Kapil and two others v. State of U.P. and another, wherein this Court passed the following orders
Case Details
Neutral Citation No. - 2024:AHC:173180 Court No. - 86 Case :- CRIMINAL REVISION No. - 2376 of 2024 Revisionist :- Kapil Urf Shani And 2 Others Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Narendra Kumar,Rabindra Bahadur Singh Counsel for Opposite Party :- G.A. Hon'ble Ram Manohar Narayan Mishra,J. Instant Criminal Revision has been preferred against dismissal of discharge application moved by the accused revisionist before the court below vide order dated 07.02.2024 passed by Additional Chief Judicial Magistrate, Court No.6, Moradabad, in Case Crime No.739 of 2019, under Sections 323 and 504 IPC, Police Station Majhola, District Moradabad.
Legal Reasoning
Heard learned counsel for the revisionist and learned A.G.A. for the State-respondent and perused the material available on record. A preliminary objection has been raised by learned A.G.A. to the effect that instant Criminal Revision has been preferred against dismissal of discharge application moved by accused Kapil Singh praying for discharge of accused in Misc. Cases No.18239 of 2020, arising of Case Crime No.739 of 2019, under Sections 323 and 504 IPC, Police Station Majhola, District Moradabad.The offence under Sections 323 and 504 IPC comes within the purview of non-cognizable case, and trial can only proceed in a manner of trial of summon cases provided under Cr.P.C., Unles the court chooses to treat the case as warrant case by passing specific order to that effect. There is no provision for discharge of accused in a case instituted as summon cases. The provision of discharge is provided in case of warrant trial under Section 239 Cr.P.C. and in case of session trial under Section 227 Cr.P.C. with regard to cases instituted on police report. Learned counsel for the revisionist submitted that learned trial court has taken cognizance of the offences on the basis of police report which is not permissible under law. A offences under Sections 323 and 504 IPC is non-cognizable case and its trial can only proceed in a manner as provided for trial of summons cases instituted on complaint. Learned counsel for the revisionist further submitted that revisionist invoked jurisdiction of this Court under Section 482 Cr.P.C. by filing application under Section 482 No.18318 of 2023 Kapil and two others Vs. State of U.P. and another, wherein this Court passed the following orders:- "......3. This application under Section 482 Cr.P.C. has been filed by the applicants Kapil @ Shani @ Vikki, Pooja and Santosh Pal with the prayer to quash the entire further proceeding of Criminal Case No. 10551 of 2020 (State Vs. Kapil @ Shani @ Vikki and others), charge sheet 28.09.2019, arising out of Case Crime No. 739 of 2019, under Sections 323, 504 IPC, P.S. Majhola, District Moradabad as well as cognizance/summoning order dated 02.12.2020 passed by Chief Judicial Magistrate, Moradabad and with a further prayer to stay the further proceedings in the aforesaid case. 4. After some arguments, learned counsel for the applicants states that since the offences are bailable in nature, the present application be disposed of granting liberty to raise all the points/objections available to them before the trial court at the appropriate stage. 5. Needless to state that if the applicants raise all the objections before the trial court at the appropriate stage, the trial court shall in accordance with law deal with the same.
Decision
6. In view of the same, the present application stands disposed of." Learned counsel for the revisionist also placed reliance on a judgment of this Court in Application under Section 482 No.2030 of 2023. Wherein this Court observed as under:- "……...It is clear from the above that all the offences punishable under Sections-323 and 504 are non-cognizable. Explanation to Section 2 (d) Cr.P.C. runs 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 complainant." In view of the said explanation, report of the Police Officer, after investigation, disclosing commission of non-cognizable offence is 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 the complaint case shall be applicable to that case. In the present case from the material on record, it transpires that the charge sheet submitted by the Investigating Officer instead of being treated as a complaint case, has been taken cognizance of by the concerned Magistrate as a State Case, which is not permissible under law. Learned A.G.A. vehemently opposed the submissions made by the learned counsel for the applicants. After having considered the submissions made by the learned counsel for the parties and perused the material on record, as well as examined the relevant provisions of the Code of Criminal Procedure, I am of the view that the submissions made by the learned counsel for the applicants have force and are liable to be accepted. For the aforesaid reasons, the present case be treated as a complaint case and the procedure prescribed for hearing of the complaint shall be followed by the court concerned before summoning the applicants. With the aforesaid observations, this application stands disposed of." There is force in submission of learned A.G.A. that as offence under Sections 323 and 504 IPC is triable as a summons case, as per provisions of Code of Criminal Procedure, there is no provision for discharge of an accused in summons cases whether it is instituted on police case or on complaint case. However, there is force is submission of learned counsel for the revisionist to the extent that offence under Sections 323 and 504 IPC are non-cognizable and for trial of said case procedure prescribed for trial of complaint case can only be adopted and police report submitted after investigation for charge under Sections 323 and 504 IPC can be treated as compliant filed by police officer. Therefore, the revision is not maintainable and is liable to be dismissed in limini on the ground that there is no provision for discharge in summons trial cases. However, keeping in view the fact that in present case chargesheet has been filed only for the offence under Section 323 and 504 IPC is non-cognizable offences, in such cases the police report can be treated as complaint filed by police offficer, i.e. Investigating Officer and the procedure prescribed for trial of complaint case will be adopted. For reasons stated as above, it is directed that the court below shall treat the present case as complaint case and procedure prescribed for hearing of the complaint cases shall be followed by the court concerned. The revisionists will appear before the court below within one months and learned court below will proceed with the case as directed above. For a period of one month no coercive process shall be adopted against the revisionist. Let a copy of this order be forwarded to the court concerned for necessary compliance. Order Date :- 5.11.2024 Ashish/-