Partly allowed

Wasim Malik and Another v. State of U.P. and Another

Allahabad HC1 May 2023A482/5621/2023

Case brief

AI extract

What is this about?

In SLP regarding quashing of cognizance and summing order in a case involving Sections 323 and 506 IPC, the court held that since offences are non-cognizable, the police report is deemed a complaint. The Magistrate treating it as a State Case was not permissible.

What did the court decide?

The order dated 10.02.2021 by which the concerned Magistrate took cognizance and summoned the applicants is quashed; the case to be treated as a complaint case and procedure for hearing of complaint c

Wasim Malik and Another Vs State of U.P. and Another — Quashing and FIR | Allahabad HC (2023)

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Court No. - 68

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Case :- APPLICATION U/S 482 No. - 5621 of 2023

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Applicant :- Wasim Malik And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Aijaz Ahmad Khan Counsel for Opposite Party :- G.A.

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Hon'ble Mrs. Manju Rani Chauhan,J.

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Heard Mr. Aijaz Ahmad Khan, learned counsel for the applicants and Mr. Pankaj Srivastava, learned A.G.A. for the State.

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The present application under Section 482 Cr.P.C. has been filed for quashing the charge sheet dated 08.08.2017 and cognizance/summoning order dated 10.02.2021 as well as the entire proceeding of Case no.209 of 2021 (State vs. Wasim and another), arising out of N.C.R. No.14 of 2027, under Sections 323, 506 I.P.C., Police Station-Sardhana, District-Meerut, pending before the court of Judicial Magistrate, Sardhana, District-Meerut.

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It is contended by learned counsel for the applicants that charged Sections are bailable Sections 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. It is further contended that the order impugned has been challenged and reliance has been placed to Explanation 2(d) of the Code of Criminal Procedure. It is next contended that no permission was taken under Section 155(2) Cr.P.C. and charge sheet has been submitted in non-cognizable offence. Learned counsel for the applicants has relied upon a Judgement of Hon'ble Apex Court reported in M/s Eicher Tractor Ltd. and others Vs. Harihar Singh and another reported in 2009 (64) ACC 296 as well as another reported Judgement of this Court in the case of Awadesh Kumar and others Vs. State of U.P. and others reported in 2008 (1) JIC 220 (All) in support of his contention.

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The order taking cognizance has been passed and it is argued that charge sheet has been submitted under the charged Sections, which are non-cognizable offence. Reliance has been placed on Explanation to Section 2(d) of 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

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shall be deemed to be a complaint, and the police officer by whom such report is made shall be deemed to be the complaint."

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Learned A.G.A., vehemently, opposed the submissions made by learned counsel for the applicants.

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The aforesaid Explanation has been interpreted in a Single Judge decision of this Court in the case of Dr. Rakesh Kumar Sharma Vs. State of U.P. and another reported in 2007 (9) ADJ 478 and Raheesuddin @ Kalwa and others vs State of U.P. and another, decided on 7.10.2010 passed in Application u/s 482 Cr.P.C. No.32258 of 2010.

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It is clear from above that all the offences punishable under Sections 323 and 506 I.P.C. are non-cognizable. Explanation to Section 2 (d) of the Cr. P. C. runs as under:-

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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 complaint."

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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 complainant. In other words the charge-sheet submitted by the police in a non-cognizable offence shall be treated to be a complaint and the procedure prescribed for hearing of complaint case shall be applicable to that case.

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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 a State Case by the concerned Magistrate, which is not permissible under law.

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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 applicant have force and are liable to be accepted.

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For the aforesaid reasons, the present case 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.

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In view of the above, the order dated 10.02.2021 by which the

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concerned Magistrate has taken cognizance and summoned the applicants, is quashed .

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With the aforesaid directions/observations, this application stands partly allowed.

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Order Date :- 1.5.2023 Jitendra/-

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Digitally signed by :- JITENDRA KUMAR YADAV High Court of Judicature at Allahabad

Wasim Malik and Another v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Wasim Malik and Another v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

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