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2010 DIGILAW 3131 (ALL)

Raheesuddin @ Kalwa v. State Of U. P.

2010-10-07

BALA KRISHNA NARAYANA

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Hon'ble Bala Krishna Narayana,J. 1. Heard learned counsel for the applicants and learned A. G. A. and perused the record. 2. This application under Section 482 Cr. P. C. has been filed by applicants with a prayer for quashing the charge sheet dated 08.09.2009 submitted in N. C. R. No. 145 of 2009, under Sections 323, 504 and 506 I. P. C. and the entire proceedings of Criminal Case No. 4799 of 2009 (State vs. Raheesuddin @ Kalwa & others), registered against the applicants pursuant to the submission of the aforementioned charge-sheet. 3. Learned counsel for the applicants submitted that the opposite party no. 2 filed a non-cognizable report on 25.08.2009 at P. S.-Gulawati, District-Bulandshahr, against the applicants on the basis of which N. C. R. No. 145 of 2009 under Sections-323, 504 and 506 I. P. C. was registered. The opposite party no. 2 moved an application before the Judicial Magistrate, Bulandshahr under Section 155 (2) Cr. P. C. with a prayer that the concerned police station be directed to investigate the matter. Pursuant to the order passed on the aforesaid application the matter was investigated and police submitted a charge-sheet under Sections-323, 504 and 506 I. P. C. in the Court of Judicial Magistrate, Bulandshahr against the applicants whereupon Case No. 4799 of 2009; State Versus Raheesuddin @ Kalwa and others was registered against the applicants. 4. Learned counsel for the applicants submitted that the offences under Sections 323, 504 and 506 I. P. C. are non-cognizable, hence in view of the Explanation to Section 2 (d) of the Code of Criminal Procedure, the case could not proceed as State Case and it has to proceed as a complaint case. He further submitted that the learned Magistrate has erroneously registered the charge-sheet as a State case and taken cognizance on 30.09.2009. 5. It is not disputed that the offences under Sections 323, 504 and 506 I. P. C. are non-cognizable. The offence under Section 506 I. P. C. was made cognizable and non-bailable vide the Uttar Pradesh government Notification No. 777/VIII-94 (2)-87 dated July, 1989 published in U. P. Gazette, Extra Part-4 Section (Kha) dated 2nd August, 1989. 5. It is not disputed that the offences under Sections 323, 504 and 506 I. P. C. are non-cognizable. The offence under Section 506 I. P. C. was made cognizable and non-bailable vide the Uttar Pradesh government Notification No. 777/VIII-94 (2)-87 dated July, 1989 published in U. P. Gazette, Extra Part-4 Section (Kha) dated 2nd August, 1989. This notification issued by the Government was held to be illegal by Division Bench of this Court in the case of Virendra Singh and others Versus State of U. P. and others, 2000 (2) JIC 649 (All) : 2000 (45) ACC 609, and so the position now is that the offence under Section 506 I. P. C. is also a non-cognizable offence. 6. It is clear from above that all the three offences punishable under Sections 323, 504 and 506 I. P. C. are non-cognizable. 7. Explanation to Section 2 (d) of the Cr. P. C. runs as under: "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 the said Explanation, report of the police officer after investigation disclosing commission of non-cognizable offence is to be deemed to be a complaint and the police officer who submitted the report has to be deemed to be a complainant. In other words the charge-sheet submitted by the police in a non-cognizable offence shall be treated to be a complaint and the procedure prescribed for hearing of complaint case shall be applicable to that case." In the present case from the material brought on record it transpires that the charge-sheet submitted by the Investigating Officer instead of being treated as a complaint, has been treated as a State Case by the concerned Magistrate, which is not permissible under law. 8. Learned A. G. A. vehemently opposed the submissions made by learned counsel for the applicants. 9. After having considered the submissions made by learned counsel for the parties and perused the material on record and examined the relevant provisions of the Code of Criminal Procedure, I am of the view that the submissions made by learned counsel for the applicants have force and are liable to be accepted. 10. 9. After having considered the submissions made by learned counsel for the parties and perused the material on record and examined the relevant provisions of the Code of Criminal Procedure, I am of the view that the submissions made by learned counsel for the applicants have force and are liable to be accepted. 10. For the aforesaid reasons, the present application is allowed in part. It is made clear that the case shall be treated to be a complaint case and the procedure prescribed for hearing of the complaint shall be followed by the court concerned before summoning the applicants. The order dated 30.09.2009 by which the magistrate has taken cognizance is quashed.