ASHISH KUMAR MISHRA AND 3 OTHERSversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD

        APPLICATION U/S 528 BNSS No. - 16317 of 2025

Ashish Kumar Mishra And 3 Others
                                                      .....Applicant(s)
                               Versus
State of U.P. and Another
                                                         .....Opposite
                                                               Party(s)

Counsel for Applicant(s)     : Sushil Kumar Dwivedi
Counsel for Opposite Party(s): G.A., Jeetendra Kumar Sharma,
                               Manoj Kumar Srivastava, Ravi
                               Pratap Singh Yadav

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

1. Heard Sri Sushil Kumar Dwivedi, learned counsel for the
applicants, Sri Sanjay Kumar Singh, Advocate holding brief of Sri
Manoj Kumar Srivastava, learned counsel for opposite party no. 2
and learned A.G.A. for the State.

2. The present application under Section 528 of the Bharatiya
Nagarik Suraksha Sanhita, 2023 (BNSS) has been filed by the
applicants seeking quashing of (i) the impugned order dated
02.04.2025 passed by the learned Judicial Magistrate, Khaga, (ii) the
impugned order dated 06.03.2025 passed by the learned Judicial
Magistrate, Vahya Nyayalay, Khaga, whereby Section 308 I.P.C. has
been added and the case has been committed to the Court of
Sessions, as well as (iii) the entire criminal proceedings of Case No.
8403 of 2024 arising out of Case Crime No. 44 of 2024, under
Section 308 I.P.C., Police Station Khakheru, District Fatehpur,
presently pending before the learned Judicial Magistrate, Khaga. 3.
The brief facts of the case are that an F.I.R. came to be lodged on
16.03.2024 for the offences punishable under Sections 323, 452, 504
and 506 I.P.C. The injured was medically examined at the
Community Health Centre, Khakheru, and as per the injury report, all
injuries were found to be simple in nature. Subsequently, a further
medical examination of the injured was conducted on 20.03.2024, on
the basis of which Section 325 I.P.C. was added during investigation
and charge-sheet was submitted under Sections 323, 325, 452, 504
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and 506 I.P.C. Thereafter, opposite party no. 2 moved an application
under Section 323 of the Code of Criminal Procedure, 1973 seeking
addition of Section 308 I.P.C. The learned Magistrate, vide impugned
order dated 06.03.2025, allowed the said application, directed
addition of Section 308 I.P.C., and consequently committed the case
to the Court of Sessions.

4. Learned counsel for the applicants submits that the impugned
order was passed in mechanical manner without application of
judicial mind. He further submits that it is settled legal position that
the magistrate can alter sections at the sage of cognizance or at the
stage of charge framing. He further submits that section 308 IPC was
added in absence of any new material or circumstance which
requires the addition of aforesaid section. He further submits that the
impugned order does not disclose the existence of any new material
which justify the addition of section 308 IPC. He lastly submits that
the injury, as per record, is a linear non-displaced fracture, which,
though falling within the category of grievous hurt, does not, by itself,
establish intention or knowledge to cause death, which is sine qua
non for attracting Section 308 IPC.

5. Per contra, the learned AGA has opposed the submissions
advanced by the learned counsel for the applicants. He further
submits that the impugned order does not suffer from any illegality or
infirmity. He further submits that the impugned order is passed after
duly considering the supplementary report which clearly disclose
linear non-displaced fracture.

6. It is well settled that a Magistrate has the power to add or alter
sections at appropriate stages of the proceedings, including at the
stage of taking cognizance or framing of charge; however, such
power is to be exercised judiciously and upon due application of
mind. In the present case, this Court finds that while directing addition
of Section 308 IPC, the learned Magistrate has failed to record any
satisfaction as to how the essential ingredients of the said offence are
made out. Further, no new material or circumstance has been
indicated in the impugned order so as to justify the addition of Section
308 IPC, except a mere reference to the supplementary medical
report, which was already available on record at the time when
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                                    section 325 IPC was added. In the absence of any fresh material
                                    warranting invocation of the aforesaid provision, the impugned order
                                    cannot be sustained in the eyes of law. The order impugned thus
                                    reflects a mechanical and hasty exercise of jurisdiction, without
                                    proper evaluation of the material on record. Accordingly, in view of
                                    the discussion made hereinabove, the impugned order is liable to be
                                    set aside.

                                    7. In view of above, the impugned order dated 06.03.2025 passed by
                                    the learned Judicial Magistrate, Vahya Nyayalay, Khaga, whereby
                                    Section 308 I.P.C. has been added and the case has been committed
                                    to the Court of Sessions, is hereby set aside.

                                    8. Accordingly, the application is disposed of.

                                    February 16, 2026
                                    Israr
                                                                                (Padam Narain Mishra,J.)




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