Mithlesh Kumar and Others vs State Of U.P. And Another

Hon''ble Bala Krishna Narayana, J.—Heard learned counsel for the applicants and learned A. G. A. and perused the record. This application u/s 482 Cr. P. C. has been filed by applicants with a prayer for quashing the charge sheet dated 6.5.2006 submitted in N.C.R. No. 137 of 2005, u/s 323 I. P. C., P.S. Karchhana, District Allahabad and the order dated 7.5.2010 passed by learned A.C.J.M., Court No. 4, Allahabad by which he has summoned the applicant to face trial of the aforesaid offence as well as the entire proceeding of Case No. 2870 of 2006 registered against the applicants pursuant to the submission of the aforementioned charge-sheet.

Learned counsel for the applicants submitted that on the basis of the N.C.R. lodged by the opposite party no. 2 at P.S. Karchhana, District Allahabad as N.C.R. No. 137 of 2005, u/s 323 I.P.C. After completion of investigation charge sheet was submitted by the Investigation Officer u/s 323 I.P.C. whereupon on the basis of which case no. 2870 of 2006 u/s 323 was registered against the applicants and the learned Magistrate took cognizance against the applicants on 18.12.2006.

Learned counsel for the applicants submitted that the offence u/s 323 I. P. C. is non-cognizable, hence in view of the Explanation to Section 2 (d) of the Code of Criminal Procedure, the case could not proceed as State Case and it has to proceed as a complaint case. He further submitted that the learned Magistrate has erroneously registered the charge-sheet as a State case and taken cognizance on 18.12.2006.

It is not disputed that the offence under Sections 323 I. P. C. is noncognizable.

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 offence is 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 complaint case shall be applicable to that case."

In the present case from the material brought on record it transpires that the charge-sheet submitted by the Investigating Officer instead of being treated as a complaint, has been treated as a State Case by the concerned Magistrate, which is not permissible under law.

Learned A. G. A. vehemently opposed the submissions made by learned counsel for the applicants.

After having considered the submissions made by learned counsel for the parties and perused the material on record and examined the relevant provisions of the Code of Criminal Procedure, I am of the view that the submissions made by learned counsel for the applicants have force and are liable to be accepted. For the aforesaid reasons, the present application is allowed in part. It is made clear that the case shall be treated to be a complaint case and the procedure prescribed for hearing of the complaint shall be followed by the court concerned before summoning the applicants. The order dated 18.12.2006 by which the magistrate has taken cognizance is quashed.