Allahabad High Court
Virendra Pratap Mani vs State Of U.P.And Another on 14 February, 2023
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 69 Case :- APPLICATION U/S 482 No. - 280 of 2023 Applicant :- Virendra Pratap Mani Opposite Party :- State Of U.P.And Another Counsel for Applicant :- Jitendra Kumar Srivastava,Vijay Pal Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.
List revised.
Heard Sri Jitendra Kumar Srivastava, learned counsel for the applicant and Sri B.B. Upadhyay, learned counsel for the State and perused the record.
The present application under Section 482 Cr.P.C. has been filed by the applicant Virendra Pratap Mani with the prayer to allow the present application and quash/set-aside impugned summoning order dated 20.11.2019 as well as B.W. dated 16.03.2021 passed by Civil Judge (Senior Division)/Additional Chief Judicial Magistrate, Sant Kabir Nagar in Case No. 3930 of 2018, Case Crime No. 4365/2017, under Sections 353, 504, 506, 499, 500 IPC, Police Station Mehdawal, District Sant Kabir Nagar, pending before the said court and with a further prayer to stay the further proceedings in the said case, during the pendency of the present application.
On 12.01.2023 the following order was passed:-
"List revised.
Heard Sri Jitendra Kumar Srivastava, learned counsel for the applicant and Sri S.B. Maurya, learned counsel for the State and perused the record.
The present application under Section 482 Cr.P.C. has been filed by the applicant Virendra Pratap Mani with the prayer to allow the present application and quash/set aside impugned summoning order dated 20.11.2019 as well as B.W. dated 16.03.2021 passed by Civil Judge (Senior Division)/Additional Chief Judicial Magistrate, Sant Kabir Nagar in Case No. 3930 of 2018, under Sections 353, 504, 506, 499, 500 IPC in Case Crime No. 4365 of 2017, P.S. Mehdawal, District Sant Kabir Nagar, pending before the said court and with a further prayer to stay the further proceedings of the aforesaid case during the pendency of the present application before this Court.
The records show that previously an order dated 31.01.2019 was passed by a co-ordinate Bench of this Court in Crl. Misc. Application 482 No. 47344 of 2018 (Virendra Pratap Mani Vs. State of U.P. and another) by which the order taking cognizance was set aside and the Magistrate was directed to pass an order taking cognizance, if, he so chooses, by proceeding as a complaint case. The said petition stood disposed of with the said direction. The said order was filed before the trial court on 27.02.2019 after which the matter remained pending and then vide order dated 20.11.2019 the concerned trial court observed that it appears from the perusal of the records that the proceedings of the present case were stayed till the next date of listing vide order dated 31.01.2019 passed by the High Court and coercive measures against the accused were stayed and in view of the judgment rendered by the Apex Court in the case of Asian Resurfacing of Road Agency Private Limited and another Vs. Central Bureau of Investigation : Crl. Appeal No. 1375/1376 and further, in view of letter no. 12/Admin G II, Allahabad dated 26.04.2018 of the High Court any stay order passed shall remain effective for a period of six months after which it shall automatically become ineffective. It was further observed that in the present matter, the High Court vide its order dated 31.01.2019 passed a stay order/order of no coercive action. The order is dated 31.01.2019 and as such six months have elapsed. There is nothing on record to show that the order is still in operation and as such in view of the judgment of the Apex Court, the interim order passed becomes ineffective automatically and thus there is no reason for keeping the proceedings stayed. Summons were then issued against the accused and the matter was directed to be listed on 19.02.2020.
Learned counsel for the applicant argued that order dated 31.01.2019 passed by the co-ordinate Bench of this Court nowhere stays the proceedings of the trial or any order staying any coercive measures against the accused has been passed. It is argued that by the said order, the said petition stood disposed of by setting aside the order taking cognizance and directing the Magistrate to pass a fresh order taking cognizance, if he chooses so, by proceeding as a complaint case.
It is argued that the order dated 31.01.2019 has been totally misread by the trial court and order dated 20.11.2019 passed is without complying with the order dated 31.01.2019.
Heard learned counsels for the parties and perused the records. The order dated 31.01.2019 passed in Crl. Misc. Application 482 No. 47344 of 2018 (Virendra Pratap Mani Vs. State of U.P. and another) by a co-ordinate Bench of this Court reads as follows:
"Heard learned counsel for the applicant and learned A.G.A. for the State.
The present application under Section 482 Cr.P.C. has been filed for quashing the charge sheet no.1 dated 14.02.2018 as well as entire criminal proceeding of Case No.3930 of 2018 (State vs. Virendra Pratap Mani, arising out of Case No.4365 of 2017 under section 353, 504, 506, 499, 500 jI.P.C. PS. Mehdawal, District Sant Kabir Nagar pending in the court of Civil Judge, Senior Division /A.C.J.M., Sant Kabir Nagar and further prayer is to stay the proceedings of the aforesaid case.
It is contended by learned counsel for the applicant 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) Awdesh 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 is 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 place 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."
Therefore, on the basis of Explanation which 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, it has been held that when the charge sheet is only of non cognizable offences, in view of the aforesaid provision, the charge sheet should be treated as a complaint. The argument is well founded and the order taking cognizance is set aside. Now the Magistrate may pass an order taking cognizance if, he so chooses, by proceedings in this matter as a complaint case under Chapter XV of the Code of Criminal Procedure. He can also keep this fact in mind that in view of the proviso (a) to Section 200 Cr.P.C., which reads as follows:-
"Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-
(a) If a public servant acting or purporting to act in discharge of his official duties or a Court has made the complaint;"
With these observations, this application is finally disposed of."
The said order was filed before the trial court on 27.02.2019 after which the matter remained pending and in between three dates were fixed adjourning the matter to further date. It was only thereafter that on 20.11.2019 by means of the impugned order, the trial court again passes an order summoning the accused. There has been totally non compliance of the order dated 31.01.2019 passed by this Court as is apparent from the order sheet of the trial court which is annexure 4 to the affidavit which is from 15.10.2018 to 05.07.2022. Even the substance of the order dated 31.01.2019 as passed by this Court has been misquoted by the trial court in its order dated 20.11.2019. The approach of the trial court is almost contemptuous.
In view of the same, let a report be called for from the concerned Officer with regards to the facts as mentioned in the said order. The same is to be submitted within a week positively through District and Sessions Judge, Sant Kabir Nagar.
Office to communicate this order to the District & Sessions Judge, Sant Kabir Nagar within one week from today.
Further proceedings of the said case are stayed till the next date of listing.
Let the matter be listed on 28.01.2023 along with the required report as ordered as above."
Subsequently, on 28.01.2023 the following order was passed:-
"List revised. No one appears on behalf of the applicant to press this application U/S 482 Cr.P.C. Sri Raj Kumar Gupta, learned counsel for the State is present.
On 12.01.2023, following order was passed by this Court:-
"List revised.
Heard Sri Jitendra Kumar Srivastava, learned counsel for the applicant and Sri S.B. Maurya, learned counsel for the State and perused the record.
The present application under Section 482 Cr.P.C. has been filed by the applicant Virendra Pratap Mani with the prayer to allow the present application and quash/set aside impugned summoning order dated 20.11.2019 as well as B.W. dated 16.03.2021 passed by Civil Judge (Senior Division)/Additional Chief Judicial Magistrate, Sant Kabir Nagar in Case No. 3930 of 2018, under Sections 353, 504, 506, 499, 500 IPC in Case Crime No. 4365 of 2017, P.S. Mehdawal, District Sant Kabir Nagar, pending before the said court and with a further prayer to stay the further proceedings of the aforesaid case during the pendency of the present application before this Court.
The records show that previously an order dated 31.01.2019 was passed by a co-ordinate Bench of this Court in Crl. Misc. Application 482 No. 47344 of 2018 (Virendra Pratap Mani Vs. State of U.P. and another) by which the order taking cognizance was set aside and the Magistrate was directed to pass an order taking cognizance, if, he so chooses, by proceeding as a complaint case. The said petition stood disposed of with the said direction. The said order was filed before the trial court on 27.02.2019 after which the matter remained pending and then vide order dated 20.11.2019 the concerned trial court observed that it appears from the perusal of the records that the proceedings of the present case were stayed till the next date of listing vide order dated 31.01.2019 passed by the High Court and coercive measures against the accused were stayed and in view of the judgment rendered by the Apex Court in the case of Asian Resurfacing of Road Agency Private Limited and another Vs. Central Bureau of Investigation : Crl. Appeal No. 1375/1376 and further, in view of letter no. 12/Admin G II, Allahabad dated 26.04.2018 of the High Court any stay order passed shall remain effective for a period of six months after which it shall automatically become ineffective. It was further observed that in the present matter, the High Court vide its order dated 31.01.2019 passed a stay order/order of no coercive action. The order is dated 31.01.2019 and as such six months have elapsed. There is nothing on record to show that the order is still in operation and as such in view of the judgment of the Apex Court, the interim order passed becomes ineffective automatically and thus there is no reason for keeping the proceedings stayed. Summons were then issued against the accused and the matter was directed to be listed on 19.02.2020.
Learned counsel for the applicant argued that order dated 31.01.2019 passed by the co-ordinate Bench of this Court nowhere stays the proceedings of the trial or any order staying any coercive measures against the accused has been passed. It is argued that by the said order, the said petition stood disposed of by setting aside the order taking cognizance and directing the Magistrate to pass a fresh order taking cognizance, if he chooses so, by proceeding as a complaint case.
It is argued that the order dated 31.01.2019 has been totally misread by the trial court and order dated 20.11.2019 passed is without complying with the order dated 31.01.2019.
Heard learned counsels for the parties and perused the records. The order dated 31.01.2019 passed in Crl. Misc. Application 482 No. 47344 of 2018 (Virendra Pratap Mani Vs. State of U.P. and another) by a co-ordinate Bench of this Court reads as follows:
"Heard learned counsel for the applicant and learned A.G.A. for the State.
The present application under Section 482 Cr.P.C. has been filed for quashing the charge sheet no.1 dated 14.02.2018 as well as entire criminal proceeding of Case No.3930 of 2018 (State vs. Virendra Pratap Mani, arising out of Case No.4365 of 2017 under section 353, 504, 506, 499, 500 I.P.C. PS. Mehdawal, District Sant Kabir Nagar pending in the court of Civil Judge, Senior Division /A.C.J.M., Sant Kabir Nagar and further prayer is to stay the proceedings of the aforesaid case.
It is contended by learned counsel for the applicant 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) Awdesh 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 is 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 place 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."
Therefore, on the basis of Explanation which 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, it has been held that when the charge sheet is only of non cognizable offences, in view of the aforesaid provision, the charge sheet should be treated as a complaint. The argument is well founded and the order taking cognizance is set aside. Now the Magistrate may pass an order taking cognizance if, he so chooses, by proceedings in this matter as a complaint case under Chapter XV of the Code of Criminal Procedure. He can also keep this fact in mind that in view of the proviso (a) to Section 200 Cr.P.C., which reads as follows:-
"Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-
(a) If a public servant acting or purporting to act in discharge of his official duties or a Court has made the complaint;"
With these observations, this application is finally disposed of."
The said order was filed before the trial court on 27.02.2019 after which the matter remained pending and in between three dates were fixed adjourning the matter to further date. It was only thereafter that on 20.11.2019 by means of the impugned order, the trial court again passes an order summoning the accused. There has been totally non compliance of the order dated 31.01.2019 passed by this Court as is apparent from the order sheet of the trial court which is annexure 4 to the affidavit which is from 15.10.2018 to 05.07.2022. Even the substance of the order dated 31.01.2019 as passed by this Court has been misquoted by the trial court in its order dated 20.11.2019. The approach of the trial court is almost contemptuous.
In view of the same, let a report be called for from the concerned Officer with regards to the facts as mentioned in the said order. The same is to be submitted within a week positively through District and Sessions Judge, Sant Kabir Nagar.
Office to communicate this order to the District & Sessions Judge, Sant Kabir Nagar within one week from today.
Further proceedings of the said case are stayed till the next date of listing.
Let the matter be listed on 28.01.2023 along with the required report as ordered as above."
In compliance of the said order, a report dated 20.01.2023 has been received through the District and Sessions Judge, Sant Kabir Nagar of Civil Judge (S.D.)/A.C.J.M., Sant Kabir Nagar stating therein that the said order dated 20.11.2019 has been passed by his predecessor who has been transferred to another district (Kanpur Nagar) and as such he is not in a position to explain as to why and how the said order has been passed. It is further stated that in compliance of the order dated 31.1.2019, an order dated 19.01.2023 has been passed by him which has also been sent to this Court.
Perused the said report. Since the said order dated 20.11.2019 has been passed by an officer who is now posted in district Kanpur Nagar, let the order dated 12.01.2023 passed by this Court and this order be send through District and Sessions Judge, Sant Kabir Nagar to the said officer who has passed the order dated 20.11.2019 to send his explanation as per the order dated 12.01.2023 of this Court.
Let the matter be listed on 14.02.2023."
A report of the concerned Presiding Officer through the District Judge, Kanpur Nagar has been received by this Court which is on record.
Perused the same.
The said report states that the order dated 31.01.2019 was although filed before the trial court but the same was with an application dated 27.02.2019 filed on behalf of the applicant in which in para 2 it was stated that the High Court has vide order dated 31.01.2019 stayed the proceedings of the case and as such the court concerned in a bonafide manner passed the said order. It is stated that the mistake was bonafide on the part of the Presiding Officer for which he seeks forgiveness and tenders unconditional apology.
This Court has perused the said report dated 13.02.2023 and accepts the same and proceeds with the matter.
After arguments at length, learned counsel for the applicant states that the present application under Section 482 Cr.P.C. be dismissed as withdrawn.
Prayer is allowed.
The present application is dismissed as withdrawn.
Order Date :- 14.2.2023 M. ARIF (Samit Gopal, J.)