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Court’s Decision
The Bombay High Court directed that the petitioner be granted leave to amend the petition to include a challenge to the order taking cognizance in the criminal case. Recognizing that the matter was already listed for framing of charges before the trial court, the Division Bench comprising Justice Sarang V. Kotwal and Justice Shyam C. Chandak granted the petitioner eight weeks’ ad-interim protection to ensure that the matter does not become infructuous before the amendment is carried out and the case is heard by the appropriate bench.
The Court observed that once the order of cognizance is set aside, the FIR and charge-sheet would not survive, noting further that a Single Judge Bench has full powers under Section 482 of the Cr.P.C. and Section 528 of the BNSS to quash the FIR and charge-sheet.
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Facts
The petitioner had filed a criminal writ petition under Section 482 of the Code of Criminal Procedure, 1973, seeking to challenge proceedings arising from an FIR. During the pendency of the matter, the trial court had taken cognizance of the offence and scheduled the case for framing of charges on 13 October 2025.
The petitioner’s counsel submitted before the High Court that it was now necessary to amend the writ petition to specifically challenge the order taking cognizance, as the earlier petition did not include this relief. The counsel sought time to carry out the necessary amendment and to annex a copy of the cognizance order.
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Issues
1. Whether the petitioner should be permitted to amend the writ petition to challenge the order of cognizance taken by the trial court.
2. Whether ad-interim protection should be granted to prevent the proceedings from becoming infructuous pending such amendment.
3. Whether a petition under Section 482 Cr.P.C. should have been filed as a criminal application instead of a criminal writ petition.
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Petitioner’s Arguments
The petitioner’s counsel contended that the trial court’s cognizance order had materially altered the stage of the case and that without challenging it, the petition would become infructuous. It was argued that since cognizance had been taken and the trial was proceeding to the next stage of framing charges, an amendment was essential to include the challenge to the cognizance order and to add relevant grounds. The counsel sought sufficient time for this amendment and requested that interim protection be granted to safeguard the petitioner from coercive steps during this process.
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Respondent’s Arguments
The State opposed the indefinite extension of protection but did not object to granting limited time to carry out the amendment. The State emphasized the procedural requirement that such petitions under Section 482 Cr.P.C. must be filed as criminal applications and not as writ petitions, in line with established practice and prior judicial orders.
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Analysis of the Law
The Court analyzed the procedural aspects of criminal petitions filed under Section 482 Cr.P.C., emphasizing that they should be classified as criminal applications rather than writ petitions. The Court also relied on its earlier orders dated 9 September 2025 (W.P. No. 2056 of 2025) and 11 September 2025 (W.P. No. 3901 of 2021), which clarified the bench composition and procedural route for such matters.
Further, by referring to Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — which corresponds to the inherent powers of the High Court under the new procedural code — the Court underlined that the Single Judge has the power to quash FIRs and charge-sheets once the order of cognizance is set aside. This interpretation ensures continuity between the Cr.P.C., 1973 and BNSS, 2023, avoiding procedural disruptions during the transition between the two codes.
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Precedent Analysis
The Court referred to its own previous administrative and judicial directions in W.P. No. 2056 of 2025 and W.P. No. 3901 of 2021, reaffirming that matters invoking inherent jurisdiction under Section 482 should be heard by a Single Judge and not a Division Bench.
The Court also reiterated the settled principle from earlier precedents that setting aside the cognizance order nullifies subsequent proceedings, including the filing of the charge-sheet and continuation of trial, as the very foundation of the case stands extinguished.
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Court’s Reasoning
The Bench observed that the petition was pending since 2024 and that the trial court was proceeding with the matter. Therefore, denying the petitioner an opportunity to amend the petition would render the entire proceeding ineffective. The Court found it necessary to balance procedural propriety with fairness, stating that “it is necessary to give some reasonable time to the learned counsel for the Petitioner to take appropriate steps so that amendment be carried out and the matter be placed before the Single Judge.”
Acknowledging the technical defect in filing the matter as a Criminal Writ Petition instead of a Criminal Application, the Court directed the office to take steps to convert it accordingly. To prevent prejudice to the petitioner, the Court directed that the trial court shall not proceed against the petitioner for eight weeks, giving sufficient time for amendment, conversion, and circulation before the Single Judge Bench.
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Conclusion
The Bombay High Court allowed the petitioner to amend the writ petition to include a challenge to the order of cognizance, permitted annexing of the relevant order and addition of necessary grounds, and directed that the matter be placed before a Single Judge Bench in accordance with prior orders.
The Court also clarified the procedural classification of petitions under Section 482 Cr.P.C., directing conversion into an appropriate criminal application. To preserve the petitioner’s rights, the Court granted ad-interim protection for eight weeks, during which the trial court shall not proceed against the petitioner.
In its parting observation, the Bench emphasized that “once the order of taking cognizance is set aside, as a consequence thereof even the FIR and the charge-sheet do not survive.”
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Implications
This order reinforces procedural discipline in criminal matters while protecting substantive rights of accused persons. It clarifies that petitions invoking the High Court’s inherent powers must follow the proper procedural classification, and highlights the continuing applicability of Cr.P.C. principles under BNSS.
Importantly, it affirms that setting aside the cognizance order vitiates subsequent proceedings, offering a significant procedural safeguard for individuals challenging the very foundation of criminal prosecution.
