# Dinesh @ Ganeshi & Ors v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2021) 1 ILRA 1050
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-02
- **Case number:** Crl. Misc. Appl. u/s 482 No. 12620 of 2020
- **Bench:** Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-ganeshi-ors-v-state-of-u-p-anr-opp-parties-46097
- **Pages:** 5

## Headnote

Criminal Law-Offence u/s 506 I.P.C. was
initially treated as cognizable and nonbailable
offence
vide
a
government
notification-such notification held illegalat
present
section
506
IPC
is non
cognizable and bailable-case filed u/s 506
IPC cannot be proceeded as Police CaseMagistrate to treat it as complaint case.

Held,

Section 2 (d) Cr.P.C. clearly denotes that
after investigation if it is found that the
offence in question is a non-cognizable
offence then the matter should be treated
as a complaint and police office by whom
such report is made shall be deemed to be
the complainant. In light of the aforesaid
provision there is no room to doubt for
considering
the
commission
of
noncognizable offence as a complaint case.
(Para 11 and 12)

List of Cases cited: -

## Text

1050 INDIAN LAW REPORTS ALLAHABAD SERIES
(b) and (c) of Section 190(1) Cr.P.C. are
conditions
requisite
for
taking
of
cognizance, it is not possible to say that
cognizance on an invalid police report is
prohibited and is therefore a nullity.

21. In Mubarak Ali (supra) relied upon by
the learned counsel for the applicant is of no
assistance in the facts of the present case. The
Court observed that the statutory safeguard
provided under Section 5A of the P.C. Act must
be strictly complied with, for they were
conceived in public interest and were provided
as a guarantee against frivolous and vexatious
prosecution. The Magistrate's status gives
assurance to the bona fide of the investigation.
The Court expressed the view that it hopes and
trust that investigations under the P.C. Act
would be conducted in strict compliance with
the provisions of the P.C. Act. The decision is
not an authority on the proposition of law that
the cognizance and the consequential trial
pursuant to the charge sheet would vitiate
merely for the reason that the investigation was
not carried out by the competent officer as
mandated under the P.C. Act.

22. Mubarak Ali was considered in
State of U.P. v. Bhagwant Kishore Joshi15,
wherein, question posed before the Supreme
Court was as to whether High Court was
justified in setting aside the conviction on the
ground that the first stage of investigation was
contrary to the provisions of the P.C. Act. The
facts arisen therein was that initially an officer
below the rank of Deputy Superintendent of
Police had conducted the investigation, on
realization that Investigating Officer is not
competent, subsequently, an order was obtained
from the concerned Magistrate to investigate
the offence. High Court set aside conviction on
the ground that there was a breach of the
mandatory safeguard of the P.C. Act in as much
as that the first stage of the investigation was
contrary to the provisions of the P.C. Act. But
the court was of the view that it (High Court)
did not consider the other question whether the
said breach caused prejudice to the accused in
the matter of' his trial. The Court reversed the
judgment of the High Court on being satisfied
no prejudice has been caused to the accused.

23. In the facts of the case at hand,
applicant is not a public servant and there is no
pleadings with regard to prejudice caused to
him or miscarriage of justice on account of the
enquiry being conducted by an officer of the
rank below that of the Deputy Superintendent
of Police/Inspector. The assertion of the C.B.I.
that an order to that effect was obtained from
the Special Judge to entrust the investigation to
a officer of the the rank of Sub Inspector has not
been denied. Even otherwise the applicant has
not alleged any prejudice or illegality in the
course of investigation that brought about
miscarriage of justice or caused prejudice to the
applicant.

24. On specific query, learned counsel for
the applicant has failed to point out any
illegality, infirmity or jurisdictional error either
in the impugned charge sheet or impugned
order.

25. The application under Section 482 is,
hereby, rejected.
----------

(2021)01ILR A1050
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.12.2020

BEFORE

THE HON'BLE DINESH PATHAK, J.

Crl. Misc. Appl. u/s 482 No. 12620 of 2020

Dinesh @ Ganeshi & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties
1 All. Dinesh @ Ganeshi & Ors. Vs. State of U.P. & Anr.
1051
Counsel for the Applicants:
Sri Shahabuddin, Sri Syed Mohammad
Nawaz

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

Criminal Law-Offence u/s 506 I.P.C. was
initially treated as cognizable and nonbailable
offence
vide
a
government
notification-such notification held illegalat
present
section
506
IPC
is non
cognizable and bailable-case filed u/s 506
IPC cannot be proceeded as Police CaseMagistrate to treat it as complaint case.

Held,

Section 2 (d) Cr.P.C. clearly denotes that
after investigation if it is found that the
offence in question is a non-cognizable
offence then the matter should be treated
as a complaint and police office by whom
such report is made shall be deemed to be
the complainant. In light of the aforesaid
provision there is no room to doubt for
considering
the
commission
of
noncognizable offence as a complaint case.
(Para 11 and 12)

List of Cases cited: -

1. Virendra Singh & anr. Vs St. of U.P. & anr.,
2000 (45) ACC 609

2. Rakesh Kumar Sharma Vs St. of U.P. & anr.,
reported in 2007 (9) ADJ 478

3.Keshav Lal Thakur Vs St. of Bih. reported in
(1996) (II) SCC, 557

4. Mohd. Yusuf Vs Afaq Jahan reported in
(2006) 1 SCC, 627

(Delivered by Hon'ble Dinesh Pathak, J.)

1. Heard learned counsel for the
applicant and learned A.G.A. for the State.

2. No notice is being issued to the
private respondent in view of the order
proposed to be passed today. Liberty is
reserved for the private respondent to seek
modification of the order passed herein
below, if so advised.

3. The present 482 Cr.P.C. application
has been filed to quash the charge-sheet
dated 25.06.2017 as well as Non-bailable
Warrant dated 12.06.2019 in Criminal Case
No. 1069 of 2018 arising out of Case Crime
No. 21 of 2017 under Sections 323, 504 &
506 IPC, P.S. Civil Lines, District Rampur,
pending in the Court of Chief Judicial
Magistrate, Rampur.

4. With respect to the incident dated
01.02.2017, an NCR has been lodged by
opposite party no. 2 (informant) against the
present applicants alleging therein that they
abused the informant and on resistant they
have beaten him up badly. While the wife
of the informant had came to his rescue, the
accused persons have beaten her up as well.
Investigative
Officer
had
moved
an
application dated 23.02.2017 under Section
155 (2) Cr.P.C. before the Chief Judicial
Magistrate for permission to investigate the
matter. On the medical examination simple
injuries have been found over the body of
the informant and his wife. During the
course of investigation, I.O. had recorded
the statement of injured persons and
submitted charge-sheet No. Nil/17 dated
25.06.2017 in Case Crime No. 21 of 2017
under Sections 323, 504 & 506 IPC, P.S.
Civil Lines, District Rampur against the
accused/present
applicants.
Learned
Magistrate has taken cognizance on the
aforesaid charge-sheet vide order dated
13.02.2018 and registered a case i.e.
Criminal Case No. 1069 of 2018 (State vs.
Dinesh). The aforesaid case was committed
for trial on 14.09.2018 and non-bailable
warrants were issued against the present
applicants.
1052 INDIAN LAW REPORTS ALLAHABAD SERIES

5. Learned counsel for the applicants
submits that the present proceeding has arisen
out of NCR which was filed for non-cognizable
offence under Sections 323, 504 & 506 IPC. It
is stated that the offence as alleged are noncognizable and, therefore, neither the chargesheet could have been submitted by the
Investigating Officer nor the learned Magistrate
could have taken cognizance in view of the
explanation to Section 2(d) of Cr.P.C. It is
further stated that the only course open to the
learned Magistrate was to have treated the case
as a complaint case and to have proceeded with,
in accordance with law.

6. The submission is that the applicant has
been charge sheeted under Section 506 I.P.C.
which is non-cognizable offence as per the
judgment of this court in the case of Virendra
Singh and another vs. State of U.P. and
another, 2000 (45) ACC 609.

7. The offence under Section 506 I.P.C.
was made cognizable and non-bailable vide
U.P. Government notification promulgated on
August 02, 1984. This notification was declared
illegal by the aforesaid judgment of this Court
and, therefore, the offence under Section 506
I.P.C. is also non-cognizable. It has been
submitted that the charge-sheet against the
applicants is unwarranted in an offence under
Section 506 I.P.C.

8. Reliance has been placed on the
decision of this Court dated 15.05.2018 passed
in Application U/S 482 No. 5917 of 2006
wherein this Court has taken view that neither
the charge sheet could have been submitted by
the Investigating Officer nor the learned
Magistrate could have taken cognizance on the
same, treating it as a State case.

9. Learned A.G.A. on the other hand
submits that while the learned Magistrate may
not have taken cognizance on the charge sheet
treating it to be a State case, however, it was
open to the learned Magistrate to follow the
complaint case procedure.

10. Vexed question is involved as to
whether the Magistrate can proceed under
Sections 323, 504 & 506 IPC as a police case
whereas these are non-cognizable offence and
the same could have utmost be treated as a
complaint under Explanation to Section 2(d)
Cr.P.C. The provisions of Section 2(d) Cr.P.C.
defines complaint and is reproduce below :-

"2(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."

11. Aforesaid Section clearly denotes
that after investigation if it is found that the
offence in question is a non-cognizable
offence then the matter should be treated as
a complaint and police office by whom
such report is made shall be deemed to be
the complainant.

12. In light of the aforesaid provision
there is no room to doubt for considering
the commission of non-cognizable offence
as a complaint case. In the case of Rakesh
Kumar Sharma vs. State of U.P. &
Another reported in 2007 (9) ADJ 478,
specifically paragraph nos. 5 & 6, the
Coordinate Bench of this Court has
considered the matter wherein F.I.R. was
lodged under
Section
307
IPC but
subsequently charge-sheet was submitted
1 All. Dinesh @ Ganeshi & Ors. Vs. State of U.P. & Anr.
1053
under Section 504 IPC and the Court
concluded that it should not be proceeded
as a police case which is barred under
Explanation to Section 2(d) Cr.P.C. The
relevant paragraph nos. 5 & 6 of the
aforesaid judgment are hereunder :-

"5. He submitted that in the present case
originally the F.I.R. was lodged under Section
307
IPC
but
after
investigation
the
Investigating Officer came to the conclusion
that no offence under Section 307 IPC was
made out and only a case under Section 504
IPC was made out against the applicant and
so a charge-sheet under Section 504 IPC 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 under Section 504
IPC. Because the offence under Section 504
IPC is non-cognizable and so the case could
proceed only as a complaint case in view of
the aforesaid Explanation.

6. The above contention of the learned
counsel for the applicant is correct. I,
therefore, allow this application under
Section 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 under Section 504
IPC 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 2 (d) Cr.P.C. and
he shall follow the procedure prescribed for
hearing of a complaint case."

13. In the case of Keshav Lal
Thakur vs. State of Bihar reported in
1996 (II) SCC, 557, the Apex Court
has held in paragraph 3 which is as
under :-

"We need not go into the question
whether in the facts of the instant case the
above view of the High Court is proper or
not for the impugned proceeding has got to
be quashed as neither the police was
entitled to investigate into the offence in
question nor the Chief Judicial Magistrate
to take cognizance upon the report
submitted
on
completion
of
such
investigation. On the own showing of the
police, the offence under Section 31 of the
Act is non-cognizable and Section 154
Cr.P.C. Of course, the police is entitled to
investigate into a non-cognizable offence
pursuant to an order of a competent
Magistrate under Section 155(2) Cr.P.C.
but, admittedly, no such order was passed
in the instant case. That necessarily means,
that neither the police could investigate
into the offence in question nor submit a
report on which the question of taking
cognizance could have arisen. While on
this point, it may be mentioned that in view
of the Explanation to Section 2(d) Cr.P.C.,
which defines 'complaint', the police is
entitled to submit, after investigation, a
report relating to a non-cognizable offence
in which case such a report is to be treated
as a 'complaint', of the police officer
concerned, but that explanation will not be
available to the prosecution here as that
relates to a case where the police initiates
investigation into a cognizable offence -
unlike the present one - but ultimately finds
that only a non-cognizable offence has
been made out."

14. There is no particular format for a
complaint. The Apex Court has also
expounded in Mohd. Yusuf vs. Afaq
Jahan reported in (2006) 1 SCC, 627 that
there is no particular format for a
complaint, even nomenclature is also
inconsequential. A petition addressed to
Magistrate containing an allegation that an
1054 INDIAN LAW REPORTS ALLAHABAD SERIES
offence has been committed and prayed for
suitable action against the culprits, is
sufficient to treat the same as a complaint.

15. It is clear that initially vide
notification dated 02.08.1984 Government
of U.P. has treated the offence under
Section 506 I.P.C. as cognizable and nonbailable. The aforesaid promulgation of
Government of U.P. was declared illegal by
the Court in the case of Virendra Singh
(Supra). At present there is no doubt that
the offence under Section 506 IPC is noncognizable and bailable. In light of
proposition of law as mentioned above,
there is no room to doubt that case filed
under Section 506 IPC cannot be proceeded
as police case and the learned Magistrate
should treat it as a complaint case.

16. In view of the observations made
above, learned court below has illegally
proceeded on the police report without
applying his judicial mind inasmuch as all
the offence as mentioned in the NCR as
non-cognizable and proper course of action
for the Magistrate is to treat the matter as a
complaint under the provision as enshrined
under Explanation to Section 2(d) Cr.P.C.

17. Considering the above, no useful
purpose would be served in keeping the
present application pending any further.
The charge sheet dated 14.04.2015 is
hereby quashed and the matter is remitted
to the learned Magistrate to pass a fresh
order, strictly in accordance with law,
keeping in mind the observations made
above.

18. The aforesaid exercise may be
concluded as expeditiously as possible,
preferably within a period of two months
from the date of production of a certified
copy of this order.

19. With the aforesaid observations,
the present application is allowed.
----------
(2021)01ILR A1054
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.10.2020

BEFORE

THE HON'BLE RAVI NATH TILHARI, J.

Crl. Misc. Appl. u/s 482 No. 13262 of 2020

Aman Pandey ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Rajesh Kumar, Sri Shiv Nath Singh

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

A. Criminal Law - Application u/s 482 -
Quashing of order on the ground of
jurisdiction - Code of Criminal Procedure:
Section 202; Indian Penal Code: Section
420, 504, 506 - The inquiry or the
investigation as the case may be, by the
Magistrate
is
mandatory
where
the
accused is residing beyond the area of
exercise of his jurisdiction. It is aimed to
prevent innocent persons from harassment by
unscrupulous persons from false complaints.
(Para 14, 18)

The expression 'shall' is ordinarily read as
mandatory. Lack of material particulars
and non-application of mind as to the
materials cannot be brushed aside as a
procedural irregularity. A bare perusal of
S.202 Cr.P.C. shows that in a case in which the
accused is residing at a place beyond the area
in
which
the
Magistrate
exercises
his
jurisdiction, he shall postpone issue of process
against the accused and shall hold an enquiry
either by himself or direct investigation to be
made by a Police Officer or by such other
person as the Magistrate thinks fit, for the
purpose of deciding whether or not there is