Neeraj Kumar And 3 Others vs State Of U.P. And Another
2021 Latest Caselaw 8276 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 83
 
Case :- APPLICATION U/S 482 No. - 4174 of 2021
 
Applicant :- Neeraj Kumar And 3 Others
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Jagadeesh Prasad Chaurasiya
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.

Heard Mr. Jagdeesh Prasad Chaurasiva, learned counsel for applicants and learned A.G.A. for State.

Perused the record.

This application under Section 482 Cr.P.C. has been filed challenging the charge sheet dated 1.10.2018 submitted in N.C.R. No.90 of 2018 as well as summoning order dated 26.6.2020 passed by Judicial Magistrate 1st, Court 17, Jaunpur in Case No.6084 of 2020, State Vs. Neeraj Kumar & others, under Sections 323, 504, 427 IPC, P.S. Sujan Ganj, District Jaunpur.

At the very outset, learned counsel for applicants contends that charge sheet has been submitted under Sections 323, 504 & 427 IPC which are non-cognizable offence.

Placing reliance upon Section 2(d) Cr.P.C. he contends that upon submission of charge sheet, case should have been proceeded as a complaint case and Investigating Officer should have treated as complaint. However, instead of following aforesaid procedure, Magistrate has straight away taken cognizance and proceeded with matter as State case. Consequently, entire proceedings are illegal.

The issue as to whether upon submission of charge sheet in respect of non-cognizance offence, proceeding shall continue as a State case or complaint case has been referred to Larger Bench vide order dated 14.11.2014 passed in Application U/S 482 Cr.PC. No.45945 of 2014, Balwant Singh and another Vs. State of U.P. And another. For ready reference order dated 14.11.2014 is reproduced herein under:-

"Heard learned counsel for the applicants as well as perused application moved under section 482 Cr.P.C.

By filing this application under section 482 Cr.P.C. applicants have prayed to quash impugned order dated 10.8.2006 passed by learned Chief Judicial Magistrate, Allahabad in Case Crime No. Nil dated 26.10.2005 (N.C.R. No.186 of 2005) in Criminal Case No.15179 of 2006 (State Vs. Balwant Singh and another), under sections 323, 504 I.P.C., Police Station Nawabganj, District Allahabad pending in the Court of A.C.J.M., Court No.10, Allahabad.

Learned counsel for applicants contended that N.C.R. No.186 of 2005, under sections 323, 504 I.P.C. has been registered in Police Station Nawabganj in which police has submitted charge sheet after investigation.Learned counsel for applicants contended that in non-cognizable case charge sheet submitted by police after investigation shall be deemed to be complaint under section 2(d) of Cr.P.C.

Therefore, cognizance taken by Magistrate is against law.

Learned counsel for applicants placed reliance upon following judgments of this Court:

1. 2007(9) ADJ 478 Allahabad High Court, Dr. Rakesh Kumar Sharma Vs. State of U.P. and another.

2. 2013(4) ADJ 474 Allahabad High Court, Ghansyam Dubey @ Litile and others Vs. State of U.P. and another.

3. Judgment and order dated 26.11.2013 passed by Hon'ble Single Judge of this Court in Application u/s 482 Cr.P.C. No.42698 of 2013 (Alok Kumar Shukla Vs. State of U.p. and another).

4. Judgment and order dated 30.10.2014 passed by Hon'ble Single Judge of this Court in Application u/s 482 Cr.P.C. No.42082 of 2014 (Budhi Ram and 3 others Vs. State of U.P. and another).

I have considered the submission made by learned counsel for applicants.

The applicants are named in N.C.R. No.186 of 2005, under sections 323, 504 I.P.C. Investigation has been made by police in compliance of Magistrate order passed under section 155(2) Cr.P.C. as is apparent from charge sheet submitted by police.

Section 2(d) Cr.P.C. defines complaint which is as follows:

"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 added to Section 2(d) is as follows-

"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;

Reading of explanation added to Section 2(d) shows that this explanation speaks about cases where police has investigated a cognizable case but investigation made discloses a non-cognizable offence.

In the case of Keshab Lal Thakur Vs. State of Bihar (1996) 11 S.C.C. 55) Honourable Apex Court has already held that explanation to Section 2(d) of the Code covers only those cases where the police initiates investigation into a cognizable offence but the offence is turned into a non cognizable offence.

It is relevant at this juncture to go through provisions of Section 15(2) and (3) of Criminal Procedure Code which are reproduced below:

Section 155(2) Cr.P.C.

"No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial." Section 155(3) Cr.P.C.

"Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case."

It is abundantly clear from above provisions of Section 155(2) and 155(3) Cr.P.C. that police is competent to investigate non cognizable offence with order of Magistrate and in such investigation the police officer receiving order of investigation may exercise same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case. Thus is clear that charge sheet submitted by police in non-cognizable offence after investigation made in pursuance of Magistrate order stands at par with charge sheet submitted by police in cognizable offence. Therefore Explanation to Section 2(d) of Cr.P.C. is not applicable where charge sheet has been submitted by police in non-cognizable offence after investigation made in pursuance of order passed by Magistrate.

In the case of 2007(9) ADJ 478 Allahabad High Court, Dr. Rakesh Kumar Sharma Vs. State of U.P. and another the case was originally registered under sections 307 I.P.C. and after investigation non-cognizable offence punishable under section 504 I.P.C. was found. Therefore, charge sheet submitted for offence punishable under section 504 I.P.C. was held to be complainant under section 2(d) of Cr.P.C.

In the case of Alok Kumar Shukla Vs. State of U.P. and another mentioned above police submitted charge sheet in non-cognizable offence without order of Magistrate under section 155(2) Cr.P.C. Therefore charge sheet submitted by police was held to be complaint under section 2(d) of Cr.P.C.

But in the case of Ghansahyam Dubey alias Little and others Vs. State of U.P. and another (supra) as well as in case of Budhi Ram and 3 others Vs. State of U.P. and another mentioned above. Honourable Single Judges of this Court have held that charge sheet submitted by police in non-cognizable case even after investigation made by police in pursuance of order passed by Magistrate shall be deemed to be complaint under section 2(d) of Cr.P.C. In these cases provisions of section 155(2) and 15(3) Cr.P.C. as well as pronouncements of Honourable Apex Court rendered in the case of Keshab Lal Thakur Vs. State of Bihar (supra) have not been considered and these pronouncements do not lay correct law.

In view of above I am of the view that this matter should be placed before Hon'ble Division Bench for consideration.

Let the matter be placed before Hon'ble The Chief for referring the matter to Division Bench for consideration."

In view of above, connect with Criminal Misc. Application No.45945 of 2014.

Notice on behalf of opposite party 1 has been accepted by learned AGA.

Issue notice to opposite party 2. Steps be taken within the period as prescribed under the Rules of the Court.

All the opposite parties may file their respective counter affidavits on or before the date fixed in the notice.

List for admission before appropriate Bench on the date fixed

Until further orders, further proceedings of summoning order dated 26.6.2020 passed by Judicial Magistrate 1st, Court 17, Jaunpur in Case No.6084 of 2020, State Vs. Neeraj Kumar & others, under Sections 323, 504, 427 IPC, P.S. Sujan Ganj, District Jaunpur shall remain stayed.

Order Date :- 20.7.2021

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