Shishupal vs State of U.P. and Another

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

The present petition u/s 482 Cr.P.C. has been filed for quashing the proceeding of Case No. 3245 of 2008, u/s 427 I.P.C., Police Station Sachendi, District Kanpur Nagar, pending before learned Additional Chief Metropolitan Magistrate, VIIth, Kanpur Nagar.

It is contended by learned Counsel for the applicant that charged Section is bailable 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. 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 u/s 155(2) Cr.P.C. and charge sheet has been submitted in non-cognizable offence. Learned Counsel for the applicants has relied upon a Judgment of Hon''ble Apex Court reported in LXIV (2009) ACC 296 Eicher Tractor Ltd. and Ors. v. Harihar Singh and Anr. as well as another reported Judgment of this Court reported in 2008 (1) JIC 220 (All) Awadesh Kumar and Ors. v. State of U.P. and Ors. 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 charge sheet has been submitted under the charged Section 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 complaint.

Therefore, on the basis of aforesaid Explanation which has been interpreted in a Single Judge decision of this Court reported in 2007(3) JIC 654 (All); 2007 (9) ADJ 478 Dr. Rakesh Kumar Sharma v. State of U.P. and Anr. it has been held that when the charge sheet is only of non-cognizable 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.