Court No. - 85
Case :- APPLICATION U/S 482 No. - 10228 of 2021 Applicant :- Ganesh Shankar @ Chunauna Opposite Party :- State of U.P. and Another Counsel for Applicant :- Krishna Dutt Mishra,Jagat Narayan Mishra Counsel for Opposite Party :- G.A.
Hon'ble Gautam Chowdhary,J.
Heard learned counsel for the applicant and learned A.G.A. for the State.
This application u/s 482 Cr.P.C. has been moved with a prayer to quash the entire proceeding of case no. 184/IX/2021 as well as charge sheet dated 25.9.2020 along with cognizance and summoning order dated 13.1.2021 arising out of N.C.R. No. 101 of 2020, under Section 323, 504 IPC, P.S. Pailani, District Banda, pending before the First Additional Chief Judicial Magistrate, Banda.
Contention of the learned counsel for the applicants is that the present NCR has been lodged on 27.7.2020. No such occurrence has taken place. The present criminal proceedings need to be quashed being abuse of process of court. Simultaneously, it has also prayed that under Section 2(d) of the Cr.P.C., learned court below did not have power to take cognizance on the charge sheet as offences under Section 323, 504 IPC are bailable and non-cognizable offences and, hence, the said charge sheet ought to have been treated as a complaint.
Learned A.G.A. has vehemently opposed the prayer for quashing the criminal proceedings, however, it is admitted by the learned A.G.A. that the charge sheet in the present case ought to have been treated by the court concerned as a complaint because of the provision as mentioned in Section 2(d) of the Cr.P.C.
For the the sake of convenience, section 2(d) Cr.P.C is reproduced herein- below:-
"2.(d) "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."
There cannot be police investigation in a non-cognizable case without order of Magistrate. The complaint under section 2 Cr.P.C is the allegation with a view to taking cognizance, but does not include police report. Report or complaint of 'petty case charge-sheet' submitted by the police officer cannot be considered a report under section 173 of the Code and is only a complaint. In a non- cognizable offence without order of competent Magistrate, no police officer could submit report as contemplated in section 173 of the Code, nor could there be any power of arrest without warrant. What exactly is the effect of a report submitted to court by a police officer in relation to a non-cognizable offence, is contemplated under section 2(d) of the Code which defines complaint as an oral or written allegation made to a Magistrate with a view to his taking action under the Code but does not include a police report. The explanation to the definition indicates that in 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 shall be deemed to be the complainant. Cognizance can be taken on the basis of a complaint of facts which constitute an offence under section 190 (1) (a) of the Code. Therefore, the report or complaint of 'petty case charge-sheet' submitted by a police officer in such cases cannot be considered as a police report under section 173 of the Code. It can only be treated as complaint.
Perused the NCR. According to the NCR, the occurrence is alleged to have taken place on 27.7.2020 in which the accused-applicant is alleged to have beaten the opposite party no. 2 with fists and kicks and has abused them also. After investigation, police has submitted charge sheet under the aforementioned Section, which are bailable and non-cognizable offences.
In view of above law, it is apparent that the learned court below should have treated the charge sheet as a complaint and should not have taken cognizance on the said charge sheet, hence, cognizance dated 13.1.2021 needs to be set aside and is, accordingly, set aside with the direction that the learned court below shall treat the said charge sheet to be a complaint and shall proceed in accordance with law. There is no case made out for quashing the entire criminal proceedings.
With the aforesaid directions, application u/s 482 Cr.P.C. is disposed of. Order Date :- 28.7.2021 A.P. Pandey