Allahabad High Court
Jabbir Ansari vs State Of Up And Another on 8 July, 2019
Bench: Ram Krishna Gautam
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 79
Case :- APPLICATION U/S 482 No. - 25984 of 2019
Applicant :- Jabbir Ansari
Opposite Party :- State Of Up And Another
Counsel for Applicant :- Prakash Sharma,Anurag Tripathi
Counsel for Opposite Party :- G.A.
Hon'ble Ram Krishna Gautam,J.
This application U/S 482 Cr.P.C. has been filed seeking quashing of the charge sheet dated 17.04.2016 bearing No. 73 of 2016 in Case No. 1048 of 2017, arising out of Case Crime No. 80 of 2016, under Section 504, 506 I.P.C., P.S. Kubersthan, District Kushi Nagar.
Learned counsel for applicant argued that there is no evidence or accusation against Jabbir Ansari for offence punishable under Sections 504, 506 I.P.C., but charge sheet has been filed and in routine cognizance has been taken by court of magistrate.
Learned A.G.A. has vehemently opposed the aforesaid prayer with specific contention that there is sufficient averment in first information report filed by informant and corroboration in statement made under Section 161 Cr.P.C..
Perusal of first information report reveals that it was got registered for offence punishable under Sections 376, 511, 504, 506 I.P.C. against Samullah and six others upon report of Asma Khatoon and after investigation charge sheet for offence punishable under Sections 504, 506 I.P.C. has been filed against other accused persons including present applicant and magistrate has taken cognizance over it.
Hence, so far as no ingredients of offence is concerned, the same is not substantiated with material placed on record. There is sufficient ingredient for offence punishable under Section 504, 506 I.P.C. against applicant on record. Regarding procedure, impugned order is apparently erroneous because after investigation charge sheet has been filed for offence punishable under Sections 504, 506 I.P.C. and both of above sections are non cognizable. As per Section 2d Cr.P.C. complaint means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown has committed an offence, but does not include a police report. Explanation appended thereat is "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. But magistrate has not specified this position that the charge sheet after investigation filed for offence, which were not cognizable, shall be deemed to be a complaint and it will not run as State case rather it was a complaint case and the I.O. will be complainant in above case. Hence, this application is liable to be allowed in part.
Therefore, prayer for quashing of the charge sheet is rejected but regarding cognizance taking order, same is allowed with a direction to magistrate for considering above charge sheet as complaint and take action as per Section 2d of Cr.P.C. and explanation appended therewith.
With the aforesaid observations, this application is partly allowed.
Order Date :- 8.7.2019
NS
