Rakesh Kumar and Another Vs State of U.P. and Another

Neutral Citation No. - 2025:AHC:6491

Court No. - 78

Case :- APPLICATION U/S 482 No. - 42757 of 2024

Applicant :- Rakesh Kumar And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Kapil Kumar,Nitika Sharma Counsel for Opposite Party :- G.A.

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Hon'ble Samit Gopal,J.

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List revised.

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Heard Sri Kapil Kumar, learned counsel for the applicants, Sri Chandan Agarwal, learned counsel for the State and perused the record.

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The present application under Section 482 Cr.P.C. has been filed by the applicants Rakesh Kumar and Kuldeep with the prayer to quash the entire criminal proceeding of Case No.919 of 2023 (State Vs. Rakesh and another) arising out of Charge Sheet dated 30.4.2023 as well as summoning order dated 6.11.2023 passed by Addl. Civil Judge (Avar Khand)/J.M. Court No.3, Bulandshahar in NCR No.48 of 2020 u/s 323, 504 IPC, P.S. Agauta, District Bulandshahar and further to stay the further proceedings of aforesaid case during pendency of the present application.

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Learned counsel for the applicant argued 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 argued that the order impugned has been challenged and reliance has been placed to explanation 2(d) of the Code of Criminal Procedure. It is argued that no permission was taken under Section 155 (2) Cr.P.C. and charge sheet has been submitted in non cognizable offence. Learned Counsel 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 and 1996 (11) SCC 557 : Keshav Lal Thakur Vs. State of Bihar as well as another reported Judgement of this Court reported in 2008 (1) JIC 220 (All) Awdesh Kumar and others Vs. State of U.P. and others in support of his contention.

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Learned A.G.A. has stated that no useful purpose would be

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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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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 place 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 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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Therefore, on the basis of Explanation which has been interpreted in a Single Judge decision of this Court reported in 2007 (3) JIC 654 (All); 2007 (9) ADJ 478 Dr. Rakesh Kumar Sharma Vs. State of U.P. and another , it has been held that when the charge sheet is only of non cognizable offences, in view of the aforesaid provision, the charge sheet should be treated as a complaint. The argument is well founded and the order taking cognizance/summoning is set aside. Now the Magistrate may pass an order taking cognizance if, he so chooses, by proceedings in this matter as a complaint case under Chapter XV of the Code of Criminal Procedure. He can also keep this fact in mind that in view of the 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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