# Lokesh & Ors v. State of U.P. & Anr

- **Citation:** (2020) 6 ILRA 154
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-28
- **Case number:** Application U/S 482 No. 8272 of 2020
- **Bench:** Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lokesh-ors-v-state-of-u-p-anr-45775
- **Pages:** 6

## Headnote

Law-
Criminal
Procedure
Code (2 of 1974) - Explanation to
Section 2 (d) - Indian Penal Code (45
of 1860) , Section 323, 504 - F.I.R.
U/ss 323 and 504 IPC - Charge sheet
filed under non-cognizance offences U/ss
323, 504 IPC - Magistrate took cognizance
& proceeded as a State/police case - Held -
charge-sheet submitted by the police in a
non-cognizable offence shall be treated to
be a complaint & and the police officer who
submitted the report has to be deemed to
be a complainant under Explanation to
Section 2 (d) of Cr.P.C. - Magistrate
directed to proceed with as a complaint
case & follow the procedure prescribed for
hearing of a complaint case under Chapter
XV of the Code of Criminal Procedure - order
of cognizance and summoning order quashed

Application allowed (E-5)

List of case cited :

## Text

154 INDIAN LAW REPORTS ALLAHABAD SERIES
accused
and
rejecting
the
discharge
applications of the applicants as also quash
the entire proceedings of the complaint
case at this stage is refused as I do not see
any
illegality,
impropriety
and
incorrectness in the impugned order or the
proceedings under challenge. There is
absolutely no abuse of court's process
perceptible in the same. The present matter
also does not fall in any of the categories
recognized by the Apex Court which might
justify interference by this Court in order to
upset or quash them.

32. The present application under
Section 482 Cr.P.C. is accordingly rejected.
There shall be no order as to costs.
----------
(2020)06ILR A154
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.02.2020

BEFORE
THE HON'BLE AJIT SINGH, J.

Application U/S 482 No. 8272 of 2020

Lokesh & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Romeshwari Prasad, Sri Sheo Prasad
Misra

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

Criminal
Law-
Criminal
Procedure
Code (2 of 1974) - Explanation to
Section 2 (d) - Indian Penal Code (45
of 1860) , Section 323, 504 - F.I.R.
U/ss 323 and 504 IPC - Charge sheet
filed under non-cognizance offences U/ss
323, 504 IPC - Magistrate took cognizance
& proceeded as a State/police case - Held -
charge-sheet submitted by the police in a
non-cognizable offence shall be treated to
be a complaint & and the police officer who
submitted the report has to be deemed to
be a complainant under Explanation to
Section 2 (d) of Cr.P.C. - Magistrate
directed to proceed with as a complaint
case & follow the procedure prescribed for
hearing of a complaint case under Chapter
XV of the Code of Criminal Procedure - order
of cognizance and summoning order quashed

Application allowed (E-5)

List of case cited :

1. Rakesh Kumar Sharma Vs St. of UP & anr.
(2007) 3 JIC 654 (All), (2007) 9 ADJ 478,
(2007) Law Suit (All) 2322

2. Balwant Singh & anr. Vs St. of UP & anr.
Application u/s 482 No. 45945 of 2014 decided
on 14.11.2014

3. Smt. Saroj Devi Vs St. of UP & anr.
Application u/s 482 No. 30184 of 2016 decided
on 6.10.2016

4. Arjun Yadav & 2 ors. Vs St. of UP & anr.
Application u/s 482 No.31491 of 2016 decided
on 19.10.2016

5. Keshav Lal Thakur Vs St. of Bihar (1996) 11
SCC 557

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

1. Applicants have approached before
this Court by way of filing the instant
Criminal Misc. Application u/s 482 Cr.P.C.
for quashing of charge sheet dated
06.12.2019 as well as summoning order
dated 01.01.2020 and all its consequential
proceedings in Case No. 26 of 2020, arising
out of F.I.R. No. 0212/2019 under Sections
323 and 504 IPC, Police Station Khanpur,
District Bulandshahar pending in the Court
of Chief Judicial Magistrate, Bulandshahar.
A prayer has also been sought that the
learned Court below be directed to proceed
6 All. Lokesh & Ors. Vs. State of U.P. & Anr.
155
with the present case as complaint case as
per Chapter XV of Code of Criminal
Procedure. Lastly, it has been prayed that
during the pendency of the present
application before this Hon'ble Court
further proceedings of aforesaid Case No.
26 of 2020 pending in the Court of Chief
Judicial
Magistrate,
Bulandshahar
be
stayed.

2. The impugned order dated
01.01.2020, which has been passed by the
concerned
Chief
Judicial
Magistrate,
Bulandshahar taking coginizance of the
charge sheet dated 06.12.2019, reads as
such:-

"आज तिनांक 1.1.2020 को उक्त
अपराध संख्या िें तििेचक ने आरोप पत्र िय
केस डायरी प्रेतिि तकया है। सम्पूणग केस
डायरी का तितधनुसार परशीलन तकया गया
अपराध का प्रसंज्ञान तलया गया आधार पयागप्त
है। िजग रतजस्टर हो। नकल िी जािे एिि
अतभयुक्तगणों को सम्मन तिनााँक 2.2.2020 क़े
तलये िलब तकया जाये ।"

3.

Learned
counsel
for
the
applicants has submitted that as the
charge sheet has been submitted for noncognizance offences (Sections 323/504
IPC), therefore, it shall be deemed to be
complaint under Explanation to Section 2
(d) of Cr.P.C. Hence, the order taking
cognizance as well as summoning order,
as a State case, is not a correct procedure
and, therefore, the order of cognizance
and summoning order is liable to be
quashed.

4.

Learned
counsel
for
the
applicants in support of his submissions
has relied upon the judgment passed by a
co-ordinate Bench of this Court in the
matter of "Rakesh Kumar Sharma vs.
State of U.P. and another" reported in
2007 (3) JIC 654 (All), 2007 (9) ADJ
478: 2007 Law Suit (All) 2322 and
specifically para Nos. 5 and 6 of the said
judgment,
which
is
mentioned
hereinafter, states that:-

" 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 mad 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 I.P.C.
Because the offence under Section 504.
I.P.C. 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 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."

5. Heard learned counsel for the
applicants and learned AGA for the State.
156 INDIAN LAW REPORTS ALLAHABAD SERIES
Since the legal issue is involved in the
present matter, I am deciding it on merits at
the admission stage only.

6. The relevant provisions of law
involved in the present case are mentioned
hereinafter :-

Explanation to Section 2 (d)
Cr.P.C.- 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 complaint;

Section 155 Cr.P.C.- Information
as
to
non-cognizable
cases
and
investigation of such cases:-

(1) When information is given to
an officer in charge of a police station of
the commission within the limits of such
station of a non-cognizable offence, he
shall enter or cause to be entered the
substance of the information in a book to
be kept by such officer in such form as the
State Government may prescribe in this
behalf, and refer the informant to the
Magistrate.

(2)
No
police
officer
shall
investigate a non-cognizable case without
the order of a Magistrate having power to
try such case or commit the case for trial.

(3) Any police officer receiving such
order may exercise the same powers in respect
of the investigation (except the power to arrest
without warrant) as an officer in charge of a
police station may exercise in a cognizable
case.

(4) Where a case relates to two or
more offences of which at least one is
cognizable, the case shall be deemed to be a
cognizable case, notwithstanding that the
other offences are non-cognizable.

Section 190 Cr.P.C. - Cognizance
of offences by Magistrates :-

(1) Subject to the provisions of this
Chapter, any Magistrate of the first class, and
any Magistrate of the second class specially
empowered in this behalf under sub-section
(2), may take cognizance of any offence -

(a) upon receiving a complaint of
facts which constitute such offence;

(b) upon a police report of such
facts;

(c) upon information received from
any person other than a police officer, or upon
his own knowledge, that such offence has been
committed.

(2) The Chief Judicial Magistrate
may empower any Magistrate of the second
class to take cognizance under sub-section
(1) of such offences as are within his
competence to inquire into or try.

Section 200 Cr.P.C.- 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 the discharge of his
official duties or a Court has made the
complaint; or

(b) if the Magistrate makes over
the case for inquiry or trial to another
Magistrate under Section 192."

7. In "Balwant Singh and another
vs. State of U.P. and another" (Application
u/s 482 No. 45945 of 2014, decided on
14.11.2014), wherein the co-ordinate Bench
of this Court has held that :-

"But in the case of Ghansahyam
Dubey alias Little and others Vs. State of
U.P. and another (supra) as well as in case
of Budhi Ram and 3 others Vs. State of
U.P.
and
another
mentioned
above
Honourable Single Judges of this Court
have held that charge sheet submitted by
6 All. Lokesh & Ors. Vs. State of U.P. & Anr.
157
police in non-cognizable case even after
investigation made by police in pursuance
of order passed by Magistrate shall be
deemed to be complaint under section 2(d)
of Cr.P.C. In these cases provisions of
section 155(2) and 15(3) Cr.P.C. as well as
pronouncements of Honourable Apex Court
rendered in the case of Keshab Lal Thakur
Vs. State of Bihar (supra) have not been
considered and these pronouncements do
not lay correct law.

In view of above I am of the view
that this matter should be placed before
Hon'ble Division Bench for consideration."

8. Another co-ordinate Bench of this
Court is the case of "Smt. Saroj Devi vs.
State of U.P. and Another" (Application
u/s 482 No. 30184 of 2016, decided on
6.10.2016) after considering the judgments
passed in Rakesh Kumar Sharma (Supra),
Ghanshyam Dubey @ Little & others vs.
State of U.P. & Ors. 2010 Law Suit (All)
3093 and Balwant Singh and Another vs.
State of U.P. & Another (Application u/s
482 No.45945 of 2014, decided on
14.11.2014) has held that:-

"In pursuance of this order
without registering the check F.I.R the
investigation was conducted and during
the investigation the charge sheet was
submitted only under Sections 323 and
504 I.P.C. The offence under section 307
I.P.C alleged by the opposite party No.2
was found to be not made out.

Now the question arises whether
the
investigation
conducted
by
the
Investigating Officer can be said to be
illegal in the present case, I do not think
so. Now came to a situation where while
investigating a cognizable offence, the
police officer conducting an investigation
subsequently
opines
that
only
noncognizable offences are made out. This
report has to be treated as complaint
under section 2(d) Cr.P.C. Now the
question arises whether the cognizance
on such complaint has been rightly taken
by the Magistrate or it is barred by law
or without jurisdiction. In this regard
section 190 Cr.P.C comes into play which
is quoted herein below:-

Cognizance
of
offence
by
Magistrate. (1) subject to the provision of
this chapter, any Magistrate of the first
class, and any Magistrate of the second
class specially empowered in his behalf
under
sub-secion
(2),
may
take
cognizable of any offence (a) upon
receiving a complaint of fact which which
constitute such offence ; (b) upon a police
report of such facts; (c) upon information
received from any person other than a
police
officer,
or
upon
his
own
knowledge, that such offense has been
committed.

Clause-(1) herein above authorises
the Magistrate to take cognizance upon
receiving a complaint of that facts which
constitute offences. vide Fakhruddin Ahmad
Vs. State, 2008 ( Cri. L.J, 4377 (SC).

Now the question arises whether
on a complaint the summoning of the accused
after having taken cognizance under section
190(1)(a) Cr.P.C can be made without
examining the witnesses. Ist Proviso to
section 200 Cr.P.C answer this question
whether it provides the following:-

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 the discharge of his
official duties or a Court has made the
complaint: or

(b) if the Magistrate makes over
the case for inquiry or trial to another
Magistrate under section 192:
158 INDIAN LAW REPORTS ALLAHABAD SERIES

Thus, when a public servant
acting or purporting to act in the discharge
of his official duties or a Court has made
the complaint and his witnesses the
Magistrate is fully empowered to take
cognizance and proceed with the matter.
Therefore, issue of process against the
present applicant cannot be said to be
illegal and neither cognizance is barred
nor the prosecution is vitiated.

Now first submission made on behalf
of the applicant stands negated by the proviso
to section 200 Cr.P.C.

The second submission that the
instant case has to be tried as a complaint case
and not as a State case, this submission is also
without
comprehending
the
procedure
prescribed in Chapters XIX and XX of the Code
of Criminal Procedure. As is evident from these
chapters for the cases instituted on a police
report if it is a warrant trial a different
procedure has to be applied by the Magistrate
and for other kind of cases Part-B (Sections
244-247) prescribes a departure from the first
kind of case but Chapter XX of the Code of
Criminal Procedure for trial of summon cases,
as the present one is, no separate procedure has
been prescribed either it may be a case
instituted on a police report or other case. Thus,
the second submission has no bearing to make
the trial of case No.417 of 2016 (State of U.P.
Vs. Dinesh Chandra Pathak and another),
under sections 323 and 504 I.P.C illegal.

The application is without substance,
hence dismissed."

9. Another Co-ordinate Bench of this
Court in the matter of "Arjun Yadav and 2 Ors.
vs. State of U.P. and Another" (Application u/s
482
No.31491
of
2016,
decided
on
19.10.2016), in similar circumstances has held
that charge-sheet should be treated as
complaint.

10. In the judgment passed by the Hon'ble
Supreme has held in the matter of "Keshav Lal
Thakur vs. State of Bihar" reported in 1996
(11) SCC 557 has held that :-

"3. 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 therefore, the police could
not have registered a case for such an offence
under 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 proviso 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."

11. In the present matter, investigation
was undertaken for non-cognizance offence
and
charge-sheet
filed
under
noncognizance
offences
only,
therefore,
charge-sheet should be treated as a
6 All. Smt. Manju Tiwari Vs. State of U.P. & Anr.
159
complaint. Therefore, the order impugned
i.e. order of taking cognizance is set aside
and the learned trial court shall proceed the
case as a complaint case under Chapter XV
of the Code of Criminal Procedure.

12. With these observations, the
application stands disposed off.
----------
(2020)06ILR A159
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.03.2020

BEFORE
THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482 No. 8481 of 2020

Smt. Manju Tiwari ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Gyanendra Pratap Singh

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

Criminal Law - Criminal Procedure Code,
1973 - Section 389 - Stay of compensation
pending appeal - Appellate court have power to
stay conviction or compensation, pending
appeal - such power should be exercised only in
exceptional circumstances where failure to stay
the conviction, would lead to injustice and
irreversible consequences

Husband of the applicant died, who was the sole
earning member and financial condition of the
applicant is very weak - Applicant does not have
any source of income & is not in a position to
deposit 20% of compensation amount. Held -
Since the appeal of the applicant has been
admitted for final hearing and she was released
on bail and the applicant is hopeful of
succeeding in the appeal, it is justifiable to keep
the amount of penalty in abeyance till disposal
of appeal. (Para 10)
 Application disposed off. (E-5)

List of case cited :.

1. Manoj Kumar Vishwakarma Vs St. of U.P. &
anr. (2019) 10 ACC (SH) 329

2. Rama Narang Vs Ramesh Narang (1995) 2
SCC 513

3. Ravikant S. Patil Vs Sarvabhouma S. Bagali
reported in (2007) 1 SCC 673

(Delivered by Hon'ble Mrs. Manju Rani Chauhan, J.)

1. Heard Sri Gyanedra Pratap Singh,
learned counsel for the applicant and Mr.
P.K. Shahi, learned A.G.A assisted by Mr.
Madnesh Prasad Singh, learned counsel for
the State as also perused the record.

2. Learned counsel for the applicant
and learned A.G.A. for the State agree that
the present application may be disposed of
at this stage without issuing notice or
calling for any further affidavits in view of
the order proposed to be passed today.

3. This application 482 Cr.P.C. has
been filed to quash the judgment and order
dated 24.01.2020 passed by the District and
Sessions Judge, Lalitpur in Criminal
Appeal No. 15 of 2019 (Smt. Manju Tiwari
Vs. State of and another), which has been
filed against the judgment and order dated
12.03.2019 passed by the Additional Chief
Judicial Magistrate, Lalitpur, under Section
138 N.I. Act, Police Station-Lalitpur,
District-Lalitpur.
Under
the
impugned
judgment, the appellate court has issued
recovery notice for recovery of interim
compensation amount.

4. It has been submitted by learned
counsel for the applicant that a complaint
was filed by the opposite party no.2 against