Court No. - 52
Case :- APPLICATION U/S 482 No. - 12822 of 2004 Applicant :- Lal Chandra And Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Rahul Tripathi,Dharmendra Singhal Counsel for Opposite Party :- Govt. Advocate
Hon'ble Yashwant Varma,J.
Heard learned counsel for the applicants and the learned A.G.A.
This application assails an order, in terms of which cognizance has been taken by the Magistrate on 27 November 2001 in exercise of powers conferred by Section 190(1)(b) Cr.P.C.
The submission of the learned counsel for the applicants turning upon Section 2(d) Cr.P.C. is that since the offences are bailable and non cognizable, the procedure prescribed under Section 190(1)(a) should have been resorted to. Learned counsel additionally refers to the decision rendered by the learned Judge of this Court in Application u/s 482 No. 20668 of 2017. While dealing with a similar controversy, the following observations were made:
"Before proceeding further, the relevant provisions of Section 2 (d) of Cr.P.C. are being reproduced for ready reference as under:-
"Section 2(d) of Code of Criminal Procedure, 1973 2. Definitions.--In this Code, unless the context otherwise requires,--
(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."
Upon hearing learned counsel for the parties and perusal of record, I find that it may not be disputed that offences under Sections 323 & 504 I.P.C. are bailable and non-cognizable and so the provisions of explanation to Section 2(d) are applicable to the case. The Magistrate has taken cognizance without considering the provisions of Section 2(d) Cr.P.C. and its explanation clause. Undoubtedly in view of the provisions of Section 2(d) Cr.P.C., the Magistrate was required to adopt the procedure of a complaint case as provided.
In view of the discussions made above, I have come to the conclusion that impugned order of cognizance and summoning order dated 25.11.2014 upon charge-sheet in a case arising out of NCR in respect of bailable and non-cognizable offences is wrong and incorrect and is liable to be quashed.
The application is allowed accordingly and the impugned order dated 25.11.2014 is quashed with a direction to learned Magistrate for passing appropriate order in accordance with law as well as provisions of explanation to Section 2(d) Cr.P.C."
The fact that the offences in question are bailable and non cognizable, is not disputed by the learned A.G.A. and, therefore, the Magistrate necessarily should have proceeded in the matter bearing in mind the provisions of Section 2(d) Cr.P.C. Accordingly, the order impugned dated 27 November 2001 is hereby set aside and the instant application stands allowed. It shall be open to the Magistrate to proceed in the matter in accordance with law and in light of the provisions of Section 2(d) Cr.P.C.
Order Date :- 26.7.2018 VKS