Court No. - 17
Case :- APPLICATION U/S 482 No. - 10184 of 2018 Applicant :- Ram Kailash And 3 Ors Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Bimla Prasad Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
This application u/s 482 Cr.P.C. has been moved with a prayer to quash the charge sheet dated 23.1.2017 and the cognizance order dated 24.11.2017 passed by the A.C.J.M. IVth, Allahabad arising out of NCR No. 167 of 2016 under Sectuion 323, 504, 427 IPC, P.S. Holagarh, District Allahabad, pending in the court of A.C.J.M. IVth, Allahabad, which is registered as Case No. 1714 of 2017 (State Vs. Ram Kailash and others) under Section 323, 504 and 427 IPC.
Contention of the learned counsel for the applicants is that the opposite party no. 2 has filed the present NCR by way of counter blast because NCR was filed by the accused-applicants against the opposite party no. 2 on 30.10.2016 at 4:00 pm on the date of occurrence itself. The present NCR has been lodged on 1.11.2016 after the delay of one day. No such occurrence has taken place. Injured witnesses have failed to even state correct date of occurrence in their statements. The present criminal proceedings need to be quashed being abuse of process of court. Simultaneously, it has also prayed that under Section 2(d) of the Cr.P.C., learned court below did not have power to take cognizance on the charge sheet as offences under Section 323, 504 and 427 IPC are bailable and non-cognizable offences and, hence, the said charge sheet ought to have been treated as a complaint.
Learned A.G.A. has vehemently opposed the prayer for quashing the criminal proceedings, however, it is admitted by the learned A.G.A. that the charge sheet in the present case ought to have been treated by the court concerned as a complaint because of the provision as mentioned in Section 2(d) of the Cr.P.C.
Heard learned counsel for the applicants and learned A.G.A.
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.
Perused the NCR. According to the NCR, the occurrence is alleged to have taken place on 30.10.2016 in which the accused-applicants have alleged to have been beaten with lathi- danda & fists and have abused them also. After investigation, police has submitted charge sheet under the aforementioned Section, which are bailable and non-cognizable offences.
In view of above law, it is apparent that the learned court below should have treated the charge sheet as a complaint and should not have taken cognizance on the said charge sheet, hence, cognizance dated 24.11.2017 needs to be set aside and is, accordingly, set aside with the direction that the learned court below shall treat the said charge sheet to be a complaint and shall proceed in accordance with law. There is no case made out for quashing the entire criminal proceedings.
With the aforesaid directions, application u/s 482 Cr.P.C. is disposed of.
Order Date :- 29.3.2018 A.P. Pandey