Magistrate cannot exclude or include any section into chargesheet
But if a case is registered by the police based on the 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 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 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 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 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 offence into the chargesheet 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 chargesheet and as already stated, the magistrate in a case which is based on a police
report cannot 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
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 chargesheet.
State of Gujarat Vs. Girish Radhakrishnan Varde
SUPREME COURT OF INDIA
(G.S. SINGHVI AND GYAN SUDHA MISRA, JJ.)
Criminal Appeal No. 1996 of 2013(Arising out of SLP (Crl.) 734/2012)-Decided on 25-11-2013.
Criminal Procedure – Complaint to Magistrate – Adding of additional Sections
https://www.lawweb.in/2013/12/magistrate-cannot-exclude-or-include.html
