Court No. - 17
Case :- APPLICATION U/S 482 No. - 10116 of 2018 Applicant :- Manoj And 3 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Sanjive Kumar Gupta Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
This application under Section 482 Cr.P.C has been moved with a prayer to quash the Criminal Case No.3106 of 2016 pending in the Court of Chief Judicial Magistrate, Budaun wherein cognizance has been taken by the court vide order dated 03.05.2016 under section 323/504 IPC.
It is contended by the learned counsel for the applicants that the present case is covered under section 2(d) of the Criminal Procedure Code because as the charge-sheet has been filed under sections 323/504 IPC which are non-cognizable offence. Therefore cognizance taken by the court below on the charge- sheet is erroneous and needs to be set aside and direction needs to be issued to the court concerned to treat the case as a complaint case and follow the procedure accordingly.
Learned A.G.A. has not opposed the prayer made that the charge-sheet should be treated to be a complaint case as provided under section 2(d) and that the cognizance taken be quashed.
Heard the argument of the learned counsel for the applicants and perused the record.
For the the sake of convenience, section 2(d) Cr.P.C is reproduced herein-below:-
"2.(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."
There cannot be police investigation in a non-cognizable case without order of Magistrate. The complaint under section 2 Cr.P.C is the allegation with a view to taking cognizance, but does not include police report. Report or complaint of 'petty case charge-sheet' submitted by the police officer cannot be considered a report under section 173 of the Code and is only a complaint. In a non-cognizable offence without order of competent Magistrate, no police officer could submit report as contemplated in section 173 of the Code, nor could there be any power of arrest without warrant. What exactly is the effect of a report submitted to court by a police officer in relation to a non- cognizable offence, is contemplated under section 2(d) of the Code which defines complaint as an oral or written allegation made to a Magistrate with a view to his taking action under the Code but does not include a police report. The explanation to the definition indicates that in 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 shall be deemed to be the complainant. Cognizance can be taken on the basis of a complaint of facts which constitute an offence under section 190 (1) (a) of the Code. Therefore, the report or complaint of 'petty case charge- sheet' submitted by a police officer in such cases cannot be considered as a police report under section 173 of the Code. It can only be treated as complaint.
From a perusal of the said provision, it is apparent that a report made by the 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. In the case at hand, it is apparent that after investigation, the Police has found an offence under section 323/504 IPC to have been made out which are a non-cognizable offence, hence congizance on the said charge sheet could not have been taken by the Chief Judicial Magistrate, Badaun rather he should have treated it as a complaint.
Accordingly, this application under Section 482 Cr.P.C. is disposed of with a direction that the court below shall treat this charge sheet to be a complaint and proceed accordingly and the cognizance taken on 03.05.2016 on the charge sheet is set aside.
Since this application is finally disposed of without giving an opportunity of hearing to the opposite party no.2, in case, he has any grievance, it is open to him to approach this Court.
Order Date :- 29.3.2018 AU