Allahabad High Court
Ajaz And 2 Ors vs State Of U.P. And Anr on 31 August, 2020
Author: Rahul Chaturvedi
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 67 Case :- APPLICATION U/S 482 No. - 12277 of 2020 Applicant :- Ajaz And 2 Ors Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Gopal Krishna Pandey Counsel for Opposite Party :- G.A. Hon'ble Rahul Chaturvedi,J.
Heard learned counsel for the applicants and learned A.G.A. for the State.
The present application under Section 482 Cr.P.C. has been filed for quashing the entire criminal proceeding of Case Crime no.04 of 2019 (State vs. Ajaz and others), u/s 323, 504, 506 I.P.C., Police Station-Dakshin Tola, District-Mau, including charge sheet dated 15.2.2019 and cognizance order dated 18.7.2019, pending in the court of Judicial Magistrate, Mau.
It is contended by learned counsel for the applicants that charged Sections are bailable Sections and the learned Magistrate may pass an order taking cognizance if he so desires by proceeding under Chapter XV of the Code of Criminal Procedure. It is further contended that the order impugned has been challenged and reliance has been placed to Explanation 2(d) of the Code of Criminal Procedure. It is next contended that no permission was taken under Section 155(2) Cr.P.C. and charge sheet has been submitted in non-cognizable offence. Learned counsel for the applicants has relied upon a Judgement of Hon'ble Apex Court reported in 2009 (64) ACC 296 M/s Eicher Tractor Ltd. and others Vs. Harihar Singh and another as well as another reported Judgement of this Court reported in 2008 (1) JIC 220 (All) Awadesh Kumar and others Vs. State of U.P. and others in support of his contention.
Learned A.G.A. has stated that no useful purpose would be served in issuing notice to the opposite party no.2 as it will only delay the proceedings of the present case.
The order taking cognizance has been passed and it is argued that charge sheet has been submitted under the charged Sections which are non-cognizable offence. Reliance has been placed on Explanation to Section 2(d) of Code of Criminal Procedure, which reads as follows:-
"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 aforesaid Explanation has been interpreted in a Single Judge decision of this Court reported in 2007(3) JIC 654 (All) ;2007 (9) ADJ 478 Dr. Rakesh Kumar Sharma Vs. State of U.P. and another and Raheesuddin @ Kalwa and others vs State of U.P. and another (Application u/s 482 Cr.P.C. No.32258 of 2010) decided on 7.10.2010.
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.
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 18.07.2019 by which the Magistrate has taken cognizance is quashed.
Order Date :- 31.8.2020 M. Kumar