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2008 Supreme(All) 77
[2008(2) ADJ 253]
ALLAHABAD HIGH COURT
BEFORE : AMAR SARAN, J.
AWADHESH KUMAR AND OTHERS ............Applicants
Versus
STATE OF U.P. AND ANOTHER .........Opposite Parties
(Criminal Misc. Application No. 28969 of 2007, decided on 9th January, 2008)
Counsel :
R.S. Ram and Paras Nath Bind for the Applicants; A.G.A. for the Opposite Parties.
Headnote:(A) Criminal Procedure Code, 1973—Sections 2(d), Explanation and 200, Proviso—Cognizance of offence—Challenging of—Allegation that charge-sheet has only been submitted under Sections 323 and 504 of IPC—In view of decision in Dr. Rakesh Kumar Sharma’s case [2007(9) ADJ 478 (All)]—When charge-sheet is only of non-cognizable offences—Also in view of Section 2(d), Explanation of Cr.P.C.—Such charge-sheet should be treated as a complaint—Hence, order taking cognizance set aside. [Paras 3 and 4]
(B) Criminal Procedure Code, 1973—Section 200, Proviso—Complaint—Examination of—Necessity—If complainant is a public servant—Gives information in writing—Who is acting in discharge of its official duties—It may not be necessary to examine complainant and witnesses. [Paras 4 and 5]
Hon’ble Amar Saran, J.—Heard learned Counsel for the applicants and the learned AGA.
2. Learned A.G.A. concedes that no useful purpose would be served in issuing notice to the opposite party No. 2, as it would only lead to delay of disposal of this application and prays that the application may be decided at this stage after hearing learned Counsel for the applicants and State.
3. An order dated 6-9-2007 taking cognizance has been challenged in this case and it is argued that charge-sheet has only been submitted under Sections 323, 504, IPC. Reliance has been placed on the Explanation to Section 2(d) of Code of Criminal Procedure, which reads 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.”
4. Therefore, on the basis of aforesaid Explanation, which has been interpreted in a Single Judge decision of this Court in Dr. Rakesh Kumar Sharma v. State of U.P. and another, 2007(9) ADJ 478, it has been held that when the charge-sheet is only of non-cognizable offences, in view of the aforesaid provision, the charge-sheet should be treated as a complaint. The argument is well founded and the order taking cognizance is set aside. Now the Magistrate may pass an order taking cognizance if, he so chooses, by proceeding in this matter as a complaint case under Chapter XV of the Code of Criminal Procedure. He can also keep this fact in mind that in view of Proviso (a) to Section 200, Cr.P.C., which reads as follows :
“Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses—
(a) if a public servant acting or purporting to act in discharge of his official duties or a Court has made the complaint.”
5. That is if the complainant who gives the information in writing is a public servant, who is acting in discharge of its official duties, it may not be necessary to examine the complainant and the witnesses.
With these observations, this application is allowed.
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