Court No. - 67
Case :- APPLICATION U/S 482 No. - 3423 of 2019 Applicant :- Safi Mohammad And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Ainul Haq Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard learned counsel for the applicants and learned A.G.A. for the State.
The present application under Section 482 Cr.P.C. has been filed for quashing the entire proceeding of Criminal Case No.2015 of 2011(State Vs. Safi Mohammad and another) case crime no.167 of 2009 under Sections 323, 504, 506 IPC, Police Station-Kakode, District-Gautam Budh Nagar later on transferred to District-Bulandshahr pending in the court of learned Additional Civil Judge-II(S.D) Bulandshahr.
It is contended by learned counsel for the applicants that charged Sections are bailable Sections and the learned Magistrate may pass an order taking cognizance if he so desires by proceeding under Chapter XV of the Code of Criminal Procedure. It is further contended that the order impugned has been challenged and reliance has been placed to explanation 2(d) of the Code of Criminal Procedure. It is next contended that no permission was taken under Section 155(2) Cr.P.C. and charge sheet has been submitted in non-cognizable offence. Learned counsel for the applicants has relied upon a Judgement of Hon'ble Apex Court reported in 2009 (64) ACC 296 M/s Eicher Tractor Ltd. and others Vs. Harihar Singh and another as well as another reported Judgement of this Court reported in 2008 (1) JIC 220 (All) Awadesh Kumar and others Vs. State of U.P. and others in support of his contention.
Learned A.G.A. has stated that no useful purpose would be served in issuing notice to the opposite party no.2 as it will only delay the proceedings of the present case.
The order taking cognizance has been passed and it is argued that charge sheet has been submitted under the charged Sections which are non-cognizable offence. Reliance has been placed on Explanation to Section 2(d) of Code of Criminal Procedure, which reads as follows:-
"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 complaint."
Therefore, on the basis of aforesaid Explanation which has been interpreted in a Single Judge decision of this Court reported in 2007(3) JIC 654 (All) ;2007 (9) ADJ 478 Dr. Rakesh Kumar Sharma Vs. State of U.P.and another, it has been held that when the charge sheet is only of non-cognizable offences, in view of the aforesaid provision, the charge sheet should be treated as a complaint. The argument is well founded and the order taking cognizance is set aside. Now the Magistrate may pass an order taking cognizance if, he so chooses, by proceeding in this matter as a complaint case under Chapter XV of the Code of Criminal Procedure. He can also keep this fact in mind that in view of the Proviso (a) to Section 200 Cr.P.C., which reads as follows:-
"Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses."
(a) If a public servant acting or purporting to act in discharge of his official duties or a Court has made the complaint;"
With these observations, this application is finally disposed of.
Order Date :- 28.2.2019 Sumit S