although,
in
the
case
of
Girish
Radhakrishnan Varde (supra), the two
judges Bench of the Apex Court held that
Magistrate is not empowered either to add
or subtract section in the charge-sheet at
the time of taking cognizance and he can
take cognizance only of those offences, in
2 All. Sadab Vs. State of U.P. & Anr.
687
which, charge-sheet was submitted and
only at the time of framing of charges he
can add or subtract such sections but the
judgment of Girish Radhakrishnan Varde
(supra) was delivered on 25.11.2013
whereas the judgment of Constitution
Bench of the Apex Court in the case of
Dharam Pal (supra) was delivered on
18.07.2013 but in spite of that case of
Dharam Pal (supra) could not be placed
before the Apex Court, in case of Girish
Radhakrishnan Varde (supra)-Neither the
judgments of Minu Kumari (supra) nor
Ajay Kumar Parmar (supra) were placed
before the two judges Bench of the Apex
Court,
which
decided
Girish
Radhakrishnan
Varde
case
(supra),
therefore, in view of the observation made
by Constitution Bench in case of Dharam
Pal (supra) as well as by the Apex Court in
cases of Minu Kumari (supra) and Ajay
Kumar Parmar (supra) the view expressed
in Girish Radhakrishnan Varde (supra)
does not prevail. Therefore, it cannot be
held that Magistrate is not having any
authority to take cognizance for the
offences, in which, charge-sheet has not
been submitted. As the Single Judge of
this Court in case of Smt. Shalini Kashyap
(supra) only after perusing the judgment
of the Apex Court passed in Girish
Radhakrishnan Varde (supra) held that
Magistrate is not empowered to add or
subtract any section in the charge-sheet,
therefore, this case will be of no help for
the applicant as at the time of making
such observation, learned Single Judge of
this Court did not discuss the law laid
down by the Constitution Bench in the
case of Dharam Pal (supra), Minu Kumari
(supra), Balveer Singh (supra) and Ajay
Kumar Parmar (supra). Although, Single
Judge in later part of the judgment
discussed the observation made by the
Constitution Bench of Dharam Pal (supra)
but with regard to different question to
summon additional accused.

As the judgement of the Constitution
Bench previously rendered in the case of
Dharam
Pal
Singh
as
well
as
the
judgements in the cases of Minu Kumari,
Balveer Singh and Ajay Kumar Parmar ,
earlier delivered by the Supreme Court,
were not noticed and considered by the
Supreme
Court
while
delivering
the
judgement in the latter case of Girish
Radhakrishnan Varde and by the learned
Single Judge in the case of Shalini
Kashyap ,hence the judgement in the
case of Girish Radhakrishnan Varde and
the judgement in the case of Shalini
Kashyap, held not to be good law and are
no

## Text

686 INDIAN LAW REPORTS ALLAHABAD SERIES
consider whether the Public Prosecutor
applied his mind as a free agent. The Court
has a special duty in this regard as it is the
ultimate
repository
of
legislative
confidence in granting or withholding its
consent
to
withdrawal
from
the
prosecution.

18. Considering the settled legal
position on the subject by the Apex Court
and the facts and circumstances of the
present case, I find that the impugned order
dated 04.11.2020 suffers from apparent
illegality and perversity so the same is
liable to be set aside. Further, I find that it
would be a futile exercise if the matter is
remanded back to the learned trial court to
pass appropriate order when the application
filed under Section 321 Cr.P.C. fulfills all
the required conditions.

19. Thus, the present petition is
allowed and the impugned judgment and
order dated 04.11.2020 (Annexure No.1),
passed by the learned Additional Session
Judge,
Court
No.3/
Special
Judge
(M.P./M.L.A.), Gonda in Crl. Case No.100
of 2019; State vs. Prem Narayan Pandey,
arising out of Case Crime No.109 of 2003,
under Section 60/72 of Excise Act, Police
Station-Tarabganj, District-Gonda is hereby
set aside and the application filed by the
learned Public Prosecutor under Section
321 Cr.P.C. for withdrawal from the
prosecution is hereby allowed.

20. Consequences to follow.
----------
(2023) 2 ILRA 686
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.01.2023

BEFORE

THE HON'BLE SAMEER JAIN, J.
Application U/s 482 No. 28523 of 2022

Sadab ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Akhilesh Kumar Mishra

Counsel for the Opposite Parties:
G.A., Sri Syed Shahnawaz Shah

Criminal Law- Code of Criminal Procedure,
1973-
Section-190(1)(b)
Cr.P.C.-
Magistrate is having authority to disagree
with the police report and if from the
perusal of the report submitted under
Section 173(2) Cr.P.C. he arrives at the
conclusion that an offence exclusively
triable by the court of session is made out
against the accused then he can commit
the case to the Sessions Court after taking
cognizance and Magistrate is not bound by
the police report submitted under Section
173(2) Cr.P.C. - Magistrate can ignore the
conclusion arrived at by the Investigation
Officer and he should apply his mind
independently to the facts emerging from
the investigation -If a Magistrate can
proceed against a person against whom
charge-sheet has not been filed then it
cannot be said that Magistrate is not
empowered to take cognizance of an
offence, in which, charge-sheet was not
submitted although from the police report,
such offence also discloses.

As the Magistrate is empowered to take
cognizance against a person against whom
chargesheet has not been submitted by the
investigating agency, then the Magistrate can
also take cognizance of an offence not
mentioned in the chargesheet.

Precedent-
Not
Binding
Precedent
-
Although,
in
the
case
of
Girish
Radhakrishnan Varde (supra), the two
judges Bench of the Apex Court held that
Magistrate is not empowered either to add
or subtract section in the charge-sheet at
the time of taking cognizance and he can
take cognizance only of those offences, in
2 All. Sadab Vs. State of U.P. & Anr.
687
which, charge-sheet was submitted and
only at the time of framing of charges he
can add or subtract such sections but the
judgment of Girish Radhakrishnan Varde
(supra) was delivered on 25.11.2013
whereas the judgment of Constitution
Bench of the Apex Court in the case of
Dharam Pal (supra) was delivered on
18.07.2013 but in spite of that case of
Dharam Pal (supra) could not be placed
before the Apex Court, in case of Girish
Radhakrishnan Varde (supra)-Neither the
judgments of Minu Kumari (supra) nor
Ajay Kumar Parmar (supra) were placed
before the two judges Bench of the Apex
Court,
which
decided
Girish
Radhakrishnan
Varde
case
(supra),
therefore, in view of the observation made
by Constitution Bench in case of Dharam
Pal (supra) as well as by the Apex Court in
cases of Minu Kumari (supra) and Ajay
Kumar Parmar (supra) the view expressed
in Girish Radhakrishnan Varde (supra)
does not prevail. Therefore, it cannot be
held that Magistrate is not having any
authority to take cognizance for the
offences, in which, charge-sheet has not
been submitted. As the Single Judge of
this Court in case of Smt. Shalini Kashyap
(supra) only after perusing the judgment
of the Apex Court passed in Girish
Radhakrishnan Varde (supra) held that
Magistrate is not empowered to add or
subtract any section in the charge-sheet,
therefore, this case will be of no help for
the applicant as at the time of making
such observation, learned Single Judge of
this Court did not discuss the law laid
down by the Constitution Bench in the
case of Dharam Pal (supra), Minu Kumari
(supra), Balveer Singh (supra) and Ajay
Kumar Parmar (supra). Although, Single
Judge in later part of the judgment
discussed the observation made by the
Constitution Bench of Dharam Pal (supra)
but with regard to different question to
summon additional accused.

As the judgement of the Constitution
Bench previously rendered in the case of
Dharam
Pal
Singh
as
well
as
the
judgements in the cases of Minu Kumari,
Balveer Singh and Ajay Kumar Parmar ,
earlier delivered by the Supreme Court,
were not noticed and considered by the
Supreme
Court
while
delivering
the
judgement in the latter case of Girish
Radhakrishnan Varde and by the learned
Single Judge in the case of Shalini
Kashyap ,hence the judgement in the
case of Girish Radhakrishnan Varde and
the judgement in the case of Shalini
Kashyap, held not to be good law and are
not binding precedents. (Para 12, 15,
16, 20, 23, 24, 25, 26)

Criminal Application rejected. (E-3)

Case Law/ Judgements relied upon:-

1. State of Guj. Vs Girish Radhakrishnan Varde
(2014) 3 SCC 659 (distinguished)

2. Smt. Shalini Kashyap & anr. Vs St. of U.P. &
ors., Application U/S 482 No. 23830 of
2021(distinguished)

3. Dharam Pal & ors. Vs St. of Har. & anr.
(2014) 3 SCC 306

4. Nahar Singh Vs St. of U.P & anr. 2022 Cri.
L.J. 1787 (SC)

5. Ajay Kumar Parmar Vs St. of Raj. (2012) 12
SCC 406

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

(Delivered by Hon'ble Sameer Jain, J.)

1. Heard Sri Akhilesh Kumar Mishra,
learned counsel for the applicant, Sri Syed
Shahnawaz Shah, learned counsel for the
opposite party no.2 and Sri Varun Kumar
Agnihotri, learned Brief Holder for the
State.

2. By way of present application,
applicant made a prayer to quash the order
dated 10.01.2022 passed by Civil Judge
Junior Division FTC-II/Judicial Magistrate,
Hapur passed in Case No. 14536 of 2021
688 INDIAN LAW REPORTS ALLAHABAD SERIES
arising out of Case Crime No. 264 of 2021,
under Sections 498A, 323, 506, 376 IPC,
Police Station Dhaulana, District Hapur by
which, Magistrate summoned the applicant
under Section 376 IPC too in spite of the
fact that charge-sheet was submitted
against him only under Sections 498A, 323,
506 IPC.

Factual Matrix

3.1 Applicant is brother-in-law
(Devar) of opposite party no.2. On
29.06.2021 opposite party no.2 lodged FIR
of the present case under Section 376, 323,
506, 498A IPC and 3⁄4 The Muslim Women
(Protection of Rights on Marriage) Act,
2019 at Police Station Dhaulana, District
Hapur at Case Crime No. 0264 of 2021
against applicant and others including her
husband and mother-in-law.

3.2 According to the FIR on
27.06.2021 at about 11 PM applicant
entered into the room of opposite party
no.2 and on the point of knife he committed
rape with her in absence of her husband
and when she made complaint with her
husband and his family members then they
along with the applicant assaulted her. It is
further alleged in the FIR that the husband
of opposite party no.2 also verbally gave
her triple talaq.

3.3 After registration of the FIR,
investigation was commenced and during
investigation the statement of opposite
party no.2, the victim of the case, was
recorded under Section 161 Cr.P.C. and 164
Cr.P.C. and in both the statements she
reiterated the version of the FIR and stated
that
applicant
i.e.
her
brother-in-law
(Devar) on 27.06.2021 at about 11 PM on
the point of knife committed rape with her
in her room in the absence of her husband.

3.4 Therefore, in the FIR as well
as in the statements of victim (opposite
party no.2) recorded under Section 161
Cr.P.C. and 164 Cr.P.C. there is allegation
that applicant on 27.06.221 at about 11 PM
on the point of knife committed rape with
her.

3.5
During
investigation,
Investigating
Officer
recorded
the
statements of some other witnesses and
thereafter on 28.11.2021 submitted chargesheet against the applicant and other
accused persons. The charge-sheet was
filed against the applicant under Sections
323, 506, 498A IPC and no charge-sheet
was filed against him under Section 376
IPC.

3.6 After submission of the
charge-sheet, opposite party no.2, the
informant and victim of the present case on
18.12.2021, moved an application before
the Magistrate concerned with a prayer that
in view of the FIR and her statements
recorded under Sections 161 Cr.P.C. and
164 Cr.P.C. applicant should also be
summoned under Section 376 IPC. On
10.01.2022, learned Magistrate allowed the
application moved by opposite party no.2
and after taking cognizance summoned the
applicant under Sections 498A, 323, 506,
376 IPC. Thus, learned Magistrate also
summoned applicant under Section 376
IPC along with other offences although
charge-sheet was not filed against him
under Section 376 IPC.

3.7
Hence,
the
present
application.

Submission on behalf of the
applicant

4. Learned counsel for the applicant
submits that the order dated 10.01.2022
passed by the Magistrate is illegal and
without jurisdiction and he was not having
any authority to either add or subtract any
section in the charge-sheet. He placed
reliance on the judgment of the Apex Court
passed in the case of State of Gujarat Vs.
2 All. Sadab Vs. State of U.P. & Anr.
689
Girish Radhakrishnan Varde (2014) 3 SCC
659 and submitted that in view of the law
laid down by the Apex Court in the case of
Girish
Radhakrishnan
Varde
(supra)
applicant cannot be summoned under
Section 376 IPC as no charge-sheet was
filed against him under Section 376 IPC.
He further submits, in view of the law laid
down in Girish Radhakrishnan Varde case
(supra), only at the time of framing of
charge
Magistrate
can
evaluate
the
evidence available on record whether any
offence under Section 376 IPC against the
applicant is made out and not at the time of
taking cognizance.

5. Learned counsel for the applicant
also placed reliance on the judgment of the
co-ordinate Bench of this Court passed in
the case of Smt. Shalini Kashyap and
another Vs. State of U.P. and others
passed in Application U/S 482 No. 23830
of 2021 and submitted that after relying the
judgment of the Apex Court in case of
Girish Radhakrishnan Varde (supra), the
co-ordinate Bench of this Court observed
that Magistrate has committed error by
adding section at the time of taking
cognizance as well as by the revisional
court.

6. He next submits, as Magistrate at
the time of taking cognizance added
Section 376 IPC and also took cognizance
of offence under Section 376 IPC in spite
of the fact that no charge-sheet was filed
against the applicant under Section 376
IPC, therefore, in view of law laid down by
the Apex Court in the case of Girish
Radhakrishnan Varde (supra) and this Court
in the case of Smt. Shalini Kashyap (supra),
committed grave illegality. Thus, impugned
order dated 10.01.2022 is illegal and is
therefore liable to be set aside.

Submission advanced on behalf of
the prosecution

7. Per contra, learned Brief Holder for
the State and learned counsel for the
opposite party no.2 opposed the submission
advanced by learned counsel for the
applicant and submitted that no illegality
was committed by the Magistrate while
passing
the
impugned
order
dated
10.01.2022. Both the counsels submitted
that Magistrate is not a silent spectator and
law by far is settled that Magistrate can
disagree with the police report and on the
basis of material available before him, he
can even take cognizance for those
offences, in which, charge-sheet was not
submitted if from the police report such
offences disclose.

8. Learned counsel for the opposite
party no.2 placed reliance on the judgment
of the Constitution Bench of the Apex
Court in the case of Dharam Pal and
others Vs. State of Haryana and another
(2014) 3 SCC 306 and Nahar Singh Vs.
State of Uttar Pradesh and another 2022
Cri. L.J. 1787 (SC) and submitted that as
in the case of Dharam Pal (supra)
Constitution Bench clearly observed that
even if after investigation final report is
submitted in favour of an accused but if
Magistrate after perusal of the record finds
that material is available against the
accused, then he can also summoned him
after taking cognizance, therefore, if
Magistrate is empowered to summon the
person against whom charge-sheet is not
even submitted then it cannot be said that
Magistrate cannot take cognizance for the
offence, in which, charge-sheet has not
been submitted if after perusing the record,
it appears to him accused also committed
such offence. The power of the Magistrate
690 INDIAN LAW REPORTS ALLAHABAD SERIES
cannot be restricted only up to offences in
which charge-sheet was submitted.

9. He further submits that in case of
Nahar Singh (supra), the Apex Court again
reiterated the law after considering the
judgment of the Constitution Bench of the
Apex Court passed in Dharam Pal case
(supra) and observed that even if a person
is not having any place in the police report
submitted under Section 173(2) Cr.P.C. but
if after perusal of the material collected by
the
Investigating
Officer
during
investigation, Magistrate arrives at the
conclusion that against him also there is
material to issue summons then after taking
cognizance he can issue summons to him
too, therefore, from the law laid down by
the Apex Court in the case of Dharam Pal
(supra) and Nahar Sing (supra), it is evident
that Magistrate has ample power even to
take cognizance for the offences in which,
charge-sheet was not submitted and can
summon the accused in the added section,
therefore,
impugned
order
dated
10.01.2022 cannot be said to be illegal and
instant application is liable to be dismissed.

Analysis

10. The core issue in the present
application is that whether Magistrate is
empowered to add any section at the time
of taking cognizance and can issue
summons to accused for such offence along
with the offence mentioned in the chargesheet.

11. The power of the Magistrate to
take cognizance is prescribed under Section
190 Cr.P.C., which reads as:-

"190. Cognizance of offences by
Magistrates. (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 which constitute such offence;

(b) upon a police report 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. According to Section 190(1)(b)
Cr.P.C. a Magistrate is empowered to take
cognizance of any offence upon a police
report of such facts. Therefore, prima facie
from the perusal of the Section 190(1)(b)
Cr.P.C. it appears that Magistrate can take
cognizance of "any offence" upon a police
report submitted under Section 173(2)
Cr.P.C.

13. The question with regard to power
to take cognizance by a Magistrate has
come up before the Apex Court in the case
of Minu Kumari and another Vs. State of
Bihar and others (2006) 4 SCC 356 and the
Apex Court observed as:-

"11. .......... The position is,
therefore, now well-settled that upon
receipt of a police report under Section
173(2) a Magistrate is entitled to take
cognizance of an offence under Section
190(1)(b) of the Code even if the police
report is to the effect that no case is made
out against the accused. The Magistrate
can take into account the statements of the
witnesses examined by the police during
2 All. Sadab Vs. State of U.P. & Anr.
691
the investigation and take cognizance of the
offence complained of and order the issue
of process to the accused. Section 190(1)(b)
does not lay down that a Magistrate can
take cognizance of an offence only if the
Investigating Officer gives an opinion that
the investigation has made out a case
against the accused. The Magistrate can
ignore the conclusion arrived at by the
Investigating officer and independently
apply his mind to the facts emerging from
the investigation and take cognizance of the
case, if he thinks fit, exercise of his powers
under Section 190(1)(b) and direct the
issue of process to the accused."

14. The Apex Court in case of Ajay
Kumar Parmar Vs. State of Rajasthan
(2012) 12 SCC 406 with regard to power
of the Magistrate under Section 190 Cr.P.C.
observed as:-

"18. .......The scheme of the Code
simply provides that the Magistrate can
determine, whether the facts stated in the
report make out an offence triable
exclusively, by the Court of Sessions. Once
he reaches the conclusion that the facts
alleged in the report, make out an offence
triable exclusively by the Court of Sessions,
he must commit the case to the Sessions
Court."

15. Therefore, from the above
authorities of the Apex Court, it appears
that Magistrate is having authority to
disagree with the police report and if from
the perusal of the report submitted under
Section 173(2) Cr.P.C. he arrives at the
conclusion that an offence exclusively
triable by the court of session is made out
against the accused then he can commit the
case to the Sessions Court after taking
cognizance and Magistrate is not bound by
the police report submitted under Section
173(2) Cr.P.C. Magistrate can ignore the
conclusion arrived at by the Investigation
Officer and he should apply his mind
independently to the facts emerging from
the investigation.

16. Further, the phrase "any offence"
used in Section 190 (1) Cr.P.C. is
significant. It implies that Magistrate can
even take cognizance of the offence
exclusively triable by the sessions court. As
per section 190(1)(b) Cr.P.C. Magistrate
can take cognizance of any offence upon a
police report of such facts, therefore, as per
Section 190(1)(b) Cr.P.C. if after perusal of
the police report submitted under Section
173(2) Cr.P.C Magistrate arrives at the
conclusion that an offence exclusively
triable by the court of sessions is made out
against an accused then he can take the
cognizance of such offence and commit the
case to the court of sessions even if no
charge-sheet was submitted against the
accused in such offence.

17. The Apex Court in the case of
Balveer Singh and another Vs. State of
Rajasthan and another (2016) 6 SCC 680
also observed as:-

"13. A bare reading of Section
190 of the Code which uses the expression
"any offence" amply shows that no
restriction is imposed on the Magistrate
that Magistrate can take cognizance only
for the offence triable by Magistrate Court
and not in respect of offence triable by a
Court of Session. Thus, he has the power to
take cognizance of an offence which is
triable by the Court of Session."

18. Therefore, in view of Balveer
Singh case (supra) too, the Magistrate is
having all the authority to take cognizance
of an offence which is exclusively triable
692 INDIAN LAW REPORTS ALLAHABAD SERIES
by the court of sessions if after perusal of
police report i.e. charge-sheet he arrives at
the conclusion that such offence also made
out against the accused.

19. The power to take cognizance of a
Magistrate under Section 190 Cr.P.C. was
exclusively discussed and dealt with by the
Constitution Bench of the Apex Court in
the case of Dharam Pal (supra), though the
matter before Constitution Bench of the
Apex Court was little bit different with
regard to proceed against a person against
whom charge-sheet was not submitted but
Constitution Bench of the Apex Court
analysed the power of the Magistrate under
Section 190 Cr.P.C. very elaborately and
observed that even if charge-sheet was not
submitted against an accused and his name
disclosed in column 2 to the charge-sheet,
then also Magistrate can proceed against
him if there is material against him in the
police report submitted under Section
173(2) Cr.P.C. and Magistrate after taking
cognizance can commit the case. The
Constitution Bench of the Apex Court with
regard to power of the Magistrate under
Section 190(1)(b) Cr.P.C. observed as:-

"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(3) Cr.P.C. 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 no.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."

20. Therefore, from the Constitution
Bench judgment of the Apex Court passed
in the case of Dharam Pal (supra), it is
evident that Magistrate may proceed
against a person whose name was disclosed
in column 2 to the police report i.e. chargesheet and against whom charge-sheet was
not filed if in view of the Magistrate
material collected by the Investigating
Officer during investigation prima facie
discloses that he committed such offence.
Therefore, if a Magistrate can proceed
against a person against whom charge-sheet
has not been filed then it cannot be said that
Magistrate is not empowered to take
cognizance of an offence, in which, chargesheet was not submitted although from the
police report, such offence also discloses.

21. We can analyse the situation from
different angle too, if Magistrate is not
empowered
to
take
cognizance
for
offences, in which charge-sheet was not
submitted including the offence triable by
court of sessions and charge-sheet was
submitted only in offences, which are
triable by the Magistrate (as the present
case) then Magistrate will have to wait till
framing of charges even if police report
discloses offence also exclusively triable by
sessions court and only at the time of
framing
of
charges
case
would
be
committed to the court of session as police
report also disclosed offence exclusively
triable by sessions court. Therefore, in such
case ultimately the case has to commit
before court of sessions and for that
purpose Magistrate will have to wait till
framing of charges, it appears to be
improper as if police report disclosed such
offences even at the time of taking
2 All. Sadab Vs. State of U.P. & Anr.
693
cognizance then why Magistrate should
wait till framing of charges. This will also
waste the valuable time of the court,
therefore, from this point of view too, in
my considered view, Magistrate should not
wait till framing of charges and if at the
time of taking cognizance he arrives at the
conclusion that from the perusal of the
police report submitted under Section
173(2) Cr.P.C. it appears that accused also
committed an offence triable by the court
of sessions then he can take cognizance for
such offence and commit the case to the
court of sessions.

22. The Supreme Court in the case of
Nahar Singh (supra) also after discussing
the judgment of the Constitution Bench of
the Apex Court in case of Dharam Pal
(supra) observed that even if a person has
not been nominated in the charge-sheet i.e.
police report submitted under Section
173(2) Cr.P.C. but if Magistrate after
perusal of the report arrives at the
conclusion that against him an offence is
made out then he can take cognizance for
such offences and can summon him.

23. Therefore, from the law laid
down by the Constitution Bench of the
Apex Court and above noted other
judgments of the Apex Court it appears
that Magistrate is having all the authority
to take cognizance of any offence on the
basis of the material collected by the
Investigating Officer during investigation
and if he arrives at the conclusion that an
offence is also made out, in which,
charge-sheet has not been submitted then
he
can
take
cognizance
for
such
offence(s) too and can summon the
accused and if any such offence is
exclusively triable by the court of
sessions then he shall commit the case
before the court of sessions.

24. Although, in the case of Girish
Radhakrishnan Varde (supra), the two
judges Bench of the Apex Court held that
Magistrate is not empowered either to add
or subtract section in the charge-sheet at the
time of taking cognizance and he can take
cognizance only of those offences, in
which, charge-sheet was submitted and
only at the time of framing of charges he
can add or subtract such sections but the
judgment of Girish Radhakrishnan Varde
(supra) was delivered on 25.11.2013
whereas the judgment of Constitution
Bench of the Apex Court in the case of
Dharam Pal (supra) was delivered on
18.07.2013 but in spite of that case of
Dharam Pal (supra) could not be placed
before the Apex Court, in case of Girish
Radhakrishnan Varde (supra). Further,
neither the judgments of Minu Kumari
(supra) nor Ajay Kumar Parmar (supra)
were placed before the two judges Bench of
the Apex Court, which decided Girish
Radhakrishnan
Varde
case
(supra),
therefore, in view of the observation made
by Constitution Bench in case of Dharam
Pal (supra) as well as by the Apex Court in
cases of Minu Kumari (supra) and Ajay
Kumar Parmar (supra) the view expressed
in Girish Radhakrishnan Varde (supra) does
not prevail. Therefore, it cannot be held
that Magistrate is not having any authority
to take cognizance for the offences, in
which,
charge-sheet
has
not
been
submitted.

25. Further, in the later judgment of
the Apex Court in the cases of Balveer
Singh (supra) the Apex Court after
considering the dictum of Constitution
Bench in the case of Dharam Pal (supra)
clearly held that Magistrate is fully
empowered to disagrees with the police
report and he can independently apply his
mind and can take cognizance even for
694 INDIAN LAW REPORTS ALLAHABAD SERIES
such offences, in which, charge-sheet was
not submitted if from the perusal of the
charge-sheet i.e. police report submitted
under Section 173(2) Cr.P.C. he arrives at
the conclusion that such offences also made
out. Similar import is also of the judgment
of the Apex Court in case of Nahar Singh
(supra).

26. As the Single Judge of this Court in
case of Smt. Shalini Kashyap (supra) only
after perusing the judgment of the Apex
Court passed in Girish Radhakrishnan Varde
(supra)
held
that
Magistrate
is
not
empowered to add or subtract any section in
the charge-sheet, therefore, this case will be
of no help for the applicant as at the time of
making such observation, learned Single
Judge of this Court did not discuss the law
laid down by the Constitution Bench in the
case of Dharam Pal (supra), Minu Kumari
(supra), Balveer Singh (supra) and Ajay
Kumar Parmar (supra). Although, Single
Judge in later part of the judgment discussed
the observation made by the Constitution
Bench of Dharam Pal (supra) but with regard
to different question to summon additional
accused.

27. Therefore, from the discussion
made above, in my considered view, as from
the perusal of the statement of opposite party
no.2, the informant and victim of the case,
recorded under Section 161 Cr.P.C. and 164
Cr.P.C. prima facie offence under Section 376
IPC is made out against the applicant,
therefore, Magistrate did not commit any
illegality in summoning him under Section
376 IPC in spite of the fact that no chargesheet was submitted against the applicant
under Section 376 IPC.

28.

Accordingly,
the
instant
application under Section 482 Cr.P.C.
stands dismissed.
----------
(2023) 2 ILRA 694
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.01.2023

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Special Appeal Defective No. 30 of 2023

State of U.P. & Anr. ...Appellants
Versus
Dr. Rudra Pratap ...Respondent

Counsel for the Appellants:
C.S.C.

Counsel for the Respondent:
Sharad Bhatnagar

A. Service Law - Recovery from pension -
Civil Service Regulations - Article 351A(a)(ii)
- Article 351A of Civil Service
Regulations empowers the State Government to
pass an order for recovery of any amount from
the pension of an officer on account of losses
found in judicial or departmental proceedings to
have been caused to the Government by
negligence or fraud of such officer during his
service. (Para 12)

A bare perusal of the aforesaid provision
of Article 351-A of the Civil Services
Regulations shows that after retirement,
withholding or withdrawing a pension and
ordering the recovery from pension is
permissible to be caused only by the
Governor i.e. the State Government in terms of
the Rules of Business, not only in case such
employee is found causing pecuniary loss to the
Government by his misconduct or negligence
but also in a cases when the employee
concerned is found guilty of grave misconduct.
(Para 13, 14)

Article 351-A of Civil Services Regulations
puts
a
prohibition
of
initiating
the
departmental proceedings in a case of