Allowed

Bholla @ Aleem and 2 Others v. State of Up and Another

Allahabad HC4 Oct 2024A482/16260/2024

Case brief

AI extract

What is this about?

The Court quashed the impugned cognizance/summoning order passed against the applicants. The Court held that as the offence under Section 323 IPC is non-cognizable, the proceedings could not have been initiated as a State case, rendering the order an abuse of process of law.

What did the court decide?

The impugned cognizance/summoning order dated 06.11.2023 is quashed and the matter is remanded for the Magistrate to pass a fresh order.

Bholla @ Aleem and 2 Others vs State of Up… — Civil Procedure and Limitation | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:175965

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Court No. - 77

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Case :- APPLICATION U/S 482 No. - 16260 of 2024

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Applicant :- Bholla @ Aleem And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Akhilendra Yadav Counsel for Opposite Party :- G.A.

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Hon'ble Sanjay Kumar Pachori,J.

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Sri Akhilendra Yadav, learned counsel for the applicants and Sri Karunakar Singh, learned A.G.A. for the State are present.

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The present application under Section 482 of the Code of Criminal Procedure, 1973 has been filed to quash the entire proceedings of Case No. 55010 of 2023 (State vs. Bhola @ Aleem), arising out of Case Crime No. 246 of 2023, under Section 323 IPC, P. S. Linepar, District Firozabad as well as cognizance/summoning order dated 06.11.2023, pending in the Court of Additional Chief Judicial Magistrate, Firozabad.

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Learned counsel for the applicants submits that the cognizance/summoning order dated 06.11.2023 has been passed against the applicants and the magistrate took cognizance as a police case, which is against the provision of Section 2(d) of Cr.P.C.

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Learned counsel for the applicants submits that the offence punishable under Section 323 of I.P.C. is non-cognizable offence and as per provision of Section 2(d) of Cr.P.C. the case could not be a State case and it has been proceeded as a State case, the cognizance/ summoning order is an abuse of the process of law.

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Section 2(d) of Cr.P.C. is reproduced herein below:

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(d)"complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this 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 complainant, and the police officer

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by whom such report is made shall be deemed to be the complainant;

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A bare perusal of explanation added to Section 2(d) shows that this explanation speaks about cases where police has investigated a cognizable case but investigation made discloses a non-cognizable offence.

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In view of what has been stated above, the present application is disposed of. The order impugned dated 06.11.2023 passed by Additional Chief Judicial Magistrate, Firozabad is, hereby, quashed. The matter is remanded back to the court concerned and the Magistrate is directed to pass a fresh order after applying the judicial mind.

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Order Date :- 11.11.2024 MAA/-

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Digitally signed by :- MOHAMMAD AZAD ANSARI High Court of Judicature at Allahabad

Bholla @ Aleem and 2 Others v. State of Up and Another

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Bholla @ Aleem and 2 Others v. State of Up and Another

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