Allahabad High Court
Nand Lal And Another vs State Of U.P. And Another on 5 May, 2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2026:AHC:104877
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL REVISION No. - 2589 of 2024
Nand Lal And Another
.....Revisionist(s)
Versus
State Of U.P. And Another
.....Opposite Party(s)
Counsel for Revisionist(s)
:
Shitlesh Pandey, Shivendra Nath Singh
Counsel for Opposite Party(s)
:
Amarjeet Yadav, G.A.
Court No. - 87
HON'BLE PRAVEEN KUMAR GIRI, J.
1. Heard Sri M.K. Yadav, learned counsel for the revisionist and Sri Pankaj Kumar, learned A.G.A. for the State.
2. Learned counsel for the revisionist submits that the instant criminal revision has been preferred with the relief which has been mentioned in the prayer clause. The relief mentioned in the prayer clause of the revision is delineated below:-
“It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to allow the present Criminal Revision and set-aside/quashed the impugned order dated 13.03.2024, passed by the learned Chief Judicial Magistrate, Mau in Criminal Case No.617 of 2019 (State vs. Ramdev), Police Station-Kopaganj, District mau and further to direct the learned Chief Judicial Magistrate, Mau to reconsider the discharge application of the revisionist dated 14.09.2009 and pass a fresh order accordance with law, otherwise the revisionists shall suffer an irreparable loss and injury.
And/or to pass such any other or further order or directions, protecting the interests of the revisionists, which this Hon’ble Court may deem fit and proper under the facts and circumstances of the case.”
3. Learned counsel for the revisionist submits that the alleged incident occurred on 28.04.1998 in respect of which a NCR was registered under Section 155(1) Cr.P.C. for the offences under Section 323, 504 IPC, at P.S. Kopaganj, District Mau. He further submits that on 05.05.1998 an application was moved under Section 155(2) for granting permission for investigating the matter. He further submits that the order dated 05.05.1998 has not been complied with, therefore, on 04.08.2005, an application was filed by O.P. No.2, another order has been passed on 26.06.2006 by the learned Judicial Magistrate calling for the progress report of the investigation and ultimately, charge sheet has been prepared on 25.09.2025 under Section 323, 325 and 504 IPC. He further submits that the offences under Section 323 and 504 IPC is punishable only upto one year, therefore, as per Section 468 Cr.P.C., no court shall take cognizance after expirty of the period of two years from the date of the alleged incident.
4. Per contra, learned A.G.A. submits that though NCR was registered under Section 323, 504 IPC which is punishable only upto one year but charge sheet has been submitted also under Section 325 IPC for which punishment is upto 7 years, therefore, the provisions of Section 468 Cr.P.C. is not attracted in this case as the case is not barred by limitation. He further submits that NCR is not an encyclopedia, therefore, investigation is required and in the investigation, the I.O. has found that the offence was committed under Section 325 IPC along with Section 323 and 504 IPC and thereafter charge sheet has been submitted for the aforesaid sections. He further submits that at this stage the learned Judicial Magistrate has taken cognizance on 10.01.2007 and the court cannot add or subtract, exclude or include any Section mentioned in the charge-sheet at the time of taking of cognizance as the same is permissible at the time of framing of charge as has been held in paragraph 13 and 14 of the judgment of the Hon’ble Supreme Court passed in the case of State of Gujarat vs. Girish Radhakrishnan Varde; (2014) 3 SCC 659. Paragraph Nos. 13 and 14 are delineated below: “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.
(Emphasis supplied)”
5. He further submits that the material collected by the I.O. during investigation cannot be treated as evidence under the Bhartiya Sakshya Adhiniyam, 2023, until and unless the witnesses are examined in examination-in-chief on oath as well as cross-examination and the documents which have been provided, shall also be proved by the witnesses during trial of the case. He further submits that the impugned cognizance-cum-summoning order suffers from no irregularity, which may vitiate the criminal proceedings as per the provisions of Section 461 Cr.P.C. (corresponding Section 507 BNSS). The provisions of Section 461 Cr.P.C. are delineated below for ready reference :- “Section 461 – Irregularities which vitiate proceedings- If any Magistrate, not being empowered by law in this behalf, does any of the following things, namely:- (a) attaches and sells property under section 85; (b) issues a search-warrant for a document, parcel or other thing in the custody of a postal or telegraph authority; (c) demands security to keep the peace; (d) demands security for good behaviour; (e) discharges a person lawfully bound to be of good behaviour; (f) cancels a bond to keep the peace; (g) makes an order for maintenance; (h) makes an order under section 133 as to a local nuisance; (i) prohibits, under section 143, the repetition or continuance of a public nuisance; (j) makes an order under Part C or Part D of Chapter X; (k) takes cognizance of an offence under clause (c) of sub-section (1) of section 190; (l) tries an offender; (m) tries an offender summarily; (n) passes a sentence, under section 325, on proceedings recorded by another Magistrate; (o) decides an appeal; (p) calls, under section 397, for proceedings; or (q) revises an order passed under section 446, his proceedings shall be void.
6. Learned State Counsel further submits that the Hon’ble Supreme Court has passed a judgment in the case of State of Gujarat vs. Afroz Mohammed Hasanfatta; (2019) 20 Supreme Court Cases 539 wherein the Court has categorically held that at the time of summoning, there is no need to record reasons in the summoning order. Further, the aforesaid judgment has been confirmed by the Hon’ble Supreme Court in paragraph 91 of its judgment passed in Pradeep S. Wodeyar vs. State of Karnataka, (2021) 19 Supreme Court Cases 62. The relevant paragraph No.91 passed in Pradeep S. Wodeyar (supra) is being quoted below for the sake of convenience:- “91.While distinguishing the decision in Pepsi Foods Ltd. (supra) on the ground that it related to taking of cognizance in a complaint case, the court held since in a case of cognizance based on a police report, the Magistrate has the advantage of perusing the materials, he is not required to record reasons: State of Gujarat v. Afroz Mohammed Hasanfatta (2019) 20 SCC 539 : (2020) 3 SCC (Cri.) 876-2 23. Insofar as taking cognizance based on the police report is concerned, the Magistrate has the advantage of the charge-sheet, statement of witnesses and other evidence collected by the police during the investigation. Investigating officer/SHO collects the necessary evidence during the investigation conducted in compliance with the provisions of the Criminal Procedure Code and in accordance with the rules of investigation. Evidence and materials so collected are sifted at the level of the investigating officer and thereafter, charge-sheet was filed. In appropriate cases, opinion of the Public Prosecutor is also obtained before filing the charge-sheet. The court thus has the advantage of the police report along with the materials placed before it by the police. Under Section 190(1)(b) CrPC, where the Magistrate has taken cognizance of an offence upon a police report and the Magistrate is satisfied that there is sufficient ground for proceeding, the Magistrate directs issuance of process. In case of taking cognizance of an offence based upon the police report, the Magistrate is not required to record reasons for issuing the process. In cases instituted on a police report, the Magistrate is only required to pass an order issuing summons to the accused. Such an order of issuing summons to the accused is based upon satisfaction of the Magistrate considering the police report and other documents and satisfying himself that there is sufficient ground for proceeding against the accused. In a case based upon the police report, at the stage of issuing the summons to the accused, the Magistrate is not required to record any reason. In case, if the charge-sheet is barred by law or where there is lack of jurisdiction or when the charge-sheet is rejected or not taken on file, then the Magistrate is required to record his reasons for rejection of the charge-sheet and for not taking it on file.
7. Learned A.G.A. further submits that offences under Section 323, 325 and 504 IPC are triable by Magisterial Court and is warrant trial case, therefore, opportunity of hearing shall be given to the accused-revisionist at the time of framing of charge in view of Section 239 Cr.P.C. (corresponding Section 262(2) of BNSS). For ready reference Section 239 Cr.P.C. is being quoted below:
“239. When accused shall be discharged.?If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.”
8. Learned A.G.A. further submits that Section 325 IPC is attracted when grievous injury is caused by hard and blunt object, therefore, until and unless, the doctor is produced before the court for proving the medical report, the facts of the case cannot be gone through by this Court while exercising the jurisdiction of revision. He further submits that on the basis of material collected during investigation, mini trial cannot be done as the material collected during investigation does not come under the category of evidence and until and unless witness is produced before the court for adducing their evidence and proving the documents. In this regard, reference can be had to the judgments passed by Hon’ble Supreme Court in State of Uttar Pradesh and another vs. Akhil Sharda and others, (2023) 11 Supreme Court Cases 626, Central Bureau of Investigation vs. Aryan Singh and others, (2023) 18 Supreme Court Cases 399 and Naresh Aneja alias Naresh Kumar Aneja vs. State of Uttar Pradesh and another, (2025) 2 Supreme Court Cases 604.
9. In view of above facts and circumstances of the case, this Court finds no merit in this revision, at this stage.
10. The instant revision is, accordingly, disposed of with a direction to the concerned trial court to provide opportunity of hearing to the accused/revisionist at the time of framing of charge under Section 239 Cr.P.C. as the offences are warrant trial in nature.
(Praveen Kumar Giri,J.)
May 5, 2026
Manish Himwan
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