Allahabad High Court
Arun Pandey And 3 Others vs State Of U.P. And Another on 14 September, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 89 Case :- APPLICATION U/S 482 No. - 11897 of 2022 Applicant :- Arun Pandey And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sudhanshu Pandey,Ravi Kant Shukla Counsel for Opposite Party :- G.A.,Dinesh Rai,Maya Ram Hon'ble Sameer Jain,J.
1. Short counter affidavit filed on behalf of the opposite party no.2 is taken on record.
2. Heard Sri Sudhanshu Pandey, learned counsel for the applicants, Sri Dinesh Rai, learned counsel for the opposite party no.2 and Dr. S.B. Maurya, learned AGA-I for the State.
3. By way of present application, applicants made prayer to quash the entire proceedings of R.N. No. 99 of 2021 (State Vs. Arun Kumar Pandey and others) arising out of N.C.R. No. 36 of 2020, under Sections 352, 323, 504 IPC, Police Station Oonj, District Bhadohi pending in the court of Judicial Magistrate-II, Bhadohi at Gyanpur as well as cognizance order dated 06.01.2021.
4. Filtering out unnecessary details, the necessary facts of the case are as:-
(i) On 15.05.2020 opposite party no.2 lodged a NCR against the applicants under Sections 352, 323, 504 IPC at Police Station Oonj, District Bhadohi vide NCR No. 36 of 2020 and on the application moved by opposite party no.2 under Section 155(2) Cr.P.C. Magistrate concerned directed to investigate the matter.
(ii) Pursuant to the order passed by Magistrate concerned under Section 155(2) Cr.P.C., investigation of the case was conducted and after investigation charge-sheet has been submitted against the applicants under Section 352, 323, 504 IPC and court below on 06.01.2021 took the cognizance and issued summons to the applicants.
5. Learned counsel for the applicants submitted that as charge-sheet in the present matter was submitted under Sections 352, 323, 504 IPC and all the offences are non-cognizable, therefore, in view of explanation to Section 2(d) Cr.P.C. cognizance order dated 06.01.2021 passed by the court below is bad. He further submitted that as per explanation to Section 2(d) Cr.P.C. if after investigation charge-sheet was submitted in respect to the non-cognizable offences then charge-sheet must be deemed to be a complaint and the police officer, who conducted the investigation shall be deemed to the complainant of the case, therefore, in such matters, proceeding can only be initiated as a complaint case but in the present matter the court did not treat the charge-sheet as a complaint and court below in routine manner took the cognizance on the charge-sheet and issued summons to the applicants, therefore, cognizance order dated 06.01.2021 is illegal.
6. Learned counsel for the applicants further submitted that the entire allegation made against the applicants in the NCR and in the statements of the witnesses are totally false and baseless and in fact applicants neither made any assault nor caused any injury. He further submitted that a dispute in respect of property is pending between the parties and in this regard a civil suit is also pending and only due to this reason opposite party no.2 implicated the applicants in the present matter, therefore, from this angle too charge-sheet filed against the applicants is bad.
7. Per contra, learned AGA and learned counsel for the opposite party no.2 submitted that there is no illegality in the summoning order dated 06.01.2021 as after perusing the entire documents available on record, court below took the cognizance and issued summons to the applicants and even if there is any irregularity in taking the cognizance then it does not vitiate the proceedings pending against the applicants. Learned AGA further submitted that from the perusal of the NCR and statements of witnesses including injured witnesses, the complicity of applicants reveals in the present matter and prima facie offences under Section 352, 323, 504 IPC are made out against them and there is also injury report of the injured on record thus there is no illegality in the charge-sheet submitted against the applicants. He further submitted that defence taken by the applicants cannot be appreciated at this stage.
8. I have heard counsel for the parties and perused the record of the case.
9. From the record, it reflects that on 15.05.2020 opposite party no.2 lodged a NCR under Sections 352, 323, 504 IPC against the applicants and after the order of Magistrate concerned passed under Section 155(2) Cr.P.C. investigation was conducted and charge-sheet was submitted against the applicants on 09.12.2020.
10. From the perusal of the charge-sheet dated 09.12.2020 it appears that it was filed against the applicants under Sections 352, 323, 504 IPC. Record further suggests that on the charge-sheet dated 09.12.2020, court below after perusing the case diary and other documents on record, on 06.01.2021 took the cognizance and issued summons to the applicants.
11. The charge-sheet of the present matter was submitted under Sections 352, 323, 504 IPC, thus it discloses commission of non-cognizable offences.
12. From the perusal of the cognizance and summoning order dated 06.01.2021 it reflects that court below on the basis of charge-sheet dated 09.12.2020 took the cognizance and did not treat the charge-sheet as complaint, therefore, question arises in view of explanation to Section 2(d) Cr.P.C. whether cognizance taken by the court below is in accordance with law.
13. Section 2(d) Cr.P.C. defines the complaint and its explanation prescribed the procedure if after investigation, charge-sheet discloses commission of non cognizable offences.
14. Section 2(d) Cr.P.C. runs as follows:-
"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;"
15. From the perusal of the explanation of Section 2(d) Cr.P.C., it is apparent that if after investigation it reveals that only non cognizable offences disclose and thereafter in non cognizable offences a report is submitted under Section 173(2) Cr.P.C. then the court shall treat the charge-sheet as a complaint and the police officer who filed the report under Section 173(2) Cr.P.C. shall be deemed to be the complainant of the case.
16. Therefore, from the perusal of the explanation to Section 2(d) Cr.P.C. it is undoubtedly clear that it relates to investigation with regard to cognizable offences, in which, Investigating Officer is having power to investigate the matter and it does not relate to investigation with regard to non cognizable offences, in which, investigation can only be carried after the order passed by the Magistrate under Section 155(2) Cr.P.C. Therefore, if the FIR is registered and after investigation, it appears that only non cognizable offences disclose and charge-sheet is filed only with regard to non-cognizable offences then explanation to Section 2(d) Cr.P.C. attracts and in such cases the court below shall deem the charge-sheet as a complaint and police officer, who submitted the charge-sheet will be deemed complainant but in cases where no FIR is lodged and only non cognizable report is registered and by the order of the Magistrate passed under Section 155(2) Cr.P.C. investigation is conducted and charge-sheet is submitted in respect of non cognizable offences then explanation to Section 2(d) Cr.P.C. does not attract and in such cases Magistrate will adopt the general procedure of taking cognizance and after taking cognizance on the charge-sheet may proceed further and in such cases there is no need to treat the charge-sheet as complaint in view of explanation to section 2(d) Cr.P.C.
17. The Apex Court in the case of Keshav Lal Thakur Vs. State of Bihar (1996) 11 SCC 557 observed in paragraph no.3 en passant:-
"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 therefore the police could not have registered a case for such an offence under 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 proviso 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 related 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."
18. Thus, in view of Keshav Lal Thakur (supra) the explanation to Section 2(d) Cr.P.C. will be applicable only to those cases, in which, investigation was commenced for cognizable offences.
19. In case at hand, admittedly non cognizable report was lodged under Sections 352, 323, 504 IPC and after the order of the Magistrate passed under Section 155(2) Cr.P.C. investigation was conducted and charge-sheet was submitted under Section 352, 323, 504 IPC and charge-sheet discloses commission of non cognizable offences, therefore, in present matter explanation to Section 2(d) Cr.P.C. does not attract and in such matters Magistrate can take the cognizance on the basis of charge-sheet itself.
20. Therefore, from the above discussion, I find no illegality in the cognizance order dated 06.01.2021 passed by the court below.
21. Further, from the perusal of record it reflects that prima facie offence under Sections 352, 323, 504 IPC are made out against the applicants, therefore, on the account of enmity pending between the parties proceeding pending against the applicants cannot be quashed as enmity is double edged weapon.
22. Therefore, from the discussion made above, I find no merit in the arguments advanced by learned counsel for the applicants.
23. Accordingly, the instant application is dismissed.
Order Date :- 14.9.2022 AK Pandey/Ankita