Sameem vs State Of U.P. And Another
2012 Latest Caselaw 5711 ALL

Citation : 2012 Latest Caselaw 5711 ALL
Judgement Date : 23 November, 2012

Allahabad High Court

Sameem vs State Of U.P. And Another on 23 November, 2012

Bench: Sunil Hali




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 41
 

 
Case :- APPLICATION U/S 482 No. - 38437 of 2012
 

 
Petitioner :- Sameem
 
Respondent :- State Of U.P. And Another
 
Petitioner Counsel :- D.P.S. Yadav
 
Respondent Counsel :- Govt. Advocate
 

 
Hon'ble Sunil Hali,J.

The applicant has questioned the order dated 13.8.2012 passed by the Addl. Chief Judicial Magistrate, Court no,. 7, Aligarh.

The Magistrate has taken cognizance under Section 190B on a report submitted by the police in respect of offences which were non-cognizable. According to explanation of Section 2(d) of the Criminal Procedure Code, 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.

It is contended by the learned counsel for the applicants that the Magistrate has taken cognizance on this report filed under Section 190B in respect to non-cognizable offences under Sections 323, 504, IPC.

From the perusal of the order, it clearly emerges that the police has investigated the case in respect of offences which were non-cognizable and submitted report before the Magistrate who has taken cognizance on the said report. The charge sheet reflects that applicants have committed under Sections 323, 504, which are non-cognizable. In such a situation, the report submitted by police has to be treated as a complaint. The Magistrate has no power to take cognizance directly on the basis of a police report. He can take cognizance only after treating it as a complaint.

In view of this, the impugned cognizance order dated 25.2.2012 is set aside.

Accordingly, the application is allowed.However, it is made clear that the case shall be treated to be a complaint case and the procedure for hearing of the complaint shall be followed by the court concerned before summoning the applicant.

Order Date :- 23.11.2012

SU.