Allahabad High Court
Gangaram And Another vs State Of Up And Another on 8 July, 2019
Bench: Rajul Bhargava
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 66
Case :- APPLICATION U/S 482 No. - 20202 of 2019
Applicant :- Gangaram And Another
Opposite Party :- State Of Up And Another
Counsel for Applicant :- Prashant Saxena
Counsel for Opposite Party :- G.A.
Hon'ble Rajul Bhargava,J.
Supplementary affidavit annexing therewith certified copy of the order-sheet of court below filed by learned counsel for the applicants is taken on record. It reflects that cognizance has been taken by the learned Magistrate which is barred by Section 2(d) Cr.P.C.
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 charge-sheet no.Nil of 2016 dated 10.04.2016 in Case No. 2756 of 2018 (State Versus Gangaram and another) arising out of NCR No. 19 of 2015 under Sections 352, 504 IPC, Police Station Aliganj, District Etah, pending in the court of Civil Judge (Senior Division), F.T.C. Etah.
It is contended by learned counsel for the applicants that charged Sections are non-cognizable 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. Learned counsel for the applicant 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."
Therefore, on the basis of aforesaid 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 proceeding 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.
Order Date :- 8.7.2019
MN/-
