Page 1 REPORTABLE

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,

Page 2 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.

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Page 3 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,

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Page 4 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

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Page 5 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

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Page 6 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

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Page 7 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 3

rd

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

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Page 8 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

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Page 9 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

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Page 10 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.

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Page 11 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

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Page 12 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

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Page 13 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

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Page 14 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

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Page 15 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

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Page 16 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

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Page 17 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

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Page 18 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

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Page 19 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

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Page 20 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

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Page 21 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.

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