Shiv Prakash Tiwari and 2 Others v. State of U.P

Court No. - 87 Case :- APPLICATION U/S 482 No. - 40997 of 2023 Applicant :- Shiv Prakash Tiwari And 2 Others Opposite Party :- State of U.P. Counsel for Applicant :- Pragati Mishra,Dinesh Chandra Mishra Counsel for Opposite Party :- G.A. Hon'ble Neeraj Tiwari,J.

¶1Heard learned counsel for the applicants and learned AGA for the State.

¶2The present 482 Cr.P.C. application has been filed to quash the charge sheet dated 31.12.2009, summoning order dated

08.01.2010, non bailable warrant dated 22.11.2022 & 06.06.2023 as well as the entire proceedings of Case No. 263 of 2010 (State Vs. Vijaya Narayan), under Sections-323, 504 I.P.C., Police Station-Singramau, District-Jaunpur, arising out of N.C.R. 26/09, pending in the court of C.J.M., Court No. 11, Jaunpur. Learned counsel for the applicants submits that the present prosecution has arisen out of NCR. It is stated 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. It 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. Reliance 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. Learned 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. Considering the above, no useful purpose would be in keeping the present application pending any further. The order dated

08.01.2010 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. The 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. With the aforesaid observations, the present application is disposed of. Order Date :- 17.11.2023 Arvind High Court of Judicature at Allahabad