Court No. - 49
Case :- APPLICATION U/S 482 No. - 46401 of 2018 Applicant :- Surendra Kumar Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Dinesh Kumar Misra Counsel for Opposite Party :- G.A.
Hon'ble Vivek Chaudhary,J.
1. Heard learned counsel for the applicant and learned A.G.A. for the State.
2. The present 482 Cr.P.C. application has been filed to quash the cognizance order dated 12.4.2016 of ACJM 1st, Gorakhpur in chargesheet No.42/14 in Case Crime No.93/2014 under Section 323, 504, 506 IPC PS Harpur Budhat, distt. Gorakhpur and proceedings of Case No.2894 of 2016 (State Vs. Surendra Kumar) under Section 323, 504, 506 IPC PS Harpur Budhat, distt. Gorakhpur in Court of JM-Court No.3, Gorakhpur.
3. Learned counsel for the applicant 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 petitioner may move fresh application before the trial court with regard to his objections under Section 2 (d) CrPC. 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, the present application is disposed of.
Order Date :- 19.12.2018 RajneeshDR) (Vivek Chaudhary, J.)