Allahabad High Court
Hari Narayan And 3 Others vs State Of U.P. And Another on 22 October, 2020
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 87 Case :- APPLICATION U/S 482 No. - 13551 of 2020 Applicant :- Hari Narayan And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sachchida Nand Tiwari Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J.
Supplementary affidavit filed today in the Court by learned counsel for the applicants is taken on record.
Heard learned counsel for the applicants and learned A.G.A. for State.
The present application under Section 482 Cr.P.C. has been filed for quashing the proceedings emanating from impugned cognizance order dated 24.09.2019 passed by Additional Chief Judicial Magistrate, Kasya, District Kushi Nagar on the charge sheet no. A-Nil dated 17.08.2019, Criminal Case No. 3553 of 2019 (State Vs. Hari Narayan and others) N.C.R. No. 86 of 2019 under Section 434 I.P.C. Police Station Vishunpura, District Kushinagar.
It has been argued by learned counsel for the applicants that in the instant matter non-cognizable report was lodged against the applicants under Section 434 I.P.C. and after investigation, charge sheet has been filed under Section 434 I.P.C. and on the charge sheet cognizance has been vide order dated 24.09.2019 inspite of the fact that alleged offence were non-cognizable offence and thus no cognizance can be taken on charge sheet under Section 190 (1) (b) of Criminal Procedure Code. In support of his submissions, learned counsel has placed reliance upon reported decision of this Court dated 15.05.2018 passed in Application under Section 482 No. 5917 of 2006 (Anoop Mehrotra and another Vs. State of U.P. and another) as well as order dated 22.03.2017 passed in Application under Section 482 No.8317 of 2017 (Priyanka Mishra and another Vs. State of U.P. and another) Learned A.G.A. could not dispute the aforesaid submissions of learned counsel for the applicants.
In the instant case, it is apparent that N.C.R. was lodged against the applicants for the offence under Section 434 I.P.C. and the matter was investigated after the order of Magistrate. After investigation, charge sheet was submitted under Section 434 I.P.C. and vide impugned order dated 24.09.2019 cognizance has been taken by learned Magistrate as a State case under Section 190 (1) (b) whereas if any non-cognizance offence is investigated, the report of such investigation in respect of non-cognizable offence, has to be treated as complaint. The explanation of Section 2 (d) makes it clear that 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. Thus in the instant matter charge sheet for offence under Section 434 I.P.C. must have been treated as a complaint and cognizance must have been taken under Sections 190 (1) (a) Cr.P.C.
In view of aforesaid, it is apparent that impugned cognizance/summoning order is against law and is liable to be set aside. However, so far as prayer for quashing the charge sheet is concerned it may be stated that material collected during investigation makes out a prima facie case for the offence under Section 434 I.P.C. thus no case for quashing the charge sheet or proceedings is made out against the applicants.
In view of aforesaid, the impugned cognizance/summoning order dated 24.09.2019 is set aside and the matter is remitted to concerned Magistrate to pass an order afresh in accordance with law.
With the aforesaid directions, this application stands disposed of.
Order Date :- 22.10.2020 S.Ali