Umesh Rai and Another v. State of U.P. and 2 Others

Court No. - 89 Case :- APPLICATION U/S 482 No. - 37764 of 2023 Applicant :- Umesh Rai And Another Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Shashi Dhar Goswami Counsel for Opposite Party :- G.A. Hon'ble Deepak Verma,J.

¶1Heard Sri Jai Raj, 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 15.06.2020, cognizance order dated 19.12.2022 as well as entire proceedings of Criminal Case No.51210 of 2022 arising out of Case Crime No.36 of 2019 (State vs. Girish Rai & others), under Sections-323, 504 I.P.C., Police Station-Gahmar, District-Ghazipur, pending in the court of Additional Chief Judicial Magistrate, Ghazipur.

¶3Learned counsel for the applicants has submitted 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 follows:- "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."

¶4Learned A.G.A. has stated that no useful purpose would be served in issuing notice to the opposite party nos.2 & 3 as it will only delay the proceedings of the present case.

¶5Therefore, 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.

¶6The 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;"

¶7With these observations, this application under Section 482 Cr.P.C. is finally disposed of. Order Date :- 2.12.2023 SKD High Court of Judicature at Allahabad