Quashed

Chunku @ Ghanand Kumar and 2 Others v. State of U.P. and Another

Allahabad HC4 Aug 2021A482/6025/2021

Case brief

AI extract

What is this about?

This application sought to quash criminal proceedings initiated as a State case for non-cognizable offences. The High Court held that since the offences were non-cognizable and investigated without magistrate sanction, the police report was deemed a complaint, not a state case.

What did the court decide?

Cognizance and summoning order set aside; case directed to be proceeded as a complaint.

Chunku @ Ghanand Kumar and 2 Others Vs… — Civil Procedure and Limitation | Allahabad HC (2021)

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Court No. - 88

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Case :- APPLICATION U/S 482 No. - 6025 of 2021

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Applicant :- Chunku @ Ghanand Kumar And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Kunwar Mayank Singh,Hari Prakash Pal Counsel for Opposite Party :- G.A.

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Hon'ble Vipin Chandra Dixit,J.

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This application under Section 482 Cr.P.C. has been filed by the applicants for quashing the entire proceedings of Case No.580 of 2021 (State Vs. Chunku @ Ghanand Kumar and others Bahadur and others) arising out of N.C.R. No.51 of 2019 under Section 323, 504 IPC, P.S. Asothar District Fatehpur pending in the court of Judicial Magistrate, Fatehpur.

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Heard learned Counsel for the applicants as well as learned A.G.A. for the State.

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Learned Counsel for the applicants has submitted that the applicants have been falsely implicated in this case. It is further submitted that N.C.R. No.51 of 2019 was lodged under Sections 323, 504 IPC in respect of alleged incident dated 27.5.2019. The Investigating Officer after investigation has submitted charge-sheet under Section 323, 504 IPC and the learned Magistrate has taken cognizance.

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Learned Counsel for the applicants has submitted that as the chargesheet has been filed under Section 323, 504 IPC, which are noncognizable offences and, as such it shall be deemed to be complaint under Explanation to Section 2(d) of Cr.P.C., hence the order taking cognizance as well as summoning order, as a State case is against the law and the order of cognizance and summoning order are liable to be quashed.

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Since pure question of law is involved in this case, it is being decided at the admission stage without issuing notices to the opposite party no.2.

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Complaint has been defined under Section 2(d) of Criminal Procedure Code, which is quoted hereinbelow:-

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"(d) " complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.

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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

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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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From the bare perusal of Explanation to Section 2(d), it is apparent that if a report submitted by Police officer in respect of commission of non-cognizable offences, it should be treated as a complaint case. Learned Counsel for the applicants has placed reliance on the judgment of Hon'ble Apex Court in the case of Keshav Lal Thakur Vs. State of Bihar reported in 1996 (11)SCC 557 . The relevant paragraph no.3 is quoted hereinbelow:-

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"3. We need not go into the question whether in the facts of the instant case the above view of the High Court is proper or not for the impugned proceeding has got to be quashed as neither the police was entitled to investigate into the offence in question nor the Chief Judicial Magistrate to take cognizance upon the report submitted on completion of such investigation. On the own showing of the police, the offence under Section 31 of the Act is non-cognizable and therefore, the police could not have registered a case for such an offence under Section 154 Cr. P.C, Of course, the police is entitled to investigate into a non- cognizable offence pursuant to an order of a competent Magistrate under Section 155(2) Cr. P.C. but, admittedly, no such order was passed in the instant case. That necessarily means, that neither the police could investigate into the offence in question nor submit a report on which the question of taking cognizance could have arisen. While on this point, it may be mentioned that in view of the proviso to Section 2(d) Cr. P.C., which defines 'complaint', the police is entitled to submit, after investigation, a report relating to a non-cognizable offence in which case such a report is to be treated as a 'complaint' of the police officer concerned, but that explanation will not be available to the prosecution here as that relates to a case where the police initiates investigation into a cognizable offence - unlike the present one - but ultimately finds that only a non- cognizable offence has been made out."

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Learned A.G.A. has opposed the prayer made by the applicants but he is unable to dispute the aforesaid legal provision.

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Considering the submissions advanced by learned Counsel for the applicants as well as learned A.G.A., it is apparent that the present investigation was conducted for non-cognizable offences and after investigation, the Investigating Officer has also submitted chargesheet under Section 323, 504 IPC which are non-cognizable offences and as such under the law, the charge-sheet should be treated as a complaint case and the learned Magistrate has committed illegality in taking cognizance treated it as a State case.

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In view of the above, the cognizance/summoning order is set aside and the learned trial Court is directed to proceed the case as a complaint

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case under Chapter XV of Criminal Procedure Code.

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With the aforesaid observations, the application under Section 482 Cr.P.C. stands disposed of.

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Order Date :- 4.8.2021/S. Singh

Chunku @ Ghanand Kumar and 2 Others v. State of U.P. and Another

Case brief

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Chunku @ Ghanand Kumar and 2 Others v. State of U.P. and Another

Case brief

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