Chand and Others vs State of U.P. and Another

Rajesh Chandra, J.—The application u/s 482 Cr.P.C. has been filed for the quashment of the charge sheet being charge sheet No. NCR 24/2008 dated 15.10.2008 under Sections 323, 504, 506 I.P.C. P.S. Lisari, District Meerut.

As interim relief it has been prayed that till the disposal of the application the proceedings of the above said case may be stayed.

In brief the facts of the case are that one Kadir submitted a report against the accused Chand and others at the police station which was registered as a non cognizable case. The complainant then moved an application u/s 155(2) of the Code of Criminal Procedure before the Magistrate making a prayer that the police of the P.S. Lisari Gate may be directed to make an investigation in the case. This application was allowed by the Magistrate vide order dated 21.4.2008 and thereafter the investigation ensued. After investigation the investigating officer found that only the offence under Sections 323, 504, 506 I.P.C. are made out and as such submitted the charge sheet for the aforesaid offences. The Magistrate took cognizance and summoned the accused Chand, Asmin and Fajil for the aforesaid offences.

Heard the learned Counsel for the applicants as well as the learned A.G.A.

Learned Counsel for the applicants submitted that the offences u/s 323, 504, 506 I.P.C. are non cognizable, hence in view of the explanation to Section 2(d) of the Code of Criminal Procedure, it could not proceed as State case and it has to proceed as a complaint case. He further submitted that the learned Magistrate has erroneously passed an order taking cognizance on the charge sheet.

I have carefully considered the above submissions. It is not disputed that the offences under Sections 323, 504, I.P.C. are non cognizable. The offence u/s 506 I.P.C. was made cognizable and non bailable vide the Uttar Pradesh Government Notification No. 777/VIII-94(2)-87 dated July 31, 1989 published in U.P. Gazette, Extra Part-4 Section (Kha) dated 2nd August, 1989. This notification issued by the Government was held to be illegal by Division Bench of this Court in the case of Virendra Singh and Ors. v. State of U.P. and Ors. 2000 (2) JIC 649 (All) : XLV 2002 ACC 609 : 2002 All LJ 2044 and so the position is that now the offence u/s 506 I.P.C. is also a non-cognizable offence.

It is clear from above that all the three offences punishable under Sections 323, 504, 506 I.P.C. are non cognizable.

Explanation to Section 2(d) of the Cr.P.C. runs 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.

In view of the said explanation report of the police officer after investigation disclosing commission of non-cognizable of fence has to be deemed to be a complaint and the police officer who submitted the report has to be deemed to be a complainant. In other words the charge sheet submitted by the police in a non-cognizable offence shall be treated to be a complaint and the procedure prescribed for hearing of com plaint case shall be applicable to that case.

In the present case the charge sheet submitted by the investigating officer shall be treated as a complaint and the cognizance taken by the Magistrate shall be deemed to have been taken on a complaint.

Learned Counsel for the applicant tried to argue that since the charge sheet has to be treated as a complaint, the Magistrate could not have taken cognizance of the offences until unless the Magistrate recorded the statement of the investigating officer u/s 200 Cr.P.C.

I considered over this argument and I feel that the same is misplaced. Proviso to Section 200 of the criminal procedure lays down that whenever a complaint is made in writing by a public servant, the Magistrate need not examine the complainant or the witnesses.

In the present case also the complaint has been filed by a public servant hence the Magistrate was not obliged to record the statement under Sections 200 or 202 Cr.P.C.

In view of the above the present application u/s 482 Cr.P.C. is liable to be dismissed.

The application is dismissed.

However it is made clear that the case shall be treated to be a complaint case and the procedure prescribed for hearing of complaint case shall be applicable to the present case.