The Allahabad High Court has held that a Magistrate, at the stage of taking cognizance under Section 190(1)(b) of the Criminal Procedure Code (CrPC), can add or exclude offences not mentioned in the police charge-sheet, provided such action is based on material available in the police report.
Justice Arun Kumar Singh Deshwal delivered the ruling while dismissing an application filed by Nisha Kushwaha under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) (Application No. 44720 of 2024). The applicant had challenged the order of the Judicial Magistrate/Civil Judge (J.D.), FTC (CAW), Jhansi, which had rejected her protest petition seeking cognizance under Sections 376/511 and 406 IPC in addition to the charges already framed.
Background of the Case
The case arose from an FIR lodged on 16.01.2024 at Mahila Thana, Jhansi, under Sections 498-A, 354, 323, 504, 506 IPC and Sections 3/4 of the Dowry Prohibition Act. The police, after investigation, filed a charge-sheet against the applicant’s husband under all mentioned sections, and against the co-accused Gaurav and Meera under Sections 498-A, 323, 504 IPC, and 3/4 Dowry Prohibition Act.
The applicant filed a protest petition, contending that she had made specific allegations of attempted rape (Section 376/511 IPC) and misappropriation of her streedhan (Section 406 IPC), which warranted additional charges. The Magistrate, however, declined to take cognizance under those sections, prompting the present application.
Arguments of the Parties
Counsel for the applicant, Sri Ronak Chaturvedi, argued that the Magistrate is not bound by the conclusions of the investigating officer and can take cognizance of any offence revealed by the materials in the police report. He relied on Supreme Court rulings in Pramatha Nath Mukherjee v. State of West Bengal, Dharam Pal v. State of Haryana, Nahar Singh v. State of U.P., and Balveer Singh v. State of Rajasthan.
In response, the learned Additional Government Advocate Sri Pankaj Saxena contended that, as per State of Gujarat v. Girish Radhakrishnan Varde, the Magistrate cannot add or subtract charges at the cognizance stage and must rely on the sections stated in the charge-sheet. He emphasized that the issue in Dharam Pal was different and not directly applicable.
Court’s Analysis
Justice Deshwal noted that there exists conflicting precedent, but emphasized that judgments of larger or earlier benches take precedence. The Court held that:
“After receiving the police report, the Magistrate can exercise its power under Section 190(1)(b) CrPC and take cognizance of any offence against a person on the basis of material available with the police report without being influenced by the opinion of the Investigating Officer.”
The Court affirmed the authority of the Magistrate to:
- Summon a person not named in the police report,
- Take cognizance of an offence even if the section is not mentioned in the charge-sheet,
- Or decline cognizance of a section if no prima facie material exists.
The Court observed that judgments like Dharam Pal, Pramatha Nath Mukherjee, Nahar Singh, and Fakhruddin Ahmad support the view that Magistrates can independently assess whether a particular offence is made out, regardless of the charge-sheet’s contents.
Decision
On applying these principles to the case, the Court held that there was no illegality in the Magistrate’s refusal to take cognizance under Sections 376/511 and 406 IPC. It noted that:
- The complainant’s Section 164 CrPC statement about attempted rape was unsupported by any CCTV footage,
- No prima facie case under Section 406 IPC was made out in her statements.
Accordingly, the application was dismissed.
Citation: Nisha Kushwaha v. State of U.P. and Another, Application under Section 528 BNSS No. 44720 of 2024, Neutral Citation No. 2025:AHC:59428
