Partly allowed

Ratan Chandra Kesharwani v. State of U.P. and Another

Allahabad HC23 Jan 2023A482/39651/2022

Case brief

AI extract

What is this about?

The High Court partly allowed an application under Section 482 CrPC to quash an order taking cognizance of a non-cognizable offence. The court set aside the impugned order and directed the Magistrate to proceed under Chapter XV as a complaint case.

What did the court decide?

Order taking cognizance set aside; Magistrate directed to proceed as a complaint case under Chapter XV of CrPC.

Ratan Chandra Kesharwani Vs State of U.P… — Civil Procedure and Limitation | Allahabad HC (2023)

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Court No. - 65

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Case :- APPLICATION U/S 482 No. - 39651 of 2022

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Applicant :- Ratan Chandra Kesharwani Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Lalit Kumar Tripathi,Ankit Tiwari Counsel for Opposite Party :- G.A.

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Hon'ble Rajiv Gupta,J.

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Heard learned counsel for the applicant, learned A.G.A. for the State and perused the material available on record.

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This application under Section 482 Cr.P.C. has been filed with the prayer to quash the order dated 04.06.2022 passed by District Judge, Allahabad in Criminal Revision No. 707 of 2021 (Ratan Chandra Kesharwani V. State of U.P. and Another) as well as order dated 04.10.2021 passed by Additional Chief Judicial Magistrate, Court No.7, Allahabad.

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It is contended by learned counsel for the applicant that charged section is non-cognizable section and the learned Magistrate may pass an order taking cognizance, if he so desires, by proceeding under Chapter XV of the Code of Criminal Procedure. Reliance has been placed to explanation 2(d) of the Code of Criminal Procedure, which reads as follows:-

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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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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.

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Therefore, on the basis of aforesaid Explanation which has been interpreted in a Single Judge decision of this Court passed in Application u/s 482 No.45609 of 2018 (Santosh Kumar and 2 others vs. State of U.P. and Others), decided on 31.1.2019, where it has been held that when the charge-sheet is only of non-cognizable offence, in view of the aforesaid provision, the charge sheet should be treated as a complaint.

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The argument is well founded and the order taking cognizance is set aside. Now, the Magistrate may pass an order taking cognizance, if he so chooses, by proceeding

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in this matter as a complaint case under Chapter XV of the Code of Criminal Procedure. He can also keep in mind Proviso (a) to Section 200 Cr.P.C., which reads as follows:-

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"Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses."

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(a) If a public servant acting or purporting to act in discharge of his official duties or a Court has made the complaint;"

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With these observations, this application under Section 482 CrPC is partly allowed.

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Order Date :- 23.1.2023 Nadim

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Digitally signed by :- NADIM ALAM High Court of Judicature at Allahabad

Ratan Chandra Kesharwani v. State of U.P. and Another

Case brief

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Ratan Chandra Kesharwani v. State of U.P. and Another

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