# Smt. Shalini Kashyap & Anr v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2022) 9 ILRA 445
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-09
- **Case number:** Application U/S 482 No. 23830 of 2021
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shalini-kashyap-anr-v-state-of-u-p-ors-opp-parties-49072
- **Pages:** 11

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Indian
Penal Code, 1860 - Sections 498-A, 504,
506, 120-B, 342, 377 & 376 - 3⁄4 D.P. Actchallenge to-cognizance order- Magistrate
cannot add or subtract section at the time
of taking cognizance as the same would
be permissible by the trial court only at
the
time
of
framing
of
charge-Ld.
Magistrate committed error by adding
sections at the time of taking cognizance
as well as by the Revisional CourtCognizance for offence u/s 406 by Ld.
Magistrate against all the accused is
446 INDIAN LAW REPORTS ALLAHABAD SERIES
legally erroneous-At the stage of chargesheet no offence could be added or
deleted however, at the time of framing of
charge, Ld. Magistrate is at liberty to
consider the material available to take
cognizance of other offence.(Para 1 to 18)

The application is partly allowed. (E-6)

List of Cases cited:

## Text

9 All. Smt. Shalini Kashyap & Anr. Vs. State of U.P. & Ors.
445

"21 Appeals. -

(1)
Notwithstanding
anything
contained in the Code, an appeal shall lie
from any judgment, sentence or order, not
being an interlocutory order, of a Special
Court to the High Court both on facts and
on law.

(2) Every appeal under sub-section (1)
shall be heard by a Bench of two Judges of
the High Court and shall, as far as
possible, be disposed of within a period of
three months from the date of admission of
the appeal.

(3) Except as aforesaid, no appeal or
revision shall lie to any court from any
judgment, sentence or order including an
interlocutory order of a Special Court.

(4)
Notwithstanding
anything
contained in sub-section (3) of section 378
of the Code, an appeal shall lie to the
High Court against an order of the
Special Court granting or refusing bail.

(5) Every appeal under this section
shall be preferred within a period of thirty
days from the date of the judgment,
sentence or order appealed from: Provided
that the High Court may entertain an
appeal after the expiry of the said period of
thirty days if it is satisfied that the
appellant had sufficient cause for not
preferring the appeal within the period of
thirty days: Provided further that no appeal
shall be entertained after the expiry of
period of ninety days."

24. Thus, on the basis of aforesaid, it
can safely be said that rejection of
application seeking default bail by Special
Court vide order dated 27.04.2022 is an
appealable order in view of the provisions
contained in Section 21(4) N.I.A. Act.

25. In this view of matter also, this
Court does not find the instant application
to be maintainable.

26. In view of the aforesaid
discussion, this Court does not see any
illegality, impropriety and incorrectness in
the impugned order. There is no abuse of
court's process either. Therefore, the instant
application lacks merit, which deserves to
be dismissed.

27.

Accordingly,
the
instant
application under Section 482 Cr.P.C. is
dismissed.
----------
(2022) 9 ILRA 445
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.09.2022

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Application U/S 482 No. 23830 of 2021

Smt. Shalini Kashyap & Anr. ...Applicants
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicants:
Sri Awadhesh Kumar Singh, Sri Abhai Kumar
Singh

Counsel for the Respondents:
G.A., Sri Sanjay Vikarm Singh, Sri Rakesh Kumar
Singh

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Indian
Penal Code, 1860 - Sections 498-A, 504,
506, 120-B, 342, 377 & 376 - 3⁄4 D.P. Actchallenge to-cognizance order- Magistrate
cannot add or subtract section at the time
of taking cognizance as the same would
be permissible by the trial court only at
the
time
of
framing
of
charge-Ld.
Magistrate committed error by adding
sections at the time of taking cognizance
as well as by the Revisional CourtCognizance for offence u/s 406 by Ld.
Magistrate against all the accused is
446 INDIAN LAW REPORTS ALLAHABAD SERIES
legally erroneous-At the stage of chargesheet no offence could be added or
deleted however, at the time of framing of
charge, Ld. Magistrate is at liberty to
consider the material available to take
cognizance of other offence.(Para 1 to 18)

The application is partly allowed. (E-6)

List of Cases cited:
1. St. of Guj. Vs Girish Radhakrishnan
Varde,(2014) 3 SCC 659

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

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

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 All. Smt. Shalini Kashyap & Anr. Vs. State of U.P. & Ors.
447

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 chargesheet 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
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 may be which means
that after submission of the chargesheet 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 chargesheet.
448 INDIAN LAW REPORTS ALLAHABAD SERIES

16. In the alternative, if a case is
based on a complaint lodged before the
magistrate under Section 190 or 202
Cr.P.C., the magistrate has been conferred
with full authority and jurisdiction to
conduct an enquiry into the complaint and
thereafter arrive at a conclusion whether
cognizance is fit to be taken on the basis of
the sections mentioned in the complaint or
further sections were to be added or
substracted.
The
Cr.P.C. has
clearly
engrafted the two channels delineating the
powers of the magistrate to conduct an
enquiry in a complaint case and police
investigation based on the basis of a case
registered at a police station where the
investigating authorities of the police
conducts investigation under Chapter XII
and there is absolutely no ambiguity in
regard to these procedures.

17. In spite of this unambiguous
course of action to be adopted in a case
based on police report under Chapter XII
and a magisterial complaint under Chapter
XIV and XV, when it comes to application
of the provisions of the Cr.P.C. in a given
case, the affected parties appear to be
bogged down often into a confused state of
affairs as it has happened in the instant
matter since the magisterial powers which
is to deal with a case based on a complaint
before the magistrate and the police powers
based on a police report/FIR has been
allowed to overlap and the two separate
course of actions are sought to be clubbed
which is not the correct procedure as it is
not in consonance with the provisions of
the Cr.P.C. The affected parties have to
apprise themselves that if a case is
registered under Section 154 Cr.P.C. by the
police
based
on
the
FIR
and
the
chargesheet
is
submitted
after
investigation, obviously the correct stage as
to which sections would apply on the basis
of the FIR and the material collected
during investigation culminating into the
chargesheet, would be determined only at
the time framing of charge before the
appropriate trial court. In the alternative, if
the case arises out of a complaint lodged
before the Magistrate, then the procedure
laid down under Sections 190 and 200 of
the Cr. P.C. clearly shall have to be
followed."

11. The second argument of counsel
for applicants is that learned Revisional
Court has summoned the accused persons
against
whom
no
charge-sheet
was
submitted and for that he has placed
reliance upon Dharam Pal & Ors. Vs.
State of Haryana & Anr, (2014) 3 SCC
306, relevant paragraph 27 thereof is
mentioned hereinafter:

"27. 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
9 All. Smt. Shalini Kashyap & Anr. Vs. State of U.P. & Ors.
449
on finding from the police report that the
case was triable by the Court of Session.
Nor can there by any question of part
cognizance being taken by the Magistrate
and part cognizance being taken by the
learned Session Judge."

12. Learned A.G.A. as well as learned
counsel for informant have opposed the
above submission and supported the
impugned orders that learned Magistrate
has not committed any error and on the
basis of material available in Case Diary, he
summoned the applicants as well as took
cognizance of the offence for which the
charge-sheet was not submitted. They
further submitted that Magistrate cannot act
as a Post Master and he can apply its mind
on the basis of material available not only
to summon the accused persons against
whom charge-sheet was not filed but can
also take cognizance of other than offence
in event there was
a material for
commission of the said offence, therefore,
Revisional Court has also not committed
any error.

13. The first argument of learned
counsel for applicants that addition or
substraction of charge for any offence any
section is not permissible at the stage of
cognizance and it is permissible by the
Trial Court only at the time of framing of
charge under Sections 216, 218 or Section
228 Cr.P.C. as the case may be.

14. The above submissions have a
support of the judgment passed by Supreme
Court in State of Gujarat (supra), wherein
the Supreme Court has specifically held
that Magistrate in a case which is based on
a police report cannot add or substract
section at the time of taking cognizance as
the same would be permissible by the trial
court only at the time of framing of charge,
therefore, I find merit in the first argument
of counsel for the applicants, that learned
Magistrate has committed error by adding
sections at the time of taking cognizanace
as well as by the Revisional Court.

15. So far as second argument of
counsel for applicants is concerned that
Magistrate cannot summon other accused
persons at the time of taking cognizance
even though the material exists has no force
and it has been reiterated by the Supreme
Court in a recent case of Nahar Singh Vs.
State of U.P. & Anr, (2022) 5 SCC 295.
Relevant
paragraphs
15,16,17,18,19,20,21,22,23,24,25,26,27
and 28 thereof are reproduced below:

"15. There was divergence of views of
different Benches of this Court on this point
and ultimately the issue has been settled by
a Constitution Bench in Dharam Pal Vs.
State of Haryana, (2014) 3 SCC 306.
Before dealing with the ratio of this
decision, we shall narrate the journey of
the legal dispute to that stage, which has
been recorded in the judgment of Dharam
Pal (supra) itself by the Constitution
Bench:-(SCC pp 310-11, paras 1-5)

"1. This matter was initially directed
to be heard by a Bench of three Judges in
view of the conflict of opinion in the
decisions of two two-Judge Benches, in
Kishori Singh v. State of Bihar, (2004) 13
SCC 11, Rajinder Prasad v. Bashir, (2001)
8 SCC 522 and SWIL Ltd. v. State of Delhi,
(2001) 6 SCC 670. When the matter was
taken up for consideration by the threeJudge Bench on 1-12-2004, Dharam Pal v.
State of Haryana, (2004) 13 SCC 9, it was
brought to the notice of the Court that two
other decisions had a direct bearing on the
question sought to be determined. The first
is Kishun Singh v. State of Bihar, (1993) 2
SCC 16 and the other is a decision of a
450 INDIAN LAW REPORTS ALLAHABAD SERIES
three-Judge Bench in Ranjit Singh v. State
of Punjab, (1998) 7 SCC 149.

2. Ranjit Singh v. State of Punjab,
(1998) 7 SCC 149 disapproved the
observations made in Kishun Singh v. State
of Bihar, (1993) 2 SCC 16 which was to the
effect that the Sessions Court has power
under Section 193 of the Code of Criminal
Procedure, 1973, hereinafter referred to as
"the Code", to take cognizance of an
offence and summon other persons whose
complicity in the commission of the trial
could prima facie be gathered from the
materials available on record.

3. According to the decision in Kishun
Singh v. State of Bihar, (1993) 2 SCC 16,
the Sessions Court has such power under
Section 193 of the Code. On the other
hand, in Ranjit Singh v. State of Punjab,
(1998) 7 SCC 149, it was held that from the
stage of committal till the Sessions Court
reached the stage indicated in Section 230
of the Code, that Court could deal only
with the accused referred to in Section 209
of the Code and there is no intermediary
stage till then enabling the Sessions Court
to add any other person to the array of the
accused.

4. The three-Judge Bench Dharam Pal
v. State of Haryana, (2004) 13 SCC 9, took
note of the fact that the effect of such a
conclusion is that the accused named in
column 2 of the charge-sheet and not put
up for trial could not be tried by exercise of
power by the Sessions Judge under Section
193 read with Section 228 of the Code. In
other words, even when the Sessions Court
applied its mind at the time of framing of
charge and came to the conclusion from the
materials available on record that, in fact,
an offence is made out against even those
who are shown in column 2, it has no
power to proceed against them and has to
wait till the stage under Section 319 of the
Code is reached to include such persons as
the accused in the trial if from the evidence
adduced,
their
complicity
was
also
established. The further effect as noted by
the three-Judge Bench was that in less
serious offences triable by the Magistrate,
he would have the power to proceed
against those mentioned in column 2, in
case he disagreed with the police report,
but in regard to serious offences triable by
the Court of Session, the Court would have
to wait till the stage of Section 319 of the
Code was reached.

5. The three-Judge Bench disagreed
with the views expressed in Ranjit Singh v.
State of Punjab, (1998) 7 SCC 149, but
since the contrary view expressed in Ranjit
Singh v. State of Punjab, (1998) 7 SCC 149,
had been taken by a three-Judge Bench, the
three- Judge Bench hearing this matter, by
its order dated 1-12- 2004, Dharam Pal v.
State of Haryana, (2004) 13 SCC 9 ,
directed the matter to be placed before the
Chief Justice for placing the same before a
larger Bench."

16. The questions which were
formulated for answer by the Constitution
Bench in the case of Dharam Pal (supra)
were:-

"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 in
connection with the case made out in the
police report?

7.3. Having decided to issue summons
against the appellants, was the Magistrate
9 All. Smt. Shalini Kashyap & Anr. Vs. State of U.P. & Ors.
451
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 v.
State of Punjab, (1998) 7 SCC 149, which
set aside the decision in Kishun Singh v.
State of Bihar, (1993) 2 SCC 16, rightly
decided or not?"

17. As regards scope of jurisdiction of
the Magistrate in a situation of this nature,
it was held by the Constitution Bench in the
case of Dharam Pal (supra): (SCC p. 319,
paras 35-36)

"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 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."

18. Another Constitution Bench in the
case of Hardeep Singh vs. State of Punjab
(2014) 3 SCC 92 followed Dharam Pal
(supra). It was opined by the Constitution
Bench in the case of Hardeep Singh
(supra):-

"111. Even the Constitution Bench in
Dharam Pal (supra) has held that the
Sessions Court can also exercise its
original jurisdiction and summon a person
as an accused in case his name appears in
Column 2 of the charge-sheet, once the
case had been committed to it. It means
that a person whose name does not appear
even in the FIR or in the charge-sheet or
whose name appears in the FIR and not in
the main part of the charge-sheet but in
Column 2 and has not been summoned as
an accused in exercise of the powers under
Section 193 CrPC can still be summoned
by the court, provided the court is satisfied
that the conditions provided in the said
statutory
provisions
stand
fulfilled."
(emphasis added)

19. Earlier, a Coordinate Bench in the
case of Raj Kishore Prasad vs. State of
Bihar (1996) 4 SCC 495 expressed the view
that power under Section 209 of the Code
to summon a new offender was not vested
with a Magistrate. In this decision, the
correctness of the view taken in the cases of
Kishun Singh vs. State of Bihar (1993) 2
SCC 16] and Nisar and Another vs. State of
452 INDIAN LAW REPORTS ALLAHABAD SERIES
U.P. [(1995) 2 SCC 23] was doubted. The
latter decision followed Kishun Singh
(supra). The Constitution Bench in the case
of Dharam Pal (supra) affirmed the view
taken by this Court in the case of Kishun
Singh (supra) and overruled Raj Kishore
Prasad (supra). In fact, again a Coordinate
Bench in the case of Balveer Singh vs. State
of Rajasthan (2016) 6 SCC 680 has
followed both Dharam Pal (supra) and
Kishun Singh (supra). In the latter
authority (i.e., Kishun Singh supra), it was,
inter-alia, held:-

"13. The question then is whether de
hors Section 319 of the Code, can similar
power be traced to any other provision in
the Code or can such power be implied
from the scheme of the Code? We have
already pointed out earlier the two
alternative modes in which the Criminal
Law can be set in motion; by the filing of
information with the police under Section
154 of the Code or upon receipt of a
complaint or information by a Magistrate.
The former would lead to investigation by
the police and may culminate in a police
report under Section 173 of the Code on the
basis whereof cognizance may be taken by
the Magistrate under Section 190(1)(b) of
the Code. In the latter case, the Magistrate
may either order investigation by the police
under Section 156(3) of the Code or himself
hold an inquiry under Section 202 before
taking cognizance of the offence under
Section 190(1)(a) or (c), as the case may
be, read with Section 204 of the Code.
Once the Magistrate takes cognizance of
the offence he may proceed to try the
offender
(except
where
the
case
is
transferred under Section 191) or commit
him for trial under Section 209 of the Code
if the offence is triable exclusively by a
Court of Session. As pointed out earlier
cognizance is taken of the offence and not
the offender.This Court in Raghubans
Dubey v. State of Bihar, AIR 1967 SC 1167
stated that once cognizance of an offence is
taken it becomes the Court's duty ''to find
out who the offenders really are' and if the
Court finds ''that apart from the persons
sent up by the police some other persons
are involved, it is its duty to proceed
against those persons' by summoning them
because ''the summoning of the additional
accused is part of the proceeding initiated
by its taking cognizance of an offence'.
Even after the present Code came into
force, the legal position has not undergone
a change; on the contrary the ratio of
Raghubans Dubey (supra) was affirmed in
Hareram Satpathy v. Tikaram Agarwala
(1978) 4 SCC 58. Thus far there is no
difficulty."

20. There is a difference so far as the
position of law on which the opinions of the
two Constitution Benches were delivered in
relation to the facts of the present case. In
the cases of Dharam Pal (supra) and
Hardeep Singh (supra), summons were
issued against the persons whose names
had
figured
in
column
(2)
of
the
chargesheet. Both these authorities also
dealt with exercise of jurisdiction of the
Court of Session under Section 193 of the
Code. This provision reads:-

"193. Cognizance of offences by
Courts of Session-Except as otherwise
expressly provided by this Code or by any
other law for the time being in force, no
Court of Session shall take cognizance of
any offence as a Court of original
jurisdiction unless the case has been
committed to it by a Magistrate under this
Code."

21. It would appear from the Code that
the jurisdiction to take cognizance has been
vested in the Magistrate (under Section 190
thereof) as also Court of Session under
Section 193, which we have quoted above.
This question has been examined in the
9 All. Smt. Shalini Kashyap & Anr. Vs. State of U.P. & Ors.
453
case of Dharam Pal (supra) and on this
point it has been held:- (SCC pp.319-20,
para 39)

"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." (emphasis added)

22. The scope of jurisdiction of the
Magistrate in taking cognizance of an
offence was earlier examined by a threejudge Bench of this court in the case of
Raghubans Dubey vs. State of Bihar AIR
1965 SC 1167. This authority was relied
upon by the Coordinate Bench in the case
of Kishun Singh (supra). Dealing with
broadly similar provisions of the old Code,
of 1898, it was observed by this Court:-
(AIR pp.1169-70, para9)

"9.
..........In
our
opinion,
once
cognizance
has
been
taken
by
the
Magistrate, he takes cognizance of an
offence and not the offenders; once he takes
cognizance of an offence it is his duty 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.
The
summoning of the additional accused is
part of the proceeding initiated by his
taking cognizance of an offence. As pointed
out by this Court in Pravin Chandra Mody
v. State of Andhra Pradesh (1965) 1 SCR
269 the term "complaint" would include
allegations made against persons unknown.
If a Magistrate takes cognizance under
Section 190(1)(a) on the basis of a
complaint
of
facts
he
would
take
cognizance and a proceeding would be
instituted even though persons who had
committed the offence were not known at
that time. The same position prevails, in
our view, under Section 190(1)(b)."

23. In the case of Kishun Singh
(supra), the scope of jurisdiction of the
Court of Session under Section 193 of the
Code was explained, relying on an
authority dealing with similar provision
under the 1898 Code (P.C. Gulati vs. Lajya
Ram and Others, AIR 1966 SC 595. The
phrase used to explain the implication of
taking cognizance by a Court of Session in
the judgment of Kishun Singh (supra) was
"cognizance in the limited sense."

24. In paragraph 8 of the report (in
Kishun Singh's case (supra), it has been
held observed:- (SCC pp.24-25)

"8. Section 193 of the old Code placed
an embargo on the Court of Session from
taking cognizance of any offence as a court
of original jurisdiction unless the accused
was committed to it by a Magistrate or
there was express provision in the Code or
454 INDIAN LAW REPORTS ALLAHABAD SERIES
any other law to the contrary. In the context
of the said provision this Court in P.C.
Gulati v. Lajya Ram, 1966 Cri LJ 465, SCR
p 568, AIR p.599, Cri.LJ p.469 observed as
under: (AIR p.599 para 21)

" 21. When a case is committed to the
Court of Session, the Court of Session has
first to determine whether the commitment
of the case is proper. If it be of opinion that
the commitment is bad on a point of law, it
has to refer the case to the High Court
which is competent to quash the proceeding
under of the Code. It is only when the
Sessions Court considers the commitment
to be good in law that it proceeds with the
trial of the case. It is in this context that the
Sessions Court has to take cognizance of
the offence as a court of original
jurisdiction and it is such a cognizance
which is referred to in Section 193 of the
Code.""

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 the case of Dharam Pal
(supra). In paragraph 39 of the report in
Dharam Pal's case, 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 (supra)
as also the judgment in the case of
Raghubans Dubey (supra) 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
the case of Raghubans Dubey (supra),
records the name of a person under the
heading "not sent up". In that case, the
person concerned was named in the F.I.R.
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 F.I.R. and whose name also
does not feature in chargesheet 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 chargesheet.

27. In Dharam Pal (supra), 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 the cases of
Hardeep Singh (supra) and Raghubans
Dubey (supra). 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.

28. As we have already observed that
in the aforesaid authorities, the question of
summoning the persons named in column
(2) of the chargesheet was involved, in our
opinion inclusion in column (2) was not
held to be the determinant factor for
summoning persons other than those named
as accused in the police report or
chargesheet.
The
principle
of
law
enunciated in Raghubans Dubey (supra),
Dharam Pal (supra) and Hardeep Singh
9 All. Prem Shanker Dixit Vs. State of U.P. & Anr.
455
(supra) does not constrict exercise of such
power of the Court taking cognizance in
respect of this category of persons [i.e.,
whose names feature in column (2) of the
chargesheet]."

16. In view of the above, learned
Magistrate has not committed any error in
summoning other accused not being named
in charge-sheet on the basis of material
available with case diary. There is no
dispute that material was available in
regard
to
said
accused
persons
for
summoning.

17. The outcome of the above
discussion is that cognizance for offence
under Section 406 I.P.C. by learned
Magistrate against all the accused persons
is legally erroneous, therefore, cognizance
order is set-aside qua to taking cognizance
for the offence under Section 406 I.P.C. as
well as order passed in the revision petition
is interfered to the extent of observation
that there is prima-facie evidence against
Rohit Kashyap (applicant no.2) to summon
him under Section 377 I.P.C., as at this
stage of charge-sheet no offence could be
added or deleted and further that there is
prima-facie evidence to summon Arvind
under Sections 498-A, 406, 504, 506 I.P.C.
and 3/4 D. P. Act only to the extent to
summon him under Section 406 I.P.C. also.
However, the learned Magistrate is at
liberty to consider the material available to
take cognizance of other offence, if any,
against any accused, at the time of framing
of charge.

18. With the above mentioned
direction, this application is allowed partly.
----------
(2022) 9 ILRA 455
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 14.09.2022
BEFORE

THE HON'BLE IRSHAD ALI, J.

Crl. Misc. Bail Cancellation Appl. No. 1 of 2022

Prem Shanker Dixit ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Alok Saxena

Counsel for the Opp. Parties:
G.A., Divya Tripathi

(A) Criminal Law - The Code of criminal
procedure, 1973 - Section 439(2) -
Cancellation of Bail - Indian Penal Code,
1860 - Sections 394, 397 and 411-
considerations and relevant aspects by a
Court while granting a bail are different
than those when an application for
cancellation of bail has come up before
the Court - Rejection of bail stands on
one footing but cancellation of bail is a
harsh order since it interferes with
liberty of individual and must not be
lightly resorted to - where a bail is
granted considering irrelevant materials
or keeping out of consideration relevant
material, the order becomes vulnerable
and
warrants
annulment.
(Para
-
12,16,30 )

Respondent-2 initially granted bail - breach of
conditions - misused liberty of bail - breached
conditions of bail order - while enlargement
on bail involved himself into two criminal
cases . (Para - 4,36)

HELD:-Accused-respondent No.2 has misused
the bail granted to him and, therefore, it is
justified to cancel the bail. (Para -37 )

Bail cancellation application allowed. (E7)

List of Cases cited:-

1. St. (Delhi Administration) Vs Sanjay Gandhi,
(1978) 2 SCC 411