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REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  1996 /2013 (Arising out of SLP (Crl.) 734/2012)

STATE OF GUJARAT ..Appellant

Versus

GIRISH RADHAKRISHNAN VARDE         ..Respondent

J U D G M E N T

GYAN SUDHA MISRA, J  .   

Leave granted.

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 application filed by the  

appellant-State of  Gujarat   and thus upheld  the order  

passed by the learned Addl. District &  Sessions Judge,

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Deesa 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 the Indian Penal  

Code (‘IPC’  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  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  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  came  to  be  

registered  with  Deesa  City  Police  Station  being  I.  2

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Cr.59/09 for the offences punishable under Sections 365,  

387, 511, 386, 34, 120-B and 506(2)  of  the IPC and  

under Section 25 (1) (A) of the Arms Act, 1959.  The FIR  

disclosed that the informant/complainant-Deepakkumar  

Dhirajlal Thakkar resident 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  

No. GJ-1 - HP-1 and rushed towards the complainant with  

countrymade  pistol/revolver.   On reaching there, the  

respondent 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 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,  3

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the  complainant raised an alarm as a consequence of  

which the people standing  nearby immediately rushed  

to the spot of 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/-  

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.

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 noticed that despite the fact  

that  the  respondent-accused  robbed  Rs.50,000/-  from  

the complainant  on  one previous occasion and this time  4

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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  

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 adding other Sections 364, 394 and 398 of the  

I.P.C. who after hearing the parties was pleased to allow  

the  application  bearing  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 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 IIIrd Addl.  Chief Judicial  Magistrate, Deesa and  

thus allowed the civil revision by order dated 23.9.2010.

7. Since the State of Gujarat was prosecuting the  

matter,   it  felt  aggrieved  of  the  order  passed  by  the  5

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Additional  District & Sessions Judge who was pleased to  

quash the order  of  the CJM permitting addition of  the  

sections to the chargesheet and 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  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  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 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  6

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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  

magistrate   to  entertain  a  complaint   envisaged  in  

Chapter  XV  of  the  Cr.P.C.  and   when  on  receiving  

complaint,  the  magistrate  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 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 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  7

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cognizance  of  the  offence  under  Section  190  (1)  (c).  

Therefore,  if  the  magistrate   found  that   there  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 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 order of the III  

Addl.  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  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  8

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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  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.   

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 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  the  procedure  prescribed  under  9

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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 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  lodged  under  

Section  154  Cr.P.C.   Section  190(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 such offence;  (b) upon  a  police  report  in  writing  of  such  facts--that  is,  facts  constituting the offence-- made by any police officer;  (c) upon  information  received  from  any  person other than a police officer or upon the  Magistrate's own knowledge or suspicion that  such offence has been committed.  

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An examination of these provisions makes it clear  

that 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 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 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  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  and  initiate  proceedings.  It  is  open  to  the  1

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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 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 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 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  1

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obviously 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 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  1

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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  1

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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.  

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  1

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with full authority  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  

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.   

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 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  1

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the 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.   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  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 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  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  1

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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 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  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 learned Additional  

District  &  Sessions  Judge,  the  High  Court  has  further  

overlooked  the  fact  that  the  Additional  District  &  

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  1

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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  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 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 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-State  of  Gujarat  as  also  the  magistrate  

which permitted addition of sections after submission of  1

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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.

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 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  complainant/prosecution  

party, failure of which got the matter enmeshed into this  

litigation impeding the trial.   

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 material collected  

during investigation at the time of framing of charges by  

the Trial  Court since the matter arises out of a police  2

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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 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  

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.   

                ……………………..J      (G.S. Singhvi)

        ………………………J (Gyan Sudha Misra)   

New Delhi November 25, 2013.

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