Surendra Singh - (1.) THE applicants by filing this application have sought to quash the orders dated 7.6.2007 and 27.7.2007, passed by Additional Chief Judicial Magistrate, Aligarh in Criminal Case No. 810 of 2007, State v. Maya Devi and others, under Section 323, I.P.C., Police Station Shasni Gate, district Aligarh, pending in the Court of Additional Chief Judicial Magistrate, Court No. 1, Aligarh.
(2.) BRIEFLY put, the facts of the case may be summarized as follows : An F.I.R. was lodged by the respondent No. 2-Har Charan Sharma against the applicant under Sections 147, 323 and 380, I.P.C. vide Case Crime No. 40 of 2007 at Police Station Shasni Gate, district Aligarh on 7.2.2007 at 7.35 p.m. regarding the incident alleged to have taken place on 12.1.2007 at 7.00 p.m. The police after investigation of the case submitted charge-sheet against the accused applicant under Section 323, I.P.C. and on that charge-sheet Magistrate took cognizance and summoned the applicant. Aggrieved with that order, the present application has been filed. Heard learned counsel for the applicants and learned A.G.A. and perused the material placed on record. The contention of the learned counsel for the applicant is that the offence under Section 323, I.P.C. being non-cognizable, the police lacks jurisdiction to file charge-sheet and, therefore, the charge-sheet so laid being non-est in the eye of law should be quashed.
(3.) LEARNED A.G.A. opposed the argument of the learned counsel for the applicant and stated that it has not been alleged in the order whether the charge-sheet filed was treated as a complaint case or police challany case. He has further submitted that no prejudice has been caused to the applicant by the impugned order. Coming to the merit of the contentions made by the learned counsel for the applicant, undisputedly the aforesaid case cannot continue as one arising out of police report because said report can be filed when the offence is cognizable. Therefore, the question arises whether entire criminal proceedings should be brought to a halt and charge-sheet laid is liable to be quashed? Reference may be made to Explanation to Section 2 (d) of the Code of Criminal Procedure. Explanation to Clause (d) to Section 2 of the Code provides : "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." ;