Quashed

Islam and 3 Others v. State of U.P. and 2 Others

Allahabad HC25 Feb 2019A482/5850/2019

Case brief

AI extract

What is this about?

This Court quashed the order taking cognizance against the applicant in a case involving non-cognizable offences. Relying on prior precedents, the Court held that a charge sheet in such cases is deemed a complaint under Section 200 Cr.P.C., preventing the Magistrate from taking cognizance without examination.

What did the court decide?

Order taking cognizance set aside; Magistrate directed to proceed as a complaint case under Chapter XV of Cr.P.C.

Islam and 3 Others Vs State of U.P. and 2 Others — Criminal Trial and Appeal | Allahabad HC (2019)

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Court No. - 67

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Case :- APPLICATION U/S 482 No. - 5850 of 2019

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Applicant :- Islam And 3 Others Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Chandra Bhan Counsel for Opposite Party :- G.A.

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Hon'ble Rahul Chaturvedi,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 10.07.2013, u/s 323, 504 IPC, in Case No. 170/2017 arising out of N.C.R. No. 133A of 2010, P.S. Saraykhawaja, District Jaunpur.

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It is contended by learned counsel for the applicants that charged Sections are bailable 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. It is next contended that no permission was taken under Section 155(2) Cr.P.C. and charge sheet has been submitted in non-cognizable offence. 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 noncognizable 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 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 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

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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 of.

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Order Date :- 25.2.2019 Nisha

Islam and 3 Others v. State of U.P. and 2 Others

Case brief

What is this about?

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Islam and 3 Others v. State of U.P. and 2 Others

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