Allahabad High Court
Ram Nath vs State Of U.P. & Another on 8 February, 2021
Bench: Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 31
Case :- U/S 482/378/407 No. - 309 of 2021
Applicant :- Ram Nath
Opposite Party :- State Of U.P. & Another
Counsel for Applicant :- Ramakar Shukla,Subodh Kumar Pandey
Counsel for Opposite Party :- G.A.
Hon'ble Narendra Kumar Johari,J.
(Crl. Misc. Application No. 15740 of 2021)
Learned counsel for the applicant states that certain necessary facts could not be incorporated in the application under Section 482 Cr.P.C., therefore, he may be permitted to correct the application by way of amendment in application including its prayer.
Learned AGA has no objection.
Let the necessary amendments be incorporated during the course of the day.
In view of above, the application is allowed.
Order Date :- 8.2.2021
AKK
Case :- U/S 482/378/407 No. - 309 of 2021
Applicant :- Ram Nath
Opposite Party :- State Of U.P. & Another
Counsel for Applicant :- Ramakar Shukla,Subodh Kumar Pandey
Counsel for Opposite Party :- G.A.
Hon'ble Narendra Kumar Johari,J.
Learned counsel for the applicant and learned AGA are present.
This petition under Section 482 Cr.P.C. has been filed for setting aside impugned order dated 1.1.2020, passed by Additional Chief Judicial Magistrate, Court No. 1, Kheri in Crl. Case No. 2653 of 2019 (State Vs. Ram Nath and others) arising out of NCR No. 33 of 2018 P.S.Neemgaon, District Lakhimpur under Sections 323, 504 IPC, P.S. Neemgaon, Districk Lakhimpur Kheri and judgment and order dated 5.12.2020 passed by Additional Sessions Judge, Court No. 12, Lakhimpur Kheri in Crl. Revision No. 13 of 2020 (Ram Nath Vs. State of U.P.).
Learned counsel for the applicant has submitted that in the present case, a NCR No. 33 of 2018 was registered under Section 323, 504 IPC and the investigation of the case was conducted with the permission of the Magistrate concerned. After investigation, the investigating officer has submitted charge sheet dated 24.7.2018 under Section 323, 504 IPC but the court concerned has proceeded the trial as warrant case which is against the provision of Section 2(d) of Cr.P.C.
Learned A.G.A. did not dispute the contentions argued by learned counsel for the applicant.
The provision of Section 2(d) of Cr.P.C. reads as under:
"2(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;"
Under the provision of Section 2(d) of Cr.P.C. if, after investigation, commission of non cognizable offence is found then in that case commission of non-cognizance offence shall be deemed to be a complaint. Section 2(d) of Cr.P.C. is the mandatory provision and if trial of the case is proceeded in deviation with aforesaid provision of law then further proceedings shall be without jurisdiction. Despite the provision of Section 2(d) of Cr.P.C., the Court has taken cognizance and proceeded as trial of the case under Chapter XV which is not permissible by law.
In view of above, the application is allowed. The cognizance order dated 12.12.2018 and subsequent order dated 1.1. 2020, passed by Additional Chief Judicial Magistrate, Court No. 1, Kheri in Crl. Case No. 2653 of 2019 (State Vs. Ram Nath and others) arising out of NCR No. 33 of 2018 under Sections 323, 504 IPC, P.S. Neemgaon, Districk Lakhimpur Kheri and judgment and order dated 5.12.2020 passed by Additional Sessions Judge, Court No. 12, Lakhimpur Kheri in Crl. Revision No. 13 of 2020 (Ram Nath Vs. State of U.P.) are here by quashed. The case is remanded to court concerned to proceed with the case considering the provision of Section 2(d) of Cr.P.C. However, the court concerned is also directed to decide case expeditiously in accordance with law.
Order Date :- 8.2.2021
AKK
