Court No. - 49
Case :- APPLICATION U/S 482 No. - 25427 of 2018 Applicant :- Giraja Shankar Mishra And Anr Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Prakash Chandra Srivastava,Niwas Kumar Gupta,Rajesh Kumar Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
Heard learned counsel for the applicants and learned A.G.A. for the State as also perused the record.
The present 482 Cr.P.C. application has been filed to quash the proceeding of criminal case no. 893 of 2012 initiated against the applicants in pursuance of charge sheet dated 08.03.2007 (State Vs. Giraja Shankar Mishra and another), under Section 323, 504 IPC, Police Station Kapsethi, District Varanasi, pending in the court of Addl. Chief Judicial Magistrate- 2nd, Varanasi.
Learned counsel for the applicants submits that the present prosecution has arisen out of NCR. It is stated that the offence as alleged are non- cognizable and therefore neither the charge sheet could have been submitted by the Investigating Officer nor the learned Magistrate could have taken cognizance in view of the explanation under Section 2(d) of Cr.P.C.
It is further stated that the only course open to the learned Magistrate was to have treated the case as a complaint case and to have proceeded with, in accordance with law accordingly.
Reliance has been placed on the decision of this Court dated 15.05.2018 passed in Application U/S 482 No. 5917 of 2006, wherein this Court has taken view that neither the charge sheet could have been submitted by the Investigating Officer nor the learned Magistrate could have taken cognizance on the same, treating it as a State case.
Sri Ratnesh Nandan Singh, learned AGA on the other hand submits that while the learned Magistrate may not have taken cognizance on the charge sheet treating it to be a State case. However, it was open to the learned Magistrate to follow the complaint case procedure.
Considering the above, no useful purpose would be served in keeping the present application pending any further. The order dated 16.05.2007 passed by the learned Addl. Chief Judicial Magistrate-2nd, Varanasi is set aside and the matter is remitted to the learned Magistrate to pass a fresh order, strictly in accordance with law, keeping in mind the observations made above.
The aforesaid exercise may be concluded as expeditiously as possible, preferably within a period of two months from the date of production of a certified copy of this order.
With the aforesaid observations, the present application is disposed of. Order Date :- 27.7.2018/Lbm/-