Institute of Legal and Management Studies

The Supreme Court has held that a Trial Court cannot take cognizance of additional offences not mentioned in the chargesheet solely on the basis of affidavits filed by private witnesses, without relying on the investigation record or ordering further investigation.

A bench comprising Justice Ahsanuddin Amanullah and Justice SC Sharma set aside the Allahabad High Court's unusual order where it approved the trial court's order taking cognizance of an offence under Section 394 IPC (voluntary causing hurt in committing or attempt to commit robbery) based on the affidavits furnished by the complainant's witness, without forming its own satisfaction regarding the applicability of Section 394 IPC to the case.

“In fact, only on the basis of affidavits of witnesses filed along with the petition on behalf of the complainant, the Court has taken cognizance under Section 394 of the IPC. We do not approve of such exercise in the manner it has been done.”, the Court observed.

The Court held that the addition of offences based on private affidavits should not be mechanically done by the trial courts and they must ensure fairness by relying on proper investigation or directing further probe when allegations of suppression arise.

Initially, the FIR was registered under Sections 394, 452, 323, 504, 506 IPC and provisions of the SC/ST Act, but the police, after investigation, filed a chargesheet excluding Section 394. After this, on repeated applications by the complainant, the Trial Court eventually took cognizance of Section 394, relying only on affidavits of witnesses. The Allahabad High Court upheld this order, prompting the present appeal.

The Supreme Court said that the Trial Court was required to call upon the Police to produce the entire case diary recording the complete statements of all the witnesses. Further, the Court also found an error on the prosecution's part to not furnish the complete statements made by the complainant's witness under Section 161 CrPC to the Court to independently assess the genuineness of the such statements along with other relevant materials.

“In the present case, we find that the manner in which the exercise has been conducted is not in accordance with law. After the matter being remanded by the High Court, it was incumbent upon the Trial Court to form a satisfaction of its own with regard to applicability of Section 394 of the IPC independently, based on the materials produced either by the complainant or by the defence and from the investigating agency or in the alternative to conduct the inquiry of its own. In the present case, when the allegation was that witnesses had made certain statements before the Police, which was recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short, the “Cr.P.C.”), it was the duty of the prosecution to produce all such statements to the Court, which was not done. Then obviously, the Trial Court was required to call upon the Police to produce the entire case diary recording the complete statements of all the witnesses. Thereafter, upon perusing the same, especially, the portions which had not been forwarded to the Court earlier, the Trial Court could have formed an independent opinion as to whether ingredients of various Sections including Section 394 of the IPC were made out. This has not happened.”, the court observed.

The Court directed the Trial Court to summon the entire police case diary under Section 172 Cr.P.C. and, if any witness statements were missing, to forward affidavits to the police for recording under proper procedure.

“For reasons aforesaid, the order taking cognizance against the appellants is set aside. The matter is remanded to the Trial Court, which is directed to call upon the Police to produce the entire investigation and statements of the witnesses which has been recorded. Further, if the Police has missed out recording the statement of any of the witnesses, the affidavits of the witnesses as furnished by the complainant shall be forwarded to the Police. The Police shall then, carry further investigation and submit a further report to the concerned Court. The same be done within six weeks from today. Based upon that, the Court after hearing all concerned, shall proceed to the stage of taking cognizance and thereafter, framing of charge and proceeding with the trial, as the case may be. We make it clear that we have not expressed any opinion on the merits of the matter.”, the court added.

Also, the Superintendent of Police, Jhansi, would be personally liable if any material uncovered during investigation was suppressed, the court said. It emphasized the need for “free and impartial investigation” and directed that all materials be truthfully placed before the Court.

Cause Title: DEEPAK YADAV AND ANOTHER VERSUS STATE OF UTTAR PRADESH AND ANOTHER

Citation : 2025 LiveLaw (SC) 966

Click here to read/download the order

Appearance:

For Petitioner(s) Mr. Gaurav Yadav, Adv. Mr. Chand Qureshi, AOR Mr. Vijay Kumar, Adv. Mr. Sundeep Pandhi, Adv. Mr. Syed Mazahir Husain Chishty, Adv. Mr. Syed Danish Hasan, Adv. Mr. Santanu Chatterjee, Adv. Mr. Rahul Mohod, Adv. Mr. Sanjay Gyan, Adv.

For Respondent(s) Mr. Arup Banerjee, AOR Mr. Divyanshu Sahay, Adv. Mr. Shiv Pratap Singh., Adv. Mr. Kumar Rupak, Adv. Mr. Sanjeev Sharma, Adv. Mr. Rajiv Agnihotri, Adv. Mr. Anuj Bhandari, AOR Ms. Jahanvi Bhardwaj, Adv. Mr. Gaurav Jain, Adv.