# Chand and others v. State of U.P. and another

- **Citation:** (2010) 1 ILRA 53
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-01-18
- **Case number:** Criminal Misc. Application No. 33050 of 2009
- **Bench:** Rajesh Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chand-and-others-v-state-of-u-p-and-another-41510
- **Pages:** 3

## Headnote

Code of Criminal Procedure-Section 2(d)-
Complaint-on direction of magistrateCharge sheet submitted by police for
offense under section 323, 504, 506 IPCargument that the charge sheet be
treated like complaint and the I.O.
became
complainant-hence
without
recording
the
statement
of
the
complainant
and
their
witnessesmagistrate can not take cognizanceheld-wholly
misconceived-report
submitted by public servant no need of
recording
statement
application
rejected.

Held: Para 10 & 11-

I considered over this argument and I
feel that the same is misplaced. Proviso
to Section 200 of the criminal procedure
lays down that whenever a complaint is
made in writing by a public servant, the
Magistrate
need
not
examine
the
complainant or the witnesses.

In the present case also the complaint
has been filed by a public servant hence
the Magistrate was not obliged to record
the statement under Section 200 or 202
Cr.P.C..
Case law discussed-
2000 (2) JIC 649 (All) 200 (45) ACC 609.

## Text

1 All] Chand and others V. State of U.P. and another
53
conscience of the Court. In these
circumstances, we have no option but to
quash the continued detention of the
petitioner.

12. The writ petition is allowed. The
petitioner shall be released forthwith
unless wanted in connection with any
other case.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.01.2010

BEFORE
THE HON'BLE RAJESH CHANDRA, J.

Criminal Misc. Application No. 33050 of
2009

Chand and others

...Petitioner
Versus
State of U.P. and another ...Respondent

Counsel for the Petitioner:
Sri K.P. Tiwari

Counsel for the Respondent:
Govt. Advocate

Code of Criminal Procedure-Section 2(d)-
Complaint-on direction of magistrateCharge sheet submitted by police for
offense under section 323, 504, 506 IPCargument that the charge sheet be
treated like complaint and the I.O.
became
complainant-hence
without
recording
the
statement
of
the
complainant
and
their
witnessesmagistrate can not take cognizanceheld-wholly
misconceived-report
submitted by public servant no need of
recording
statement
application
rejected.

Held: Para 10 & 11-

I considered over this argument and I
feel that the same is misplaced. Proviso
to Section 200 of the criminal procedure
lays down that whenever a complaint is
made in writing by a public servant, the
Magistrate
need
not
examine
the
complainant or the witnesses.

In the present case also the complaint
has been filed by a public servant hence
the Magistrate was not obliged to record
the statement under Section 200 or 202
Cr.P.C..
Case law discussed-
2000 (2) JIC 649 (All) 200 (45) ACC 609.

(Delivered by Hon'ble Rajesh Chandra, J.)

1. The application under Section 482
Cr.P.C. has been filed for the quashment
of the charge sheet being charge sheet no.
NCR 24/2008 dated 15.10.2008 under
Section 323, 504, 506 I.P.C. P.S. Lisari,
District Meerut.

2. As interim relief it has been
prayed that till the disposal of the
application the proceedings of the above
said case may be stayed.

3. In brief the facts of the case are
that one Kadir submitted a report against
the accused Chand and others at the
police station which was registered as a
non cognizable case. The complainant
then moved an application under Section
155 (2) of the code of criminal procedure
before the Magistrate making a prayer
that the police of the P.S. Lisari Gate may
be directed to make an investigation in the
case. This application was allowed by the
Magistrate vide order dated 21.4.2008 and
thereafter the investigation ensued. After
investigation the investigating officer
found that only the offence under Section
323, 504, 506 I.P.C. are made out and as
such submitted the charge sheet for the
aforesaid offences. The Magistrate took
cognizance and summoned the accused
54 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Chand, Asmin and Fajil for the aforesaid
offences.

4. Heard the learned counsel for the
applicants as well as the learned A.G.A..

5. Learned counsel for the applicants
submitted that the offences under Section
323, 504, 506 I.P.C. are non cognizable,
hence in view of the explanation to
Section 2 (d) of the Code of Criminal
Proceeding, it could not proceed as state
case and it has to proceed as a complaint
case. He further submitted that the learned
Magistrate has erroneously passed an
order taking cognizance on the charge
sheet.

6. I have carefully considered the
above submissions. It is not disputed that
the offences under Sections 323, 504,
I.P.C. are non cognizable. The offence
under Section 506 I.P.C. was made
cognizable and non bailable vide the Uttar
Pradesh Government Notification No.
777/VIII- 94 (2)-87 dated July 31, 1989
published in U.P. Gazette, Extra Part-4
Section (Kha) dated 2nd August, 1989.
This
notification
issued
by
the
Government was held to be illegal by
Division Bench of this Court in the case
of Virendra Singh & Others vs. State of
U.P. & Others, 2000 (2) JIC 649 (All) 200
(45) ACC 609, and so the position is that
now the offence under Section 506 I.P.C.
is also a non-cognizable offence.

6. It is clear from above that all the
three offences punishable under Section
323, 504, 506 I.P.C. are non cognizable.

Explanation to Section 2(d) of the Cr.P.C.
runs as under:

"Explanation-A report made by a police
officer in a case which discloses, after
investigation the commission of a noncognizable 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."

7. In view of the said explanation
report
of
the
police
officer
after
investigation disclosing commission of
non-cognizable offence has to be deemed
to be a complaint and the police officer
who submitted the report has to be
deemed to be a complainant. In other
words the charge sheet submitted by the
police in a non-cognizable offence shall
be treated to be a complaint and the
procedure prescribed for hearing of
complaint case shall be applicable to that
case.

8. In the present case the charge
sheet submitted by the investigating
officer shall be treated as a complaint and
the cognizance taken by the Magistrate
shall be deemed to have been taken on a
complaint.

9. Learned counsel for the applicant
tried to argue that since the charge sheet
has to be treated as a complaint, the
Magistrate
could
not
have
taken
cognizance of the offences until unless the
Magistrate recorded the statement of the
investigating officer under Section 200
Cr.P.C..

10. I considered over this argument
and I feel that the same is misplaced.
Proviso to Section 200 of the criminal
procedure lays down that whenever a
complaint is made in writing by a public
servant, the Magistrate need not examine
the complainant or the witnesses.
1 All] Arvind Kumar V. State of U.P. and another
55
11. In the present case also the
complaint has been filed by a public
servant hence the Magistrate was not
obliged to record the statement under
Section 200 or 202 Cr.P.C..

12. In view of the above the present
application under Section 482 Cr.P.C. is
liable to be dismissed.

13. The application is dismissed.

14. However it is made clear that the
case shall be treated to be a complaint
case and the procedure prescribed for
hearing of complaint case shall be
applicable to the present case.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.01.2010

BEFORE
THE HON'BLE RAJESH CHANDRA, J.

Criminal Misc. Application No. 33247 of
2009

Arvind Kumar

...Applicant
Versus
State of U.P. & another ..Opposite Parties

Counsel for the Applicant:
Sri Ravindra Sharma

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

Code of Criminal Procedure- Section 482Quashing of charge sheet-offense under
section
274,275,419.420,464,468
IPC
read
with
section
3/7
essential
commodities
Act
and
Drugs
and
cosmetics Act. Section 18/27-Sufficient
material
collected
by
investigation
officer-prima facie offense made out-no
illegality or irregularity disclosed in
charge
sheet-cannot
be
interfereddirection
issued
to
consider
bail
application
keeping
in
view
of
Lal
Kamalendra Pratap Singh.

Held: Para 6

I have considered over the argument and
also perused the papers. In the case at
hand the material collected by the
investigating officer is sufficient to make
out prima facie offence against the
applicant and since there is sufficient
evidence against the accused applicant I
do not find any illegality or irregularity in
the filing of the Charge sheet or in the
order of the lower court by which the
applicant has been summoned.
Case law discussed:
(2009) 2 SCC(Criminal) 730, (2006) 3 SCC
(Cri) 188 are: (SCC p. 748, para 12), Criminal
Appeal No. 538 of 2009 Supreme Court dated
23.3.2009.

(Delivered by Hon'ble Rajesh Chandra, J.)

1. The applicant has filed this
application under Section 482 of the Code
of Criminal Procedure to quash the
Chargesheet dated 12/9/09 in case crime
no.
03/09,
under
Sections
274,275,419.420,464,468 IPC and Section
3/7 Essential Commodities Act & Section
18/27 of Drugs and Cosmetics Act and
Section 21/22 NDPS Act pending as case
no.4890 of 2009 (State Vs. Ramesh
Chandra & Others) in the court of Addl.
CJM I, Jaunpur.

2. The learned counsel for the
applicant argued that the Charge sheet has
been submitted against the accused
applicant
without
collecting
proper
evidence and as such is liable to be
quashed.

3. It has further been argued that the
accused applicant was not arrested on the
spot and the licence of the drug is also not