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Judgment
By the Court:-
Heard the parties.
This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 528 of B.N.S.S., 2023 with the prayer to quash the order dated 05.01.2026 passed by the learned Judicial Magistrate 1st Class, Giridih in connection with Tisri P.S. Case No. 63 of 2025, corresponding to G.R. No. 527 of 2026, whereby and where under, the learned Judicial Magistrate 1st Class, Giridih has taken cognizance of the offence inter alia under Section 109 of B.N.S., 2023 even though the charge sheet was not submitted in respect of the said offence.
It is submitted by the learned counsel for the petitioners that the learned Judicial Magistrate 1st Class, Giridih at the time of taking cognizance after submission of charge sheet cannot add any Section in respect of which charge sheet has not been submitted as the same can only be done at the time of framing of charge. Hence, it is submitted that the impugned order dated 05.01.2026 passed by the learned Judicial Magistrate 1st Class, Giridih in connection with Tisri P.S. Case No. 63 of 2025, corresponding to G.R. No. 527 of 2026 be quashed and set aside.
Learned Addl. P.P. on the other hand vehemently opposes the prayer of the petitioner as made in this criminal miscellaneous petition.
Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that as has been held by the Hon’ble Supreme Court of India in the case of State of Gujarat v. Girish Radhakrishnan Varde reported in (2014) 3 SCC 659, paragraph no.15 of which reads as under:-
“15.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 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 whatsoever have failed to include all the offences into the charge-sheet based on the FIR on which investigation had been 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 charge-sheet and as already stated, the Magistrate in a case which is based on a police report cannot add or subtract 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 Sections 216, 218 or under Section 228 CrPC as the case may be which means that after submission of the charge-sheet it will be open for the 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 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 charge-sheet.” (Emphasis supplied) that if the investigating authorities for any reason whatsoever have failed to include all the offences in the charge-sheet based on the FIR on which investigation had been conducted, the Magistrate before whom the matter comes up for taking cognizance after submission of the charge-sheet cannot fill up the lacunae and the Magistrate in a case which is based on a police report cannot add or subtract 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.
In view of the settled principle of law, this Court has no hesitation in holding that the impugned order dated 05.01.2026 passed by the learned Judicial Magistrate 1st Class, Giridih in connection with Tisri P.S. Case No. 63 of 2025, corresponding to G.R. No. 527 of 2026 so far as taking cognizance of the offence punishable under Section 109 of B.N.S., 2023 is concerned, is quashed and set aside.
It is made clear that cognizance order in respect of remaining offences shall remain intact.
It is further made clear that passing of this order will not be an impediment for the trial court to frame charges for all the offences which are made out from the materials on the record.
In the result, this criminal miscellaneous petition is allowed to the aforesaid extent only.