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Pravesh And Another v. State Of U.P. & Another - APPLICATION U/s 482 No. 16690 of 2006 [2006] RD-AH 21112 (14 December 2006)


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Court No. 49

                    Crl. Misc. Application no. 16690 of 2006

Pravesh and another  . . . . . .  . .  . . . . . . . .  . . .  . . .   . .  Applicants.


State of U.P and another. . . . . .  . .. .  . . . .  . . . . . .  . . . . Opp. Parties.                                                                                                                                                                                                                            


Hon'ble R.K.Rastogi,J.

This is an application under section 482 Cr.P.C. for quashing  the proceedings of case   no. 500 of 2005 ( State Vs. Vinay Kumar ) pending in the court of  the Addl. Chief Judicial Magistrate-I, Jaunpur.

The facts relevant for  disposal of this application are that   a first information report was lodged  by Dinesh Chandra Tiwari against accused Kashi Nath, Pappu, Vinay Kumar and Pravesh under sections 323, 504 and 506 I.P.C. on the  basis of which case crime no. 41 of 2005 was registered at police station Rampur district Jaunpur. The police after investigation of the case submitted  charge sheet against the accused persons under sections 323, 504 and 506 I.P.C. and on that charge sheet  Magistrate took cognizance  and summoned the accused persons. Aggrieved with that order, present application has been filed.

Heard learned counsel for the applicants and the learned A.G.A. for the State.

The  learned counsel for the applicants  made only one submission before me. He submitted that  offences under sections 323, 504 and 506 I.P.C. are non-cognizable  so in view of the explanation to section 2(d) Cr.P.C. this case could not proceed  as  State case  and it  was to proceed  as complaint case and the learned Magistrate  erroneously passed   an order for treating  it as State case. Photostat copy of  a ruling of this Court  in 'Crl. Misc. Application no. 8632 of 2002 ( Sri Lalit Madhav Das and another Vs. State of U.P. and another ) decided on 4.10.2002 was also placed before me by the  learned counsel for the applicants and he relied upon cited the said ruling in support of  his contention.

I have carefully gone  through the  said ruling. It is to be seen that  it is  not disputed that offences under sections 323 and 504 I.P.C. are non-cognizable and the offence under section 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 others Vs. State of U.P. and others' 2000(45)ACC 609,  and so the position is that  now the offence under section 506 I.P.C. is also a  non-cognizable offence.

The  position in this way is that all the three offences punishable under sections 323, 504 and 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 above explanation, report of the police officer  after investigation regarding commission of non-cognizable offence shall be deemed to be complaint and the police officer  who submitted  the  report shall be deemed to be complainant. So, the legal position is that in a non-cognizable offence  charge sheet submitted by the police disclosing non-cognizable offence only shall be treated to be  complaint and the procedure prescribed   for hearing of a complaint case  shall be applicable  to that case.

The position in this way is that according to the above explanation charge sheet submitted by the police in the present case  under sections 323, 504 and 506 I.P.C. shall be treated as complaint and it is to be decided as complaint and the learned Magistrate fell in legal error  by taking cognizance  as State case and the orders passed by him are, therefore, liable to be set aside.

The application under section 482 Cr.P.C. is, therefore, allowed to this extent  that the orders dated 10.10.2006 and 16.11.2006 passed by the Magistrate summoning the accused on the basis of the charge sheet submitted by the police under sections 323, 504 and 506 I.P.C.  treating the same as State case  are set aside,  and Magistrate concerned is directed to proceed with the case  treating it as complaint case.




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