Rakesh Kumar Sharma vs State of U.P. and Another

R.K. Rastogi, J.—This is an application u/s 482, Cr. P.C. for quashing the proceedings of Criminal Case No. 540 of 2004, State v. Ram Sewak, u/s 504, I.P.C., P. S. Pahasu district Bulandshahr pending in the Court of Civil Judge (Jr. Division)/Judicial Magistrate, Khurja.

Heard the learned Counsel for the applicant and the learned A.G.A. for the State. Since in the present case the point involved is legal one, I am deciding it on merits at the admission stage.

The facts relevant for disposal of this application u/s 482, Cr. P.C. are that the complainant opposite party No. 2 filed an application u/s 156(3), Cr. P.C. against the accused-applicant and three others containing allegations regarding commitment of offence punishable u/s 307, I.P.C., and under the orders of the Court Case Crime No. C-47 of 2001 was registered against the accused persons. The police, however, after investigation submitted charge-sheet against the applicant only u/s 504, I.P.C. and on that charge-sheet the learned Magistrate took cognizance and passed order for summoning the accused and since the accused did not appear, orders were passed for issuing non-bailable warrant against him. Aggrieved with those orders the present application u/s 482, Cr. P.C. has been filed.

Learned Counsel for the applicant referred to Explanation to Section 2(d) of the Cr. P.C. which runs 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 complainant.

He submitted that in the present case originally the F.I.R. was lodged u/s 307, I.P.C. but after investigation the Investigating Officer came to the conclusion that no offence u/s 307, I.P.C. was made out and only a case u/s 504, I.P.C. was made out against the applicant and so a charge-sheet u/s 504, I.P.C. was submitted against the applicant. He contended that in view of the aforesaid Explanation to Section 2(d), Cr. P.C. the case could not proceed as a police case in respect of an offence punishable u/s 504, I.P.C. because the offence u/s 504, I.P.C. is non-cognizable and so the case could proceed only as a complaint case in view of the aforesaid Explanation.

The above contention of the learned Counsel for the applicant is correct. I, therefore, allow this application u/s 482, Cr. P.C. to this extent that the cognizance taken by the Magistrate in the case on the basis of the report of the police for the offence punishable u/s 504, I.P.C. and the orders passed by him for issuing warrant against the applicant are hereby quashed. The Magistrate shall not proceed with the case as a State case but he shall proceed with it as a complaint case as provided in the Explanation to Section 2(d), Cr. P.C. and he shall follow the procedure prescribed for hearing of a complaint case.

This application u/s 482, Cr. P.C. is partly allowed to the above extent only.