Court No. - 17
Case :- APPLICATION U/S 482 No. - 5172 of 2018 Applicant :- Udairaj And 3 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Ravindra Prakash Srivastava 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 the prayer to quash the entire proceeding including charge sheet dated 3.7.2016 as well as cognizance order dated 1.12.2016 of Case No. 6645 of 2016 (State Vs. Udaira and others), arising out of N.C.R. No. 57 of 2016, u/s 323, 504 IPC, P.S. Mahuli, District Sant Kabir Nagar.
It is contended by the learned counsel for the applicants that NCR was initially lodged under Section 323, 504 IPC by the opposite party no. 2 against the accused-applicants, whereon after investigation the police has submitted charge sheet under Section 323 and 504 IPC only, which are non cognizable offences. Therefore, in terms of provision under Section 2(d) of the Code of Criminal Procedure, the said charge sheet would be treated to be a complaint. Despite that, the court below has taken cognizance on the said charge sheet on 1.12.2016, which is illegal and needs to be quashed and direction needs to be issued to the court below for adopting procedure of complaint case for trial in this case. Learned counsel for the applicants has relied upon Virendra Singh Vs. State of U.P., 2002 LawSuit (All) 749. The relevant paragraph no. 4 of the judgment provides as follows:-
"4. Section 506, I.P.C. as mentioned in the first schedule to the Code of Criminal Procedure, 1973, is declared to be a non cognizable and bailable offence. However, it appears that by U.P. Govt. notification No. 777/VIII 9-4(2)-87 dated July 31, 1989, published in the U.P. Gazette, Extra, Part-4, Section (kha) dated 2nd August, 1989 it was declared to be a cognizable and non bailable offence. This notification states as follows.
In exercise of the powers conferred by Section 10 of the Criminal Law Amendment Act, 1932 (Act No. XXIII of 1932) read with Section 21 of the General Clauses Act, 1897 (Act No. 10 of 1897) and in suppression of the notifications issued in this behalf; the Governor is pleased to declare that any offence punishable under Section 506 of the Indian Penal Code when committed in any district of Uttar Pradesh, shall notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Act No. 2 of 1974), be cognizable and non bailable.
He has further relied upon Ghansyam Dubey @ Litile and others Vs. State of U.P. and another, 2013 (4) ADJ 474. The relevant paragraph no. 3 of the judgment is as follows:-
3. It is to be seen that the charge-sheet has been submitted under Sections 323, 504 and 506 IPC. The offences under Sections 323, 504 and 506 IPC were all non-cognizable and bailable, but the offence under Section 506 IPC was made cognisable and non-bailable vide, the U.P. Government Notification No 777/VIII-94 (2)-87 dated July 31, 1989. However, this notification was held to be illegal and ultra-vires by a Division Bench judgment of this Court in the case of Virendra Singh and others Vs. State of U.P. and others. So now the legal position is that the offence under Sections 323, 504, 506 IPC are bailable and non-cognisable."
Heard learned counsel for the applicants, learned A.G.A. and perused the record.
As per NCR, the prosecution's case is that on 7.4.2016 at about 11:30 hours, the first informant (opposite party no. 2) and her father-in-law were abused and beaten by the accused- applicants, regarding which the NCR was lodged on 7.4.2016 at 13:00 hours at P.S. Mahuli, District Sant Kabir Nagar.
It appears that the Investigating Officer after seeking permission from the Magistrate under Section 155(2) of the Code for conducting the investigation and after collecting the sufficient evidence, has filed charge sheet under Section 323, 504 IPC only, which are non-cognizable offences.
The learned C.J.M. has taken cognizance on this charge sheet on 1.12.2016. The section 2(d) of Code of Criminal Procedure provides as follows:
"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;"
In view of above, it is apparent that if a report is made by a police officer after investigation which discloses non- cognizable offence, the same shall be deemed to be a complaint and, police officer by whom the such report is submitted, shall be treated to be a complainant. Therefore, in this case the Investigating Officer, who has made investigation and has submitted the charge sheet, would be treated to be a complainant and the complaint procedure was required to be followed by the court below for trial in this case. The cognizance taken by the C.J.M. concerned on 1.12.2016 on the said charge sheet, seems to be erroneous and needs to be quashed.
The cognizance of the C.J.M. concerned dated 1.12.2016 is quashed and the court below is directed that it shall follow the complaint procedure in this case for trial, according to law as provided under Section 2(d) of the Code.
Accordingly, this application u/s 482 Cr.P.C. is disposed of.
Order Date :- 23.2.2018 A.P. Pandey