Vivek Yadav and 2 Others Vs State of U.P. and Another

The present application under Section 482 of the Code of Criminal Procedure, 1973 has been filed to quash the charge sheet dated 16.02.2024 as well as cognizance order dated 11.09.2024 passed by C.J.M. Chandauli, in Criminal Case No. 14727 of 2024, arising out of Crime No. N.C.R. 68 of 2023, under Sections 323, 504 I.P.C., Police Station Mughalsarai, District Chandauli, pending in the Court of C.J.M., Chandauli.

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Learned counsel for the applicants 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 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 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 placed on Explanation to Section 2(d)

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A482 No. 43230 of 2024

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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. The matter is remanded back to the Court concerned and 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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