- Bench: G.S. Singhvi, Gyan Sudha Misra
- Appellant: State Of Gujarat
- Respondent: Girish Radhakrishnan Varde
Issue
I) Whether the learned magistrate by virtue of the powers conferred upon him under Chapter XV of the Code of Criminal Procedure 1973 (for short ‘Cr.P.C.’) under the Heading of “Complaints to Magistrate” can be permitted to allow the complainant/ informant to add additional sections of the IPC into the chargesheet after the same was submitted by the police on completion of investigation of the police case based on a first information report registered under Section 154 Cr.P.C.
Facts
• A FIR was registered with Police Station for the offences punishable under Sections 365, 387, 511, 386, 34, 120-B and 506(2) of the IPC and under Section 25 (1) (A) of the Arms Act, 1959.
• The FIR which was registered included sections referred to hereinbefore but failed to include Sections 364, 394 and 398 of the IPC which should have been included as per the prosecution.
• After the police investigation was complete on the basis of the FIR registered and a chargesheet was submitted by the police before the learned Magistrate, which included Sections 365, 511, 387, 386, 34, 120-B and 506 (2) as also under Section 25(1) (A) of the Arms Act, the complainant noticed that despite the fact that the respondent-accused robbed Rs.50,000/- from the complainant on one previous occasion and this time again attempted to rob and kidnap the complainant, the offences punishable under Section 364, 394 and 398 of IPC were not included in the chargesheet which was filed against respondent and other accused persons.
• The complainant submitted an application in order to rectify the said error before the Magistrate for adding other Sections 364, 394 and 398 of the I.P.C. who after hearing the parties was allowed the application and permitted further additions of Sections 364, 394 and 398 of IPC into the chargesheet.
• The respondent-accused feeling aggrieved and dissatisfied with the aforesaid order permitting inclusion and addition of sections into the chargesheet, preferred criminal revision before the Additional District & Sessions Judge, Deesa who was pleased to quash and set aside the order passed by the Magistrate and thus allowed the civil revision.
• Since the State of Gujarat was prosecuting the matter, it felt aggrieved of the order passed by the Additional District & Sessions and hence filed a Special Criminal Application before the High Court of Gujarat.
• The High Court of Gujarat upholded the order passed by the Additional District & Sessions Judge. Thus the Appellant filed a SLP.
Appellant's Contentions
• The order passed by the Additional District & Sessions Judge is illegal and perverse as the learned Judge did not assign any cogent and convincing reason while setting aside the order of the Chief Judicial Magistrate who had permitted the addition of three sections of the IPC into the chargesheet before committing the matter for trial.
• The magistrates have been conferred with wide powers to take cognizance of an offence not only when he receives information about the commission of offence from a third person but also where he has knowledge or even suspicion that the offence has been committed.
• It was further contended that there is no embargo on the powers of the magistrate to entertain a complaint envisaged in Chapter XV of the Cr.P.C. and when on receiving complaint, the magistrate applies his mind for the purpose of proceeding under Section 200 and the succeeding sections in Chapter XV of the Cr.P.C., the magistrate is said to have taken cognizance of the offence within the meaning of Section 190 of the Cr.P.C.
• If the magistrate found that there were prima facie material against the respondent/accused for the other offences also under Sections 364, 394 and 398 of the IPC, the same were rightly added by the learned magistrate after taking conscious notice of the materials available on record for permitting those sections to be added into the chargesheet.
Respondent’s Contentions
• The respondent however negatived the contentions and relied upon the reasonings assigned by the High Court.
Judgment
The Court held disposed the appeal by observing and clarifying the order of the High Court to the extent that the appellant State of Gujarat shall be at liberty to raise all questions relating to additions of the Sections on the basis of the FIR.
Relevant Paragraphs
17. Since the instant case is based on the FIR lodged before the police, the correct stage for addition or substraction of the Sections will have to be determined at the time of framing of charge. But the learned single Judge of the High Court in the impugned judgment and order has not assigned reasons with accuracy and clarity for doing so and has made a casual observation by recording that the Trial Court at the appropriate stage will have the power to determine as to which provision is to be applied before the matter is finally sent for trial. The fall out of the Order of the High Court is that the prosecution represented by the appellant -State of Gujarat might be rendered remedy less as setting aside of the order of the Magistrate is likely to give rise to a situation where the prosecution would be left with no remedy for rectification or appreciation of the plea as to whether inclusion or exclusion of additional charges could be permitted. In fact, while upholding the order of the learned Additional District & Sessions Judge, the High Court has further overlooked the fact that the Additional District & Sessions Judge before whom revision was filed against the order of the Chief Judicial Magistrate, could have allowed the revision on the ground of erroneous exercise of jurisdiction by the Chief Judicial Magistrate who permitted to add three more Sections into the chargesheet. But the Additional District & Sessions Judge instead of doing so has straightway quashed the order passed by the Magistrate instead of confining itself to consideration of the question regarding error of jurisdiction and laying down the correct course to be adopted by the magistrate. In fact, the correct course of action should have been laid down by the High Court as also the learned Additional District & Sessions Judge by permitting the appellant – State of Gujarat to raise the question of addition of charges at the time of framing of charge under Section 228 of the Cr. P.C. and should not have passed a blanket order setting aside the order of the Magistrate without laying down the correct course of action to be adopted by the affected parties with the result that three orders came to be passed by the Chief Judicial Magistrate, Additional District & Sessions Judge and the learned Single Judge of the High Court, yet it could not resolve the controversy by highlighting the appropriate course of action to be adopted by the prosecution-State of Gujarat as also the magistrate which permitted addition of sections after submission of chargesheet missing out that the matter did not arise out of a complaint case lodged before the magistrate but a case which arose out of a police report/FIR in a Police Station.
18. As a consequence of the aforesaid analysis, we although do not approve of the order of the Chief Judicial magistrate who permitted addition of three Sections into the chargesheet after the chargesheet was submitted, we are further of the view that the Additional District & Sessions Judge and the High Court ought to have specified the correct course of action to be adopted by the magistrate and the complainant/prosecution party, failure of which got the matter enmeshed into this litigation impeding the trial.
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