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SANTOSH KUMAR TRIVEDI versus STATE OF U.P. & ANOTHER

High Court of Judicature at Allahabad

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Santosh Kumar Trivedi v. State Of U.P. & Another - APPLICATION U/s 482 No. 11635 of 2007 [2007] RD-AH 10267 (29 May 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

  Court No.1

                      Crl. Misc. Application  no. 11635 of  2007

Santosh Kumar Trivedi. . . . . .  . .  . . . . . . . . . . . . . .  Applicant.

                                 Versus

State of U.P..and another.  . . . . . . . . . . . . . . . .  . .  . .Opposite-Parties.                                                 ---                                                                                                                                                                                                              

       

Hon'ble R.K. Rastogi,J.

This is an application under section 482 Cr.P.C. to quash the charge sheet submitted by the police in case crime no. 250 of 2005 under section 506 I.P.C. police station Kotwali district Shahjahanpur.

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

Since the point involved  in this application is a legal point, I am deciding this application at the admission stage after hearing the parties counsel.

The facts relevant for disposal of this application are that on 16.6.2005 Mukesh Kumar Saxena, Inspector, Police Lines, Shahjahanpur lodged a report  against  the applicant, Santosh Kumatr Trivedi, Advocate, under sections 452 and 506 I.P.C. in respect of an incident  which had allegedly taken place  at his residence  in Kotwali compound police station Kotwali, Shahjahanpur. It was registered  as crime no.250/05.In respect of this very incident Santosh Kumar Trivedi, Advocate, also lodged  a  report  against Mukesh Kumar Saxena giving cross version of that incident under sections 323, 504 and 506 I.P.C. which was registered  as case crime no. 250-A of 2005.

The Investigating Officer  of case crime no. 250 of 2005  has submitted  charge sheet against the applicant under section 506 I.P.C. only after investigation on 13.2.07and on that charge sheet  the Chief Judicial Magistrate  has taken cognizance. Aggrieved with that order  of taking cognizance, the applicant has  filed this application under section 482 Cr.P.C. before this Court.

It is to be seen that the charge sheet has been submitted  under section 506 I.P.C. only. The offence under section 506 I.P.C.  was originally non-cognizable and bailable, but it was made  cognizable  and non-bailable  vide the U.P. Government  Notification no. 777/VIII-94(2)-87 dated July 31, 1989. However, this notification  was held to be  illegal and ultra-vires by a Division Bench  judgment of this Court in the case of 'Virendra Singh and others Vs. State of U.P. and others' - ACC 2002 (45) page 609. So the legal position is that the offence under section 506 I.P.C. is bailable  and non-cognizable.

It has been provided in  the explanation to section 2(d) of the Criminal Procedure Code  that a report made by the 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 this explanation,  the charge sheet submitted by the police  in the above case  under section 506 I.P.C. could not be treated to be  police case, but it would be deemed to be a complaint  and the police officer who submitted the charge sheet  is to be deemed to be the complainant. As such, the order passed by the learned Magistrate  for taking cognizance  on the charge sheet as a state case is illegal and is liable to be set aside.

The application under section 482 Cr.P.C. is,therefore,  allowed to this extent that the order passed by the Chief Judicial Magistrate on the charge sheet  in case crime no. 250 of 2005 under section 506 I.P.C. police station Kotwali district Shahjahanpur is set aside  and  the above charge sheet shall be treated to be a complaint under section 506 I.P.C. and the Magistrate concerned shall follow the procedure prescribed under the Criminal Procedure Code for taking  action on  the complaint.

Dated:29.5.2007

RPP.


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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