Held that proceedings based on a charge-sheet for a non-cognizable offence constitute a complaint. The impugned summoning order violated section 482 CrPC principles. Order quashed allowing fresh complaint.
Impugned summoning order dated 21.08.2021 is quashed. Opposite party No. 2 at liberty to file a complaint.
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Court No. - 82
Case :- APPLICATION U/S 482 No. - 3976 of 2022
Applicant :- Dr. Madhuresh Saxena Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rajesh Kumar Namdev,Shivendra Raj Singhal Counsel for Opposite Party :- G.A.
Hon'ble Umesh Kumar,J.
Heard learned counsel for the applicant and learned A.G.A. appearing for State and perused the record.
This application under Section 482 Cr.P.C. has been filed with the prayer to quash impugned charge sheet dated 17.11.2019, cognizance / summoning order dated 21.08.2021 as well as all consequential proceedings of Case No.8462 of 2020 (State Versus Dr. Madhuresh Saxena), arising out of Case Crime No. 0284 of 2019, under Sections 15(3) of Indian Medical Council Act, 1917 and Section 33 of Sanyukta Prant Chikitsa Adhiniyam, 1939, P.S.-Kotwali, District-Budaun, pending in the court of Chief Judicial Magistrate, Budaun.
The brief facts of the case is that an F.I.R. was lodged on 04.08.2019 at 6.38 p.m. by opposite party no.2 against the applicant alleging therein that the applicant and several other persons being in the capacity of Doctor are running clinic illegally. The investigating agency, after investigation, has submitted charge-sheet against the applicant on 17.11.2019, on which cognizance has been taken and the applicant has been summoned to face trial vide order dated 21.08.2021 passed by Chief Judicial Magistrate, Budaun.
It is contended by the learned counsel for the applicant that offences mentioned under the provisions of Sanyukta Prant Chikitsa Adhiniyam, 1939 are triable by the Ist Class Magistrate
and as such the learned Magistrate can take cognizance of the offfence under the said Act only upon the complaint instituted by any officer. Even Section 15(3) of Indian Medical Council Act, 1956 is a special legislation in which the said offence is punishable with an imprisonment which may extend to one year and with fine which may extend to Rs.1000/- or with both. Therefore, in the present case only complaint can be filed against the applicant and as such there is no provisions of lodging an F.I.R. Thus continuance of charge-sheet and proceedings in furtherance of the impugned charge-sheet are nothing an abuse of process of law, thus the same deserves to be quashed.
Learned counsel for the applicant has relied upon a Judgement of Hon'ble Apex Court reported in 2009 (64) ACC 296 M/s Eicher Tractor Ltd. and others Vs. Harihar Singh and another as well as another reported Judgement of this Court reported in 2008 (1) JIC 220 (All) Awadesh Kumar and others Vs. State of U.P. and others in support of his contention.
Learned A.G.A. has stated that no useful purpose would be served in issuing notice to the opposite party no.2 as it will only delay the proceedings of the present case. The order taking cognizance has been passed and it is argued that charge sheet has been submitted under the charged Sections which are noncognizable offence.
In the present matter, investigation was undertaken for noncognizance offence and charge-sheet filed under non-cognizable offence only, therefore, charge-sheet should be treated as a complaint.
In view of aforesaid, the impugned summoning order dated
21.08.2021 passed by learned Chief Judicial Magistrate, Budaun is hereby quashed. However, opposite party no.2 will be at liberty to move a complaint before the competent court, if he so desires.
With these observations, the application stands disposed off.
Order Date :- 20.4.2022 MN/-
Digitally signed by MAHENDRA NATH Date: 2022.04.25 16:36:03 IST Reason: Location: High Court of Judicature at Allahabad
3 issues framed by the court
Whether proceedings instituted upon a charge-sheet under non-cognizable sections as if by First Information Report are an abuse of process of law and should be quashed.
Whether a charge-sheet for a non-cognizable offence can legally be invoked for summons issuance in this manner.
Whether the impugned summoning order should be quashed to preserve judicial process.
Colour shows how this judgement treated each authority
M/s Eicher Tractor Ltd. and others Vs. Harihar Singh and anotherReferred¶10
2009 (64) ACC 296
Awadesh Kumar and others Vs. State of U.P. and othersReferred¶10
2008 (1) JIC 220
3 provisions across 3 enactments
Dr. Madhuresh Saxena
State of U.P.
Opposite Party no.2
Umesh Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
