Court Can't Add Or Subtract Sections In Police Report While Taking Cognizance Of Offences U/S 190 CrPC: Allahabad HC

A bench of Justice Manoj Bajaj reasoned that at the stage of taking cognisance of offences based on the police report, no hearing is provided to the complainant or the accused and hence, adding the offences without hearing the accused “would certainly prejudice them”.

To hold thus, the Court relied upon the Judgment of the Top Court in the case of State Of Gujarat vs Girish Radhakishan Varde wherein it was held that “…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 section 216, 218 or under section 228 of the CrPC.”

The Court observed thus while partly allowing an appeal moved by 11 appellants accused under Section 14-A(1) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, challenging an order passed by Special Judge Mathura.

Essentially, in the impugned order, while taking cognizance of the offences contained in the final report under Section 173(2) CrPC, the Special Judge additionally took cognizance of the offences punishable under Section 325, 307 IPC by allowing the application filed by respondent no. 2, the complainant.

Essentially, it was the case of the complainant that the accused-appellants, armed with sticks, sharp-edged weapons (Farsa) and rods, attacked her, and the said assault resulted in head injury and fractures to the complainant.

The FIR was registered for alleged commission of offences punishable under Section 147, 148, 323, 504, 506 I.P.C. and Section 3(1)(r), 3(1)(s) SC-ST Act.

Upon the conclusion of the investigation, a final report under Section 173(2) CrPC was filed against the accused applicants. During the investigation, the offence punishable under Section 324 IPC was also incorporated in addition to the offences contained in FIR.

Thereafter, the complainant moved an application before the Special Court, Mathura and prayed that cognizance in respect of the offences punishable under Sections 325, 307 I.P.C. be also taken.

Allowing the said application, the Special Court, Mathura, proceeded to take cognizance of offences contained in the final report and for the offences punishable under Sections 325, 307 IPC.

Challenging the order of the Special Judge, the accused-appellants moved the instant appeals.

It was strongly contended that the Special Court, Mathura, while considering the final report under Section 173(2) CrPC, had erroneously allowed the complainant's claim to take cognizance of the offences punishable under Sections 325 and 307 IPC.

On the other hand, the counsel for opposite party no.2 submitted that since the investigation in the case was not conducted properly and the charge sheet was not filed in respect of the serious offences committed by the accused.

Therefore, it was argued that the complainant rightly availed his right to seek the indulgence of the Special Court, Mathura, to redress his grievance, and the Special Court's order was valid.

High Court's observations

At the outset, the Court observed that even if Section 14A of the “Atrocities Act, 1989” provides for a remedy of appeal against an order taking cognizance of the offences, however, in a given case that falls within the guidelines and parameters laid down by the Supreme Court, a litigant can very well move an application under Section 482 CrPC.

“…availability of alternative statutory remedy cannot be a ground for refusal to exercise the inherent powers under Section 482 CrPC, if the merits of the case makes out a case for exercise of inherent powers under Section 482 CrPC,” the Court said.

Further, on the legality of the addition of offences in the final report under Section 173(2) CrPC by Special Judge (SC/ST Act), Mathura, the Court found it unsustainable in the eyes of the law.

The Court observed that the final report is considered at the stage of taking cognizance of offences for limited purposes, and the offences cannot be added or subtracted from the police report at this stage under Section 190 CrPC.

The Court added that in-depth evaluation of the charge sheet under Section 173(2) CrPC is conducted at the stage of considering the prosecution case for the purposes of framing charges against the accused, and if the material on record indicates that some other offence, which is not contained in the charge sheet is also prima facie made out against the accused, the trial court is well within its jurisdiction and powers to frame charges against the accused in respect of such offences. However, the said exercise cannot be taken up by the court at the stage of taking cognizance of an offence.

In view of this, the court partly allowed the appeal only to a limited extent of setting aside the impugned order (wherein the Special Judge took cognisance of additional offences).

However, the Court kept it open for the complainant/ prosecution and the accused to press their respective claims before the Special Court, Mathura, at the stage of considering the final report under Section 173(2) CrPC for framing charges.

Case title - Usha vs. State of U.P. and Another along with connected matters 2024 LiveLaw (AB) 405

Case Citation: 2024 LiveLaw (AB) 405

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