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Judgment
Heard Sri Syed Riyaz Askari, Advocate holding brief of Sri Syed Faiz Hasnain, learned counsel for the applicants, Sri Anil Kumar Ojha, learned A.G.A. for the State, Sri Jai Singh Yadav, learned counsel for the opposite party no. 2 and perused the record.
The present application under Section 528 B.N.S.S. has been filed with the prayer to quash the impugned charge-sheet No. 366 of 2025 dated 26.10.2025 alongwith charge sheet No. 366-A of 2026 dated 12.01.2026, cognizance/summoning order dated 10.08.2026 and entire proceedings of Case No. 14007 of 2026, arising out of Case Crime No. 371 of 2025, under Sections 85, 89, 115(2), 352, 351(3), 74, 76 of B.N.S. and Section 3/4 of the Dowry Prohibition Act, Police Station Bhojpur, District Moradabad, pending in the Court of C.J.M, Moradabad.
Briefly stated, a first information report was registered as Case Crime No. 371 of 2025, under Sections 85, 64, 89, 115(2), 352, 351(3) of B.N.S. and Section 3/4 of the Dowry Prohibition Act at Police Station Bhojpur, District Moradabad against the applicants. After the investigation, a charge sheet under Sections 85, 115(2), 352, 351(3) of B.N.S. and Section 3/4 of Dowry Prohibition Act was filed against the applicant no. 1 Mohd. Danish, applicant no. 3 Rabiya, applicant no. 4 Habib @ Abdul Habib and applicant no. 5 Anisa Begum and charge sheet under Sections 85, 74, 76, 115(2), 352, 351(3) of the B.N.S. and Section 3/4 of the Dowry Prohibition Act was filed against the applicant no. 2 Mohd. Raja. Thereafter, opposite party no. 2 filed protest petition before the learned trial court and the learned trial court took cognizance against the applicants Mohd. Danish, Rabiya, Habib @ Abdul Habib and Anisa Begum under Sections 85, 89, 115(2), 352, 351(3) of the B.N.S. and Section 3/4 of the Dowry Prohibition Act and against the applicant no. 2 Mohd. Raja under Sections 85, 89, 115(2), 352, 351(3), 74, 76 of the B.N.S. and Section 3/4 of the Dowry Prohibition Act. Aggrieved by this modification at the stage of taking cognizance, the applicants have approached this Court under Section 528 of the B.N.S.S.
Learned counsel for the applicants submits that a first information report was registered as Case Crime No. 371 of 2025, under Sections 85, 64, 89, 115(2), 352, 351(3) of B.N.S. and Section 3/4 of the Dowry Prohibition Act at Police Station Bhojpur, District Moradabad against the applicants. After the investigation, charge sheet under Sections 85, 115(2), 352, 351(3) of B.N.S. and Section 3/4 of Dowry Prohibition Act was filed against the applicant no. 1 Mohd. Danish, applicant no. 3 Rabiya, applicant no. 4 Habib @ Abdul Habib and applicant no. 5 Anisa Begum and charge sheet under Sections 85, 74, 76, 115(2), 352, 351(3) of the B.N.S. and Section 3/4 of the Dowry Prohibition Act was filed against the applicant no. 2 Mohd. Raja. Learned Magistrate exceeded its jurisdiction by altering, adding, or deleting statutory sections at the stage of cognizance before evaluating charges under the appropriate statutory provision. He further submits that premature alteration severely prejudices the procedural safeguards guaranteed to the applicants. Hence, the impugned order is illegal and liable to be quashed and the learned Magistrate be directed to pass a fresh cognizance order in accordance with law.
Per contra, learned A.G.A. vehemently opposed the submissions advanced by learned counsel for the applicants and submitted that the Magistrate possesses broad power to apply correct provisions of law based on the material available in the police report, and that no prejudice has been caused to the applicants at this preliminary stage. The learned Magistrate has not committed any illegality in passing the impugned order, therefore, application is liable to be dismissed.
The core issue for determination is whether a Magistrate, while exercising jurisdiction to take cognizance of an offence upon a police report under Section 210 B.N.S.S., has the authority to add, drop, or alter penal sections.
It is a well-settled principle of criminal jurisprudence that cognizance is taken of an offence, not of particular sections of a penal code or of an offender. When a Magistrate applies their judicial mind to the facts disclosed in a police report or complaint, they take cognizance of the overall alleged criminal occurrence. The statutory framework of the B.N.S.S. mandates a clear separation between the distinct stages of criminal proceedings. While taking of cognizance, the Magistrate applies their mind solely to determine whether the facts presented constitute a triable criminal offence warranting the issuance of process under Section 227 B.N.S.S. and while at the stage of framing of charge, the Magistrate evaluates the material in detail to determine the specific penal provisions/sections under which the accused shall stand trial.
At the stage of taking cognizance, the Magistrate is not required nor permitted to embark upon an exercise of deleting or substituting sections mentioned in the police report. Adding or deleting statutory sections at the cognizance stage amounts to a premature evaluation of the charges, bypassing the statutory mechanisms laid down for discharge and charge-framing. If the material on record indicates additional or different offences, the appropriate stage for the court to formally frame or alter charges is after hearing both sides prior to trial.
Consequently, the learned Magistrate committed a grave jurisdictional error by adding Section 89 of the B.N.S. vide cognizance order dated 10.08.2026. Therefore, the impugned order dated 10.08.2026 passed by the learned Chief Judicial Magistrate, Moradabad to the extent of adding Section 89 of the B.N.S., is set aside. The matter is remitted back to the learned Magistrate with a direction to pass a fresh cognizance order within a period of one month from the date of production of certified copy of this order.
With the aforesaid observation, this application is disposed of.