Court No. - 38
Case :- APPLICATION U/S 482 No. - 36556 of 2018 Applicant :- Mashkur Ahmad And 2 Ors Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Mazhar Ullah Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Vijay Lakshmi,J.
The application under Section 482 Cr.P.C. has been moved for quashing the charge sheet dated 22.12.2017, the cognizance order dated 15.2.2018 and the entire proceedings of Case No. 2283/2018 (State vs. Mashkur Ahmad and others) u/s 323, 504 IPC, P.S. Tanda, District Rampur, pending in the Court of Chief Judicial Magistrate, Rampur.
Heard learned counsel for the applicants and learned A.G.A. for the State.
Learned counsel for the applicant contends that the applicants have been falsely implicated by means of N.C.R. No.171/2017, in which, upon investigation charge-sheet has been submitted under Sections 323/504 I.P.C. It is further submitted that the offences under Sections 323, 504 I.P.C. are bailable and non- cognizable according to 1st Schedule of Cr.P.C. and according to the provisions of explanation to Section 2(d) of Cr.P.C., the charge-sheet filed before the Magistrate is to be treated as complaint. Hence, the order of Magistrate taking cognizance dated 15.02.2018 is liable to be quashed.
Learned A.G.A. though, has not disputed the legal position provided under Section 2(d) of Cr.P.C. yet he has contended that the application U/s 482 Cr.P.C. for quashing the proceeding of criminal case is malafide and misconceived and is liable to be dismissed.
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, this Court is of the considered view that as the offences under Sections 323 & 504 I.P.C., are bailable and non- cognizable therefore, the provisions of explanation to Section 2(d) are applicable to the case. The Magistrate in this case, 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 under law.
In view of the discussions made above, the present application deserves to be allowed.
Accordingly, the application is allowed and the charge sheet dated 22.12.2017 and the order of cognizance are quashed with a direction to learned Magistrate for passing appropriate order in wake of the observations made by this Court.
Let a copy of this order be sent to court below for proceeding with the case in accordance with law.
Order Date :- 12.10.2018 Harshita