Allahabad High Court
Gayasuddin vs State Of U.P. And Another on 18 August, 2021
Bench: Vipin Chandra Dixit
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 88
Case :- APPLICATION U/S 482 No. - 14037 of 2021
Applicant :- Gayasuddin
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Bibhuti Narayan Singh
Counsel for Opposite Party :- G.A.
Hon'ble Vipin Chandra Dixit,J.
This application under Section 482 Cr.P.C. has been filed by the applicant for quashing the entire proceedings of Case No.1661 of 2021 (State Vs. Gayasuddin) under Section 323, 504 IPC, P.S. Nichlaul, District Maharajganj as well as charge-sheet dated 19.1.2018 arising out of N.C.R. No.127 of 2017 and for quashing the order dated 7.4.2021 passed by learned Additional Chief Judicial Magistrate, Maharajganj.
Heard learned Counsel for the applicant as well as learned A.G.A. for the State.
Learned Counsel for the applicant has submitted that the applicant has been falsely implicated in this case. It is further submitted that N.C.R. No.127 of 2017 was lodged under Sections 323, 504 IPC in respect of alleged incident dated 10.10.2017. The Investigating Officer after investigation has submitted charge-sheet under Section 323, 504 IPC and the learned Magistrate has taken cognizance.
Learned Counsel for the applicant has submitted that as the charge-sheet has been filed under Section 323, 504 IPC, which are non-cognizable offences and, as such it shall be deemed to be complaint under Explanation to Section 2(d) of Cr.P.C., hence the order taking cognizance as well as summoning order, as a State case is against the law and the order of cognizance and summoning order are liable to be quashed.
Since pure question of law is involved in this case, it is being decided at the admission stage without issuing notices to the opposite party no.2.
Complaint has been defined under Section 2(d) of Criminal Procedure Code, which is quoted hereinbelow:-
"(d) " 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.- 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;"
From the bare perusal of Explanation to Section 2(d), it is apparent that if a report submitted by Police officer in respect of commission of non-cognizable offences, it should be treated as a complaint case. Learned Counsel for the applicant has placed reliance on the judgment of Hon'ble Apex Court in the case of Keshav Lal Thakur Vs. State of Bihar reported in 1996 (11)SCC 557. The relevant paragraph no.3 is quoted hereinbelow:-
"3. We need not go into the question whether in the facts of the instant case the above view of the High Court is proper or not for the impugned proceeding has got to be quashed as neither the police was entitled to investigate into the offence in question nor the Chief Judicial Magistrate to take cognizance upon the report submitted on completion of such investigation. On the own showing of the police, the offence under Section 31 of the Act is non-cognizable and therefore, the police could not have registered a case for such an offence under Section 154 Cr. P.C, Of course, the police is entitled to investigate into a non- cognizable offence pursuant to an order of a competent Magistrate under Section 155(2) Cr. P.C. but, admittedly, no such order was passed in the instant case. That necessarily means, that neither the police could investigate into the offence in question nor submit a report on which the question of taking cognizance could have arisen. While on this point, it may be mentioned that in view of the proviso to Section 2(d) Cr. P.C., which defines 'complaint', the police is entitled to submit, after investigation, a report relating to a non-cognizable offence in which case such a report is to be treated as a 'complaint' of the police officer concerned, but that explanation will not be available to the prosecution here as that relates to a case where the police initiates investigation into a cognizable offence - unlike the present one - but ultimately finds that only a non- cognizable offence has been made out."
Learned A.G.A. has opposed the prayer made by the applicant but he is unable to dispute the aforesaid legal provision.
Considering the submissions advanced by learned Counsel for the applicant as well as learned A.G.A., it is apparent that the present investigation was conducted for non-cognizable offences and after investigation, the Investigating Officer has also submitted charge-sheet under Section 323, 504 IPC which are non-cognizable offences and as such under the law, the charge-sheet should be treated as a complaint case and the learned Magistrate has committed illegality in taking cognizance treated it as a State case.
In view of the above, the cognizance/summoning order is set aside and the learned trial Court is directed to proceed the case as a complaint case under Chapter XV of Criminal Procedure Code.
With the aforesaid observations, the application under Section 482 Cr.P.C. stands disposed of.
Order Date :- 18.8.2021
S. Singh
