JUDGMENT :

[Manish Kumar, J.]

1. Heard learned counsel for the parties and perused the record.

2. The present petition under Section 482 Cr.P.C. has been filed with the prayer to allow this application and quash the entire proceedings of Case No. 179/2021, arising out of Case Crime No. 0312/2020, under Section 174-A IPC, P.S. Behjoi, District - Sambhal, pending before the Court of learned Chief Judicial Magistrate, Sambhal at Chandausi, to quash the impugned charge-sheet dated 1.9.2020 submitted in the aforesaid case and also to quash the impugned cognizance order dated 11.1.2021 passed by the learned Chief Judicial Magistrate, Sambhal at Chandausi. It has further been prayed to stay the entire proceedings of the aforesaid case.

3. The brief facts of the case are that an F.I.R. being Case Crime No. 192 of 2020 dated 19.5.2020 has been lodged against the applicants under Section 34, 120-B, 504, 302, 149, 148, 147 I.P.C. and Section 3(2)(V) SC/ST Act, 1985. In the said case, despite the non-bailable warrant the applicants had not appeared before Court then the order of proclamation under Section 82 Cr.P.C. was passed and thereafter, the applicants surrendered before the Court below as stated in Para 18 to the application/present petition, which has not been disputed in Para 16 of the counter-affidavit filed on behalf of State. After the applicants enlarged on bail. On 9.7.2020 an F.I.R. has been lodged by the Sub-Inspector against the applicants under Section 174-A IPC Case Crime No. 0312 of 2020 has been registered in which after filing of charge-sheet dated 1.9.2020 the cognizance order dated 11.1.2021 has been passed by the Chief Judicial Magistrate, Sambhal, Chandausi. The present petition/application has been preferred feeling aggrieved by the charge-sheet dated 1.9.2020 and the cognizance order dated 11.1.2021 passed by the Chief Judicial Magistrate.

4. Learned counsel for the applicants has submitted that at no point of time, neither any summon, bailable warrant and non-bailable warrant were ever served upon the applicants nor there is any evidence during the investigation on the record regarding the service or refusal to accept the service or the applicants were not present at the address given before the Court, same has specifically been pleaded in Para 28 of the application/petition, which has not been either denied or disputed by the state in Para 18 of the counter-affidavit.

5. It is further submitted that as per Section 195 Cr.P.C., the lodging of an F.I.R. for Section 174 (A) IPC is not maintainable as per the procedure provided in Cr.P.C., if any proceeding is to be initiated i.e. by filing a complaint in writing either by the public servant concerned, or some other public servant to whom he is administratively subordinate. It is further submitted that in the present case public servant concerned means the Investigating Officer or the officer under whom that Investigating Officer is administratively subordinate. In the case of the applicants the investigating officer was the Circle Officer but the F.I.R. was lodged by the Sub-Inspector. In support of his submission, learned counsel for the applicants has relied upon the judgement and order of this Court dated 20.11.2020 passed in Criminal Misc. Writ Petition No. 12772 of 2020 (Yogenshwar Sood and another v. State of U.P. and 2 others) and the judgement of Hon'ble the Apex Court in the case of Daulat Ram v. State of Punjab, 1962 Supp (2) SCR 812 : AIR 1962 SC 1206.

6. Learned counsel for the applicant has further submitted that the order under Section 82(4) Cr.P.C. was passed on 12.6.2020 and the specific date for appearance of the appellant fixed was 16.7.2020, whereas prior to that date the F.I.R. was lodged on 9.7.2020 which shows the malicious action on the part of the complainant that without waiting the specified date, he proceeded against the applicants.

7. On the other hand, learned A.G.A. has submitted that the applicants had not appeared despite the non-ba