Gulab Patel and Others vs State of U.P. and Another

Bala Krishna Narayana, J.—This application u/s 482 Cr.P.C. has been filed by applicants with a prayer for quashing the charge sheet dated 9.3.2013 and summoning order passed by Additional Chief Judicial Magistrate VII, Varanasi in Case No. 614 of 2013, Crime No. 5/2013 under sections 323, 504 IPC, Police Station Saarnath, District Varanasi. 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 explain 2(d) of the Code of Criminal Procedure.

It is next contended that no permission was taken u/s 155(2) Cr.P.C. and charge sheet has been submitted in non-cognizable offence. Learned counsel for the applicant has relied upon a judgment of Hon''ble Apex Court reported in 2009 (64) ACC 296, M/s. Eicher Tractor Ltd. And others Vs. State of U.P. And others, in support of his contention.

Learned AGA 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 the charge sheet has been submitted under the charged sections which are non-cognizable offence. Reliance has been placed on Explanation to Section 2(d) of 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.

Therefore on the basis of the aforesaid Explanation which has been interpreted in a Single Judge decision of this Court reported in Rakesh Kumar Sharma Vs. State of U.P. and Another, , it has been held that that when the charge sheet is only 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 proceedings 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 a 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 of.