But then a further question arises as to whether this lacunae can be allowed to be filed in by the magistrate before whom the matter comes up for taking cognizance after the submission of the charge sheet 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

But then a further question arises as to whether this lacunae can be allowed to be filed in by the magistrate before whom the matter comes up for taking cognizance after the submission of the charge sheet 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 charge sheet 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 a 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 charge sheet.

In the alternative, if a case is based on a complaint lodged before a magistrate under Section 190 or 202 of the Cr.P.C., the magistrate has been conferred 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 subtracted. 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 the 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.

Since the instant case is based on the FIR lodged before the police, the correct stage for addition or subtraction 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 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.

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