AKASH RAJBHARversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                  APPLICATION U/S 482 No. - 43270 of 2024

Akash Rajbhar
                                                            .....Applicant(s)
                                  Versus

State of U.P. and Another
                                                               .....Opposite
                                                                     Party(s)

Counsel for Applicant(s)      : Rishu Srivastav
Counsel for Opposite Party(s) : Deepak Yadav, G.A., Manoj Yadav,
                                Rahul Yadav

Court No. - 82
                 HON'BLE PADAM NARAIN MISHRA, J.

1. Heard, learned counsel for the applicant and learned counsel for
the opposite party no. 2 and learned A.G.A. for the State.

2. The present application has been filed seeking quashing of the
cognizance order dated 10.03.2023 as well as the entire proceedings
of the Case No. 1538 of 2023 (State Vs. Ramkrit and another) arising
out of Case Crime No. 110 of 2022 u/s 406, 419, 420, 504 and 506
I.P.C. Police Station- Sarai Lakhansi, District - Mau.

3. Brief facts of the present case is that an FIR was lodged agaisnt
the applicant and other persons under section 419, 420, 406, 504 and
506 IPC and the investigating officer after completing investigation
submitted the charge sheet against the applicant under sections 504
and 506 of IPC. The magistrate vide order dated 10.03.2023 took
cognizance against the applicant under sections 419, 420, 406, 504
and 506 IPC.

4. Learned counsel for the applicant has submitted that the
magistrate has took cognizance against the applicant under sections
419, 420, 406, 504 and 506 IPC, while the charge-sheet was only
submitted under sections 504 and 506. He further submitted that the
learned CJM, Mau without using his judicial mind has took
cognizance against the applicant in sections not listed in the charge
sheet. He further submitted that the impugned order dated
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10.03.2023 is not a reasonable and speaking order. He placed
reliance on the Judgment passed by the co ordinate bench of this
court in Criminal Appeal No. 10230 of 2023 (Smt. Usha vs State of
U.P. and Another).

5. Per contra, Learned counsel for the opposite party and learned
AGA opposed the submissions advanced by the learned counsel for
the applicant. They placed reliance on the judgment passed by the co
ordinate bench of this court in Application u/s 528 BNSS No. 44720
of 2024 ( Nisha Kushwaha vs State of U.P. and Another ).

6. The core issue for the consideration before this court is that
whether the magistrate at the time of taking cognizance can
summons the accused for the offences not mentioned in the charge
sheet.

7. In the case of Minu Kumari and another Vs. State of Bihar and
others (2006) 4 SCC 356, the Apex Court observed as under:-

     "11. .......... The position is, therefore, now well-settled that
     upon receipt of a police report under Section 173(2) a
     Magistrate is entitled to take cognizance of an offence under
     Section 190(1)(b) of the Code even if the police report is to the
     effect that no case is made out against the accused. The
     Magistrate can take into account the statements of the
     witnesses examined by the police during the investigation and
     take cognizance of the offence complained of and order the
     issue of process to the accused. Section 190(1)(b) does not lay
     down that a Magistrate can take cognizance of an offence only
     if the Investigating Officer gives an opinion that the
     investigation has made out a case against the accused. The
     Magistrate can ignore the conclusion arrived at by the
     Investigating officer and independently apply his mind to the
     facts emerging from the investigation and take cognizance of
     the case, if he thinks fit, exercise of his powers under Section
     190(1)(b) and direct the issue of process to the accused."

8. In the case of Dharam Pal v. State of Haryana, (2014) 3 SCC 306
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: (2014) 2 SCC (Cri) 159 : 2013 SCC OnLine SC 648, the Apex
Court observed as under:-

      "34. The view expressed in Kishun Singh case [Kishun Singh
      v. State of Bihar, (1993) 2 SCC 16 : 1993 SCC (Cri) 470] , in
      our view, is more acceptable since, as has been held by this
      Court in the cases referred to hereinbefore, the Magistrate has
      ample powers to disagree with the final report that may be filed
      by the police authorities under Section 173(2) of the Code and
      to proceed against the accused persons dehors the police
      report, which power the Sessions Court does not have till the
      Section 319 stage is reached. The upshot of the said situation
      would be that even though the Magistrate had powers to
      disagree with the police report filed under Section 173(2) of the
      Code, he was helpless in taking recourse to such a course of
      action while the Sessions Judge was also unable to proceed
      against any person, other than the accused sent up for trial, till
      such time evidence had been adduced and the witnesses had
      been cross-examined on behalf of the accused."

      "35. In our view, the Magistrate has a role to play while
      committing the case to the Court of Session upon taking
      cognizance on the police report submitted before him under
      Section 173(3) Cr.P.C. In the event the Magistrate disagrees
      with the police report, he has two choices. He may act on the
      basis of a protest petition that may be filed, or he may, while
      disagreeing with the police report, issue process and summon
      the accused. Thereafter, if on being satisfied that a case had
      been made out to proceed against the persons named in
      column no.2 of the report, proceed to try the said persons or if
      he was satisfied that a case had been made out which was
      triable by the Court of Session, he may commit the case to the
      Court of Session to proceed further in the matter."

9. It is the well settled principle of the law that the magistrate is not
bound by the police report. When the charge sheet is submitted, the
magistrate has two options either to accept the police report or to
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reject the police report. When the magistrate does not agree with the
police report, he is empowered to take cognizance independently by
applying his judicial mind on the material available on record. Let's
assume a situation in which the magistrate does not have any power
to disagree with the police report or he is bound by the police report.
So, in this situation, if the police submits a final report, the magistrate
has no other option but to agree with the report of the police. But, in
fact, the situation is not the same as stated above. In reality,
magistrate has power to disagree with the police report and where
police submits a final report, he is free to summons the accused on
the basis of the material available on record by applying his judicial
mind( if prima facie discloses the commission of offence). Now, In the
light of aforesaid discussion, it is evident that when a magistrate is
empowered to disagree with the final report and to take cognizance
by exercising its judicial mind when the final report is submitted, it
cannot be said that magistrate is not empowered to take cognizance
for the offences not mentioned in the charge sheet when the material
available on record discloses the commission of offence.

10. Coming back to the facts of the case in hand, from the perusal of
the impugned order, it is clear that while passing the same, learned
Magistrate has not recorded his satisfaction regarding taking
cognizance additionally for the offences not mentioned in the Charge
sheet. The magistrate simply stated that on perusal of Charge sheet,
Case Diary and other prosecution documents there are sufficient
ground to take cognizance. The impugned order suffers from vice of
non application of mind and also a non speaking order which does
not reflect the subjective satisfaction recorded by the magistrate.
Hence, it is liable to be set aside.

11. Cognizance order dated 10.03.2023 passed in the Case No. 1538
of 2023 (State Vs. Ramkrit and another) arising out of Case Crime
No. 110 of 2022 is set aside.

12. Accordingly, the present application is allowed.

13. The matter is remanded back to the concerned court for passing
a fresh reasoned order reflecting application of judicial mind.
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                                                            (Padam Narain Mishra,J.)
                                    February 19, 2026
                                    Israr




Digitally signed by :-
ISRAR AHMAD
High Court of Judicature at Allahabad