Tarawati Vs State of U.P. and 5 Others

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HIGH COURT OF JUDICATURE AT ALLAHABAD

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APPLICATION U/S 528 BNSS No. - 3629 of 2026

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Tarawati

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.....Applicant(s)

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	Versus
State Of U.P. And 5 Others		.....Opposite Party(s)
Counsel for Applicant(s) : Counsel for Opposite Party(s):	Ashutosh Pandey G.A., Rishi	Pandey, Shobh Nath kesh Tripathi
Court No.- 82

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HON'BLE PADAM NARAIN MISHRA, J.

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Heard Sri Ashutosh Pandey, learned counsel for the applicant, Sri Rishikesh Tripathi, learned counsel for opposite party nos. 2 to 6 and learned A.G.A. for the State.

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The application under section 528 BNSS has been filed by the applicant seeking quashing of the cognizance order dated 27.05.2025 passed by the ACJM - I, Agra in Case No. 10369 of 2025 arising out of Case Crime No. 520 of 2024 under sections 467, 468, 471 and 506 IPC, P.S. Jagdishpura, District - Agra pending in the court of ACJM I, Agra.

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Brief fact of the present case is that the applicant is informant and caused the lodging of FIR under sections 420,467,468,471,506 I.P.C. against the Opposite Party nos. 2 to 6 and after investigation, the investigating officer has extended the section 120B I.P.C. and thereafter charge sheet has been submitted against the aforesaid Opposite Party nos. 2 to 6 on 24.04.2025 under sections 420, 468, 471, 506, 120B, 467 I.P.C. concerned magistrate has taken cognizance on 27.05.2025 in under sections 467, 468, 471, 506 I.P.C.

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Learned counsel for the applicant submitted that concerned magistrate was taken cognizance on 27.05.2025 under sections 467, 468, 471, 506 I.P.C. which is illegal, improper because the charge sheet has been submitted under sections 420, 468, 471, 506, 120B,

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467 of I.P.C.. So, the applicant/informant namely Tarawati has given an application on dated 09.12.2025 before the court ACJM-I, Agra and prayed for correction in the cognizance order, but same was rejected on same date. He further submitted that in the present case, the ACJM-1 has issued a non-bailable warrant against the all accused persons under sections 420, 468, 471, 506, 120-B, 467 I.P.C., He further submitted that the magistrate has removed the sections 420 & 120B I.P.C. in cognizance order, but when the informant was given an application about the typographical error, but same was rejected by the ACJM-I Agra on same date. He lastly submitted that the magistrate while taking cognizance cannot took cognizance in some other sections than those mentioned in he charge-sheet.

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Learned counsel for the opposite party and learned AGA for the state has opposed the submissions advanced by the learned counsel for the applicant. He further submitted that the magistrate while taking cognizance, is not bound by the charge sheet and can summoned in additional sections than those mentioned in the charge-sheet.

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Having considered the rival submissions of the parties and perusing the material available on record.

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The core issue for the consideration before this court is that whether the magistrate at the time of taking cognizance can summons the accused for the offences not mentioned in the charge sheet.

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In the case of Minu Kumari and another Vs. State of Bihar and others (2006) 4 SCC 356 , the Apex Court observed as under:- "11. .......... The position is, therefore, now well-settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the Investigating Officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at

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by the Investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused."

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In the case of Dharam Pal v. State of Haryana, (2014) 3 SCC 306 : (2014) 2 SCC (Cri) 159 : 2013 SCC OnLine SC 648 , the Apex Court observed as under:-

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"34. The view expressed in Kishun Singh case [Kishun Singh v. State of Bihar, (1993) 2 SCC 16 : 1993 SCC (Cri) 470] , in our view, is more acceptable since, as has been held by this Court in the cases referred to hereinbefore, the Magistrate has ample powers to disagree with the final report that may be filed by the police authorities under Section 173(2) of the Code and to proceed against the accused persons dehors the police report, which power the Sessions Court does not have till the Section 319 stage is reached. The upshot of the said situation would be that even though the Magistrate had powers to disagree with the police report filed under Section 173(2) of the Code, he was helpless in taking recourse to such a course of action while the Sessions Judge was also unable to proceed against any person, other than the accused sent up for trial, till such time evidence had been adduced and the witnesses had been cross-examined on behalf of the accused."

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"35. In our view, the Magistrate has a role to play while committing the case to the Court of Session upon taking cognizance on the police report submitted before him under Section 173(3) Cr.P.C. In the event the Magistrate disagrees with the police report, he has two choices. He may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the accused. Thereafter, if on being satisfied that a case had been made out to proceed against the persons named in column no.2 of the report, proceed to try the said persons or if he was satisfied that a case had been made out which was triable by the Court of Session, he may commit the case to the Court of Session to proceed further in the matter."

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It is the well settled principle of the law that the magistrate is not bound by the police report. When the charge sheet is submitted, the magistrate has two options either to accept the police report or to reject the police report. When the magistrate does not agree with the police report, he is empowered to take cognizance independently by applying his judicial mind on the material available on record. Let's assume a situation in which the magistrate does not have any power

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to disagree with the police report or he is bound by the police report. So, in this situation, if the police submits a final report, the magistrate has no other option but to agree with the report of the police. But, in fact, the situation is not the same as stated above. In reality, magistrate has power to disagree with the police report and where police submits a final report, he is free to summons the accused on the basis of the material available on record by applying his judicial mind( if prima facie discloses the commission of offence). Now, In the light of aforesaid discussion, it is evident that when a magistrate is empowered to disagree with the final report and to take cognizance by exercising its judicial mind when the final report is submitted, it cannot be said that magistrate is not empowered to take cognizance for the offences not mentioned in the charge sheet when the material available on record discloses the commission of offence.

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Coming to the facts of the present case, a perusal of the impugned order clearly reveals that while passing the same, the learned Magistrate has not recorded any satisfaction regarding nontaking of cognizance for certain offences mentioned in the chargesheet. The learned Magistrate has merely observed that upon perusal of the charge-sheet and other prosecution documents, sufficient grounds exist for taking cognizance. In the present case, the chargesheet was submitted under Sections 420, 467, 468, 471, 506 and 120-B IPC, whereas cognizance vide order dated 27.05.2025 was taken only under Sections 467, 468, 471 and 506 IPC. No reason whatsoever has been assigned by the learned Magistrate for not taking cognizance under the remaining sections for which the chargesheet had been submitted. The impugned order, therefore, suffers from the vice of non-application of judicial mind and is also a nonspeaking order, as it does not reflect the subjective satisfaction recorded by the learned Magistrate. Hence, the same is liable to be set aside.

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Cognizance order dated 27.05.2025 passed by the ACJM - I, Agra in Case No. 10369 of 2025 arising out of Case Crime No. 520 of 2024 under sections 467, 468, 471 and 506 IPC is hereby set aside.

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