Allahabad High Court
Ziaul Alias Syed Ziaul Hasan vs State Of U.P. Thru. Prin. Secy. Home Lko. ... on 22 May, 2024
Author: Shamim Ahmed
Bench: Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:38723
Court No. - 27
Case :- APPLICATION U/S 482 No. - 4711 of 2024
Applicant :- Ziaul Alias Syed Ziaul Hasan
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another
Counsel for Applicant :- Mohammad Alam
Counsel for Opposite Party :- G.A.
Hon'ble Shamim Ahmed,J.
Heard Sri Mohd. Alam, learned counsel for the applicant as well as the learned A.G.A. for the State and perused application moved under section 482 Cr.P.C.
By filing this application under section 482 Cr.P.C. applicant has prayed to quash the chargesheet No 1 dated 10-12-2022 as well as summoning order dated 17-05-2023 in case crime No. 468/2022 Case No. 48144/2023 under section 323 504, IPC police station Thakurganj, District Lucknow, State Vs. Hasan and others, pending in the court of Special Additional Chief Judicial Magistrate C.B.I. (Ayodhya Prakaran) Lucknow.
Learned counsel for applicant contended that an F.I.R. bearing Case Crime No. 468 of 2022, under Sections 323, 504, I.P.C., Police StationThakurganj, District Lucknow has been registered in which police has submitted charge sheet after investigation. Learned counsel for applicant further 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 submissions made by learned counsel for applicants.
The applicants are named inCase Crime No. 468 of 2022, 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), 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 Dr. Rakesh Kumar Sharma Vs. State of U.P. and another; 2007(9) ADJ 478 Allahabad High Court, 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 17.05.2023 is hereby quashed. The matter is remanded back before thecourt of Special Additional Chief Judicial Magistrate C.B.I. (Ayodhya Prakaran) Lucknow, 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.
(Shamim Ahmed, J.)
Order Date :- 22.5.2024
A.Nigam
