Court No. - 49 Case :- APPLICATION U/S 482 No. - 34575 of 2009 Petitioner :- Ram Vilash Respondent :- State Of U.P. & Another Petitioner Counsel :- D.K. Srivastava Respondent Counsel :- Govt. Advocate Hon'ble Rajesh Dayal Khare,J.
Heard learned counsel for the petitioner and the learned AGA for the
State.
This application under Section 482 of the Code of Criminal Procedure
(in short “the Code”) has been filed for quashing of the proceedings of
Case No. 1228 of 2009 (State v Ram Vilash & others) under Sections
323, 504, 506 and 427 IPC, PS Maiel, District Deoria pending before the
Judicial Magistrate, Deoria and also for quashing of the cognizance
taken in order dated 20.06.2009.
It is contended that vide order dated 20.06.2009 cognizance has been
taken in the case and it is argued that charge sheet had been submitted
under Sections 323, 504, 506 and 427 IPC, which are non-cognizable
offence under Indian Penal Code and reliance has been placed on the
Explanation to Section 2 (d) of the Code, which reads as follows:
“explanation-A repord 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 in Dr. Rakesh
Kumar Sharma v State of U.P. & another [2007 (9) ADJ 478], 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. He can also keep this
fact in mind that in view of Proviso (a) to Section 200 of the Code, 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.”
That is if the complainant who gives the information in writing is a public
servant, who is acting in discharge of its official dutites, it may not be
necessary to examine the complainant and the witnesses.
With these observations, this application is allowed.
Order Date :- 1.2.2010
shailesh