Ravindra Singh - (1.) -Heard Sri P. N. Tripathi, learned counsel for the applicants and learned A.G.A. for the State of U. P.
(2.) THIS application has been filed with a prayer to quash the proceeding of Criminal Case No. 50 of 2008, State v. Narendra Bahadur and others, under Sections 323 and 504 I.P.C., P. S. Barsathi, District Jaunpur pending in the Court of learned Judicial Magistrate-I, Jaunpur. The facts in brief of this case are that the O.P. No. 2 Kanta Prasad lodged N.C.R. No. 105 of 2006 under Section 323 and 504, I.P.C. at police station Barsathi thereafter an application under Section 155 (2), Cr. P.C., was filed by O.P. No. 2, the same was rejected on 26.9.2006 by learned A.C.J.M.-I, Jaunpur. The order dated 26.9.2006 passed by learned A.C.J.M.-I, Jaunpur was set aside by learned Additional Sessions Judge, Court No. 1 Jaunpur on 16.3.2007 in Criminal Revision No. 553 of 2006 and the case was remitted to the Court of learned Magistrate concerned to pass a fresh order thereafter the learned A.C.J.M.-I, Jaunpur has passed a fresh order dated 19.4.2007 directing the officer in-charge of police station concerned to investigate the N.C.R. No. 105 of 2006. In pursuance of the order dated 19.4.2007 the N.C.R. No. 105 of 2006 was investigated, after investigation the I.O. submitted the charge-sheet dated 2.7.2007 in the Court of learned A.C.J.M.-I, Jaunpur who took the cognizance on 29.9.2007 subsequently the matter was transferred to the Court of learned Judicial Magistrate-I where it has been numbered as Criminal Case No. 50 of 2008. It is contended by learned counsel for the applicants that in the present case the learned Magistrate concerned has taken the cognizance and summoned the applicants on 29.9.2007 on the basis of the charge-sheet submitted by the I.O. under Sections 323 and 504 I.P.C., both the offences are non-cognizable but according to the Explanation of definition of complaint as defined in Section 2 (d) of, Cr. P.C., which reads as under : 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.) THE present case is covered by the Explanation clause of Section 2 (d), therefore, in the present case the police report (charge-sheet) submitted by the I.O. shall be deemed to be a complaint and the police officer by whom such report is made shall be deemed to be a complainant. THErefore, the commencement of the proceeding shall be in accordance with the procedure prescribed by Code of Criminal Procedure, 1973 in a complaint case. In the present case proper procedure for commencement of the proceeding has not been followed by learned Magistrate concerned, the cognizance taken by the learned Magistrate concerned is illegal, therefore, the proceeding pending in the Court of learned Magistrate concerned are illegal and is liable to be set aside. In reply of the above contention it is submitted by learned A.G.A. that in the present case the charge-sheet has been submitted the same has been filed in the Court concerned because no other mode of filing police report has been provided by the, Cr. P.C. There was no other alternative to the officer in-charge except to file the (Police report) charge-sheet in the Court of learned Magistrate concerned. The learned Magistrate concerned has taken the cognizance on that charge-sheet after perusing the police report. The learned Magistrate concerned has not committed any illegality in taking the cognizance and there is no illegality in the commencement of further proceeding, which shall be as of a complaint case. The present application is devoid of merits, it may be rejected.;