State of U.P. and Another v. Party

Sri Mayank Awasthi, learned A.G.A for the State respondents.

2. The instant application under Section 528 B.N.S.S. has been filed seeking quashing of the Charge-sheet No. Nil of 2016 dated and cognizance order dated 01.08.2016 and the entire proceedings in Case No. 672 of 2016 (State vs. Ganga Prasad and Others) under Sections 323, 504 I.P.C. arising out of N.C.R. No. 12 of 2015, P.S.- Pipri, District- Kaushambi, pending in the court of the Gram Nyayalaya Chail, District- Kaushambi.

3. Learned Counsel for the applicants submits that in the instant case initially an N.C.R. No. 12 of 2015 was lodged by the opposite party no.2 against the applicants herein. Subsequent thereto, he moved an application under Section 155(2) Cr.P.C., which was allowed and the matter was investigated by the Investigation Agency. As per the order dated 20.05.2015 passed by In-charge Judicial Magistrate- Kaushambi, the matter was investigated and the charge-sheet for the offence under Sections 323, 504 I.P.C. was filed against the applicants herein. Subsequent thereto, vide order dated 06.08.2016, the learned Magistrate took cognizance of the charge-sheet and summoned the accused persons. Subsequent thereto, since the applicants did not appear, 2 NA528 No. 13746 of 2025 the Bailable Warrants were issued against them. On 24.10.2017, application for recall of Bailable Warrants was submitted, which was allowed vide order dated 31.10.2017 against two of the accused persons, namely Bachcha Lal and Fauji Lal and they were asked to submit personal bond of Rs. 10,000/-. Subsequent thereto, the charges were framed against the applicants herein in the year 2018. However, the complainant and the witnesses did not appear before the trial court. Thus, the Non-Bailable Warrants were issued against the witnesses on

03.08.2024 and the same is continuing.

4. Learned counsel for the applicants submits that in view of the provisions of Section 2(d) of Code of Criminal Procedure, 1973, it was the duty of the Magistrate that when a charge-sheet is filed only for non- cognizable offences, the said charge-sheet ought to have been treated as a 'Complaint' and the Investigation Officer as the 'Complainant' and he cannot straightaway take cognizance of the charge-sheet. Thus, the entire proceeding of the instant case are not sustainable. Thus, he seeks quashing of the entire proceeding of the instant case against all the applicants.

5. Per contra learned A.G.A. for the State does not dispute the legal position that once the charge-sheet is filed for non-cognizable offences, the said charge-sheet is required to be treated as a 'Complaint' case and the police officer who submitted the charge-sheet to be treated as a 'Complainant'. Therefore, there is illegality in the order dated 01.08.2016, straightaway taking the cognizance and summoning the accused persons. However, since the accused persons have appeared in the year 2017 itself and did not raise any objection to the proceedings against them and more than eight years have passed, at this stage the instant application under Section 528 B.N.S.S. has been filed and no prejudice will be caused to the applicants herein as it is only a procedural defect and it doesn't alter the charges leveled against the applicants. Thus, no interference is called for at this belated stage in the aforesaid proceedings.

6. Having heard the rival submissions so made by learned counsel for the parties, this Court has carefully gone through the record of the case. The facts of the case have already been noted hereinabove. 3 NA528 No. 13746 of 2025

7. Before proceeding further it would be relevant to take note of provisions under Section 2(d) of the Code of Criminal Procedure, 1973, which reads as under: "Section 2(d) of Code of Criminal Procedure, 1973

2. Definitions.--In this Code, unless the context otherwise requires,-- (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."

8. From the aforesaid provisions specially the explanation under Section 2(d) of Cr.P.C., it is apparent that when a charge-sheet is filed by the police officer for the non-cognizable offence, the same is required to be treated as a 'Complaint' case and the police officer who submitted the charge-sheet to be treated as a 'Complainant' and the matter is required to be proceeded as a complaint case. However, since the applicants herein did not raise any objection to the aforesaid proceedings for more than eight years despite their appearance before trial court in the year 2017, subsequent thereto, charges were framed in presence of the the applicants and the case has already proceeded for the prosecution evidence. However, no witness has yet turned up in the instant case. Though there is a procedural lapse on the part of the learned Magistrate, however, this Court does not find any prejudice caused to the applicants herein as they deliberately did not raise any objection to the proceedings for such a long period of eight years. Therefore, this Court do not find any good ground to set-aside the order dated 01.08.2016 at this belated stage. However, ends of justice would be sub-served by modifying the order dated

01.08.2016 to be a cognizance order on the complaint that is the charge- sheet submitted by the Investigation Officer in the instant case. All subsequent proceedings which were for the appearance of the accused 4 NA528 No. 13746 of 2025 persons and framing of charges do not want any interference at this stage. Henceforth, learned Magistrate is directed to proceed in the instant case by treating the same as the complaint case and shall follow the procedure provided for the same.

9. With the aforesaid observation the instant application is disposed of. October 6, 2025 Shubham Arya (Anish Kumar Gupta,J.) SHUBHAM ARYA High Court of Judicature at Allahabad

Sri Mayank Awasthi, learned A.G.A for the State respondents.

2. The instant application under Section 528 B.N.S.S. has been filed seeking quashing of the Charge-sheet No. Nil of 2016 dated and cognizance order dated 01.08.2016 and the entire proceedings in Case No. 672 of 2016 (State vs. Ganga Prasad and Others) under Sections 323, 504 I.P.C. arising out of N.C.R. No. 12 of 2015, P.S.- Pipri, District- Kaushambi, pending in the court of the Gram Nyayalaya Chail, District- Kaushambi.

3. Learned Counsel for the applicants submits that in the instant case initially an N.C.R. No. 12 of 2015 was lodged by the opposite party no.2 against the applicants herein. Subsequent thereto, he moved an application under Section 155(2) Cr.P.C., which was allowed and the matter was investigated by the Investigation Agency. As per the order dated 20.05.2015 passed by In-charge Judicial Magistrate- Kaushambi, the matter was investigated and the charge-sheet for the offence under Sections 323, 504 I.P.C. was filed against the applicants herein. Subsequent thereto, vide order dated 06.08.2016, the learned Magistrate took cognizance of the charge-sheet and summoned the accused persons. Subsequent thereto, since the applicants did not appear, 2 NA528 No. 13746 of 2025 the Bailable Warrants were issued against them. On 24.10.2017, application for recall of Bailable Warrants was submitted, which was allowed vide order dated 31.10.2017 against two of the accused persons, namely Bachcha Lal and Fauji Lal and they were asked to submit personal bond of Rs. 10,000/-. Subsequent thereto, the charges were framed against the applicants herein in the year 2018. However, the complainant and the witnesses did not appear before the trial court. Thus, the Non-Bailable Warrants were issued against the witnesses on

03.08.2024 and the same is continuing.

4. Learned counsel for the applicants submits that in view of the provisions of Section 2(d) of Code of Criminal Procedure, 1973, it was the duty of the Magistrate that when a charge-sheet is filed only for non- cognizable offences, the said charge-sheet ought to have been treated as a 'Complaint' and the Investigation Officer as the 'Complainant' and he cannot straightaway take cognizance of the charge-sheet. Thus, the entire proceeding of the instant case are not sustainable. Thus, he seeks quashing of the entire proceeding of the instant case against all the applicants.

5. Per contra learned A.G.A. for the State does not dispute the legal position that once the charge-sheet is filed for non-cognizable offences, the said charge-sheet is required to be treated as a 'Complaint' case and the police officer who submitted the charge-sheet to be treated as a 'Complainant'. Therefore, there is illegality in the order dated 01.08.2016, straightaway taking the cognizance and summoning the accused persons. However, since the accused persons have appeared in the year 2017 itself and did not raise any objection to the proceedings against them and more than eight years have passed, at this stage the instant application under Section 528 B.N.S.S. has been filed and no prejudice will be caused to the applicants herein as it is only a procedural defect and it doesn't alter the charges leveled against the applicants. Thus, no interference is called for at this belated stage in the aforesaid proceedings.

6. Having heard the rival submissions so made by learned counsel for the parties, this Court has carefully gone through the record of the case. The facts of the case have already been noted hereinabove. 3 NA528 No. 13746 of 2025

7. Before proceeding further it would be relevant to take note of provisions under Section 2(d) of the Code of Criminal Procedure, 1973, which reads as under: "Section 2(d) of Code of Criminal Procedure, 1973

2. Definitions.--In this Code, unless the context otherwise requires,-- (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."

8. From the aforesaid provisions specially the explanation under Section 2(d) of Cr.P.C., it is apparent that when a charge-sheet is filed by the police officer for the non-cognizable offence, the same is required to be treated as a 'Complaint' case and the police officer who submitted the charge-sheet to be treated as a 'Complainant' and the matter is required to be proceeded as a complaint case. However, since the applicants herein did not raise any objection to the aforesaid proceedings for more than eight years despite their appearance before trial court in the year 2017, subsequent thereto, charges were framed in presence of the the applicants and the case has already proceeded for the prosecution evidence. However, no witness has yet turned up in the instant case. Though there is a procedural lapse on the part of the learned Magistrate, however, this Court does not find any prejudice caused to the applicants herein as they deliberately did not raise any objection to the proceedings for such a long period of eight years. Therefore, this Court do not find any good ground to set-aside the order dated 01.08.2016 at this belated stage. However, ends of justice would be sub-served by modifying the order dated

01.08.2016 to be a cognizance order on the complaint that is the charge- sheet submitted by the Investigation Officer in the instant case. All subsequent proceedings which were for the appearance of the accused 4 NA528 No. 13746 of 2025 persons and framing of charges do not want any interference at this stage. Henceforth, learned Magistrate is directed to proceed in the instant case by treating the same as the complaint case and shall follow the procedure provided for the same.

9. With the aforesaid observation the instant application is disposed of. October 6, 2025 Shubham Arya (Anish Kumar Gupta,J.) SHUBHAM ARYA High Court of Judicature at Allahabad