Court No. - 49
Case :- APPLICATION U/S 482 No. - 43421 of 2018 Applicant :- Mohd. Javed And 2 Ors Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Surya Pratap Singh Parmar Counsel for Opposite Party :- G.A.
Hon'ble Vivek Chaudhary,J.
1. Heard learned counsel for the applicants and learned A.G.A. for the State.
2. The present 482 Cr.P.C. application has been filed to quash the entire proceedings of Criminal Case No.
338 of 2016(State Vs. Mohd. Javed and others), arising out of N.C.R. No. 32/2015, under sections 323,504 I.P.C., Police Station-Mutthiganj, District- Allahabad and also quashing of the order taking cognizance of offence dated 06-04-2016 passed by J.M. 1st, Allahabad in Criminal Case No. 338 of 2016, under sections 323,504 I.P.C., Police Station- Mutthiganj, Allahabad.
3. Learned counsel for the applicants submits that the offence as alleged are non-cognizable and therefore neither the charge sheet could have been submitted by the Investigating Officer nor the learned Magistrate could have taken cognizance in view of the explanation under Section 2(d) of Cr.P.C.
4. It is further stated that the only course open to the learned Magistrate ought to have treated the case as a complaint case and to have proceeded with, in accordance with law accordingly.
5. Reliance has been placed on the decision of this Court dated 15.05.2018 passed in Application U/S 482 No. 5917 of 2006 wherein this Court has taken view that neither the charge sheet could have been submitted by the Investigating Officer nor the learned Magistrate could have taken cognizance on the same, treating it as a State case.
6. Learned AGA on the other hand submits that while the learned Magistrate may not have taken cognizance on the charge sheet treating it to be a State case. However, it was open to the learned Magistrate to follow the complaint case procedure.
7. Considering the above, no useful purpose would be served in keeping the present application pending before this court. It is provided that the petitioners may move fresh application before the trial court with regard to their objections under section 2(d) Cr.P.C. In case such an application is made by the petitioners within two weeks from today, the same shall be considered and decided by the trial court in accordance with law within a period of two months from the date a certified copy of this order is placed before it.
8. With the aforesaid observations, the present application is disposed of.
Order Date :- 21.12.2018 AKS (Vivek Chaudhary,J.)