//
you're reading...
legal issues

When the Magistrate can add additional sections himself on the a petition of Complainant /informant after filing a charge sheet by police ? = If F.I.R. was registered on a private complaint – a Magistrate can add additional sections after filing charge sheet by police : If F.I.R. was registered directly by police through information, a Magistrate can not add additional sections after filing charge sheet , only trial court under sec.211 at the time of trial add the same : STATE OF GUJARAT ..Appellant Versus GIRISH RADHAKRISHNAN VARDE ..Respondent = http://courtnic.nic.in/supremecourt/qrydisp.asp

 

When the Magistrate can add additional sections himself on the a petition of Complainant /informant after filing a charge sheet by police ? =

 

If  F.I.R. was registered on a private complaint – a Magistrate can add additional sections after filing charge sheet by police :

If F.I.R. was registered directly by police through information, a Magistrate can not add additional sections after filing charge sheet , only trial court under sec.211 Cr.P.C. at the time of trial add the same :

 

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. =

 

‘ matter arises out of 

a case which is based

on a police report as a first information report had been lodged before the

police at Deesa Police Station under Section 154 of the Cr.P.C. and,

therefore, the investigation was conducted by the police authorities in

terms of procedure prescribed under Chapter XII of the Cr.P.C. and

thereafter chargesheet was submitted. 

At this stage, the Chief Judicial

Magistrate after submission of the chargesheet appears to have

entertained an application of the complainant for addition of three other

sections into the chargesheet, completely missing that if it were a

complaint case lodged by the complainant before the magistrate under

Section 190 (a) of the Cr.P.C., 

obviously the magistrate had full

authority and jurisdiction to conduct enquiry into the matter and if at

any stage of the enquiry, the magistrate thought it appropriate that other

additional sections also were fit to be included, the magistrate obviously

would not be precluded from adding them after which the process of

cognizance would be taken by the magistrate and then the matter would be

committed for trial before the appropriate court.

13. 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.

 

 

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

 

 

CRIMINAL APPEAL NO. 1996 /2013

(Arising out of SLP (Crl.) 734/2012)

 

 

 

 

 

 

STATE OF GUJARAT ..Appellant

 

 

Versus

 

 

GIRISH RADHAKRISHNAN VARDE ..Respondent

 

 

 

 

J U D G M E N T

 

 

GYAN SUDHA MISRA, J.

 

 

Leave granted.

2. This appeal by special leave which was heard at the

admission stage itself, is directed against the judgment and order dated

8.4.2011 passed by the High Court of Gujarat at Ahmedabad in Special

Criminal Application No.2477/2010 whereby the learned single Judge was

pleased to dismiss the application filed by the appellant-State of Gujarat

and thus upheld the order passed by the learned Addl. District & Sessions

Judge, Deesa who had set aside the order of the Chief Judicial Magistrate

by which he had permitted the complainant to add Sections 364, 394 and 398

of the Indian Penal Code (‘IPC’ for short) into the chargesheet which was

submitted after police investigation.

3. The principal question which arises for determination in

the instant appeal is

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.

4. In order to appreciate and determine the controversy, it

may be relevant to relate the factual background of the matter which

disclose that on 27.3.2009 a first information report came to be

registered with Deesa City Police Station being I. Cr.59/09 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

disclosed that the informant/complainant-Deepakkumar Dhirajlal Thakkar

resident of Deesa Taluka was sitting at the temple of Sai Baba against

whom a conspiracy was hatched by the accused No.1/respondent along with

other accused persons as a result of which the respondent along with

accused persons came towards the complainant in one Alto Car bearing

registration No. GJ-1 – HP-1 and rushed towards the complainant with

countrymade pistol/revolver. On reaching there, the respondent pointed

the pistol towards the complainant and demanded money from him. Before

the victim-complainant could understand anything with respect to the

demand made or could have realised the nature of the situation, the

respondent – accused along with the other accused persons caught hold of

the complainant and tried to kidnap him. In an instant reaction to this

well-planned and deliberated conspiracy hatched by the respondent for

robbing and kidnapping the complainant, the complainant raised an alarm

as a consequence of which the people standing nearby immediately rushed to

the spot of crime. Looking at the assembly of people, the accused persons

immediately sat in the car and fled from the scene of occurrence. This

was not the first time when such offence was committed by the respondent

against the complainant but on a prior occasion also, the respondent had

extorted Rs.50,000/- from the complainant by putting the complainant under

fear of death. 

However, 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.

5. 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, Deesa 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.

In order to rectify the said error the complainant submitted an

application before the learned Magistrate, Deesa for adding other Sections 364, 394 and 398 of the I.P.C. who after hearing the parties was pleased to allow the application bearing No.1754/2009 and permitted further additions of Sections 364, 394 and 398 of IPC into the chargesheet.

6. 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 dated 7.8.2010 passed by the learned IIIrd Addl. Chief Judicial

Magistrate, Deesa and thus allowed the civil revision by order dated

23.9.2010.

7. Since the State of Gujarat was prosecuting the matter, it

felt aggrieved of the order passed by the Additional District & Sessions

Judge who was pleased to quash the order of the CJM permitting addition of

the sections to the chargesheet and hence filed a Special Criminal

Application No. 2477/2010 before the High Court of Gujarat.

8. The High Court of Gujarat vide its impugned judgment and

order was pleased to uphold the order dated 23.9.2010 passed by the

Additional District & Sessions Judge, Deesa which according to the

appellant is illegal and perverse as the learned Additional District &

Sessions 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.

9. The appellant-State of Gujarat while assailing the

judgment and order of the High Court had submitted that 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.

Elaborating this submission, 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. 

It was still

further added that the magistrate can even take cognizance on information

received by a 3rd party and thus there are no fetter or embargo on the

powers of the magistrate when he thinks it proper to include more

sections on the basis of the complaint lodged for conducting the trial of

the accused and it is open to the magistrate to take cognizance of the

offence under Section 190 (1) (c) on the ground that after having due

regard to the final report and the police records placed before him if he

has reason to suspect that an offence has been committed, it is open to

the magistrate to take cognizance of the offence under Section 190 (1) (c).

 

Therefore, 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.

10. The counsel for the respondent however negatived the

contentions and relied upon the reasonings assigned by the High Court

which was pleased to uphold the order of the Additional District & Sessions

Judge which had set aside the order of the III Addl. Chief Judicial

Magistrate, Deesa who had permitted the three sections to be included

which were not included at the time of the filing of the chargesheet.

The

learned single Judge of the High Court however approved the setting aside

of the order of the magistrate permitting additional sections into the

chargesheet as it took the view that

if the trial Judge noticed that some

of the sections of the IPC were not referred to in the chargesheet and

during trial, the trial court comes to the conclusion that any other

offence under the provisions of the IPC is made out, then the trial court

is not precluded and has all the powers to pass appropriate order for

adding the sections. 

Therefore, the trial court had committed a grave

error in allowing the application of the complainant by permitting the

additions of the three sections of the IPC into the chargesheet after

the same was submitted.

11. While analysing the controversy raised in this appeal, it

is clearly obvious that

the entire dispute revolves around the

procedural wrangle and the correct course to be adopted by the trial

court while taking cognizance but in the entire process it appears that the

distinction between a case lodged by way of a complaint before the

magistrate commonly referred to as complaint case under Section 190 of the

Cr.P.C. and a case registered on the basis of a first information report

under Section 154 of the Cr.P.C. before the police, seems to have been

missed out, meaning thereby that the distinction between the procedure prescribed under Chapter XII of the Cr.P.C. to be adopted in a case based on police report and the procedure prescribed under Chapter XIV and Chapter XV for cases based on a complaint case lodged before the magistrate has clearly been overlooked or lost sight of.

It may be relevant to record

at this stage that

the term ‘complaint’ has been defined in the Cr.P.C. and

it means the allegations made orally or in writing to a magistrate, with a

view to taking action under the Code due to the fact that some person,

whether known or unknown, has committed an offence but does not include a

police report lodged under Section 154 Cr.P.C.

Section 190(1) of the

Cr.P.C. contains the provision for cognizance of offences by the

Magistrates and it provides three ways by which such cognizance can be

taken which are reproduced hereunder:-

(a) Upon receiving a complaint of facts which constitute such

offence;

(b) upon a police report in writing of such facts–that is,

facts constituting the offence–made by any police officer;

(c) upon information received from any person other than a

police officer or upon the Magistrate’s own knowledge or

suspicion that such offence has been committed.

 

 

An examination of these provisions makes it clear that when a

Magistrate takes cognizance of an offence upon receiving a complaint of

facts which constitute such offence, a case is instituted in the

Magistrate’s Court and such a case is one instituted on a complaint.

Again,

when a Magistrate takes cognizance of any offence upon a report in writing

of such. facts made by any police officer it is a case instituted in the

Magistrate’s court on a police report.

The scheme underlying Cr.P.C.

clearly reveals that anyone who wants to give information of an offence may

either approach the Magistrate or the officer in charge of a Police

Station.

If the offence complained of is a non-cognizable one, the Police

Officer can either direct the complainant to approach the Magistrate or he

may obtain permission of the Magistrate and investigate the offence.

Similarly anyone can approach the Magistrate with a complaint and even if

the offence disclosed is a serious one, the Magistrate is competent to take

cognizance of the offence and initiate proceedings.

It is open to the

Magistrate but not obligatory upon him to direct investigation by police.

Thus two agencies have been set up for taking offences to the court.

12. But the instant matter arises out of 

a case which is based

on a police report as a first information report had been lodged before the

police at Deesa Police Station under Section 154 of the Cr.P.C. and,

therefore, the investigation was conducted by the police authorities in

terms of procedure prescribed under Chapter XII of the Cr.P.C. and

thereafter chargesheet was submitted. 

At this stage, the Chief Judicial

Magistrate after submission of the chargesheet appears to have

entertained an application of the complainant for addition of three other

sections into the chargesheet, completely missing that if it were a

complaint case lodged by the complainant before the magistrate under

Section 190 (a) of the Cr.P.C., 

obviously the magistrate had full

authority and jurisdiction to conduct enquiry into the matter and if at

any stage of the enquiry, the magistrate thought it appropriate that other

additional sections also were fit to be included, the magistrate obviously

would not be precluded from adding them after which the process of

cognizance would be taken by the magistrate and then the matter would be

committed for trial before the appropriate court.

13. 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.

14. 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 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.

15. 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.

16. 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.

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.

19. We, therefore, dispose of this 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 and material collected

during investigation at the time of framing of charges by the Trial Court

since the matter arises out of a police case based on the FIR registered

under Section 154 of Cr. P.C. and not a complaint case lodged before the

Magistrate under Section 190 of the Cr. P.C. 

Thus, the High Court although

may be correct in observing in the impugned order that the Trial Court was

not precluded from modifying the charges by including or excluding the

sections at the appropriate stage during trial, it was duty bound in the

interest of justice and fairplay to specify in clear terms that the Trial

Court would permit and consider the plea of addition of sections at the

stage of framing of charge under Section 211 of Cr. P.C. since the matter

emerged out of a police case and not a complaint case before the Magistrate

in which event the Magistrate could exercise greater judicial discretion.

Ordered accordingly.

……………………..J

(G.S. Singhvi)

 

 

………………………J

(Gyan Sudha Misra)

 

New Delhi

November 25, 2013.

ITEM NO.1-A COURT NO.11 SECTION IIB

 

 

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

 

Cr.A. No. 1996 of 2013

Petition(s) for Special Leave to Appeal (Crl) No(s).734/2012

 

(From the judgement and order dated 08/04/2011 in SCRLA No.2477/2010, of

The HIGH COURT OF GUJARAT AT AHMEDABAD)

 

STATE OF GUJARAT Petitioner(s)

 

VERSUS

 

GIRISH RADHAKISHAN VARDE Respondent(s)

 

 

 

Date: 25/11/2013 This Appeal was called on for pronouncement of Judgment

today.

 

 

For Petitioner(s) Ms. Hemantika Wahi, Adv.

 

For Respondent(s) Mr. Doongar Singh, Adv.

Mr. Rishabh Sancheti, Adv.

Ms. Padma Priya, adv.

Mr. Digvijay Singh, Adv.

Mr. T. Mahipal, Adv.

 

 

Hon’ble Mrs. Justice Gyan Sudha Misra pronounced the

judgment of the Bench comprising Hon’ble Mr. Justice G.S. Singhvi

and Her Ladyship.

 

Leave granted.

 

Appeal is disposed of in terms of the signed reportable

judgment.

 

 

 

 

 

 

 

(NAVEEN KUMAR) (S.S.R. KRISHNA)

COURT MASTER COURT MASTER

(Signed reportable Judgment is placed on the file)

 

 

 

 

Advertisements

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 1,845,131 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,868 other followers

Follow advocatemmmohan on WordPress.com