Court No. - 53
Case :- APPLICATION U/S 482 No. - 7044 of 2004 Applicant :- Hriday Narain @ Jokhan Opposite Party :- State Of U.P. And Another Counsel for Applicant :- S.K. Singh 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. Opposite party No.2 has been served adequately as per office report dated 22.12.2004, but no counter affidavit has been filed on behalf of complainant opposite party. The case is called on in the revised list.
This is an application seeking to quash the criminal proceedings of Case No.342 of 2003 under Section 323, 504, pending in the Court of Judicial Magistrate-Ist, Bhadohi at Gyanpur.
The Court has perused the records, the impugned charge-sheet and the order of cognizance.
A perusal of the applicant's case in the affidavit shows that a non cognizable report dated 04.07.2002 was registered at 3.30 p.m. relating to an incident dated 01.07.2002 said to have happened at or about 7.00 p.m. that was registered as NCR No. 47 of 2002, under Section 323, 504 I.P.C., P.S. Suriyewan, District Sant Ravidas Nagar, Gyanpur Bhadohi.
It is alleged in the N.C.R. that physical altercation took place between parties over a dispute relating to passage of rain water. It is claimed that in the ensuing violence the father, brother and uncle of the informant sustained simple injuries caused by the employment of sticks (Lathi, Danda) by the other side. He brought them for treatment and they were medically examined, regarding which there are medical reports on record annexed as Annexure 2 to the affidavit. Both sides reported the matter to the police and has said the earlier N.C.R. was registered against the applicant and also the applicant's version was registered as an N.C.R. as well. The N.C.R. lodged against the applicant was directed by the Magistrate to be investigated by the police vide an order dated 07.05.2003 passed under Section 155(2) Cr.P.C. After investigation the police submitted a charge-sheet on 21.12.2003, whereupon the Magistrate has taken cognizance.
A perusal of the affidavit shows that amongst others, one of the grounds urged is that the case relates to a non cognizable offence wherein the police report, submitted after investigation, would have to be treated as a complaint. In this connection, reference is made to the explanation appended to Section 2(d) Cr.P.C. which shows that a case, which after investigation, discloses the commission of a non cognizable offence the police report there, would be considered as a complaint and the police officer, making the report, a complainant. It is asserted that the charge-sheet submitted in the present case, going on by the explanation appended under Section 2(d) Cr.P.C. which fall in the category of a complaint and is to be dealt with as such.
A further perusal of the affidavit shows that the assertion is that the Magistrate has erred in law in dealing with the charge-sheet as a case instituted in on a police report under Section 190(1)(b) Cr.P.C. instead of, dealing with the same as a complaint under Section 191(1)(a) and holding an inquiry under Section 200, or at least following the procedure prescribed for taking cognizance of a case on the basis of a complaint. The said case taken in the affidavit in support of the application has force, inasmuch as, the offences charged are all non cognizable, whereas the charge-sheet submitted by the police in the case has been taken cognizance by the Magistrate, as if it were a police report. The Magistrate ought to have taken cognizance of the same, treating the same as a complaint after following the procedure prescribed. In addition, it is noticed that a perusal of the order dated 07.05.2003 and 7.06.2003 shows that cognizance has been taken and process issued by those orders in the most mechanical fashion. It does not at all record by as much as a whisper that the Magistrate on an application of mind to the material on record is satisfied that a prima facie case to summon the applicant is made out.
Considering the aforesaid facts of the case and the law, the impugned order taking cognizance and summoning the accused dated 07.05.2003 and 07.06.2003 cannot be sustained. However, at the same time, the charge- sheet is not liable to be quashed. Accordingly, order taking cognizance dated 07.5.2003 and that dated 07.06.2003 issuing process passed by the Magistrate in Case No. 342 of 2003, under Section 323, 504 I.P.C. pending by the Court of Judicial Magistrate, First, Bhadohi at Gyanpur are hereby quashed but the police report is not quashed which will be dealt with by the Magistrate in accordance with law.
This application is allowed in the above terms.
Order Date :- 21.12.2018 BKM/-