STATE OF GUJARATversusGIRISH RADHAKRISHNAN VARDE

                         [2013] 12 S.C.R. 930


A                       STATE OF GUJARAT
                                   v.
                 GIRISH RADHAKRISHNAN VARDE
                  (Criminal Appeal No. 1996/2013)
                        NOVEMBER 25, 2013
B
         [G.S. SINGHVI AND GYAN SUDHA MISRA, JJ.]

          Code of Criminal Procedure, 1973 - Chapters XII, XIV
     and XV; ss.154 and 190 -Case lodged by way of complaint
C    before the Magistrate [complaint case uls. 190 CrPC] and
     case registered on basis of FIR u/s. 154 CrPC before the
    police - Distinction between - High Court upheld order passed
    by Addi. District & Sessions Judge, who had set aside the
     order of Magistrate whereby he had permitted the
D   complainant! informant to add additional Sections of /PC into
     the charge-sheet submitted after police investigation on a FIR
    registered u/s. 154 CrPC - Propriety - Held: The Magistrate
    permitted addition of sections after submission of charge-
    sheet missing out that the instant matter did not arise out of
E   a complaint case lodged before the Magi.strafe u/s.190 CrPC
    but arose out of a police report/FIR in a Police Station based
    on FIR registered uls. 154 CrPC - However, the Additional
    District & Sessions Judge and the High Court ought to have
    specified the correct course of action to be adopted by the
F   Magistrate and the complainant! prosecution party, failure of
    which got the matter enmeshed into this litigation impeding
    the 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 - Although, the High Court
    may be correct in observing that the Trial Court was not
G   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

H                                930
 STATE OF GUJARAT v. GIRISH RADHAKRISHNAN                  931
                  VAR DE
the plea of addition of sections at the stage of framing of        A.
charge u/s.211 CrPC 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
- Liberty granted by Supreme Court to appellant-State to raise
all questions relating to additions of the Sections on the basis   B
of the FIR and material collected during investigation at the
time of framing of charges by the Trial Court.

    The High Court, by the impugned judgment, upheld
the order passed by the Addi. District & Sessions Judge,           C
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 IPC into the
chargesheet which was submitted after police
investigation.
                                                                   D
     The principal question which arose for determination
in the instant appeal was whether the Magistrate could
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              E
investigation of the police case based on a FIR registered
under Section 154 Cr.P.C.

     Disposing of the appeal, the Court

     HELD: 1. In the instant case, the entire dispute              F
revolves around the procedural wrangle and the correct
course to be adopted by the trial court while taking
cognizance but 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               G
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 Chapter XII of the Cr.P.C. to          H
    932    SUPREME COURT REPORTS            [2013] 12 S.C.R.


A 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.
  [Para 11) [940-B-E]
B
      2. 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
C 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
D the offence and initiate proceedings. It is open to the
  Magistrate but not obligatory upon him to direct
  investigation by police. Thus two agencies have been set
  up for taking offences to the court. [Para 11) [941-C-E]

E      3. 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
F investigation under Chapter XII and there is absolutely no
  ambiguity in regard to these procedures. [Para 15) [943-
    G-H]

       4. In spite of this unambiguous course of action to
  be adopted in a case based on police report under
G 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
H since the magisterial powers which is to deal with a case
  STATE OF GUJARAT v. GIRISH RADHAKRISHNAN              933
                   VAR DE

based on a complaint before the magistrate and the A
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. If a case is registered under Section 154 B ·
Cr.P.C. by the police based on the FIR and the
chargesheet is submitted after investigation, 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 c
only at the time of 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. [Para 16] [944- 0
A-E]

       5. Since the instant case is based on the FIR lodged
  before the police, the correct stage for addition or
  subtraction of the Sections will have to be determined at
  the time of framing of charge. But the High Court in the E
  impugned 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 F
  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 G
   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 Additional District & Sessions Judge, the High Court
   has further overlooked the fact that the Additional District H
    934    SUPREME COURT REPORTS             (2013] 12 S.C.R.


A & 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
B 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 questioi:i regarding error of
  jurisdiction and laying down the correct course to be
c adopted by the magistrate. In fact, the correct course of
  action should have been laid down by the High Court as
  also the 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
D 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
E Judicial Magistrate, Additional District & Sessions Judge
  and the 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 chargesheet missing out
F 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. [Para 17] [944-F-H;
  945-A-G]

G      6. Although this Court does not approve of the order
  of the Chief Judicial magistrate who permitted addition
  of three Sections into the chargesheet after the
  chargesheet was submitted, the Additional District &
  Sessions Judge and the High Court ought to have
H specified the correct course of action to be adopted by
 STATE OF GUJARAT v. GIRISH RADHAKRISHNAN                935
                  VAR DE

the magistrate and the complainant/prosecution party,          A
failure of which got the matter enmeshed into this
litigation impeding the trial. [Para 18] [945-G-H; 946-A-B]
     7. The order of the High Court is clarified to the extent
that the appellant State of Gujarat shall be at liberty to
                                                                 8
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 case based
on the FIR registered under Section 154 of Cr. P.C. and
 not a complaint case lodged before the Magistrate under C
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 D
 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 E
 Magistrate in which event the Magistrate could exercise
 greater judicial discretion. [Para 19] [946-B-E]
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1996 of 2013.
                                                                F
    From the Judgment & Order dated 08.04.2011 of the High
Court of Gujarat at Ahmedabad in Special Criminal Appeal No.
2477 of 2010.
    Shamik Sanjanwala, Hemantika Wahi,' Jesal for the
Appellant.                                                      G
   Doongar Singh, Rishabh Sancheti, T. Mahipal 1 for the
Respodent.
     The Judgment of the Court was delivered by
     GYAN SUDHA MISRA, J. 1. Leave granted.                     H
    936     SUPREME COURT REPORTS               [2013] 12 S.C.R.

A      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
B application filed by the appellant-State of Gujarat and thus
  upheld the order passed by the learned Addi. District &
  Sessions Judge, Deesa who had se! 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
c Penal Code ('!PC' 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
D 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
E 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
F came to be registered with Deesa City Police Station being I.
  Cr.59/09 for the offences punishable unqer Sections 365, 387,
  511, 386, 34, 120-B and 506(2) of the !PC and under Section
  25 (1) (A) of the Arms Act, 1959. The FIR disclosed that the
  informant/complainant-Deepakkumar Dhirajlal Thakkar resident
G 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
H No. GJ-1 - HP-1 and rushed towards the complainant with
 STATE OF GUJARAT v. GIRISH RADHAKRISHNAN                  937
        VARDE [GYAN SUDHA MISRA, J.)

countrymade pistol/revolver. On reaching there, the respondent A
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 B
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, the
complainant raised an alarm as a consequence of which the
people standing nearby immediately rushed to the spot of c
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/ 0
- 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.
                                                                    E
      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 F
 noticed that despite 1the fact that the respondent-accused
 robbed Rs.50,000/- fr~m the complainant on one previous
 occasion and this time 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 G
 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 a~ding
 other Sections 364, 394 and 398 of the l.P .C. who after hearir;ig
 the parties was pleased to allow the application bearih§ H
    938     SUPREME COURT REPORTS              [2013) 12 S.C.R.


A   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
8
  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 lllrd Addi. Chief Judicial
  Magistrate, Deesa and thus allowed the civil revision by order
C dated 23.9.2010.

         7. Since the State of Gujarat was prosecuting the matter,
  it felt aggrieved of the order passed by the Additional District
  & Sessions Judge who was pleased to quash the order of the
  CJM permitting addition of the sections to the chargesheet and
D 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
E 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
F 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
G 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 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
H magistrate to entertain a complaint envisaged in Chapter XV
 STATE OF GUJARAT v. GIRISH RADHAKRISHNAN                   939
        VARDE [GYAN SUDHA MISRA, J.)

of the Cr.P.C. and when on receiving complaint, the magistrate A
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 B
information received by a 3rd 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 c
 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 cognizance of the offence under
 Section 190 (1) (c). Therefore, if the magistrate found that there
                                                                    0
 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 E
  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 F
order of the Ill Addi. 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 G
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
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· H
    940         SUPREME COURT r.~PORTS             [2013] 12 S.C.R.


A 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.
B
          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
C 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
D the procedure prescribed under 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
E 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
F lodged under Section 154 Cr.P.C. Section t90(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
G
                 such offence;

          (b)    upon a police report in writing of such facts-that
                 is, facts constituting the offence-made by any
                 police officer;
H
  STATE OF GUJARAT v. GIRISH RADHAKRISHNAN 941
         VARDE [GYAN SUDHA MISRA, J.]

      (c)   upon information received from any person other      A
            than a police officer or upon the Magistrate's own
            knowledge or suspicion that such offence has. been
            committed.

       An examination of these provisions makes it clear that
                                                                   8
 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 C
  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
I or the officer in charge of a Police Station. If the offence
  complained of is a non-cognizable one, the Police Officer can D
  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 E
   and initiate proceedings. It is open to the 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 F
 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 G
 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 H
        942      SUPREME COURT REPORTS                [2013] 12 S.C.R.


    A 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 obviously
    B 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
    C 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
    D 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
    E 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 section into the
      chargesheet after investigation has been completed and
    F 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
     G 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
    .H whatsoever have failed to include all the offence into the
•
  STATE OF GUJARAT v. GIRISH RADHAKRISHNAN                  943
        · VARDE [GYAN SUDHA MISRA, J.)

  chargesheet based on the FIR on which investigation had been A
. 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 B
  add or 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           c
   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
                                                                    0
   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 E
   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 with full authority F
 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 G
 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.          H
    944      SUPREME COURT REPORTS                 [2013] 12 S.C.R.


A       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
B 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 the
   police powers based on a police report/FIR has been allowed
  to overlap and the two separate course of actions are sought
C 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
0
  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
E 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
F   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 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
G   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
H   Magistrate is likely to give rise to a situation where the
  STATE OF GUJARAT v. GIRISH RADHAKRISHNAN                   945
         VARDE [GYAN SUDHA MISRA, J.]

prosecution would be left with no remedy for rectification or A
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 B
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 chargesheet. But the
 Additional District & Sessions Judge instead of doing so has c
 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 D
 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 E
  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- F
  State of Gujarat as also the magistrate which permitted addition
  of sections after submission of 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.                                           G

      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             H
    946       SUPREME COURT REPORTS                 (2013] 12 S.C.R.


A 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 complainanU
  prosecution party, failure of which got the matter enmeshed into
  this litigation impeding the trial.       '
B
         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
C material collected during investigation at the time of framing of
  charges by the Trial Court since the matter arises out of a
  police 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
0 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
E 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.

F B.B.B.                                        Appeal disposed of.