Allahabad High Court
Dinesh @ Ganeshi And 2 Others vs State Of U.P. And Another on 2 December, 2020
Author: Dinesh Pathak
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 88 Case :- APPLICATION U/S 482 No. - 12620 of 2020 Applicant :- Dinesh @ Ganeshi And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Shahabuddin,Syed Mohammad Nawaz Counsel for Opposite Party :- G.A. Hon'ble Dinesh Pathak,J.
Heard learned counsel for the applicant and learned A.G.A. for the State.
No notice is being issued to the private respondent in view of the order proposed to be passed today. Liberty is reserved for the private respondent to seek modification of the order passed herein below, if so advised.
The present 482 Cr.P.C. application has been filed to quash the charge-sheet dated 25.06.2017 as well as Non-bailable Warrant dated 12.06.2019 in Criminal Case No. 1069 of 2018 arising out of Case Crime No. 21 of 2017 under Sections 323, 504 & 506 IPC, P.S. Civil Lines, District Rampur, pending in the Court of Chief Judicial Magistrate, Rampur.
With respect to the incident dated 01.02.2017, an NCR has been lodged by opposite party no. 2 (informant) against the present applicants alleging therein that they abused the informant and on resistant they have beaten him up badly. While the wife of the informant had came to his rescue, the accused persons have beaten her up as well. Investigative Officer had moved an application dated 23.02.2017 under Section 155 (2) Cr.P.C. before the Chief Judicial Magistrate for permission to investigate the matter. On the medical examination simple injuries have been found over the body of the informant and his wife. During the course of investigation, I.O. had recorded the statement of injured persons and submitted charge-sheet No. Nil/17 dated 25.06.2017 in Case Crime No. 21 of 2017 under Sections 323, 504 & 506 IPC, P.S. Civil Lines, District Rampur against the accused/present applicants. Learned Magistrate has taken cognizance on the aforesaid charge-sheet vide order dated 13.02.2018 and registered a case i.e. Criminal Case No. 1069 of 2018 (State vs. Dinesh). The aforesaid case was committed for trial on 14.09.2018 and non-bailable warrants were issued against the present applicants.
Learned counsel for the applicants submits that the present proceeding has arisen out of NCR which was filed for non-cognizable offence under Sections 323, 504 & 506 IPC. It is stated that the offence as alleged are non-cognizable and, therefore, neither the charge-sheet could have been submitted by the Investigating Officer nor the learned Magistrate could have taken cognizance in view of the explanation to Section 2(d) of Cr.P.C. It is further stated that the only course open to the learned Magistrate was to have treated the case as a complaint case and to have proceeded with, in accordance with law.
The submission is that the applicant has been charge sheeted under Section 506 I.P.C. which is non-cognizable offence as per the judgment of this court in the case of Virendra Singh and another vs. State of U.P. and another, 2000 (45) ACC 609.
The offence under Section 506 I.P.C. was made cognizable and non-bailable vide U.P. Government notification promulgated on August 02, 1984. This notification was declared illegal by the aforesaid judgment of this Court and, therefore, the offence under Section 506 I.P.C. is also non-cognizable. It has been submitted that the charge-sheet against the applicants is unwarranted in an offence under Section 506 I.P.C.
Reliance has been placed on the decision of this Court dated 15.05.2018 passed in Application U/S 482 No. 5917 of 2006 wherein this Court has taken view that neither the charge sheet could have been submitted by the Investigating Officer nor the learned Magistrate could have taken cognizance on the same, treating it as a State case.
Learned A.G.A. on the other hand submits that while the learned Magistrate may not have taken cognizance on the charge sheet treating it to be a State case, however, it was open to the learned Magistrate to follow the complaint case procedure.
Vexed question is involved as to whether the Magistrate can proceed under Sections 323, 504 & 506 IPC as a police case whereas these are non-cognizable offence and the same could have utmost be treated as a complaint under Explanation to Section 2(d) Cr.P.C. The provisions of Section 2(d) Cr.P.C. defines complaint and is reproduce below :-
"2(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation:- A report made by a police officer in a case which discloses, after investigation, the commission of a non- cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant."
Aforesaid Section clearly denotes that after investigation if it is found that the offence in question is a non-cognizable offence then the matter should be treated as a complaint and police office by whom such report is made shall be deemed to be the complainant.
In light of the aforesaid provision there is no room to doubt for considering the commission of non-cognizable offence as a complaint case. In the case of Rakesh Kumar Sharma vs. State of U.P. & Another reported in 2007 (9) ADJ 478, specifically paragraph nos. 5 & 6, the Coordinate Bench of this Court has considered the matter wherein F.I.R. was lodged under Section 307 IPC but subsequently charge-sheet was submitted under Section 504 IPC and the Court concluded that it should not be proceeded as a police case which is barred under Explanation to Section 2(d) Cr.P.C. The relevant paragraph nos. 5 & 6 of the aforesaid judgment are hereunder :-
"5. He submitted that in the present case originally the F.I.R. was lodged under Section 307 IPC but after investigation the Investigating Officer came to the conclusion that no offence under Section 307 IPC was made out and only a case under Section 504 IPC was made out against the applicant and so a charge-sheet under Section 504 IPC was submitted against the applicant. He contended that in view of the aforesaid Explanation to Section 2 (d) Cr.P.C., the case could not proceed as a police case in respect of an offence punishable under Section 504 IPC. Because the offence under Section 504 IPC is non-cognizable and so the case could proceed only as a complaint case in view of the aforesaid Explanation.
6. The above contention of the learned counsel for the applicant is correct. I, therefore, allow this application under Section 482 Cr.P.C. to this extent that the cognizance taken by the Magistrate in the case on the basis of the report of the police for the offence punishable under Section 504 IPC and the orders passed by him for issuing warrant against the applicant are hereby quashed. The Magistrate shall not proceed with the case as a State case but he shall proceed with it as a complaint case as provided in the Explanation 2 (d) Cr.P.C. and he shall follow the procedure prescribed for hearing of a complaint case."
In the case of Keshav Lal Thakur vs. State of Bihar reported in 1996 (II) SCC, 557, the Apex Court has held in paragraph 3 which is as under :-
"We need not go into the question whether in the facts of the instant case the above view of the High Court is proper or not for the impugned proceeding has got to be quashed as neither the police was entitled to investigate into the offence in question nor the Chief Judicial Magistrate to take cognizance upon the report submitted on completion of such investigation. On the own showing of the police, the offence under Section 31 of the Act is non-cognizable and Section 154 Cr.P.C. Of course, the police is entitled to investigate into a non-cognizable offence pursuant to an order of a competent Magistrate under Section 155(2) Cr.P.C. but, admittedly, no such order was passed in the instant case. That necessarily means, that neither the police could investigate into the offence in question nor submit a report on which the question of taking cognizance could have arisen. While on this point, it may be mentioned that in view of the Explanation to Section 2(d) Cr.P.C., which defines 'complaint', the police is entitled to submit, after investigation, a report relating to a non-cognizable offence in which case such a report is to be treated as a 'complaint', of the police officer concerned, but that explanation will not be available to the prosecution here as that relates to a case where the police initiates investigation into a cognizable offence - unlike the present one - but ultimately finds that only a non-cognizable offence has been made out."
There is no particular format for a complaint. The Apex Court has also expounded in Mohd. Yusuf vs. Afaq Jahan reported in (2006) 1 SCC, 627 that there is no particular format for a complaint, even nomenclature is also inconsequential. A petition addressed to Magistrate containing an allegation that an offence has been committed and prayed for suitable action against the culprits, is sufficient to treat the same as a complaint.
It is clear that initially vide notification dated 02.08.1984 Government of U.P. has treated the offence under Section 506 I.P.C. as cognizable and non-bailable. The aforesaid promulgation of Government of U.P. was declared illegal by the Court in the case of Virendra Singh (Supra). At present there is no doubt that the offence under Section 506 IPC is non-cognizable and bailable. In light of proposition of law as mentioned above, there is no room to doubt that case filed under Section 506 IPC cannot be proceeded as police case and the learned Magistrate should treat it as a complaint case.
In view of the observations made above, learned court below has illegally proceeded on the police report without applying his judicial mind inasmuch as all the offence as mentioned in the NCR as non-cognizable and proper course of action for the Magistrate is to treat the matter as a complaint under the provision as enshrined under Explanation to Section 2(d) Cr.P.C.
Considering the above, no useful purpose would be served in keeping the present application pending any further. The charge sheet dated 14.04.2015 is hereby quashed and the matter is remitted to the learned Magistrate to pass a fresh order, strictly in accordance with law, keeping in mind the observations made above.
The aforesaid exercise may be concluded as expeditiously as possible, preferably within a period of two months from the date of production of a certified copy of this order.
With the aforesaid observations, the present application is allowed.
Order Date :- 2.12.2020 VR/