The Supreme Court has held that the remedy of quashing of FIR is available right from the registration of FIR and can be filed at any stage of the proceedings. Since there is no specific provision for quashing of FIR under the Code of Criminal Procedure, or the present Bharatiya Nagrik Suraksha Sanhita, the remedy is preferred through an application under section 482 of the CrPC/ section 528 of the BNSS invoking the inherent powers of the High Court or through a Writ Petition under Article 226 of the Constitution of India invoking its Writ jurisdiction.

But the recent judgements of the Hon’ble Supreme Court and Bombay High Court indicate the rising trend of the High Courts to send litigants to the Trial Courts for seeking the remedy of quashing of criminal proceedings at an early stage. Depending on the stage of the criminal proceedings, the High Court in its discretion prefers to either intervene in the matter or direct the litigants to approach the Trial Court. The crucial stage is the one where the chargesheet is ready in the case. The question is whether to proceed before the Hon’ble High Court or prefer a remedy before the Trial Court?

Once the Police complete its investigation and prepare the chargesheet, the High Courts, relying upon the view of the Supreme Court in the case of Iqbal and Ors. vs. State of UP and ors.ii have taken a viewiii that since the FIR has ripened into a chargesheet, the stage of quashing of FIR has gone and the litigant needs to approach the Trial Court for seeking discharge from the said chargesheet. This view arises from the well-settled legal principle that the plenary powers of the High Court under the writ jurisdiction or the supervisory jurisdiction must be exercised sparingly; there is no specific remedy for challenging a false FIR except the aforesaid provisions, but for quashing a chargesheet there is a remedy available under section 227/ 239 of the CrPC.

When there is an alternative remedy available, the Courts have exercised restraint in using their powers under the writ jurisdiction or the supervisory jurisdiction, and have held that except in certain situationsiv, the writ petitions or applications will not be maintainable. It does not entail that the High Court cannot entertain such petitions at the said stagev, but the Court may or may not exercise its discretion, and the recent trends suggest that the Court may be inclined towards the latter one. But, there is a fundamental difference between the remedy of quashing and discharge.vi

In a discharge application, the accused cannot rely upon any material not included in the chargesheet to prove his casevii, whereas the power of the High Court in quashing matters is wider allowing the Court to refer material not included in the chargesheet which the accused seeks to rely upon in order to prove his case.viii The facts and circumstances of each case will guide the litigant which remedy is suitable for the accused. So, even if the chargesheet is ready for filing, the accused has a remedy available under section 482 of CrPC/ section 528 of BNSS or Article 226 of the Constitution of India, but the said remedy under Article 226 of the Constitution of India vanishes once the chargesheet is filed before the Court of jurisdictional Magistrate and the Ld. Magistrate takes cognizance of it.ix Thus we reach at the crux of this article.

In the court of the jurisdictional Magistrate once the chargesheet is filed by the Police under section 173(2) of the CrPC, the Ld. Magistrate takes upon the task of dealing with such chargesheet and comes to the stage of taking cognizance of the offence under section 190 of CrPC. Before the discussion proceeds further, it is important to mention about the term‘cognizance of an offence’. ‘Cognizance of an offence’ has not been defined in the CrPC. If a chargesheet/ or Police Report (as it is known in the CrPC/ BNSS) is filed before the Magistrate, the procedure of taking cognizance of the offence entails that the Magistrate applied his mind to the chargesheet and on being satisfied that a case had been made out, proceeded for initiating proceedings against the accused in accordance with law.

This is correct if the case is triable by a Magistrate; then the Ld. Magistrate proceeds to inquire and conduct trial in the matter by issuing summons to the accused. But, if it is triable by a Court of Sessions, then the Ld. Magistrate will have to commit the case to the jurisdictional Court of Sessions. Then the question arises as to who takes the cognizance of the offence: the Magistrate or the Sessions Judge?

In the case of Dharam Pal and Ors. vs. State of Haryana and Ors.x the Constitution Bench of the Hon’ble Supreme Court has held that in a case triable by a Court of Sessions, the Ld. Magistrate plays a passive role of committing the case to the Court of Sessions upon finding from the chargesheet that the case is triable by the Court of Sessions, and then the Court of Sessions, as the Court of Original Jurisdiction, takes cognizance of the offence, as the Hon’ble Supreme Court has reiterated the fundamental and well-settled legal principle that the cognizance of an offence can be taken only once and such cognizance cannot be taken partly by the Magistrate and partly by the Sessions Judge. The Court observed that if the Magistrate takes cognizance of the offence, then the Court of Sessions taking fresh cognizance of the
offence is not in accordance with law.

But, in Balveer Singh and Ors. vs. State of Rajasthan and Ors.xi, the Hon’ble Supreme Court after referring the Constitution Bench judgement in Dharam Pal has held that if the Magistrate takes cognizance of the offence and then commits the case to the Sessions Court, then the Sessions Court cannot take fresh cognizance of the offence and issue summons to the Accused. The entire discussion on the question of who can take cognizance in cases triable by the Court of Sessions was further clarified by the judgement of the Hon’ble Supreme Court in the case of Kallu Nat vs. State of UP and Ors.xii, where in the Court held that when the Magistrate proceeds in accordance with the provisions under sections 204 to 207 of CrPC, then it is understood that the Magistrate has taken cognizance of the offence and thereafter the Magistrate commits the case to the Court of Sessions under section 209 of the CrPC.

The Court resolved the debate on the issue of “cognizance can be taken only once” by holding that after the Magistrate takes cognizance of the offence and commits the case to the Court of Sessions, then under section 193 of the CrPC, the Court of Sessions has the power to take cognizance for the limited purpose of issuing process against those accused who are yet to be summoned in the case.

Therefore, once the Magistrate undertakes the procedure provided under sections 204 to 207 of the CrPC, it is assumed that the Magistrate has taken cognizance of the offence even if no formal order has been passed by the Magistrate. The fact that the case is triable by the Court of Sessions does not entail that the cognizance of the offence can be taken only by the Court of Sessions being the Trial Court for that case, and therefore, it must not be assumed that as the case has not been committed to the Court of Sessions no cognizance of the offence has been taken.

As per the ruling of the Supreme Court in Neeta Singh (supra) which has been clarified further by the Court in the case of Pradnya Pranjal Kulkarni vs. State of Maharashtra and Ors.xiii, if cognizance of the offence has been taken then the remedy under Article 226 of the Constitution of India to quash the FIR and chargesheet ceases to exist. In such circumstances, the relief that can be availed by the accused to quash the criminal proceedings, instead of approaching the Trial Court, will be to prefer an application under section 482 of the CrPC or Article 227 of the Constitution of India challenging the FIR, chargesheet and the criminal case in which cognizance has been taken by the Magistrate.

• i Rajnish Kumar Biswakarma vs. State of NCT of Delhi and Ors., MANU/SC/1438/2024;
• ii MANU/SC/0848/2023;
• iii Ramesh B. Pokhriyal and Anr. Vs. State of Maharashtra and Ors., APL/1094/2024, Bombay High Court;
• iv Godrej Sara Lee Ltd. vs. The Excise and Taxation Officer-cum-Assessing Authority and Ors.,
  MANU/SC/0086/2023;
• v Anand Kumar Mohatta vs. State (NCT of Delhi), MANU/SC/1281/2018;
• vi State of Gujarat vs. Dilipsinh Kishorsinh Rao, MANU/SC/1113/2023;
• vii Rajnish Kumar Biswakarma vs. State of NCT of Delhi and Ors., MANU/SC/1438/2024;
• viii Mukesh and Ors. vs. State of Uttar Pradesh and Ors., MANU/SC/1530/2024;
• ix Neeta Singh vs. State of Uttar Pradesh, SLP (Crl.) No. 13578 of 2024, Supreme Court of India;
• x MANU/SC/0720/2013;
• xi MANU/SC/0542/2016;
• xii MANU/SC/1017/2025;
• xiii MANU/SC/67268/2025;