ARSHAD AHMEDversusState of UP AND ANOTHER

           HIGH COURT OF JUDICATURE AT ALLAHABAD
              MATTERS UNDER ARTICLE 227 No. - 11673 of 2024

Arshad Ahmed
                                                                       .....Petitioner(s)
                                         Versus

State of U.P. and Another
                                                                    .....Respondent(s)

Counsel for Petitioner(s)                       :   Bhuvnesh Kumar Singh
Counsel for Respondent(s)                       :   G.A.

Court No. - 89
                        HON'BLE ANIL KUMAR-X, J.

1. Shri Bhuvnesh Kumar Singh, learned counsel for the petitioner and
Shri K.K. Gupta, learned A.G.A. for the State are present.

2. This petition under Article 227 of the Constitution of India has been
filed with the following main prayer :-

"(i) Issue a suitable direction to set aside the impugned order dated 08.05.2024 passed
by CJ.M., Bijnor in Criminal Case No.35663 of 2022 (State Vs. Arshad Ahmed and
others) arising out of Crime No.201 of 2022 under section 498-A, 308, 323, 324, 427,
504, 506 I.P.C. and 3/4 D.P. Act, P.S.-Najibabad, District-Bijnor as well as to set
aside the impugned order dated 07.06.2024 passed by Session Judge, Bijnor in
Criminal Revision no.153 of 2024.

(ii) Issue a suitable direction to the C.J.M., Bijnor to consider the entire investigation
report including the further investigation report and Supplementary Charge Sheet
dated 23.05.2023 compositely and thereafter pass fresh order in accordance with law."

3. Learned counsel for the petitioner has submitted that respondent no.2-
Naim Ahmad lodged an FIR against the petitioner and other family
members in Case Crime No.201 2022 on 17.5.2022 at Police Station-
Najibabad, District Bijnor under Section 498-A, 323, 504, 506, 313, 377,
427 IPC and Section 3/4 Dowry Prohibition Act. Case was investigated
and charge-sheet against the petitioner/accused Arshad Ahmed was
submitted under Section 498-A, 308, 323, 324, 504, 506, 427 IPC and
Section 3/4 Dowry Prohibition Act. Charge-sheet against the remaining
two accused Irshad Ahmad and Farzana was submitted under Section
498-A, 323, 504, 506, 427 IPC and Section 3/4 Dowry Prohibition Act.
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Thereafter, an order against the accused persons was passed by the
learned Chief Judicial Magistrate, Bijnor on 29.11.2022 taking
cognizance upon the charge-sheet. Cognizance was taken against accused
Arshad Ahmad for offences under Sections 498-A, 323, 307, 427, 504
and 506 IPC, along with Sections 3/4 of the Dowry Prohibition Act.
Cognizance was also taken against accused Irshad for offences under
Sections 498-A, 323, 308, 427, 504 and 506 IPC, along with Sections 3/4
of the Dowry Prohibition Act. Further, cognizance was taken against
accused Farzana for offences under Sections 498-A, 323, 427, 504 and
506 IPC, along with Sections 3/4 of the Dowry Prohibition Act.

4. Learned counsel submitted that the learned Magistrate has committed
illegality in taking cognizance of offences under Section 308 IPC against
the petitioner/Arshad because charge-sheet against him was not submitted
under Section 308 IPC. Therefore, the order dated 29.11.2022 was
challenged by the petitioner in Criminal Revision No.508 of 2022
(Arshad Ahmed & Anr. vs. State of U.P.). Said criminal revision was
allowed on 20.2.2023 by setting aside the order dated 29.11.2022 and the
learned trial court was directed to pass a fresh order in light of the
judgment of the Supreme Court in State of Gujarat vs. Girish
Radhakrishnan Varde, (2014) 3 SCC 659 wherein it has been held that
a Magistrate has no power to add or subtract any Section at the time of
taking cognizance, rather he is bound to take cognizance under the
Sections in which the charge-sheet has been submitted. Learned counsel
further submitted that in the meanwhile a direction for further
investigation was passed pursuant to which a supplementary charge-sheet
was filed against all the accused persons on 23.5.2022 for offences under
Section 498-A, 323, 504, 506, 427 IPC and Section 3/4 Dowry
Prohibition Act. Thereafter, a fresh order was passed by the learned trial
court on 17.7.2023 and he took cognizance against the accused Arshad for
offences under Section 498-A, 308, 323, 324, 504, 506, 427 IPC and
Section 3/4 Dowry Prohibition Act. Cognizance was taken for offences
under Section 498-A, 323, 504, 506, 427 IPC and Section 3/4 Dowry
Prohibition Act against the remaining accused Irshad and Farzana.

5. Learned counsel for the petitioner submitted that the learned Magistrate
was bound to pass the cognizance order by considering the preliminary
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police report as well as the supplementary report filed under Section
173(2) Cr.P.C. before passing an order of cognizance. However, the
learned Magistrate has failed to consider both charge-sheets together and
to reach at a conclusion by conjointly reading the evidences collected
during the initial investigation as well as the further investigation.
Aggrieved by the order dated 17.7.2023, the accused preferred Criminal
Revision No.347 of 2023 (Irshad Ahmed & Ors. vs. State of U.P.). Said
criminal revision was allowed on 20.10.2023 and the order dated
17.7.2023 was set aside and the matter was remanded back to the learned
trial court to pass a fresh order pursuant to the direction given in order
dated 20.2.2023 passed in Criminal Revision No.508 of 2022.

6. Learned counsel submitted that despite a clear direction passed in the
aforesaid Criminal Revision No.347 of 2023, the learned Magistrate, vide
order dated 8.5.2024, has again taken cognizance against the
petitioner/accused Irshad offences under Section 498-A, 308,323, 427,
504, 506 IPC and Section 3/4 Dowry Prohibition Act. Against the
aforesaid order dated 8.5.2024 passed in Criminal Case No.35663 of
2022, the petitioner preferred Criminal Revision No.153 of 2024 (Arshad
Ahmed vs. State of U.P. & Anr.). However, the said criminal revision was
dismissed on 08-05-2024 and it was observing that the learned CJM has
acted well while taking cognizance on both the charge-sheets.

7. Learned counsel for the petitioner further submitted that the judgment
of the Supreme Court in Vinay Tyagi vs. Irshad Ali (2013) 5 SCC 762 is
very much specific that supplementary report has to be treated as integral
part of police report under Section 173(2) Cr.P.C. and a Magistrate is
bound to consider both reports together before passing an order of
cognizance. However, the learned trial court as well as the revisional
court have failed to consider that both reports were not read conjointly by
the learned CJM at the time of passing an order of taking cognizance
dated 8.5.2024.

8. Having heard learned counsel and upon perusal of the record, this
Court finds that the legal position as laid down in Vinay Tyagi ( Supra) is
well settled that the Magistrate is required to consider the primary police
report as well as the supplementary report filed under Section 173(2)
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Cr.P.C. conjointly while taking cognizance. The requirement is of
application of judicial mind to the entire material collected during
investigation, and not of passing a detailed or elaborate order discussing
each piece of evidence.

9. In the present case, it is evident from the record that the learned
Magistrate had, at the initial stage vide order dated 29.11.2022, duly
considered the injury report of the injured Nazia Parveen, which disclosed
multiple injuries including incised wounds on vital parts and fracture on
the frontal sinus, and on that basis formed an opinion regarding the nature
of offences. The said material formed part of the case record and
continued to remain intact during further investigation.

10. Subsequently, while passing the impugned order dated 08.05.2024
after submission of the supplementary charge-sheet, the learned
Magistrate has made reference to the medical evidence, which clearly
indicates that the earlier material was present in his consideration. Mere
absence of elaborate discussion in the subsequent order does not lead to
the inference that the earlier material was ignored, particularly when the
same was neither contradicted nor diluted in the further investigation.

11. It is also pertinent that the supplementary report does not supersede
the earlier report but is an addition thereto, and both are required to be
read as a composite whole. In the facts of the present case, since no new
material has emerged in further investigation so as to displace the earlier
medical evidence, the formation of opinion by the Magistrate cannot be
said to suffer from non-application of mind.

12. In view of the aforesaid facts and settled legal position, this Court is
of the considered opinion that the learned Magistrate has not committed
any illegality in passing the impugned order dated 08.05.2024 and it
cannot be held that both reports were not considered conjointly. The
revisional court has also rightly affirmed the said view and no perversity
or jurisdictional error is made out warranting interference under Article
227 of the Constitution of India.

13. Accordingly, the writ petition lacks merit and is dismissed. The
impugned order dated 8.5.2024 passed by the learned Magistrate and the
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                                    order dated 7.6.2024 passed by the revisional court are hereby upheld.



                                                                                           (Anil Kumar-X,J.)
                                    April 23, 2026
                                    SK




Digitally signed by :-
SUSHEEL KUMAR
High Court of Judicature at Allahabad