Partly allowed

Anandi Prasad and 2 Other v. State of U.P. and Another

Allahabad HC16 Aug 2022A482/15369/2022

Case brief

AI extract

What is this about?

Single judge High Court allowed an application under Section 482 Cr.P.C. to quash a Magistrate's order taking cognizance in a non-cognizable offence treated as a State case. The court quashed the order and directed proceedings to continue as a complaint case.

What did the court decide?

Impugned order dated 01.11.2021 taking cognizance as a State case is quashed; Magistrate to proceed as a complaint case.

Anandi Prasad and 2 Other Vs State of U.P. and… — Criminal Trial and Appeal | Allahabad HC (2022)

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Court No. - 87 Case :- APPLICATION U/S 482 No. - 15369 of 2022

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Applicant :- Anandi Prasad And 2 Other Opposite Party :- State of U.P. and Another Counsel for Applicant :- Pradeep Kumar Pal,Adya Prasad Tewari Counsel for Opposite Party :- G.A.

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Hon'ble Om Prakash Tripathi,J.

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

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This application under Section 482 Cr.P.C. has been filed by the applicants with a prayer to quash impugned charge sheet dated 11.05.2021 in N.C.R. No. 176/2020, under Sections 323, 504 I.P.C., P.S.- Maharajpur, District- Kanpur Nagar as well as to quash the impugned order dated 01.11.2021 passed by Metropolitan Magistrate-I, Kanpur Nagar taking cognizance and issuing process against the applicants as well as quash the proceedings of Criminal Case No. 113530 of 2021 (State Vs. Anandi Prasad and others).

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Brief facts which are requisite to be stated for adjudication of this application are that on 02.12.2020, opposite party no. 2 lodged N.C.R. No. 176/2020, under Section 323 & 504 I.P.C. P.S.- Maharajpur, District-Kanpur Nagar and after taking permission for investigation, Investigating Officer recorded the statement of the informant and submitted charge sheet dated 11.05.2021 against the applicants under Sections 323, 504 IPC. On charge-sheet, Magistrate has taken cognizance on 01.11.2021 and issued summons to the applicants.

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Feeling aggrieved, this application has been moved before this Court.

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It is submitted by learned counsel for the applicants that matter relates to noncognizance offence only and in such matters cognizance by the Magistrate should not be taken. The case should be treated as a complaint case, it should not be treated as a State case. The impugned order of the court below is an abuse of process of law and the same is liable to be quashed by this Court. Section 2-D Cr.P.C. lays down that :

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"complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under the 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 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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The scope and ambit of power under section 482 Cr.P.C. has been examined by Hon'ble Apex Court in Union of India vs. Prakash P. Hinduja and another, AIR 2003 SC 2612 and observed as follows:

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"The grounds on which power under Section 482 Cr.P.C. can be exercised to quash the criminal proceedings basically are (1) where the allegations made in the FIR or complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused (2) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused, (3) where there is an express legal bar engrafted in any of the provisions of Code of Criminal Procedure or the concerned Act to the institution and continuance of the proceedings. But this power has to be exercised in a rare case and with great circumspection".

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On perusal of material brought on record, it transpires that charge sheet submitted by the IO under Sections 323 & 504 IPC only with regard to noncognizable case. Instead of treating as complaint, cognizance has been taken by the Magistrate as State case, which is not permissible under law. Although, Magistrate has not specifically mentioned in the impugned order that the case should be proceeded under which manner State or complaint, but in absence of such specific mention on the charge sheet, it may be presumed that the case shall be proceeded as State case, which is not permissible under law.

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In view of above discussion, application has substance and is liable to be allowed in part. This is a fit case in which inherent power should be exercised and there appears abuse of process of law. Application under Section 482 Cr.P.C. is allowed in part and impugned order dated 01.11.2021 by which, cognizance was taken, is hereby quashed with a direction to proceed with the matter as complaint case. The Magistrate shall proceed with the matter as complaint case as laid down in Explanation of Section-2(d) Cr.P.C. Rest prayer is refused.

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It is made clear that in such situation, statement of the complainant under Section 200 and 202 Cr.P.C. is not required. Learned Magistrate should specify that said charge sheet shall be proceeded like a complaint case after taking cognizance and registering the case.

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Order Date :- 16.8.2022 Sharad/-

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Digitally signed by SHARAD KUMAR SRIVASTAVA Date: 2022.08.17 12:42:09 IST Reason: Location: High Court of Judicature at Allahabad

Anandi Prasad and 2 Other v. State of U.P. and Another

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Anandi Prasad and 2 Other v. State of U.P. and Another

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