Chandra Pal and Others vs State of U.P. and Another

Shiv Charan, J.—This application u/s 482, Cr. P.C. has been moved for quashing the proceedings of Criminal Case No. 1892 of 2007, State v. Chandra Pal and others, under Sections 323 and 504, I.P.C., Police Station Jawan District Aligarh pending in the Court of Additional Chief Judicial Magistrate, Court No. 1, Aligarh.

The perusal of the record shows that complainant Mohan Singh lodged an F.I.R. to the police station and then F.I.R. was registered by the police for the offences under Sections 147, 148, 149, 323, 504 and 506, I.P.C. During investigation, the Investigating Officer arrived at the conclusion that no offence is made out for other offences except Sections 323 and 504, I.P.C. and hence charge-sheet was submitted for these offences and the Court took the cognizance for the offences and ordered for issuance of notice.

The main argument of learned Counsel for the applicants is that in view of Section 2(d) of the Code of Criminal Procedure if a charge-sheet is submitted against non-cognizable offence, then it must be treated as complaint case and the procedure as provided for complaint must be adopted. He has placed reliance on a judgment of this Court in Awadhesh Kumar and Ors. v. State of U. P. and Anr. 2008 (2) ADJ 253: 2008 (1) ACR 644. Learned Counsel for the applicants argued that as the learned Magistrate after receipt of the charge-sheet took the cognizance and treated the charge-sheet as police challani case and hence illegality has been committed.

Learned A.G.A. opposed the argument of learned Counsel for the applicants and stated that it has not been alleged in the order that whether the charge-sheet filed was treated as a complaint case or police challani case. He further argued that no prejudice has been caused to the applicants by the impugned order.

I have considered the facts and circumstances of the case as well as legal position, as argued by learned Counsel for the applicant.

Section 2(d) of the Cr. P.C. provides if a charge-sheet is submitted against non-cognizable offence, then it must be treated as complaint and further it has been provided in Explanation that "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.

Hence, in view of this provision, in the present case, the charge-sheet was submitted under Sections 323 and 504, I.P.C. a non-cognizable offence, therefore, it must be treated as complaint and in Explanation it has been provided that the Investigating Officer shall be deemed to be a complainant. Although it has not been made clear by the Magistrate concerned that whether he took the cognizance considering the charge-sheet as complaint or as a police challani case and in view of the provisions of law, it must be treated as complaint case and the procedure as provided for the complaint case must be followed in accordance with the Explanation of Section 2(d) of the Cr. P.C.

Learned Counsel for the applicants argued that if the charge-sheet is to be treated as complaint, then the procedure as provided under Sections 200 and 202, Cr. P.C. must be followed and in the present case, the procedure has not been followed, hence the order of cognizance must be quashed.

As stated above, that the Explanation of Section 2(d) of the Cr. P.C. provides that on submission of police report in a non-cognizable case, the same must be treated as complaint and officer by whom such report is made shall be deemed to be complainant hence it shall be complaint case. In this context, Section 200, Cr. P.C. is also relevant. Undisputedly, if complaint is filed by a private person, then the statement of the complainant shall be recorded and thereafter the evidence u/s 202, Cr. P.C. shall be recorded. But what will be the position if the complainant of the case is a public servant ; whether in that circumstance also, the statement under Sections 200 and 202, Cr. P.C. is to be recorded is to be ascertained. In the proviso to Section 200, Cr. P.C., it has been 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 the discharge of his official duties or a Court has made the complaint...

Hence, if the complainant is a public servant, then complainant need not be examined by the Magistrate and in the present case, in view of the Explanation clause of Section 2(d) of the Cr. P.C., the officer who had submitted the charge-sheet after investigation shall be treated as complaint ; hence the Investigating Officer shall be treated as complainant of the case and the Investigating Officer being a police personnel will be treated as public servant. In view of Section 200, Cr. P.C. statement is not required to be recorded if the complaint is filed by a public servant. Hence, on the discussion made above, prior to taking cognizance by the Magistrate under Sections 200 and 202 of the Cr. P.C., statement of the complainant and witnesses must be recorded. There is exemption of examination u/s 200, Cr. P.C. of the complainant, if he is a public servant and hence the Investigating Officer is not required to be examined u/s 200, Cr. P.C. and thereafter his witnesses u/s 202, Cr. P.C.

With the reasons mentioned above, the order of the Magistrate is only required to be modified and not to be quashed as a whole. The application u/s 482, Cr. P.C. deserves to be allowed partly for treating the charge-sheet as complaint.

The application u/s 482, Cr. P.C. is partly allowed. The order of the A.C.J.M., Court No. 1, Aligarh passed in Case No. 1892 of 2007, State v. Chandra Pal and others, is modified to the extent that charge sheet submitted in the present case by the Investigating Officer shall be deemed as complaint case and the procedure of complaint case shall be followed.