Allahabad High Court
Harishankar Shukla And Another vs State Of U.P. And Another on 25 November, 2020
Author: Ajay Bhanot
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 83 Case :- APPLICATION U/S 482 No. - 16690 of 2020 Applicant :- Harishankar Shukla And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Arvind Kumar Mishra Counsel for Opposite Party :- G.A. Hon'ble Ajay Bhanot,J.
Heard Shri Arvind Kumar Mishra, learned counsel for the applicants and learned A.G.A. for the State.
The following relief is prayed for in the instant application:
"to quash the impugned charge-sheet dated 10.1.2014 along with cognizance dated 29.4.2014 as well as entire proceeding of case No.294 of 2014, State vs. Harishankar Shukla and another, arising out of NCR No.52 of 2011, under Section 323, 504, 506 IPC, Police Station-Dharmsinghwa, District-Sant Kabir Nagar, pending before Civil Judge (Junior Division)/Judicial Magistrate, Sant Kabir Nagar."
Shri Arvind Kumar Mishra, learned counsel for the applicants, submits that the applicants have been charged for bailable offences.
The charge sheet has been submitted in regard to the aforesaid offences on 10.01.2014. The learned trial court took cognizance of the offences by order dated 29.04.2014. Pointing out the fault lines in the order of cognizance, it is submitted that the order is contrary to the provisions of Section 2 (d) of the Cr.P.C. In particular reliance is placed on the Explanation of the provisions. The provision is extracted here under for ease of reference:
"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 complaint."
The provision arose for consideration before this Court in a number of cases. Good authority has settled the manner of proceeding in matters in which the charge sheet has been submitted in non cognizable offences. The discussion will profit from the law laid down in Dr. Rakesh Kumar Sharma Vs. State of U.P. and another reported at 2007 (9) ADJ 478 and also in the judgment rendered by this court on 07.10.2010 in Raheesuddin @ Kalwa and others vs State of U.P. and another (Application u/s 482 Cr.P.C. No.32258 of 2010). The aforesaid judgments were followed by the learned Single Judge in Ajaz and 2 others Vs State of U.P. and Another (Application U/S 482 No. 12277 of 2020). In Ajaz and 2 others (supra) this Court construing the aforesaid provisions held as under:
"It is clear from above that all the three offences punishable under Sections 323, 504 and 506 I. P. C. are non-cognizable.
Explanation to Section 2 (d) of the Cr. P. C. runs as under:
"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."
In view of the said Explanation, report of the police officer after investigation disclosing commission of non-cognizable offence is to be deemed to be a complaint and the police officer who submitted the report has to be deemed to be a complainant. In other words the charge-sheet submitted by the police in a non-cognizable offence shall be treated to be a complaint and the procedure prescribed for hearing of complaint case shall be applicable to that case.
In the present case from the material brought on record it transpires that the charge-sheet submitted by the Investigating Officer instead of being treated as a complaint, has been treated as a State Case by the concerned Magistrate, which is not permissible under law.
Learned A. G. A. vehemently opposed the submissions made by learned counsel for the applicants.
After having considered the submissions made by learned counsel for the parties and perused the material on record and examined the relevant provisions of the Code of Criminal Procedure, I am of the view that the submissions made by learned counsel for the applicants have force and are liable to be accepted."
I find that the law laid down by this Court in Ajaz and 2 others (supra) is squarely covered to the facts of this case.
For the aforesaid reasons, the present application is allowed in part. It is made clear that the case shall be treated to be a complaint case and the procedure prescribed for hearing of the complaint shall be followed by the court concerned before summoning the applicants. The order dated 29.04.2014, by which the Magistrate has taken cognizance, is quashed.
Order Date :- 25.11.2020 LN Tripathi