Pratyush Kumar, J. - (1.) By the instant application, the applicant seeks for quashing of the entire proceedings of Case No.417 of 2016 ( State Vs.Dinesh Chandra Pathak and another), arising out of N.C.R No. 264 of 2013, under sections 323,504 I.P.C, police station Mariyahun, District Jaunpur, pending in the Court of Special Judicial Magistrate, Ist, Jaunpur, on the ground raised in para 13. It is quoted as below. "That it is submitted that offence under sections 323 and 504 I.P.C are bailable offenses. Section 2(d) of Cr.P.C states that " 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 not include a police report. Thus the present case cannot proceed as State case."
(2.) Sri Shailesh Kumar Shukla, learned counsel appearing for the applicant submits that in the case of non-cognizable offence the charge sheet submitted by the Police Officer would amount to a complaint under section 2 (d) Cr.P.C and charge sheet submitted by him in such matter would be treated as complaint. Therefore, in view of law laid down by this Court that the cognizance taken on the basis of such charge sheet would be in contravention of law and no prosecution can take place. To substantiate his argument, he has referred the following cases.
(3.) Dr. Rakesh Kumar Sharma Vs. State of U.P. and another, 2007 9 ADJ 478, Allahabad High Court. In support of the plea he has placed reliance in paras 5 and 6 of the judgement, quoted as under:- 5. "He submitted that in the present case originally the F.I.R was lodged under section 307 I.P.C but after the Investigation Officer came to the conclusion that no offence under section 307 I.P.C was made out and only a case under Section 504 I.P.C was made out against made out against the applicant and so a charge-sheet under Section 504 I.P.C was submitted against the applicant. He contended that in iew 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 order 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. This application under section 482 Cr.P.C is partly allowed to the above extent only.";