Allowed

Mukesh and 2 Others v. State of U.P. and Another

Allahabad HC7 Dec 2019A482/43631/2019

Case brief

AI extract

What is this about?

The Single Judge set aside an order taking cognizance in a criminal case involving non-cognizable offences. Relying on Section 2(d) Cr.P.C., the court held the charge sheet operates as a complaint, allowing the Magistrate to proceed under Chapter XV.

What did the court decide?

The impugned order taking cognizance is set aside; the Magistrate may pass an order taking cognizance if he chooses to proceed as a complaint case under Chapter XV.

Mukesh and 2 Others Vs State of U.P. and Another — Quashing and FIR | Allahabad HC (2019)

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Court No. - 66

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Case :- APPLICATION U/S 482 No. - 43631 of 2019

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Applicant :- Mukesh And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Yogesh Kumar Srivastava,Noor Muhammad Counsel for Opposite Party :- G.A.

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Hon'ble Rajul Bhargava,J.

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Heard learned counsel for the applicants and learned A.G.A. for the State.

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The present petition under Section 482 Cr.P.C. has been filed for quashing the charge sheet dated 15.3.2018 arising out of Case Crime no. 0108/17 u/s 323, 504 IPC, P.S. Chandauli, District Chandauli.

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It is contended by learned counsel for the applicants that charged Sections are non cognizable Sections and the learned Magistrate may pass an order taking cognizance if he so desires by proceeding under Chapter XV of the Code of Criminal Procedure. It is further contended that the order impugned has been challenged and reliance has been placed to explanation 2(d) of the Code of Criminal Procedure. Learned counsel for the applicants has relied upon a Judgement of Hon'ble Apex Court reported in 2009 (64) ACC 296 M/s Eicher Tractor Ltd. and others Vs. Harihar Singh and another as well as another reported Judgement of this Court reported in 2008 (1) JIC 220 (All) Awadesh Kumar and others Vs. State of U.P. and others in support of his contention.

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Learned A.G.A. has stated that no useful purpose would be served in issuing notice to the opposite party no.2 as it will only delay the proceedings of the present case.

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The order taking cognizance has been passed and it is argued that charge sheet has been submitted under the charged Sections which are non-cognizable offence. Reliance has been placed on Explanation to Section 2(d) of Code of Criminal Procedure, which reads as follows:-

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"Explanation-- A report made by a police officer in a case which discloses, after investigation, the commission of a noncognizable offence shall be deemed to be a complaint, and the police officer by whom such report is made shall be deemed to be the complaint."

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Therefore, on the basis of aforesaid Explanation which has been interpreted in a Single Judge decision of this Court reported in 2007(3) JIC 654 (All) ;2007 (9) ADJ 478 Dr. Rakesh Kumar Sharma Vs. State of U.P.and another, it has been held that when the charge sheet is only of non-cognizable offences, in view of the aforesaid provision, the charge sheet should be treated as a complaint. The argument is well founded and the order taking cognizance is set aside. Now the Magistrate may pass an order taking cognizance if, he so chooses, by proceeding in this matter as a complaint case under Chapter XV of the Code of Criminal Procedure. He can also keep this fact in mind that in view of the Proviso (a) to Section 200 Cr.P.C., which reads as follows:-

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"Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses--

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(a) If a public servant acting or purporting to act in discharge of his official duties or a Court has made the complaint;"

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With these observations, this application is finally disposed off.

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Order Date :- 7.12.2019 Dhirendra/

Mukesh and 2 Others v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Mukesh and 2 Others v. State of U.P. and Another

Case brief

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