Court No. - 80
Case :- APPLICATION U/S 482 No. - 16691 of 2021 Applicant :- Ashutosh Goswami And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Adil Jamal Counsel for Opposite Party :- G.A.
Hon'ble Rajiv Gupta,J.
Heard learned counsel for the applicants, learned A.G.A. for the State and perused the material available on record.
This application under Section 482 Cr.P.C. has been filed by the applicants with the prayer to quash the charge-sheet dated 25.7.2019 in NCR No. 08 of 2018 and entire proceedings of Case No.27515 of 2019 (State Vs. Ashutosh Goswami and others), under Sections 323, 504 IPC, P.S. Moolganj, District- Kanpur Nagar, pending in the court of Metropolitan Magistrate- VII, Kanpur Nagar.
It is contended by learned counsel for the applicants that charged section is non-cognizable section 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. Reliance has been placed to explanation 2(d) of the Code of Criminal Procedure, 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 complainant."
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.
Therefore, on the basis of aforesaid Explanation which has been interpreted in a Single Judge decision of this Court passed in Application u/s 482 No.45609 of 2018 (Santosh Kumar and 2 others vs. State of U.P. and others), decided on 31.1.2019, where it has been held that when the charge-sheet is only of non-cognizable offence, 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 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 Code of Criminal Procedure. He can also keep in mind 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;"
With these observations, this application under Section 482 CrPC is partly allowed.
Order Date :- 28.10.2021 KU