High Court sets aside order allowing protest petition that led to re-cognizance against accused; clarifies magistrates cannot add or subtract sections at cognizance stage
In a landmark judgment addressing critical procedural deficiencies in criminal proceedings, the Allahabad High Court (Lucknow Bench) has quashed an order dated May 22, 2026, passed by the Chief Judicial Magistrate, Gonda, which had taken cognizance of offences against the applicant Alpana Singh under various sections of the Bharatiya Nyaya Sanhita, 2023.
Justice Shree Prakash Singh delivered the judgment in Application u/s 528 BNSS No. 2491 of 2026, while deciding a petition challenging the Magistrate's order that summoned Alpana Singh and co-accused Shekhar Singh under sections 115(2), 351(2), 352, 324(2), and 109(1) of the BNS.
THE CASE FACTS
The case originated from an FIR (Crime No. 148 of 2025) lodged at Police Station Nawabganj, Gonda, alleging that on the night of May 3-4, 2025, the accused persons had allegedly broken the wall of the informant's house, abused and challenged the informant, resulting in physical injuries.
Initially, the chargesheet was filed against two accused persons—Akshay Singh and Shekhar Singh—and cognizance was taken on November 17, 2025. However, regarding Alpana Singh, the Investigating Officer filed a final report (closure report) stating that no cogent or substantial evidence was found against her. Subsequently, a protest petition was filed by the complainant, which was allowed by the Magistrate vide the impugned order of May 22, 2026, leading to cognizance being taken against Alpana Singh and additional sections being added against co-accused Shekhar Singh.
THE CRITICAL LEGAL ISSUES
The High Court identified three fundamental questions:
1. Whether a Magistrate has the power to review an order of cognizance passed in the same case?
2. Whether the trial court can add or subtract sections while passing the cognizance order?
3. Whether a protest petition filed after cognizance is taken can serve as a mechanism to reopen or review an earlier cognizance order?
THE HIGH COURT'S FINDINGS
On Re-Cognizance: Justice Singh categorically held that it is trite law that cognizance can only be taken once, and re-cognizance is not permissible as it would amount to a review of the order of cognizance. The court relied heavily on the Supreme Court's landmark judgment in Ramakant Singh v. State of Jharkhand, 2023(15) SCC 429, where the Apex Court observed that it was not open for the Magistrate to entertain a protest petition against an earlier order of taking cognizance, and any such order would amount to an impermissible modification of the earlier cognizance order.
The Delhi High Court's recent judgment in Mrs. Amrita Jain v. State of NCT Delhi (2025) was also cited, which reiterated that "cognizance can only be taken once" and that "it is settled law that it is not open to the learned Magistrate to take re-cognizance upon filing of protest petition as the same would amount to review of the prior order."
On Addition or Subtraction of Sections: The court observed that while additional accused persons can be summoned even if they were not named in the chargesheet, sections cannot be added or subtracted at the stage of cognizance. Justice Singh referred to the Supreme Court's decision in State of Gujarat v. Girish Radhakrishnan Varde, 2014(3) SCC 659, which explicitly clarified that the Magistrate in a police case cannot add or subtract sections at the time of taking cognizance. The judgment noted that such modifications are permissible only at the stage of framing charges, where the trial court can consider whether appropriate sections should be added or removed based on the material collected during investigation and the facts disclosed in the FIR and chargesheet.
On Protest Petitions: The court ruled unambiguously that a protest petition cannot serve as a mechanism to review or reopen an earlier cognizance order. Once cognizance has been taken and summons issued, the Magistrate does not possess the authority to reconsider that order through a protest petition filed subsequently, even against a closure report concerning other accused persons.
THE JUDGMENT'S SIGNIFICANCE
This judgment addresses a critical lacuna in criminal procedure and provides much-needed clarity on the limits of magistrial authority. The court's findings ensure that:
1. Finality of Cognizance: Once a Magistrate takes cognizance of offences against an accused and summons them, that order cannot be reviewed or modified through subsequent protest petitions.
2. Protection Against Judicial Overreach: The judgment prevents Magistrates from circumventing procedural safeguards by using protest petitions as a backdoor mechanism to modify earlier orders.
3. Proper Procedure for Section Modifications: It ensures that modifications to charges remain within the purview of the trial court at the appropriate stage of framing charges, not at the cognizance stage.
THE COURT'S DIRECTION
Consequently, Justice Singh set aside the impugned order dated May 22, 2026, in its entirety and directed the trial court to proceed in accordance with law. This means that the cognizance order against Alpana Singh stands quashed, and the additional sections against Shekhar Singh are set aside, reverting to the position that existed following the original cognizance order of November 17, 2025.
IMPLICATIONS
This judgment has significant implications for criminal practice across India. It reinforces the principle that criminal procedure must follow strict adherence to established norms and that Magistrates cannot invoke protest petitions to revisit settled orders of cognizance. The decision protects accused persons from harassment through multiple cognizance orders based on the same FIR and ensures that procedural fairness is maintained throughout the criminal justice process.
The judgment exemplifies the High Court's commitment to upholding the rule of law and preventing procedural irregularities that could undermine the sanctity of criminal proceedings.
Bottom Line:
A Magistrate does not have the power to review or take re-cognizance of an offence for which cognizance has already been taken. Further, a protest petition cannot be used as a mechanism to review or reopen an earlier cognizance order.
STATUTORY PROVISIONS
Bharatiya Nyaya Sanhita, 2023 Sections 115(2), 351(2), 352, 324(2), 109(1)
Alpana Singh v. State of U.P., (Allahabad)(Lucknow) : Law Finder Doc Id # 2976599
