Vijay Kumar Verma - (1.) "Whether after taking cognizance and issuing summons to the accused on the police report disclosing non-cognizable offence after investigation, fresh summoning order is to be passed after following the procedure laid down in Chapter XV of the Code of Criminal Procedure (in short, the Cr. P.C.)", is the main point that falls for consideration in this proceeding under Section 482, Cr. P.C., by means of which the applicants-accused have invoked inherent jurisdiction of this Court praying for quashing the entire proceedings of Criminal Case No. 5513 of 2006, State v. Ajay and others, arising out of Case Crime No. 282 of 2006, under Sections 323 and 504, I.P.C. P. S. Buxa, District Jaunpur pending in the Court of Judicial Magistrate 1st (Court No. 27), Jaunpur.
(2.) SHORN of unnecessary details, the facts leading to the filing of the application under Section 482, Cr. P.C., in brief, are that Sri Ramesh Kumar (opposite party No. 2 herein) had lodged an F.I.R. on 26.5.2006 at P. S. Buxa, District Jaunpur, where a case under Sections 392, 323 and 504, I.P.C. was registered at Crime No. 282 of 2006, against the accused-applicants. After investigation, the police submitted the report (charge-sheet) on 28.6.2006 under the provisions of Section 173 (2), Cr. P.C., under Sections 323 and 504, I.P.C., on which cognizance was taken by learned Judicial Magistrate 1st (Court No. 27) Jaunpur vide order dated 28.9.2006 and the applicants-accused were summoned to face the trial under Sections 323 and 504, I.P.C. When the accused-applicants did not appear in pursuance of the summons, order of issuing bailable warrant was passed against them. Instead of appearing in the trial court, the applicants-accused have approached this Court in this proceeding under Section 482, Cr. P.C., to quash the entire proceedings of criminal case referred to above. I have heard Sri S. K. Dubey, learned counsel for the applicants, learned A.G.A. for the State and perused the entire record. The main contention raised by the learned counsel for the applicants-accused was that after investigation of the case of Crime No. 282 of 2006, the police of P. S. Buxa, (Jaunpur), had submitted charge-sheet under Sections 323 and 504, I.P.C., which are non-cognizable offences, which in view of the Explanaton to Section 2 (d), Cr. P.C., will be deemed to be a complaint and hence, the order dated 28.9.2006 taking cognizance by the learned Magistrate without following the procedure laid down in Chapter XV, Cr. P.C. is wholly illegal and on this ground alone, the entire proceedings of Criminal Case No. 5513 of 2006 arising out of Case Crime No. 282 of 2006 are liable to be quashed. In the alternative, it was submitted by the learned counsel for the applicants that the order dated 28.9.2006 passed by the learned Magistrate be quashed and direction be issued to the learned Magistrate to pass fresh summoning order after following the procedure laid down in Chapter XV, Cr. P.C. The contention of the learned counsel for the applicants was that since the police report (charge-sheet) submitted under the provisions of Section 173 (2), Cr. P.C. which after investigation discloses non-cognizable offence, is deemed to be a complaint in view of the Explanation to Section 2 (d), Cr. P.C., hence cognizance on such police report cannot be taken without recording the statements of the police officer making investigation and witnesses as provided under Sections 200 and 202, Cr. P.C. In support of his contention, the learned counsel for the applicants has placed reliance on the case of Santosh Kumar Trivedi v. State of U. P. and another, 2007 (58) ACC 998 ; Parvesh and another v. State of U. P. and another, 2007 (57) ACC 528 : 2007 (1) ACR 992 ; Dr. Rakesh Kumar Sharma v. State of U. P. and another, 2007 (59) ACC 998 : 2008 (2) ACR 1377 ; State of Bihar v. Chandra Bhushan Singh and others, 2001 (1) UPCRR 165 : 2001 (1) ACR 140 (SC), and two unreported judgments both dated 5.3.2008 passed by this Court in Criminal Misc. Application No. 3111 of 2008 and 3112 of 2008.
(3.) THE learned A.G.A. on the other hand submitted that on submission of the police report (charge-sheet) in Case Crime No. 282 of 2006, the Magistrate has rightly taken cognizance and issue summons against the accused-applicants and hence it is not necessary now to pass fresh summoning order after following the procedure laid down in Chapter XV, Cr. P.C. It was further submitted by learned A.G.A., that the Magistrate concerned may be directed to follow the procedure for trial of the accused as laid down in Chapter XX, Cr. P.C. Having given my thoughtful consideration to the rival submissions made by the learned counsel for the parties, in my considered opinion, the proceedings of Criminal Case No. 5513 of 2006, arising out of Crime No. 282 of 2006, pending in the Court of Judicial Magistrate 1st, Jaunpur cannot be quashed on the basis of the aforesaid submissions made by the learned counsel for the applicants. I entirely agree with the submission of the learned A.G.A., that after taking cognizance on the charge-sheet (deemed complaint), there is no need to pass fresh summoning order after following the procedure laid down in the Chapter XV, Cr. P.C.;