1. Heard Sri Rohit Tripathi, learned counsel for the petitioners, Sri Vishnu Srivastava, learned A.G.A., and perused the record.
2. Since legal question is involved in this petition, issuance of notices to opposite parties nos. 2 & 3 is dispensed with and the petition is being disposed of finally with the consent of learned counsel for both the parties.
3. This petition under section 482 Cr.P.C., has been filed with the prayer that the chargesheet No. nil of 2009, filed in case crime NCR No. 322 of 2009, under sections 323,504,506 I.P.C., Police Station-Kotwali Nagar, District-Pratapgarh, in the Court of Chief Judicial Magistrate, Pratapgarh and the impugned order dated 18-03-2010, taking cognizance and summoning the petitioners thereon, contained as Annexure Nos. 1 & 2 to the petition, may be quashed.
4. Learned counsel for the petitioners has submitted that on the report of Sri Sushil Kumar Dubey, non-cognizable report was registered against the petitioners under sections 323,504,506 I.P.C., and after obtaining permission of the concerned court under section 155(2) Cr.P.C., the case was investigated and after completion of investigation, the chargesheet under sections 323,504,506 I.P.C., was submitted against the petitioners. His contention is that the offences under sections 323,504 & 506 I.P.C., are non-cognizable and the chargesheet submitted against the petitioners shall be deemed to be a complaint in view of section 2(d) of Cr.P.C. He has further submitted that learned court below has committed illegality in taking cognizance on the chargesheet and summoning the petitioners illegally, and hence, the impugned order as well as the chargesheet in question, deserve to be quashed. In support of his contentions, he has placed reliance on the following decisions of this court :-
1. [2002 (45) ACC 609] Virendra Singh and Others Versus State of U.P. and others
2. [2010 (1) ACC (SH) 927] Dhanveer and others Versus State of U.P. and another
5. Learned A.G.A. has not disputed that the offences under sections 323,504 and 506 I.P.C. are non-cognizable and the chargesheet filed against the petitioners by the Investigating Officer ought to have been treated as complaint and the procedure of the complaint case would have been followed by the court below.
6. The Section 2(d) of Cr.P.C., may be quoted as under:-
"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."
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;
7. In the instant case, the non-cognizable report was registered and the case was investigated, after taking permission of the concerned court under section 155(2) Cr.P.C. After completion of the investigation, chargesheet was submitted against the petitioners under sections 323,504 & 506 I.P.C. and admittedly, the said offences are non-cognizable. In view of explanation appended to section 2(d) of Cr.P.C., it is clear that if the report submitted by the police officer after investigation, discloses commission of non-cognizable offence, the report submitted by the police officer, shall be deemed to be a complaint and the Investigating Officer, shall be deemed to be the complainant. It appears that learned Chief Judicial Magistrate, has not taken into account the said provision, while taking cognizance on the chargesheet submitted by the police officer. The learned Chief Judicial Magistrate has committed illegality in exercise of its jurisdiction in taking cognizance on the chargesheet and summoning the accused and following the procedure prescribed for trial of cases on police report. In fact, learned Chief Judicial Magistrate, ought to have treated the chargesheet in question as a complaint and the procedure of complaint case would have been followed in taking cognizance and summoning the accused.
8. In view of foregoing discussions, the impugned order dated 18-03-2010 taking cognizance on the chargesheet in question, and summoning the petitioners/accused, is quashed. The matter is remanded back to the concerned court with the direction that the chargesheet in question, submitted by the police officer, shall be deemed to be a complaint and the Investigating Officer, shall be deemed to be the complainant and thereafter, the procedure for complaint case, as provided under Chapter XV of Cr.P.C. shall be followed and the appropriate orders would be passed, in accordance with law.
9. With these observations/directions, the petition stands disposed of finally.
Order Date :- 16.3.2011 AKS