Allowed

Sunny @ Shashikant Chaurasiya and 2 Others v. State of U.P. and Another

Allahabad HC15 Mar 2019A482/6210/2019

Case brief

AI extract

What is this about?

In an application under Section 482 Cr.P.C., the Court allowed the quashing of the charge-sheet and proceedings as the offences were non-cognizable. It held that a police report in such cases is deemed a complaint and took cognizance as a state case was impermissible.

What did the court decide?

The charge-sheet dated 27.03.2016 and entire proceedings of Case No. 5530 of 2016 are set aside.

Sunny @ Shashikant Chaurasiya and 2 Others… — Civil Procedure and Limitation | Allahabad HC (2019)

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Court No. - 67

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Case :- APPLICATION U/S 482 No. - 6210 of 2019

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Applicant :- Sunny @ Shashikant Chaurasiya And 2 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Pawankumar Dubey Counsel for Opposite Party :- G.A.,A/S1098

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Hon'ble Rahul Chaturvedi,J.

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Heard learned counsel for the applicants and learned A. G. A. and perused the record.

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By means of the present application u/s 482 Cr.P.C., the prayer sought is to quash the charge sheet dated 27.03.2016 as well as entire proceeding of Case No. 5530 of 2016 arising out of N.C.R. No. 70 of 2015, u/s 323, 504 IPC, P.S. Mehnagar, District Azamgarh, pending in the court of Additional Chief Judicial Magistrate, Court No. 10, Azamgarh.

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Learned counsel for the applicants submitted that the offences under Sections 323, 504 I.P.C. are non-cognizable, hence in view of the Explanation to Section 2 (d) of the Code of Criminal Procedure, the case could not proceed as State Case and it had to proceed as a complaint case. He further submitted that the learned Magistrate has erroneously passed an order taking cognizance on the charge-sheet.

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It is not disputed that the offences under Sections 323, 504 I. P. C. are notcognizable. The offence under Section 504 I. P. C. was made cognizable and non-bailable vide the Uttar Pradesh government Notification No. 777/VIII-94 (2)-87 dated July, 1989 published in U. P. Gazette, Extra Part4 Section (Kha) dated 2nd August, 1989. This notification issued by the Government was held to be illegal by Division Bench of this Court in the case of Virendra Singh and others Versus State of U. P. and others, 2000 (2) JIC 649 (All) : 2000 (45) ACC 609 , and so the position now is that the offence under Section 506 I. P. C. is also a non-cognizable offence.

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It is clear from above that all the three offences punishable under Sections 323, 504 I. P. C. are non-cognizable.

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Explanation to Section 2 (d) of the Cr. P. C. runs as under:

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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 complainant.

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In view of the said Explanation report of the police officer after investigation disclosing commission of non-cognizable offence is to be deemed to be a complaint and the police officer who submitted the report has to be deemed to be a complainant. In other words the charge-sheet submitted by the police in a non-cognizable offence shall be treated to be a complaint and the procedure prescribed for hearing of complaint case shall be applicable to that case."

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In the present case from the material brought on record it transpires that

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the charge-sheet submitted by the Investigating Officer instead of being treated as a complaint, has been taken cognizance of by the concerned Magistrate as a State Case, which is not permissible under law.

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Learned A. G. A. vehemently opposed the submissions made by learned counsel for the applicants.

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After having considered the submissions made by learned counsel for the parties and perused the material on record as well as the impugned summoning order and examined the relevant provisions of the Code of Criminal Procedure, I am of the view that the submissions made by learned counsel for the applicants have force and are liable to be accepted.

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With aforesaid observations, the present applicant stands disposed of.

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Order Date :- 15.3.2019 Nisha

Sunny @ Shashikant Chaurasiya and 2 Others v. State of U.P. and Another

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Sunny @ Shashikant Chaurasiya and 2 Others v. State of U.P. and Another

Case brief

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