# Smt. Maya Devi and others v. State of U.P. & another

- **Citation:** (2009) 2 ILRA 649
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-07-22
- **Case number:** Criminal Misc. Application No. 24498 of 2007
- **Bench:** Surendra Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-maya-devi-and-others-v-state-of-u-p-another-41402
- **Pages:** 3

## Headnote

Code of Criminal Procedure-Section 482Quashing of charge sheet-offence under
Section 323-challenged on ground-being
non-cognizable offence- Police lacks of
jurisdiction-held-charge sheet be treated
as
complaint
in
accordance
with
procedure laid down under chapter XV of
the Code-offence being trivial in natureapplicant
be
permitted
to
appear
through counsel under section 205 of the
code.

Held: Para 8:

With the reasons mentioned above, the
charge sheet submitted by the police in
the present case under Section 323 I.P.C.
Shall be treated as complaint and it is to
be decided as a complaint in accordance
with procedure laid down under Chapter
XV of the Code of Criminal Procedure.
Learned Magistrate fell in legal error by
taking cognizance in the said case. In
view of the above discussion, the order
of the Magistrate is only required to be
modified and not to be quashed as a
whole.
650 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

## Text

2 All] Smt. Maya Devi and others V. State of U.P. and another
649
individuals in or over that land to any
other land specified in the declaration
and earmarked for that purposes in the
provisional Consolidation Scheme."

10. There is no dispute that the land
of Gaon Sabha or the State Government
can be allotted in the consolidation
proceeding, but it is possible only on a
declaration being made by the Assistant
Consolidation Officer in writing to the
effect that it is proposed to transfer the
rights of the petitioner in or over that land
to any other land specified in the
declaration
and
earmarked
for
that
purpose in the provisional Consolidation
Scheme. It is not the case of the petitioner
that any such declaration as required
under the proviso has been made in
respect of Gata No. 6362. In this view of
the matter, I am of the view that the
Settlement Officer, Consolidation was not
justified in allotting plot which was
reserved for Rahoni (cattle purposes) to
the petitioner. The decision cited by the
learned counsel for the petitioner in the
case of Ram Kumar and another Vs. Zila
Adhikari / D.D.C., Muzaffarnagar and
another (supra) does not say that in the
absence of any declaration under the
proviso to Section 19 A (2) of the Act, the
land of the Gaon Sabha or State
Government can be allotted. Therefore,
the decision cited by the learned counsel
for the petitioner is not applicable to the
facts of the present case.

11. In the result, writ petition fails
and is, accordingly dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.07.2009

BEFORE
THE HON'BLE SURENDRA SINGH, J.

Criminal Misc. Application No. 24498 of
2007

Smt. Maya Devi and others ...Applicants
Versus
State of U.P. & another ...Opposite Parties

Counsel for the Applicants:
Sri V. Singh
Sri D. Tiwari

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

Code of Criminal Procedure-Section 482Quashing of charge sheet-offence under
Section 323-challenged on ground-being
non-cognizable offence- Police lacks of
jurisdiction-held-charge sheet be treated
as
complaint
in
accordance
with
procedure laid down under chapter XV of
the Code-offence being trivial in natureapplicant
be
permitted
to
appear
through counsel under section 205 of the
code.

Held: Para 8:

With the reasons mentioned above, the
charge sheet submitted by the police in
the present case under Section 323 I.P.C.
Shall be treated as complaint and it is to
be decided as a complaint in accordance
with procedure laid down under Chapter
XV of the Code of Criminal Procedure.
Learned Magistrate fell in legal error by
taking cognizance in the said case. In
view of the above discussion, the order
of the Magistrate is only required to be
modified and not to be quashed as a
whole.
650 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
(Delivered by Hon'ble Surendra Singh, J.)

1. The applicants by filling this
application have sought to quash the
orders dated 7.6.2007 and 27.7.2007
passed by Additional Chief Judicial
Magistrate, Aligarh in Criminal Case No.
810 of 2007 (State Versus Maya Devi and
others), under Section 323 I.P.C. Police
Station Shasni Gate, District Aligarh,
pending in the Court of Additional Chief
Judicial Magistrate, Court No. 1, Aligarh.

Briefly put, the facts of the case may
be summarized as follows;

2. An F.I.R. Was lodged by the
respondent No. 2- Har Charan Sharma
against the applicant under Section 147,
323 and 380 I.P.C. Vide Case Crime No.
40 of 2007 at Police Station Sasni,
District Aligarh on 7.2.2007 at 7.35 P.M.
Regarding the incident alleged to have
taken place on 12.1.2007 at 7.00 P.M. The
police after investigation of the case
submitted
charge
sheet
against
the
accused applicant under Section 323
I.P.C. and on that charge sheet Magistrate
took cognizance and summoned the
applicant. Aggrieved with that order, the
present application has been filed.

3. Heard learned counsel for the
applicants
and
learned
A.G.A.
and
perused the material placed on record.

4. The contention of the learned
counsel for the applicant is that the
offence under Section 323 I.P.C. Being
non-cognizable,
the
police
lacks
jurisdiction to file charge sheet and,
therefore, the charge sheet so laid being
nonest in the eye of law should be
quashed.

5. Learned A.G.A. Opposed the
argument of the learned counsel for the
applicant and stated that it has not been
alleged in the order whether the charge
sheet filed was treated as a complaint case
or police challany case. He has further
submitted that no prejudice has been
caused to the applicant by the impugned
order.

6. Coming to the merit of the
contention made by the learned counsel
for
the
applicant,
undisputedly
the
aforesaid case cannot continue as on
arising out of police report because said
report can be filed when the offence is
cognizable. Therefore, the question arises
whether
entire
criminal
proceedings
should be brought to a halt and charge
sheet laid is liable to be quashed ?
Reference may be made to Exception 2
(d) of the Code of Criminal Procedure.

Explanation to Clause (d) to Section
2 of the Code provides:
"Explanation-A report made by a
police officer in a case which disclose,
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."

7. Section 2 (d) of the Code
encompasses a police report also as a
deemed complaint if the matter is
investigated by a Police Officer regarding
the case involving commissions of a noncognizable offence. The police officer
(Investigating Officer) who has submitted
the charge sheet and he being a public
servant, statements under Section 200 and
202 Cr. P.C. Are not required to be
recorded in view of the proviso (2) to
Section 200 Cr.P.C. No doubt, Annexure-
2 All] Sri Brahma Singh V. D.I.O.S., Saharanpur and others
651
2 has been termed as a charge sheet but
the same should be treated as a report and
proceeding should continue as complaint
in view of exception 2 to Section 2(d) of
Code of Criminal Procedure as has been
extracted above.

8. With the reasons mentioned
above, the charge sheet submitted by the
police in the present case under Section
323 I.P.C. Shall be treated as complaint
and it is to be decided as a complaint in
accordance with procedure laid down
under Chapter XV of the Code of
Criminal Procedure. Learned Magistrate
fell in legal error by taking cognizance in
the said case. In view of the above
discussion, the order of the Magistrate is
only required to be modified and not to be
quashed as a whole.

9. The application under Section 482
Cr.P.C., therefore, is allowed partly
treating the charge sheet as a complaint.
However, the offence being trivial in
nature, the applicants shall be permitted
by the court below to appear through their
counsel under Section 205 of the Code of
Criminal Procedure, after bail is granted
to them subject to the terms and
conditions imposed by the court below
under the facts and circumstances of the
case.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.07.2009

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 29780 of 1992

Brahma Singh

...Petitioner
Versus
D.I.O.S. and others
...Respondents
Counsel for the Petitioner:
Sri Ashok Khare
Sri K.S. Mishra

Counsel for the Respondent:
S.C.

Constitution of India-Article 226- Claim
of Salary-petitioner being senior most
L.T. Grade teacher-discharging duty of
lecture (geography)-since July 1991-in
absence
of
substantive
appointment/promotion
order-mere
discharge of duties of higher post-can
not be basis to claim salary-petition
dismissed.

Held: Para 9

The
submission
is
thoroughly
misconceived inasmuch assuming that
the petitioner was required to discharge
duties of lectured, but the fact remains
that there was nothing on record to
show that he was never appointed or
promoted to the post of Lecturer in
1991. A person claiming salary on a post
must have to be appointed on the said
post. Mere discharge of duties on a post
or looking after the duties of a post is
not equivalent or at par or can be a
substitute of promotion or appointment
on that post. This aspect has been
considered by a Division Bench of this
Court in Smt. Vijay Rani Vs. Regional
Inspectress of Girls Schools, Region-I,
Merrut & others 2007(2) ESC 987 and it
has been held that a person merely
looking after the duties is not entitled to
claim salary of the higher post. In the
circumstances, no relief can be granted
even on this aspect also.
Case law discussed:
1990 (1) UPLBEC 160, 1996 (3) ESC 155,
2007(2) ESC 987.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri K.S. Mishra, learned
counsel for the petitioner at great length
and
learned
Standing
Counsel