Allowed

Harkesh v. State of U.P. and Another

Allahabad HC21 Mar 2023A482/5721/2023

Case brief

AI extract

What is this about?

The High Court allowed an application under Section 482 Cr.P.C. directing that a case arising from Sections 4/21 of the Mines & Minerals Act and Prevention of Public Property Damages Act, being non-cognizable, must be treated as a complaint case, and the prescribed complaint procedure followed before summoning the applicant.

What did the court decide?

Application allowed; case to be treated as complaint case; prescribed procedure for complaint cases to be followed before summoning applicant.

Harkesh Vs State of U.P. and Another — Criminal Trial and Appeal | Allahabad HC (2023)

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Court No. - 73

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Case :- APPLICATION U/S 482 No. - 5721 of 2023

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Applicant :- Harkesh Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Suneel Kumar Counsel for Opposite Party :- G.A.

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Hon'ble Shiv Shanker Prasad,J.

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Heard learned counsel for the applicant and the learned A.G.A. for the State.

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This application under Section 482 Cr.P.C. has been filed by the applicant with a prayer for quashing the charge sheet no. 369 of 2020 dated 20.12.2020 as well as cognizance order dated 04.03.2021 passed by Chief Judicial Magistrate, Pilibhit in Case No. 4113 of 2021 (State Vs. Harkesh), arising out of Case Crime No. 401 of 2020, under Section 4/21 Mines & Minerals Act, 1957 & Prevention of Public Property Damages Act, Police Station Madho Tanda, District Pilibhit.

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Learned counsel for the applicant next submits that the offences under Sections 4/21 Mines & Minerals Act, 1957 & Prevention of Public Property Damages Act, are non-cognizable, hence in view of Explanation to Section 2 (d) Cr.P.C., the case could not proceed as State Case and it had to proceed as a complaint case. He further submits that the concerned Magistrate has erroneously passed an order taking conizance on the charge-sheet.

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It is clear from the above that all the offences punishable under Sections-4/21 Mines & Minerals Act, 1957 & Prevention of Public Property Damages Act, are non-cognizable.

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Explanation to Section 2 (d) Cr.P.C. runs as hereunder:-

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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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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-

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cognizable offence shall be treated to be a complaint and the procedure prescribed for hearing of the complaint case shall be applicable to that case.

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In the present case from the material on record, it transpires that the charge sheet submitted by the Investigating Officer instead of being treated as a complaint case, has been taken cognizance by the concerned Magistrate as a State Case, which is not permissible under law.

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

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After having considered the submissions made by the learned counsel for the parties and perused the material on record, as well as examined the relevant provisions of the Code of Criminal Procedure, I am of the view that the submissions made by the 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 as a complaint case and the procedure prescribed for hearing of the complaint shall be followed by the court concerned before summoning the applicant.

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

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Order Date :- 21.3.2023 SK Srivastava

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Digitally signed by :- SAILESH KUMAR SRIVASTAVA High Court of Judicature at Allahabad

Harkesh v. State of U.P. and Another

Case brief

What is this about?

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Harkesh v. State of U.P. and Another

Case brief

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