Application under Section 482 Cr.P.C. seeking quashing of cognizance order. Court held offences under Sections 323, 504, 506 IPC are non-cognizable. Charge-sheet deemed complaint. Order quashed; case to be tried as complaint.
Cognizance order dated 10.09.2020 and entire proceedings quashed. Case to be treated as complaint case.
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Court No. - 83
Case :- APPLICATION U/S 482 No. - 18035 of 2020
Applicant :- Ram Ashish And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Dileep Kumar Srivastava Counsel for Opposite Party :- G.A.
Hon'ble Ajay Bhanot,J.
Heard Sri Dileep Kumar Srivastava, learned counsel for the applicants and learned A.G.A for the State.
The following relief is prayed of in the instant application:
"to allow the present application and quash the cognizance order dated 10.09.2020 as well as entire proceedings of Case No. 9345 of 2020 (State Vs. Shrawan and others) arising out of Case Crime No. 127 of 2020 under Sections 323, 504 I.P.C. Police Station Ramkola, District Kushinagar pending in the Court of Chief Judicial Magistrate, Kushinagar at Padarauna and stay the further proceedings of Case No. 9345 of 2020 (State Vs. Shrawan and others) arising out of Case Crime No. 127 of 2020 under Sections 323, 504 I.P.C. Police Station Ramkola, District Kushinagar pending in the Court of Chief Judicial Magistrate, Kushinagar at Padarauna."
Sri Dileep Kumar Srivastava, learned counsel for the applicants submit that the applicants have been charged for bailable offences.
The charge sheet has been submitted in regard to the aforesaid offences on 01.07.2020. The learned trial court took cognizance of offence by order dated 10.09.2020. Pointing to the fault lines in the order of cognizance, it is submitted that the order is contrary to the provisions of Section 2 (d) of the Cr.P.C. In particular reliance is placed on the Explanation of the provisons. The provision is extracted here for ease of reference:
"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."
The provision arose for consideration before this Court in a
number of cases. Good authority has settled the manner of proceeding in matters in which the charge sheet has been submitted in non cognizable offences. The discussion will profit from the law laid down in Dr. Rakesh Kumar Sharma Vs. State of U.P. and another reported at 2007 (9) ADJ 478 and also in the judgment rendered by this court on 07.10.2010 in Raheesuddin @ Kalwa and others vs. State of U.P. and another (Application u/s 482 Cr.P.C. No. 32258 of 2010). The aforesaid judgments were followed by the learned Single Judge in Ajaz and 2 others Vs. State of U.P. and Another (Application U/S 482 No. 12277 of 2020). In Ajaz and 2 others (supra) this Court construing the aforesaid provisions held as under:
"It is clear from above that all the three offences punishable under Sections 323, 504 and 506 I.P.C. are non-cognizable.
Explanation- A report 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."
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 complaint. In other words the charge-sheet submitted by the police in a non-cognizable office shall be treated to be a complaint and the procedure prescribed for hearing of complaint case shall be applicable to that case.
In the present case from the material brought on record it transpires that the charge-sheet submitted by the Investigating Officer instead of being treated as a complaint, has been treated as as State Case by the concerned Magistrate, which is not permissible under law.
Learned A.G.A. vehemently opposed the submissions made by learned counsel for the applicants.
After having considered the submissions made by learned counsel for the parties and perused the material on record 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."
I find that the law laid down by this Court in Ajaz and 2 others (supra) is squarely applicable to the facts of this case.
The order of cognizance dated 10.09.2020 is quashed.
For the aforesaid reasons, the present application is allowed in part.
It is made clear that the case shall be treated to be a complaint case and the procedure prescribed for hearing of the complaint shall be followed by the court concerned before summoning the applicants.
Order Date :- 10.12.2020 Dhananjai
3 issues framed by the court
Whether the charge-sheet in cognisable offences under Sections 323, 504, and 506 IPC should be treated as a complaint case under Section 2(d) Cr.P.C.
Whether the order of cognizance treating the case as a State Case is valid when the offences are non-cognizable
Whether the quashing order allows the trial court to follow complaint case procedure before summoning the applicants
Colour shows how this judgement treated each authority
Dr. Rakesh Kumar Sharma Vs. State of U.P. and anotherReferred¶11
Dr. Rakesh Kumar Sharma Vs. State of U.P. and another
Raheesuddin @ Kalwa and others vs. State of U.P. and anotherReferred¶11
Raheesuddin @ Kalwa and others vs. State of U.P. and another
Ajaz and 2 others Vs. State of U.P. and AnotherFollowed¶12
Ajaz and 2 others Vs. State of U.P. and Another
5 provisions across 2 enactments
Ram Ashish and 3 Others
Ajay Bhanot
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
