Mushahid and 3 Others v. State of U.P. and Another

Court No. - 89 Case :- APPLICATION U/S 482 No. - 39711 of 2023 Applicant :- Mushahid And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ashutosh Upadhyay Counsel for Opposite Party :- G.A. Hon'ble Deepak Verma,J.

¶1Heard learned counsel for the applicants and learned A.G.A. for the State.

¶2The present 482 Cr.P.C. application has been filed to quash the charge sheet dated 3.11.2022, NBW along with cognizance/summoning order dated 16.12.2022 as well as entire proceeding of Case No.6831 of 2022 (State Vs. Mushahid and others) arising out of Case Crime No.546 of 2022, under Sections-323, 504, 506 I.P.C., Police Station-Bahjoi, District-Sambhal pending before the learned Chief Judicial Magistrate, Sambhal at Chandausi.

¶3Learned counsel for the applicant submits that the offence as alleged are non-cognizable and therefore neither the charge sheet could have been submitted by the Investigating Officer nor the learned Magistrate could have taken cognizance in view of the explanation under Section 2(d) of Cr.P.C.

¶4It is further stated that the only course open to the learned Magistrate was to have treated the case as a complaint case and to have proceeded with, in accordance with law accordingly.

¶5Reliance has been placed on the decision of this Court dated

15.05.2018 passed in Application U/S 482 No. 5917 of 2006 wherein this Court has taken view that neither the charge sheet could have been submitted by the Investigating Officer nor the learned Magistrate could have taken cognizance on the same, treating it as a State case.

¶6Learned AGA on the other hand submits that while the learned Magistrate may not have taken cognizance on the charge sheet treating it to be a State case. However, it was open to the learned Magistrate to follow the complaint case procedure.

¶7Considering the above, no useful purpose would be in keeping the present application pending any further. The order dated

16.12.2022 is set aside and the matter is remitted to the learned Magistrate to pass a fresh order, strictly in accordance with law, keeping in mind the observations made above.

¶8The aforesaid exercise may be concluded as expeditiously as possible, preferably within a period of two months from the date of production of a certified copy of this order.

¶9With the aforesaid observations, the present application is disposed of. Order Date :- 28.10.2023 SFH High Court of Judicature at Allahabad