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Vimal Dubey And Another Versus State of U.P. and Another

By Shivendra Pratap Singh
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Vimal Dubey And Another Versus State of U.P. and Another [Application U/S 482 No. – 24608 of 2021]

Judgment

1. Heard learned counsel for the applicants and learned AGA for the State and perused the record.

2. This application under section 482 Cr.P.C. has been filed with a prayer to quash the proceedings of Case No.648 of 2021, arising out of charge sheet no.NIL of 2021 dated 21.01.2021 of NCR No.114 of 2020(State Vs. Vimal Dubey & another), under sections 323, 504, IPC, Police Station Chilh, District Mirzapur, pending in the court of IInd Additional Chief Judicial Magistrate, Mirzapur.

3. Learned counsel for the applicants mainly contended that an NCR under sections 323 and 504 IPC was registered and thereafter investigation was conducted and charge sheet has been submitted against the applicants. Learned Magistrate has taken cognizance of the offence without looking into the police report and against the provisions of law. Learned counsel for the applicants submitted that as per section 2(d) Cr.P.C., if after investigation the police report discloses commission of non cognizable offence, it has to be treated as a complaint and investigating officer/police officer shall be deemed to be complainant and the procedure of complaint case is to be followed. In view of the provisions of section 2(d) Cr.P.C. the filing of charge sheet and the impugned order dated 15.07.2021, taking cognizance of the offence on the police report/charge sheet and issuance of process against the applicants is vitiated in the law.

4. Learned AGA not disputed the aforesaid facts.

5. It is undisputed that NCR was registered for offence under sections 323, 504 IPC and after investigation charge sheet has also been submitted under sections 323, 504 IPC, which is a non cognizable offence, hence section 2(d) of Cr.P.C. will apply in the present matter, which provides as follows:-

“2. Definition.-

(d) “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.

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;”

6. So there is substance in the argument of learned counsel for the applicants. The order of cognizance dated 15.07.2021 is vitiated in the eye of law and is liable to be set-aside.

7. Accordingly, the present application under section 482 Cr.P.C. is hereby allowed.

8. The impugned order dated 15.07.2021 passed by the IInd Additional Chief Judicial Magistrate, Mirzapur, in Case No.648 of 2021 on NCR No.114 of 2020(State Vs. Vimal Dubey & another), under sections 323, 504, IPC, Police Station Chilh, District Mirzapur, is hereby set-aside.

9. The learned Magistrate may pass fresh order in view of the provisions of section 2(d) Cr.P.C.

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shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate

Practising lawyer at the High Court Lucknow. Expertise in Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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