HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 16317 of 2025 Court No. - 82 HON'BLE PADAM NARAIN MISHRA, J. 1. Heard Sri Sushil Kumar Dwivedi, learned counsel for the applicants, Sri Sanjay Kumar Singh, Advocate holding brief of Sri Manoj Kumar Srivastava, learned counsel for opposite party no. 2 and learned A.G.A. for the State. 2. The present application under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) has been filed by the applicants seeking quashing of (i) the impugned order dated 02.04.2025 passed by the learned Judicial Magistrate, Khaga, (ii) the impugned order dated 06.03.2025 passed by the learned Judicial Magistrate, Vahya Nyayalay, Khaga, whereby Section 308 I.P.C. has been added and the case has been committed to the Court of Sessions, as well as (iii) the entire criminal proceedings of Case No. 8403 of 2024 arising out of Case Crime No. 44 of 2024, under Section 308 I.P.C., Police Station Khakheru, District Fatehpur, presently pending before the learned Judicial Magistrate, Khaga. 3. The brief facts of the case are that an F.I.R. came to be lodged on 16.03.2024 for the offences punishable under Sections 323, 452, 504 and 506 I.P.C. The injured was medically examined at the Community Health Centre, Khakheru, and as per the injury report, all injuries were found to be simple in nature. Subsequently, a further medical examination of the injured was conducted on 20.03.2024, on the basis of which Section 325 I.P.C. was added during investigation and charge-sheet was submitted under Sections 323, 325, 452, 504 Versus Counsel for Applicant(s) : Sushil Kumar Dwivedi Counsel for Opposite Party(s): G.A., Jeetendra Kumar Sharma, Manoj Kumar Srivastava, Ravi Pratap Singh Yadav Ashish Kumar Mishra And 3 Others .....Applicant(s) State of U.P. and Another .....Opposite Party(s) and 506 I.P.C. Thereafter, opposite party no. 2 moved an application under Section 323 of the Code of Criminal Procedure, 1973 seeking addition of Section 308 I.P.C. The learned Magistrate, vide impugned order dated 06.03.2025, allowed the said application, directed addition of Section 308 I.P.C., and consequently committed the case to the Court of Sessions. 4. Learned counsel for the applicants submits that the impugned order was passed in mechanical manner without application of judicial mind. He further submits that it is settled legal position that the magistrate can alter sections at the sage of cognizance or at the stage of charge framing. He further submits that section 308 IPC was added in absence of any new material or circumstance which requires the addition of aforesaid section. He further submits that the impugned order does not disclose the existence of any new material which justify the addition of section 308 IPC. He lastly submits that the injury, as per record, is a linear non-displaced fracture, which, though falling within the category of grievous hurt, does not, by itself, establish intention or knowledge to cause death, which is sine qua non for attracting Section 308 IPC. 5. Per contra, the learned AGA has opposed the submissions advanced by the learned counsel for the applicants. He further submits that the impugned order does not suffer from any illegality or infirmity. He further submits that the impugned order is passed after duly considering the supplementary report which clearly disclose linear non-displaced fracture. 6. It is well settled that a Magistrate has the power to add or alter sections at appropriate stages of the proceedings, including at the stage of taking cognizance or framing of charge; however, such power is to be exercised judiciously and upon due application of mind. In the present case, this Court finds that while directing addition of Section 308 IPC, the learned Magistrate has failed to record any satisfaction as to how the essential ingredients of the said offence are made out. Further, no new material or circumstance has been indicated in the impugned order so as to justify the addition of Section 308 IPC, except a mere reference to the supplementary medical report, which was already available on record at the time when NA528 No. 16317 of 2025 2 section 325 IPC was added. In the absence of any fresh material warranting invocation of the aforesaid provision, the impugned order cannot be sustained in the eyes of law. The order impugned thus reflects a mechanical and hasty exercise of jurisdiction, without proper evaluation of the material on record. Accordingly, in view of the discussion made hereinabove, the impugned order is liable to be set aside. 7. In view of above, the impugned order dated 06.03.2025 passed by the learned Judicial Magistrate, Vahya Nyayalay, Khaga, whereby Section 308 I.P.C. has been added and the case has been committed to the Court of Sessions, is hereby set aside. 8. Accordingly, the application is disposed of. February 16, 2026 Israr NA528 No. 16317 of 2025 3 (Padam Narain Mishra,J.) Digitally signed by :- ISRAR AHMAD High Court of Judicature at Allahabad