Allahabad High Court
NITESH KUMAR SINGHversusSTATE OF U.P. AND 5 OTHERS
- Decided
- Bench
- MADAN PAL SINGH
Holding
The magistrate is bound to take cognizance only of the offences specified in the charge‑sheet, and no illegality is found in doing so.
Summary
The applicant filed an application under Section 528 of the B.N.S. seeking the case diary of Criminal Case No. 913 of 2025 to examine the alleged illegal alteration of the FIR from Section 310 (loot with hurt) to a lesser offence of simple hurt. The charge‑sheet, however, was filed only under Sections 191, 115, 352, 351, 324 and 110 of the B.N.S., and the magistrate took cognizance of those sections. The applicant contended that the magistrate’s cognizance was illegal because the FIR originally mentioned a different offence. The State, through the A.G.A., argued that the magistrate must follow the sections mentioned in the charge‑sheet. Relying on State of Gujarat v. Girish Radhakishan Varde (AIR 2014 SC 620), the Court held that a magistrate cannot add or omit sections and must take cognizance only of those in the charge‑sheet. Consequently, the Court found no illegality in the magistrate’s action and dismissed the appeal. The Court clarified that the applicant will have an opportunity to be heard at the charge‑framing stage.
Issues considered
- Whether the magistrate can take cognizance of offences not mentioned in the FIR but included in the charge‑sheet
- Whether the alteration of the offence from Section 310 to a lesser offence is illegal
- Whether the charge‑sheet filed under different sections renders the magistrate's cognizance unlawful
Legislation cited
- B.N.S. — s. 110, 115, 191, 310, 324, 351, 352, 528
Subjects
- Criminal Procedure
- Charge‑sheet
- Cognizance
- Section 528
- Alteration of FIR
- Magistrate jurisdiction
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 832 of 2026
Nitesh Kumar Singh
.....Applicant(s)
Versus
State Of U.P. And 5 Others
.....Opposite
Party(s)
Counsel for Applicant(s) : Dinesh Kumar Patel
Counsel for Opposite Party(s) : Mohd. Ayub, Umesh Chandra
Vishwakarma
Court No. - 81
HON'BLE MADAN PAL SINGH, J.
1. Heard the learned counsel for the applicant, learned counsel for opposite
party no.2 and the learned A.G.A. for the State, and perused the entire record.
2. The present application under Section 528 B.N.S.S. has been preferred
with a prayer to call for the case diary and all materials of Criminal Case No.
913 of 2025 (State Vs. Chhabile Mishra @ Devi Prasad & Others), arising out
of Case Crime No. 277 of 2024 Police Station-Sujangaj, District-Jaunpur and
examine the legality of alteration of Section 310 B.N.S. by the Investigating
Officer, which has affected the nature of offence from "loot with hurt" to a mere
simple hurt case. The applicant has also prayed for a direction upon the
Investigating Officer to further investigate the matter.
3. The solitary submission advanced by learned counsel for the applicant is
that the FIR was lodged under Section 310 (2) B.N.S., but the charge-sheet
was submitted only under Sections 191 (2), 115 (2), 352, 351 (2), 324 (4), 110
B.N.S. and the Magistrate has also taken cognizance under which the charge-
sheet has been submitted, which is per se illegal.
4. Per contra, learned A.G.A. opposed the submissions advanced by learned
counsel for the applicant and submitted that since the charge-sheet was filed
by the Investigating Officer under Sections 191 (2), 115 (2), 352, 351 (2), 324
(4), 110 B.N.S., the Magistrate was bound to take cognizance only for the
offences mentioned therein.
5. In State of Gujarat vs. Girish Radhakishan Varde;AIR 2014 SC 620, the
Hon'ble Supreme Court observed that at the time of taking cognizance, the
Magistrate has no right to include or exclude any sections and is bound to take
cognizance of the sections mentioned in the charge-sheet filed by the
Investigating Officer.
NA528 No. 832 of 2026
2
6. Consequently, this Court holds that since the charge-sheet was submitted
under Sections 191 (2), 115 (2), 352, 351 (2), 324 (4), 110 B.N.S. and the
Magistrate has also taken cognizance in the said sections, the Magistrate has
not committed any illegality or infirmity in taking cognizance under which the
charge-sheet has been submitted.
7. The criminal appeal lacks merit and is, accordingly, dismissed.
8. It is, however, clarified that at the time of framing of charge, the applicant
shall have ample opportunity to have his say in the matter, which shall be
considered in accordance with law.
September 8, 2026
Sushil/-
(Madan Pal Singh,J.)
Digitally signed by :-
SUSHIL KUMAR SINGH
High Court of Judicature at Allahabad
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