Court No. - 34
Case :- APPLICATION U/S 482 No. - 7027 of 2005 Applicant :- Alok Agrawal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Anil Kumar Bajpai Counsel for Opposite Party :- Govt. Advocate
Hon'ble Sudhir Agarwal,J.
1. Heard Sri Anil Kumar Bajpai, learned counsel for applicant and learned A.G.A. for State.
2. The present application under Section 482 of Criminal Procedure Code (hereinafter referred to as the "Cr.P.C.") has been filed for quashing of charge No. 142 dated 20.09.2001 as well as proceedings of Criminal Case No. 1972 of 2005, under Sections 323, 504 I.P.C., Police Station Kydganj, District Allahabad, pending in the Court of Additional Chief Judicial Magistrate, Court No. 6, Allahabad.
3. It is contended by learned counsel for applicant that charged Sections are bailable Sections and learned Magistrate may pass an order taking cognizance if he so desires by proceeding under Chapter XV of Cr.P.C. Reliance has been placed to explanation 2(d) of Cr.P.C. 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 applicant has relied upon a Judgement of Supreme Court in M/s Eicher Tractor Ltd. and others Vs. Harihar Singh and another, 2009 (64) ACC 296 as well as this Court's Judgment in Awadesh Kumar and others Vs. State of U.P. and others 2008(1) JIC 220(All) in support of his contention.
4. 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 Cr.P.C., which reads as follows:-
"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."
5. Therefore, on the basis of aforesaid Explanation which has been interpreted in this Court's decision in Dr. Rakesh Kumar Sharma Vs. State of U.P.and another, 2007(9) ADJ 478, wherein it has been held that when charge sheet is only of non-cognizable offences, in view of aforesaid provision, the charge sheet should be treated as a complaint. The argument is well founded and the order taking cognizance is set aside. Now the Magistrate may pass an order taking cognizance if, he so chooses, by proceeding in this matter as a complaint case under Chapter XV of the Cr.P.C. 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:-
"Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses--
(a) If a public servant acting or purporting to act in discharge of his official duties or a Court has made the complaint;"
6. With these observations, this application is finally disposed off.
Order Date :- 18.12.2019 AK