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

Court No. - 86 Case :- APPLICATION U/S 482 No. - 44881 of 2023 Applicant :- Yogendra And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Babu Ram Yadav Counsel for Opposite Party :- G.A. Hon'ble Rajiv Gupta,J.

¶1Heard learned counsel for the applicants, learned A.G.A. for the State and perused the material available on record.

¶2This application under Section 482 Cr.P.C. has been filed with the prayer to quash the entire proceeding of case no. 10327 of 2023, State Vs. Yogendra and another under section 323, 504 I.P.C. arising out of N.C.R. No. 93 of 2021 and charge sheet dated 27.9.2023 under section 323, 504 I.P.C., P.S. Bairiya, District Ballia.

¶3It 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 follows:- "Explanation-- A report made by a police ofÏcer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint, and the police ofÏcer 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 no.2 as it will only delay the proceedings of the present case.

¶5Therefore, on the basis of aforesaid Explanation, which has been interpreted in a Single Judge decision of this Court passed 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, where 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 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 ofÏcial duties or a Court has made the complaint;"

¶6With these observations, this application under Section 482 CrPC is disposed of. Order Date :- 8.12.2023 R High Court of Judicature at Allahabad