# Awadhesh Kumar & others v. State of U.P. and another Opp. Parties

- **Citation:** (2008) 1 ILRA 30
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-01-09
- **Case number:** Criminal Misc. Application No. 28969 of 2007
- **Bench:** Amar Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/awadhesh-kumar-others-v-state-of-u-p-and-another-opp-parties-41063
- **Pages:** 2

## Headnote

Code of Criminal Procedure Section 439Bail Application-offence under Section
302,
364A,
201-allegations
of
kidnapping-demand of ransom-on non
fulfillment-deceased killed-case based
on
complete
chain
of
circumstance
evidence-recovery
of
dead
body
as
painted out by accused-scarf used for
commission of offence also no covered
from
the
possession
of
accusedconsidering
gravity
of
offence-not
entitled for Bail.

Held: Para 6

Considering the facts, circumstance of
the case, submission made of learned
counsel for the applicant, learned A.G.A.
and from the perusal of the record it
appears that the present case is based
on circumstantial evidence but chain of
the
circumstance
is
complete,
the
deceased
was
kidnapped
the
the
applicant and other co-accused for the
purpose of ransom, demand of ransom
was made, on non fulfillment of demand
of ransom the deceased was killed, the
dead
body
of
the
deceased
was
recovered at the pointing out of the
applicant and other co-accused and one
scarf used in the commission of alleged
offence was also recovered from the
possession of the applicant, gravity of
offence
is
too
much
and
without
expressing any opinion on the merit of
the case, the applicant is not entitled for
bail. The prayer for bail is refused.

## Text

30 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.01.2008

BEFORE
THE HON'BLE AMAR SARAN, J.

Criminal Misc. Application No. 28969 of
2007

Awadhesh Kumar & others ...Applicants
Versus
State of U.P. and another...Opp. Parties

Counsel for the Applicants:
Sri R.S. Ram
Sri Paras Nath Bind

Counsel for the Opposite Parties:
A.G.A.

Code of Criminal Procedure-Section 2
(d)-Explanation-complaint-charge sheet
under
323/504
IPC-fined-non
cognizance offence-Magistrate to proved
treating
as
complaint
case-order
impugned-not sustainable.

Held: Para 4

Therefore, on the basis of aforesaid
Explanation, which has been interpreted
in a single Judge decision of this Court in
Dr. Rakesh Kumar Sharma vs. State of
U.P. and another, 2007 (9) ADJ 478, it
has been held that when the chargesheet 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.
Case law discussed:
2007 (9) A.D.J.-478

(Delivered by Hon'ble Amar Saran, J.)

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

2. Learned A.G.A. concedes that no
useful purpose would be served in issuing
notice to the opposite party No. 2, as it
would only lead to delay of disposal of
this application and prays that the
application may be decided at this state
after hearing learned counsel for the
applicants and State.

3. An order dated 6.9.2007 taking
cognizance has been challenged in this
case and it is argued that charge sheet has
only been submitted under Sections 323,
504 I.P.C. Reliance has been placed on
the Explanation of Section 2 (d) of Code
of Criminal Procedure, which reads 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 complaint."

4. Therefore, on the basis of
aforesaid Explanation, which has been
interpreted in a single Judge decision of
this Court in Dr. Rakesh Kumar Sharma
vs. State of U.P. and 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 of
Criminal Procedure. He can also keep this
fact in mind that in view of Proviso (a) to
1 All] Awadhesh Kumar and others V. State of U.P. and another
31
Section 200 Cr.P.C., 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."

5. That is if the complainant who
gives the information in writing is a
public servant, who is acting in discharge
of its official duties, it may not be
necessary to examine the complainant and
the witnesses.

6. With these observations, this
application is allowed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.01.2008

BEFORE
THE HON'BLE RAVINDRA SINGH, J.

Criminal Misc. Bail Application No. 29098
of 2007

Kalua

...Applicant (In Jail)
Versus
State of U.P.

...Opposite Party

Counsel for the Applicant:
Sri Rajesh Kumar Srivastava

Counsel for the Opposite Party:
A.G.A.

Code of Criminal Procedure Section 439Bail Application-offence under Section
302,
364A,
201-allegations
of
kidnapping-demand of ransom-on non
fulfillment-deceased killed-case based
on
complete
chain
of
circumstance
evidence-recovery
of
dead
body
as
painted out by accused-scarf used for
commission of offence also no covered
from
the
possession
of
accusedconsidering
gravity
of
offence-not
entitled for Bail.

Held: Para 6

Considering the facts, circumstance of
the case, submission made of learned
counsel for the applicant, learned A.G.A.
and from the perusal of the record it
appears that the present case is based
on circumstantial evidence but chain of
the
circumstance
is
complete,
the
deceased
was
kidnapped
the
the
applicant and other co-accused for the
purpose of ransom, demand of ransom
was made, on non fulfillment of demand
of ransom the deceased was killed, the
dead
body
of
the
deceased
was
recovered at the pointing out of the
applicant and other co-accused and one
scarf used in the commission of alleged
offence was also recovered from the
possession of the applicant, gravity of
offence
is
too
much
and
without
expressing any opinion on the merit of
the case, the applicant is not entitled for
bail. The prayer for bail is refused.

(Delivered by Hon'ble Ravindra Singh, J.)

This bail application has been filed
by the applicant Kalua with a prayer that
he may be released on bail in case crime
No. 31 of 2007 under sections 302, 364A, 201 IPC, P.S. Jagner, District Agra.

2. The facts in brief of this case are
that the FIR has been lodged by Vinod
Kumar Sharma on 8.2.2007 at 0.15 A.M.
in respect of the incident which had
occurred on 30.1.2007 at about 6.00 P.M.
The applicant is named in the FIR. It is
alleged that the son of the first informant
namely Rahul aged about 18 years was