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)
