- (1.) R. K. Rastogi, J. This is an application under Section 482 Cr. P. C. for gashing the proceedings of Criminal Case No. 540 of 2004, State v. Ram Sewak, under Section 504 I. P. C. , P. S. Pahasu District Bulandshahr pending in the Court of Civil Judge (Jr. Division)/judicial Magistrate, Khurja.
(2.) HEARD the learned Counsel for the applicant and the learned A. G. A. for the State. Since in the present case the point involved is legal one, I am deciding it on merits at the admission stage. The facts relevant for disposal of this application under Section 482, Cr. P. C. are that the complainant opposite party No. 2 filed an application under Section 156 (3) Cr. P. C. against the accused applicant and three others containing allegations regarding commitment of offence punishable under Section 307 I. P. C. and under the orders of the Court case crime No. C-47 of 2001 was registered against the accused persons. The police, however, after investigation submitted charge-sheet against the applicant it only under Section 504 I. P. C. and on that charge- sheet the learned Magistrate took cognizance and passed order for summoning the accused and since the accused did not appear, orders were passed for issuing non-bailable warrant against him. Aggrieved with those orders the present application under Section 482 Cr. P. C. has been filed. Learned Counsel for the applicant referred to Explanation to Section 2 (d) of the Cr. P. C. which 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. "
(3.) HE submitted that in the present case originally the F. I. R. was lodged under Section 307 I. P. C. but after investigation 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 the applicant and so a charge-sheet under Section 504 I. P. C. was submitted against the applicant. HE contended that in view of in 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. 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 orders 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.;