Allowed

Asha Devi and Another v. State of U.P. and Another

Allahabad HC15 Feb 2019A482/5928/2019

Case brief

AI extract

What is this about?

Criminal Court allowed Section 482 Cr.P.C. application to set aside Magistrate's order taking cognizance on a charge-sheet in an IPC 323, 504, 506 case. Court held offence is non-cognizable and bailable.

What did the court decide?

Order of taking cognizance set aside; charge-sheet to be treated as a complaint under Section 506 IPC; Magistrate to follow procedure for complaints.

Asha Devi and Another Vs State of U.P. and Another — Criminal Trial and Appeal | Allahabad HC (2019)

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Court No. - 67

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Case :- APPLICATION U/S 482 No. - 5928 of 2019

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Applicant :- Asha Devi And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Sanjai Kumar Pandey Counsel for Opposite Party :- G.A.

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Hon'ble Rahul Chaturvedi,J.

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Heard learned counsel for the applicant and learned AGA for the State.

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This is an application under Section 482 Cr.P.C. for quashing the charge sheet in charge sheet no. NIL of 2017 dated 22.04.2017, under Sections 323, 504, 506 I.P.C., P.S. Chilhiya, District Siddharthnagar in Criminal Case No. 18 of 2018 (State v. Asha Devi and another) arising out of N.C.R. No. 13 of 2017 (State Vs. Asha Devi and another) pending in the Court of Judicial Magistrate, Siddharthnagar.

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The facts relevant for disposal of this application are that on 21.02.2017, the opposite party lodged a report against the applicants which was registered as N.C.R. No. 13 of 2017 (State Vs. Asha Devi and another), under Section 323, 504, 506 I.P.C. Thereafter opposite party no. 2 moved an application under Section 155(2) Cr.P.C. before the Judicial Magistrate, Siddharthnagar for investigating the N.C.R. No. 13 of 2017. The Chief Judicial Magistrate, Siddharthnagar vide order dated 12.04.2017 directed the concerned police station to investigate the matter. After investigation, the Investigating Officer submitted charge sheet against the applicant and another dated 22.04.2017, under Sectios 323, 504, 506 I.P.C copy whereof is filed as annexure no. 3 to the application and on that charge sheet the court concerned has taken cognizance. Aggrieved with that order of taking cognizance, the applicant has filed this application under Section 482 Cr.P.C. before this Court.

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It is to be seen that the charge sheet has been submitted under Sections 323, 504, 506 I.P.C. The offences under Sections 323, 504, 506 I.P.C. were all non-cognizable and bailable, but the offence under Section 506 I.P.C. was made cognizable and non-bailable vide, the U.P. Government Notification No. 777/VIII-94(2)-87 dated July 31, 1989. However, this notification was held to be illegal and ultra-vires by a Division Bench judgment of this Court in the case of Virendra Singh and others Vs. State of U.P. and others [2000(3)AWC2250; [2000(86)FLR322]; (2000)2UPLBEC1748] . So now the legal position is that the offence under Sections 323, 504, 506 I.P.C. are bailable and non-cognizable.

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It has been provided in the explanation to section 2(d) of the Criminal Procedure Code that a report made by the 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. In view of this explanation, the charge-sheet submitted by the police in the above case under Sections 323, 504, 506 I.P.C. could not be treated to be police case, but it would be deemed to be a complaint and the police officer who submitted the charge-sheet is to be deemed to be the complainant. As such, the order passed by the learned Magistrate for taking cognizance on the

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charge-sheet as a state case is illegal and is liable to be set aside.

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The application under Section 482 Cr.P.C. is therefore, allowed to the extent that the order passed by the Judicial Magistrate, Siddharthnagar on the charge-sheet in Criminal Case No. 18 of 2018 (State v. Asha Devi and another) arising out of N.C.R. No. 13 of 2017 (State Vs. Asha Devi and another), under Section 323, 504, 506 I.P.C., is set aside and the above charge-sheet shall be treated to be a complaint under Section 506 I.P.C. and the Magistrate concerned shall follow the procedure prescribed under the Criminal Procedure Code for taking action on the complaint.

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Order Date :- 15.2.2019 shailesh

Asha Devi and Another v. State of U.P. and Another

Case brief

What is this about?

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Asha Devi and Another v. State of U.P. and Another

Case brief

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What did the court decide?

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