Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 3333 (ALL)

Lakshman Singh v. State of U. P.

2016-09-28

PRAMOD KUMAR SRIVASTAVA

body2016
JUDGMENT Pramod Kumar Srivastava, J. – Heard learned counsel for the applicant, learned AGA and perused the records. 2. On FIR lodged by applicant case crime no. 304/2011 under Section 380 and 457 IPC was registered in P.S. Mainather, Moradabad. After investigation in said case, the police has submitted final report. Thereafter protest petition dated 19.7.2016 was filed by applicant/complainant with prayer that final report no. 31/2012 dated 27.4.2012 aforesaid be quashed and direction be issued for proper investigation. 3. After hearing on this application, the Court of ACJM-IIIrd, Moradabad had passed order dated 2.5.2016, by which said protest petition was directed to be registered as complaint case. Against said order of trial court, criminal revision was preferred, which was dismissed by the order dated 26.7.2016 of Sessions Judge, Moradabad at the stage of admission. In this order, revisional court had held that there is no legal error in order passed by trial court. 4. Against the order of trial court, converting the protest petition as complaint case, present application under Section 482 CrPC has been preferred. 5. A complaint case can be registered only when a complaint is available before the Court. A protest petition can be registered as complaint case only when such petition contains contents of a complaint as mentioned in Section 2(d) CrPC. 6. The definition of 'complaint' is given in Section 2(d) of CrPC which is as under: "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 a report. Explanation: - A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognisable 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." 7. In protest petition dated 19.7.2014 moved by applicant/complainant, no person was named as accused/ culprit and no request was made for taking action against any particular person for commission of any offence. In this protest petition, only irregularities committed by investigating officer were pointed out and prayer was made for rejecting the final report and for direction of proper investigation. This protest petition does not contain ingredients required under Section 2(d) CrPC for a complaint. In this protest petition, only irregularities committed by investigating officer were pointed out and prayer was made for rejecting the final report and for direction of proper investigation. This protest petition does not contain ingredients required under Section 2(d) CrPC for a complaint. Without considering these facts, learned Magistrate had passed order dated 2.5.2016, by which final report was rejected, but case was registered as complaint case. 8. In these circumstances, this contention is correct that protest petition of the petitioner dated 29.3.2013 was not complaint within the definition of section 2(d) of CrPC. Therefore, said petition could not be accepted as complaint case. 9. This contention of learned counsel for the applicant is correct and acceptable that when applicant's protest petition does not fulfil requirement of complaint and applicant has no knowledge of any person against whom prosecution should be initiated, then registering the said protest petition and ignoring the prayer made in it, is nothing but erroneous and improper exercise of its jurisdiction by trial court. It is found that the impugned order is passed without appreciating the facts and without application of judicial mind. Unfortunately at the time of admission of criminal revision, these facts were neither considered nor contents of protest petition were appreciated by lower revisional court, which had summarily dismissed the complaint. These orders of trial court as well as revisional court are erroneous and are liable to be quashed. 10. In view of above, this application is allowed. The impugned order dated 2.5.2016 passed in case no. 184 of 2013 (Lakshman Singh v. unknown) relating to crime no. 384 of 2011, under Section 457, 384 IPC, P.S. Mainather, District Moradabad is set aside. The matter is remanded back to the trial court with direction to consider the fact of the protest petition and the legal position discussed in the body of this judgment and thereafter pass appropriate order on disposal of protest petition in accordance with law. Application Allowed.