Sanjeev Sharma and Another v. State of U.P. and Another

Court No. - 86 Case :- APPLICATION U/S 482 No. - 40194 of 2023 Applicant :- Sanjeev Sharma And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Shiv Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Rajiv Gupta,J. Heard learned counsel for the applicants, learned A.G.A. for the State and perused the material available on record. This application under Section 482 Cr.P.C. has been filed with the prayer to quash the impugned charge-sheet dated

06.06.2023 and cognizance order dated 08.09.2023 as well as entire proceedings of Case No. Nil of 2023 (State Vs. Sanjeev Sharma and Another), arising out of Case Crime No. 84 of 2023, under Section 323 IPC, Police Station Baruasagar, District Jhansi, pending in the court of Additional Civil Judge (Sr. Div.)/ Judicial Magistrate, Court No.3, Jhansi. It is contended by learned counsel for the applicants that charged section is non-cognizable section and the learned Magistrate may pass an order taking cognizance, if he so desires, by proceeding under Chapter XV of the Code of Criminal Procedure. Reliance has been placed to explanation 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 officer by whom such report is made shall be deemed to be the complainant." Learned A.G.A. has stated that no useful purpose would be served in issuing notice to the opposite party no.2 as it will only delay the proceedings of the present case. Therefore, on the basis of aforesaid Explanation, which has been interpreted by Co-ordinate Bench of this Court in Application u/s 482 No. 45609 of 2018 (Santosh Kumar and 2 others vs. State of U.P. and others) decided on

31.1.2019, wherein it has been held that when the charge-sheet is only of non-cognizable offence, in view of the aforesaid provision, the charge-sheet should be treated as a complaint. The argument of learned counsel for the applicants is well founded and the order taking cognizance is set aside. Now, the Magistrate may pass an order taking cognizance, if he so chooses, by proceeding in this matter as a complaint case under Chapter XV of the Code of Criminal Procedure. He can also keep in mind 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;" With these observations, this application under Section 482 CrPC is partly allowed. Order Date :- 8.11.2023 Nadim High Court of Judicature at Allahabad