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2022 DIGILAW 1109 (ALL)

Sohan @ Radheshyam Ram v. State of U. P.

2022-07-18

OM PRAKASH TRIPATHI

body2022
JUDGMENT : 1. Heard learned counsel for the applicants, learned A.G.A for the State and also perused the record. 2. This application under Section 482 Cr.P.C. has been filed by the applicants with a prayer to quash the charge sheet dated 12.09.2019 and cognizance & summoning order dated 07.11.2019 as well as entire proceedings of Case No.2282 of 2019 (State vs. Sohan @ Radheyshyam Ram and others) arising out of NCR No.156 of 2018, under Sections 323, 504 IPC, Police Station Baburi, District Chandauli, pending in the Court of Judicial Magistrate, Chakiya, District Chandauli. 3. Brief facts which are requisite to be stated for adjudication of this application are that complainant Santosh Kumar had moved a written complaint on 25.10.2018 before SO, Baburi, Chandauli with the allegations that on 25.10.2018 at about 05:00-06:00 pm, when the complainant was going towards his field, the accused persons Chandan and Sohan came and stopped the complainant and started using filthy language against him, when the complainant objected to do the same, they started beating him by stick, kick and fist. When the sister of the complainant, Gaytri tried to save, then all the accused persons also beaten her due to which she has also sustained injuries. On this application, NCR No.156 of 2018, under Section 323 & 504 IPC has been registered and after taking permission for investigation, Investigating Officer recorded the statement of the injured witnesses and submitted charge sheet no. NIL of 2019 in NCR No.156 of 2018 against the applicants under Sections 323, 504 IPC. On charge-sheet, Magistrate has taken cognizance on 07.11.2019 and issued summons to the applicants. 4. Feeling aggrieved, this application has been moved before this Court. 5. It is submitted by learned counsel for the applicants that matter relates to non-cognizance offence only and in such matters cognizance by the Magistrate should not be taken. The case should be treated as a complaint case, it should not be treated as a State case. The impugned order of the court below is an abuse of process of law and the same is liable to be quashed by this Court. Section 2-D Cr.P.C. lays down that : "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Section 2-D Cr.P.C. lays down that : "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. 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. 6. The scope and ambit of power under section 482 Cr.P.C. has been examined by Hon'ble Apex Court in Union of India vs. Prakash P. Hinduja and another, AIR 2003 SC 2612 and observed as follows: "The grounds on which power under Section 482 Cr.P.C. can be exercised to quash the criminal proceedings basically are (1) where the allegations made in the FIR or complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused (2) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused, (3) where there is an express legal bar engrafted in any of the provisions of Code of Criminal Procedure or the concerned Act to the institution and continuance of the proceedings. But this power has to be exercised in a rare case and with great circumspection". 7. On perusal of material brought on record, it transpires that charge sheet submitted by the IO under Sections 323 & 504 IPC only with regard to non-cognizable case. Instead of treating as complaint, cognizance has been taken by the Magistrate as State case, which is not permissible under law. Although, Magistrate has not specifically mentioned in the impugned order that the case should be proceeded under which manner State or complaint, but in absence of such specific mention on the charge sheet, it may be presumed that the case shall be proceeded as State case, which is not permissible under law. 8. In view of above discussion, application has substance and is liable to be allowed in part. 8. In view of above discussion, application has substance and is liable to be allowed in part. This is a fit case in which inherent power should be exercised and there appears abuse of process of law. Application under Section 482 Cr.P.C. is allowed in part and impugned order dated 07.11.2019 by which, the cognizance was taken is hereby quashed with a direction to proceed with the matter as complaint case. The Magistrate shall proceed with the matter as complaint case as laid down in Explanation of Section-2(d) Cr.P.C. Rest prayer is refused. 9. It is made clear that in such situation, statement of the complainant under Section 200 and 202 Cr.P.C. is not required. No need to pass separate cognizance/summoning order but learned Magistrate should specify that said charge sheet shall be proceeded like a complaint case. Such principle is applicable in all cases relating to non-cognizance cases. 10. The Registrar General is directed to circulate this order throughout the State for effective compliance by all concerned.