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2021 DIGILAW 1428 (ALL)

Satvir Singh v. State of U. P.

2021-11-26

ASHUTOSH SRIVASTAVA

body2021
JUDGMENT : Ashutosh Srivastava, J. Heard Sri Uma Nath Pandey, learned counsel for the applicant and learned A.G.A. for the State. 2. The applicant by means of the present Criminal Misc. Application, under Section 482 Cr.P.C., assails the proceedings of Case Crime No. 4997 of 2008 (State v. Satvir and others) under Section 504 IPC based on charge-sheet No. 227 dated 18.6.2008 as also the order dated 16.7.2008 passed by the Chief Judicial Magistrate, Gautam Budh Nagar, whereby and whereunder the applicant had been summoned to face trial under Section 504 IPC. 3. The facts giving rise to the Case Crime No. 4997 of 2008 are that one Sri Raje S/o Surjan Singh (opposite party No. 2), lodged a FIR at Police Station Kasna, District Gautam Budh Nagar, alleging that on 11.4.2008 at about 11:30 p.m. in the night when he was sleeping in the verandah alongwith his family, one Raju S/o Ratan Lal came at his house and started exhorting them to came out. Alongwith Raju S/o Ratan Lal, the applicant Satvir Singh is alleged to be present holding a gun, Aman holding a pistol is alleged to have fired at the house. The first informant alongwith his family members, somehow managed to rescue themselves. Kushal S/o Ratan Lal is alleged to have jumped over the wall and opened the gate of the house whereafter Ajab Singh and Gajab Singh, sons of Satvir Singh (applicant) are stated to have brandished ''pharsa'' and threatened the informant and his family members. 4. The police after investigation submitted a charge-sheet against the applicant under Section 504 IPC. The learned Chief Judicial Magistrate, Gautam Budh Nagar, taking cognizance of the charge-sheet summoned the applicant to face trial by order dated 16.7.2008. 5. This Court vide order dated 12.11.2009 stayed the further proceedings of the Case No. 4997 of 2008, under Section 504 IPC till the next date of listing. 6. Learned counsel for the applicant submits that the order summoning the applicant is not sustainable, inasmuch as the charge-sheet has been submitted under Section 504 IPC, which is a non-cognizable offence and in view of the explanation to Section 2(d) of the Cr.P.C., the charge-sheet is to be treated as a complaint. The Magistrate is required to proceed with the case as complaint case. The Magistrate is required to proceed with the case as complaint case. The learned counsel for the applicant places reliance upon the explanation to Section 2(d) of the Code of Criminal Procedure, which reads 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 office by whom such report is made shall be deemed to be the complaint.'' 7. He submits that on the basis of the aforesaid explanation, which has been interpreted by a Single Judge decision of this Court in Dr. Prakash Kumar Sharma v. State of U.P. and another, 2007(59) ACC 998, holding that when the charge-sheet is only of non-cognizable offences, in view of the aforesaid provisions, the charge-sheet should be treated as a complaint. 8. The argument is well founded and resultantly the order taking cognizance is set aside. The Magistrate may pass an order taking cognizance, if he so chooses, by proceeding in the matter as a complaint case, under Chapter XV of the Cr.P.C. He may also keep in mind the proviso (a) to Section 200 Cr.P.C. which reads as follows : ''Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses- (a) if a public servant acting or purporting to act in discharge of his official duties or a Court has made the complaint; That is if the complainant who gives the information in writing is a public servant, who is acting in discharge of its official duties, it may not be necessary to examine the complainant and the witnesses and the Magistrate may pass an order under Section 190(1)(a) of the Code of Criminal Procedure taking cognizance of the case instead of Section 190(1)(b) Cr.P.C.'' 9. In view of the above, the Magistrate shall pass appropriate order, within two weeks from the date of receipt of a certified copy of this order. 10. With these observations, this application stands allowed.