Allahabad High Court
Dr. Vineet Agarwal vs State Of U.P. Thru. Prin. Secy. Home ... on 8 January, 2025
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:2056
Court No. - 12
Case :- APPLICATION U/S 482 No. - 11696 of 2024
Applicant :- Dr. Vineet Agarwal
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko And 4 Others
Counsel for Applicant :- Sanandan Kumar Misra,Bina Kumari Bajpai
Counsel for Opposite Party :- G.A.,Abhijeet Singh,Ranjeet Singh
Hon'ble Saurabh Lavania,J.
1. Heard learned counsel for the parties and perused the record.
2. By means of instant application under Section 482 Cr.P.C., the applicant has prayed for the following main relief(s):-
"A. Quash the impugned chargesheet Dated 24/02/2024 filed in case crime No. 34 of 2024 registered Under Section 427 1.P.C. Police Station Krishnanagar, Police Commissionerate Lucknow against the applicant.
B. Quash entire criminal proceeding of case crime no. 34/2024 U/Sec- 427 IPC pending in to the Hon'ble court of ACJM-7, Lucknow.
C. Quash the summoning order dated 03-07-2024 issued against the Applicant/Accused and order dated 22-11-2024 by which NBW has been issued against the Applicant/Accused in criminal case no.73061 of 2024 "State Versus Vineet Agarwal" crime no. 34/2024 U/Sec-427 IPC PS Krishnanagar district Lucknow pending in to Hon'ble court of ACJM-7, Lucknow.
D. Stay the further proceedings of criminal case no.73061 of 2024 "State Versus Vineet Agarwal" crime no. 34/2024 U/Sec-427 IPC PS Krishnanagar district Lucknow pending in to Hon'ble court of ACJM-7, Lucknow."
3. He submitted that on a written complaint made by opposite party no.2 (informant) against the applicant. According to this complaint the house of the opposite party no.2 got damaged on account of the fact that the applicant was flowing out water to the house of opposite party no.2 with malafide intention. Taking note of allegation levelled in the complaint of opposite party no.2 an NCR No.94 of 2023 was lodged under Section 427 IP.C. at P.S. Krishnanagar, Lucknow. Thereafter the Investigating Officer had moved an application dated 19.01.2024 under Section 155(2) Cr.P.C. before the Chief Judicial Magistrate for permission to investigate the matter, which was allowed, and thereafter NCR was converted in FIR bearing Case Crime No.34 of 2024, under Section 427 I.P.C. During the course of investigation, the Investigating Officer recorded the statement of the informant and submitted charge sheet dated 24.02.2024 in Case Crime No.34 of 2024, under Section 427 I.P.C. against the accused/applicant. Thereafter, learned Magistrate has taken cognizance on the aforesaid charge sheet vide order dated 03.07.2024 and summoned the accused/applicant and vide order dated 22.11.2024 non-bailable warrant was issued against the applicant.
4. It is further submitted that the present proceeding has arising out of NCR which was filed for non-cognizable offence under Section 427 I.P.C. It is stated that the offence as alleged is non-cognizable and, therefore, neither the charge sheet could have been submitted by the Investigating Officer nor the learned Magistrate could have taken cognizance in view of the Explanation to Section 2(d) of Cr.P.C.
5.He further submitted that taking note of settled proposition of law and the facts of the case including the recitals of summoning order dated 03.07.2024, the interference of this Court is required in the matter. The prayer is to allow the instant application.
6. Considered the aforesaid and perused the record.
7. The provisions of Section 2(d) Cr.P.C. defines complaint and is reproduced hereinbelow :-
"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."
8. Aforesaid Section clearly denotes that after investigation if it is found that the offence in question is a non-cognizable offence then the matter should be treated as a complaint and police officer by whom such report is made shall be deemed to be the complainant.
9. In the case of Rakesh Kumar Sharma vs. State of U.P. & Another reported in 2007 (9) ADJ 478, specifically paragraph nos. 5 & 6, the Coordinate Bench of this Court has considered the matter wherein F.I.R. was lodged under Section 307 IPC but subsequently charge-sheet was submitted under Section 504 IPC and the Court concluded that it should not be proceeded as a police case which is barred under Explanation to Section 2(d) Cr.P.C. The relevant paragraph nos. 5 & 6 of the aforesaid judgment are hereunder :-
"5. He submitted that in the present case originally the F.I.R. was lodged under Section 307 IPC but after investigation the Investigating Officer came to the conclusion that no offence under Section 307 IPC was made out and only a case under Section 504 IPC was made out against the applicant and so a charge-sheet under Section 504 IPC was submitted against the applicant. He contended that in view of the aforesaid Explanation to Section 2 (d) Cr.P.C., the case could not proceed as a police case in respect of an offence punishable under Section 504 IPC. Because the offence under Section 504 IPC is non-cognizable and so the case could proceed only as a complaint case in view of the aforesaid Explanation.
6. The above contention of the learned counsel for the applicant is correct. I, therefore, allow this application under Section 482 Cr.P.C. to this extent that the cognizance taken by the Magistrate in the case on the basis of the report of the police for the offence punishable under Section 504 IPC and the orders passed by him for issuing warrant against the applicant are hereby quashed. The Magistrate shall not proceed with the case as a State case but he shall proceed with it as a complaint case as provided in the Explanation 2 (d) Cr.P.C. and he shall follow the procedure prescribed for hearing of a complaint case."
10. In the case of Keshav Lal Thakur vs. State of Bihar reported in 1996 (II) SCC, 557, the Apex Court has held in paragraph 3 which is as under :-
"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 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 Explanation 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."
11. In the case of Santosh Kumar and 2 Others vs. State of U.P. And Another 2019:AHC:18156 and Anurag Yadav And 2 Ors. vs. State of U.P. And Anr 2020:AHC:39811, originally the FIR was lodged under sections 323, 504 IPC and Rama Shankar Upadhayay And 3 Others vs. State of U.P. And Another 2022:AHC:190995, the FIR was lodged under sections 323, 504 and 427 IPC. In this backdrop a coordinate Bench of this Court held that the Magistrate shall not proceed with the case as a State case but he shall proceed with it as a complaint case as provided in the explanation to Section 2(d) Cr.P.C.
12. In light of the aforesaid there is no room to doubt for considering the commission of non-cognizable offence as a complaint case.
13. There is no particular format for a complaint. The Apex Court has also expounded in Mohd. Yusuf vs. Afaq Jahan reported in (2006) 1 SCC, 627 that there is no particular format for a complaint, even nomenclature is also inconsequential. A petition addressed to Magistrate containing an allegation that an offence has been committed and prayed for suitable action against the culprits, is sufficient to treat the same as a complaint.
14. In view of the observations made above, learned court below has illegally proceeded on the police report without applying his judicial mind and proper course of action for the Magistrate was to treat the matter as a complaint under the provision as enshrined under Explanation to Section 2(d) Cr.P.C.
15. For the reasons aforesaid, this Court is of the view that no useful purpose would be served in keeping the present application pending any further. Accordingly, the charge sheet dated 24.02.2024 as also the summoning order dated 03.07.2024 and N.B.W. dated 22.11.2024 are hereby quashed and the matter is remitted to the learned Magistrate to pass a fresh order, strictly in accordance with law, keeping in mind the observations made above.
16. The application stands allowed.
Order Date :- 8.1.2025
Anand/-
