Brij Lal and others vs State of U.P.and another

Rajesh Dayal Khare, J.—Heard learned Counsel for the applicants and learned A.G.A. for the State.

The present petition under section 482, Cr.P.C. has been filed for quashing proceedings of Criminal Case No. 1021A of 2009 (State v. Brij lal and others), under sections 323, 504, 506 I.P.C., Police Station Karari, District Kaushambi, pending before learned Civil Judge (Junior Division), District Kaushambi as well as for quashing of the summoning prder dated 24.9.2009 issued in the aforesaid case against the applicants.

It is contended by learned Counsel for the applicants that charged sections are bailable sections 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. It is further contended that the order impugned has been challenged and reliance has been placed to explanation 2(d) of the Code of Criminal Procedure. It is next contended that no permission was taken under section 155(2), Cr.P.C. and chargesheet has been submitted in noncognizable offence. Learned Counsel for the applicants has relied upon a Judgment of Hon''ble Apex Court in M/s Eicher Tractor Ltd. and others v. Harihar Singh and another, 2009 (64) ACC 296, as well as another reported Judgment of this Court in Awadesh Kumar and others v. State of U.P. and others, 2008 (61) ACC 54 (All), in support of his contention.

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.

The order taking cognizance has been passed and it is argued that chargesheet has been submitted under the charged sections which are noncognizable offence. Reliance has been placed on Explanation to section 2(d) of Code of Criminal Procedure, which reads as follows:

"ExplanationA report made by a police officer in a case which discloses, after investigation, the commission of a noncognizable offence shall be deemed to be a complaint, and the police officer by whom such report is made shall be deemed to be the complaint." Therefore, on the basis of aforesaid Explanation which has been interpreted in a Single Judge decision of this Court reported in Dr. Rakesh Kumar Sharma v. State of U.P. and another, 2007 (59) ACC 998 (Alld), it has been held that when the chargesheet is only of noncognizable offences, 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 this fact in mind that in view of the 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 is finally disposed off.