High Court
Case Details
Neutral Citation No. - 2024:AHC:128254 Court No. - 77 Case :- APPLICATION U/S 482 No. - 13826 of 2024
Legal Reasoning
Applicant :- Vipin Bansal Alias Bipin Kumar Bansal And 5 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Reema Pandey,Saurabh Raj Srivastava,Sr. Advocate Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J. 1. Heard Sri N.I. Jafri, learned Senior Advocate, assisted by Ms. Reema Pandey and Sri Saurabh Raj Srivastava, learned counsels for the applicants, Sri Ajay Singh, learned A.G.A.-I for the State and perused the record. 2. The present application under Section 482 Cr.P.C. has been filed by the applicants Vipin Bansal@Kumar Bansal, Ajay Bansal, Alka Bansal, Vibhor Bansal, Akash Bansal, Vishal Bansal with the following prayers:- "It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to QUASH & SET A-SIDE: I. The 'impugned order dated 22.5.2019 passed in Case No. 3840/2019, State vs. Vipin Bansal and other' AND 'impugned order dated 25.01.2024 passed in Criminal Revision No. 155 of 2019, Vipin Bansal and 5 others vs. State' passed by Additional District and Sessions Judge, Court No. 12, Moradabad, arising out of FIR dated 24.05.2018 having Crime Case No. 482 of 2018, under Sections 409, 420, 467, 468, 471, 120B I.P.C., Police Station Civil Lines, District Moradabad, whereby both the learned courts below has initiated proceedings of present case as 'State Case' instead of 'Complaint Case' as charge sheet been filed under bailable and non-cognizable offence (Under Section 417, 465, 120B IPC) attracting ingredients of 'explanation to Section 2(d) of Cr.P.C.' II. Further it is prayed that this Hon'ble Court may graciously be pleased to quash the entire proceedings of Case No. 3840/2019, State vs. Vipin Bansal and others, arising out of F.I.R. dated 24.5.2018 having Crime Case No. 482 of 2018, under Sections 409, 420, 467, 468, 471, 120B I.P.C., Police Station Civil Lines, District Moradabad against the applicants. III. It is further prayed that this Hon'ble Court may graciously be pleased stay the further proceeding of Case No. 3840/2019, State vs. Vipin Bansal and others, arising out of F.I.R. dated 24.5.2018 having Crime Case No. 482 of 2018, under Sections 409, 420, 467, 468, 471, 120B I.P.C., Police Station Civil Lines, District Moradabad against the applicants, during the pendency of the present application. IV. It is further prayed that this Hon'ble Court may graciously be pleased to direct that no coercive measures shall be taken against the applicant pursuant to Case No.3840/2019, State vs. Vipin Bansal and others, arising out of F.I.R. dated 24.5.2018 having Crime Case No. 482 of 2018, under Sections 409, 420, 467, 468, 471, 120B I.P.C., Police Station Civil Lines, District Moradabad. and/or pass such order and further order as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case, otherwise, the applicants shall suffer an irreparable loss and injury." 3. Learned counsel for the applicants argued that charged Sections are bailable Sections and the learned Magistrate may pass an order taking cognizance if he so desires by proceeding under Chapter XV of the Code of Criminal Procedure. It is further argued that the revisional court has also not considered the said aspect of the matter and dismissed the revision preferred against the order passed by the Magistrate. It is further argued that the order impugned orders have been challenged and reliance has been placed to explanation 2(d) of the Code of Criminal Procedure. It is argued that no permission was taken under Section 155 (2) Cr.P.C. and charge sheet has been submitted in non cognizable offence. Learned Counsel has relied upon a Judgement of Hon'ble Apex Court reported in 2009 (64) ACC 296 M/s Eicher Tractor Ltd. and others Vs. Harihar Singh and another; (1996) 11 Supreme Court Cases 557: Keshav Lal Thakur Vs. State of Bihar as well as another reported Judgement of this Court reported in 2008 (1) JIC 220 (All) Awdesh Kumar and others Vs. State of U.P. and others in support of his contention. 4. Learned A.G.A. has stated that no useful purpose would be served in issuing notice to the opposite party no. 2 as is will only delay the proceedings of the present case. 5. The order taking cognizance has been passed and it is argued that charge sheet has been submitted under the charged sections which are non cognizable offence. Reliance has been place on Explanation to Section 2(d) of Code of Criminal Procedure, which reads 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 complaint." 6. Therefore, on the basis of Explanation which has been interpreted in a Single Judge decision of this Court reported in 2007 (3) JIC 654 (All); 2007 (9) ADJ 478 Dr. Rakesh Kumar Sharma Vs. State of U.P. and another, it has been held that when the charge sheet is only of non cognizable offences, in view of the aforesaid provision, the charge sheet should be treated as a complaint. The argument is well founded and the order taking cognizance/summoning is set aside and as such the order of the revisional court is also set aside. Now the Magistrate may pass an order taking cognizance if, he so chooses, by proceedings in this matter as a complaint case under Chapter XV of the Code of Criminal Procedure. He can also keep this fact in mind that in view of the proviso (a) to Section 200 Cr.P.C., which reads as follows:- "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 discharge of his official duties or a Court has made the complaint;"
Decision
7. With these observations, this application is finally disposed of. Order Date :- 8.8.2024 Naresh (Samit Gopal,J.)