Court No. - 53
Case :- APPLICATION U/S 482 No. - 11961 of 2004 Applicant :- Hans Raj Sonkar And Others Opposite Party :- State Of U.P. And Others Counsel for Applicant :- S.K. Dubey Counsel for Opposite Party :- Govt. Advocate
Hon'ble J.J. Munir,J.
Case called on. No one appears in the revised list on behalf of the applicant.
In compliance with the order dated 10.12.2018, fresh notice was issued to opposite party No.2. A report of the Chief Judicial Magistrate, dated 17.12.2018 shows that opposite party No.2 is no more. Opposite party No.2 being dead, no further steps are required to be taken. The Court has perused the record of the case with the assistance of Sri Sudheer Kumar Pathak, learned AGA along with Sri Ashutosh Diljan, learned counsel appearing on behalf of the State.
This is an application seeking to quash charge-sheet dated 30.01.2004 and consequential order dated 22.03.2004 and 19.10.2004 passed by the Judicial Magistrate, First, Jaunpur in Case No. 357 of 2004.
The aforesaid proceedings have arisen on account of some physical altercation that is said to have taken place between parties on 06.12.2003 at about 6.30 p.m. over a dispute relating to landed property. It is alleged that civil litigation is going on before the Civil Court at Jaunpur between parties. That by itself may not be relevant but it is pointed out that relating to the incident dated 06.12.2003 a non cognizable report against the applicant was lodged by the complainant opposite party No. 2 with an allegation that on 05.12.2003 at 6.30 p.m. the applicants came along, armed with sticks (Lathi, Danda). They abused him and thrashed him. An NCR bearing No. 157 of 2003 was registered against the applicants under Section 323 and 504 I.P.C.
Lateron, an application was moved by opposite party No. 2 before the Judicial Magistrate, First, Jaunpur under Section 155(2) Cr.P.C. praying that the Magistrate may permit the police to investigate the case. The said application came to be allowed by the learned Magistrate's order dated 18.12.2003 with a direction to the Station Officer, concerned to investigate the matter. It is in pursuance of the order dated 18.12.2003 that the Station Officer registered the aforesaid case as Case Crime No. nil of 2003 under Section 323 and 504 I.P.C., Police Station Baksha, District Jaunpur on 23.01.2004. He proceeded with the investigation of the case on the strength of the order under Section 155(2) Cr.P.C., recorded statements of opposite party No. 2 under Section 161 and some witnesses including Smt. Chanara Devi w/o opposite party no. 2.
A charge-sheet was submitted on 30.01.2004 under Section 323 and 504 I.P.C. before the Magistrate, who has proceeded to take cognizance of the case vide order dated 22.03.2004, as if it were a case instituted on a police report. The order dated 22.03.2004, passed by the Magistrate, taking cognizance and issuing processes, reads as under:-
22.3.04 आज आररोप पत्र पप्राप्त हहआ। पससंजप्रान ललियप्रा गयप्रा। दजर रलज . हरो। समस्त कप्रागजप्रात नकलि वविभप्राग मम ततैयप्रार हरोनने नकलि भनेजप्रा जप्राय। अवभ 0 करो सम्मन वद0 18.5.04 वनयत कर जप्राररी हरो। ह 0 अ 0 जने0 एम 0 पथम A perusal of the grounds, taken in the affidavit in support of this application, show that the impugned order taking cognizance, has been assailed on the ground that under the explanation appended to Section 2(d) Cr.P.C. says that 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, a complainant. In this view of the explanation, the charge-sheet submitted by the police in this case would be deemed to be a complaint and the police officer, who submitted the same would stand in the position of the complainant. The impugned order passed by the Magistrate taking cognizance of the matter, clearly indicates it to be one under Section 190(1)(b) Cr.P.C., as if it were a case, instituted on a police report and not a complaint, regarding which a different procedure to take cognizance and to hold an inquiry before issuing process, would be applicable. The said submission is well founded, inasmuch as, the case being a non cognizable case, the report submitted by the police officer cannot be treated to be a police report, but a complaint. The impugned order summoning the applicant is one that proceeds on the basis as if the case is one instituted on a police report. The impugned order is, therefore, flawed on this ground alone.
That apart, even if it be assumed that the Magistrate was competent to take cognizance of the matter as one instituted on a police report a perusal of the impugned order shows that the same has been passed without any application of mind to the material on record. It does not even say or record satisfaction that the Magistrate finds on the basis of material a prima facie case made out to issue process. The impugned order is virtually a rubber stamp and the product of a mechanical exercise. On this count also the impugned order dated 22.03.2004 is bad. However, on these grounds the charge-sheet cannot be quashed. Though, the impugned order would fall.
Accordingly, this application succeeds and is allowed in part. The impugned order dated 30.01.2004, and the consequential orders dated 22.03.2004 and 19.10.2004 passed by the Judicial Magistrate, First, Jaunpur in Case No. 357 of 2004, arising out of NCR No. 157 of 2003, under Section 323,504 I.P.C. are hereby quashed. It will be open to the Magistrate to treat the police report as a complaint and proceed in the matter in accordance with law.
Order Date :- 21.12.2018 BKM/-