Allahabad High Court
Muneshwar Yadav And Another vs State Of U.P. And Another on 23 July, 2021
Bench: Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 81
Case :- APPLICATION U/S 482 No. - 10892 of 2021
Applicant :- Muneshwar Yadav And Another
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Kuber Singh Yadav
Counsel for Opposite Party :- G.A.
Hon'ble Shamim Ahmed,J.
Heard learned counsel for the applicants as well as learned AGA for the State and perused the record.
By filing this application under section 482 Cr.P.C. applicants have prayed to quash the entire criminal proceedings as well as charge sheet dated 18.10.2020 and cognizance order dated 26.11.2020 in criminal case no.6937 of 2020 arising out of NCR No.99/18 under Sections 323, 504 IPC P.S. Mardah District Ghazipur pending in the court of Judicial Magistrate Ghazipur.
Learned counsel for applicants contended that an NCR No.0099 of 2018, under Sections 323, 504 I.P.C. has been registered in Police Station Mardha district Ghazipur 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.
An NCR bearing No.99/2018 was lodged by the informant against the co-accused persons under Sections 323, 504 IPC at P.S.Mardha District Ghazipur. Thereafter, the investigation was 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) Hon'ble 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 155(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.
In view of the discussions made above, the impugned order dated 26.11.2020 is hereby quashed. The matter is remanded back before the Judicial Magistrate, Ghazipur, to pass a reasoned and speaking order afresh after giving opportunity of hearing to the parties concerned.
With these observations and directions, the application is finally disposed of.
Order Date :- 23.7.2021
SP
