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Allahabad High Court · body

2011 DIGILAW 2248 (ALL)

Lallan v. State of U. P. and another

2011-09-23

BALA KRISHNA NARAYANA

body2011
Bala Krishna Narayana, J.;- Heard learned counsel for the applicant and learned A. G. A. and perused the record. 2. This application under Section 482 Cr. P. C. has been filed by the applicant with a prayer for quashing the charge-sheet No. 12 of 2011 dated 29.5.2011 submitted in Case No. 357 of 2011, under Sections 323, 504 and 427 I. P. C. against the applicant in Criminal Case No. 357 of 2011; State Versus Lallan which has been registered pursuant to the submission of the aforementioned charge-sheet 3. Learned counsel for the applicant submitted that the opposite party no. 2 filed a first information report on 4.5.2011 at P. S.-Kandawa, District-Chandauli against the applicant on the basis of which Case Crime No. 357 of 2011 under Sections-147, 323, 504, 506 and 427 I. P. C. was registered. The Investigating Officer after completion of the investigation submitted chargesheet only under Sections-323, 504 and 427 IPC whereupon Case No. 357 of 2011 was registered against the applicant and the court concerned has taken cognizance of the offences punishable under Sections-323, 504 and 427 IPC. 4. Learned counsel for the applicant submitted that the offences under Sections 323, 504 and 427 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 had to proceed as a complaint case. He further submitted that the learned Magistrate has erroneously passed an order taking cognizance on the charge-sheet. 5. It is indisputed that all the three offences punishable under Sections 323, 504 and 427 I. P. C. are non-cognizable. 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 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." 6. 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 taken cognizance of by the concerned Magistrate as a State Case, which is not permissible under law. 7. Learned A. G. A. vehemently opposed the submissions made by learned counsel for the applicant. 8. After having considered the submissions made by learned counsel for the parties and perused the material on record as well as the impugned summoning order 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 applicant have force and are liable to be accepted. 9. For the aforesaid reasons, the present application is allowed in part, the order taking cognizance dated 4.7.2011 is quashed. However, 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 applicant.