Magistrate Cannot Add or Subtract Sections of Penal Offenses at the Stage of Taking Cognizance

The petitioner filed a petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, seeking to quash a criminal proceeding, including the F.I.R. (Godda Town P.S. Case No. 118 of 2024), the charge sheet, and the cognizance order dated 22.01.2026.

The informant alleged that the petitioner, by falsely posing as a contractor, induced the informant to invest ₹53,14,318/- and other large sums with a promise of 20% profit.

The petitioner allegedly failed to return the principal amount, cheating the informant of ₹74,51,483/-.

After investigation, the police submitted a charge sheet, and the Chief Judicial Magistrate (CJM), Godda, took cognizance under Sections 406 and 420 of the IPC.

1. Whether the criminal proceedings should be quashed on the grounds that the dispute is civil in nature arising from a breach of contract without initial fraudulent intent.

2. Whether a Magistrate has the authority to add or subtract sections of the IPC at the stage of taking cognizance based on a police report.

Section 528 of the BNSS, 2023.

Sarabjit Kaur v. State of Punjab (2023) 5 SCC 360 and Rikhab Birani & Another v. State of Uttar Pradesh 2025 INSC 512, which provide that a breach of contract is not criminal cheating unless fraudulent intent existed at the inception.

State of Gujarat v. Girish Radhakrishnan Varde (2014) 3 SCC 659, which established that a Magistrate taking cognizance on a police report cannot alter the sections mentioned in the charge sheet; such modifications are strictly reserved for the trial court at the stage of framing charges under Sections 216, 218, or 228 of the CrPC/BNSS.

The Court rejected the petitioner’s argument that the matter was a simple breach of contract. It distinguished the present case from Rikhab Birani by noting specific allegations of deception existing "since the beginning of the transaction," namely that the petitioner impersonated a contractor to induce the informant to part with money.

Regarding the cognizance order, the Court affirmed that the CJM acted correctly as the Magistrate is prohibited from adding or subtracting offences from a police report at the cognizance stage.

The Court also noted the petitioner’s lack of cooperation and absconding status as factors weighing against the exercise of inherent powers to quash the proceedings.

The petition was dismissed as being without merit. The Court concluded that the appropriate forum for the petitioner to argue the inclusion or exclusion of specific sections is the trial court during the framing of charges.