Court No. - 45
Case :- APPLICATION U/S 482 No. - 3277 of 2018
Applicant :- Gulab And Othres Opposite Party :- State Of Up And Another Counsel for Applicant :- Raghvendra Pratap Rajan
Counsel for Opposite Party :- G.A. Hon'ble Shashi Kant Gupta,J.
Heard learned counsel for the applicants and learned A.G.A. for the State.
This application u/s 482 Cr.P.C. has been filed for quashing the impugned charge sheet dated 19.3.2016 arising out of case crime no. 5867 of 2016, N.C.R. NO. 350 of 2015 u/s 323,504 I.P.C.
P.S. Cholapur District Varanasi.
It is contended by learned counsel for the applicants that charged Sections are non cognizable Sections 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. It is further contended that the order impugned has been challenged and reliance has been placed to explanation 2(d) of the Code of Criminal Procedure. Learned counsel for the applicants has relied upon a Judgement of Hon'ble Apex Court reported in 2009 (64) ACC 296 M/s Eicher Tractor Ltd. and others Vs. Harihar Singh and another as well as another reported Judgement of this Court reported in 2008 (1) JIC 220 (All) Awadesh Kumar and others Vs. State of U.P. and others in support of his contention.
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.
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 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 complaint."
Therefore, on the basis of aforesaid Explanation which has been interpreted in a Single Judge decision of this Court reported in 2007(3) JIC 654 (All) ;2007 (9) ADJ 478 Dr. Rakesh Kumar Sharma Vs. State of U.P.and another, it has been held that when the charge sheet is only of non- cognizable offences, the charge sheet should be treated as a complaint.
The argument advanced by the learned counsel for the applicants 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 this fact in mind 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;"
With these observations, this application is finally disposed off.
Order Date :- 22.2.2018 MLK