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Allahabad High Court · body

2017 DIGILAW 1664 (ALL)

ASHISH KUMAR TIWARI v. STATE OF U. P.

2017-07-17

HARSH KUMAR

body2017
JUDGMENT : Harsh Kumar, J. 1. Notice need not be issued to opposite party no.2 as learned A.G.A. is present for the State in this matter based on charge-sheet. 2. Heard Sri Rakesh Dubey, learned counsel for the applicants and learned A.G.A. for the State. 3. The application under Section 482 Cr.P.C. has been moved for quashing the entire proceedings of Criminal Case No.6733 of 2014 (State Vs. Ashish Kumar and others) arising out of N.C.R. No.48 of 2014, under Sections 323, 504 I.P.C., P.S. Nawabganj, District Kanpur Nagar pending in the Court of A.C.M. VIII, Kanpur Nagar based upon Charge Sheet No.Nil of 2014 dated 30.09.2014 and also for quashing the cognizance and summoning order dated 25.11.2014. 4. Learned counsel for the applicant contends that the applicants have been falsely implicated in N.C.R. No.48 of 2014, under Sections 323/504 I.P.C., P.S. Nawabganj in which upon investigation charge-sheet has been submitted; that the offences under Sections 323, 504 I.P.C. are bailable and non-cognizable according to 1st Schedule of Cr.P.C. and according to the provisions of explanation to Section 2(d) of Cr.P.C., the charge-sheet filed before the Magistrate is to be treated as complaint and so the order of Magistrate taking cognizance dated 25.11.2014 is liable to be quashed. 5. Per contra, learned A.G.A. though did not dispute the legal position provided in Section 2(d) of Cr.P.C. but contended that the application U/s 482 Cr.P.C. for quashing the proceeding of criminal case is malafide and misconceived and is liable to be dismissed. 6. Before proceeding further, the relevant provisions of Section 2 (d) of Cr.P.C. are being reproduced for ready reference as under:- "Section 2(d) of Code of Criminal Procedure, 1973 2. Definitions.--In this Code, unless the context otherwise requires,-- (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. 7. 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." 8. 7. 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." 8. Upon hearing learned counsel for the parties and perusal of record, I find that it may not be disputed that offences under Sections 323 & 504 I.P.C. are bailable and non-cognizable and so the provisions of explanation to Section 2(d) are applicable to the case. The Magistrate has taken cognizance without considering the provisions of Section 2(d) Cr.P.C. and its explanation clause. Undoubtedly in view of the provisions of Section 2(d) Cr.P.C., the Magistrate was required to adopt the procedure of a complaint case as provided. 9. In view of the discussions made above, I have come to the conclusion that impugned order of cognizance and summoning order dated 25.11.2014 upon charge-sheet in a case arising out of NCR in respect of bailable and non-cognizable offences is wrong and incorrect and is liable to be quashed. 10. The application is allowed accordingly and the impugned order dated 25.11.2014 is quashed with a direction to learned Magistrate for passing appropriate order in accordance with law as well as provisions of explanation to Section 2(d) Cr.P.C. 11. Let a copy of this order be sent to court below for proceeding with the case in accordance with law.