Har Dayal and Others vs State of U.P. and Another

R.N. Misra, J.—By way of this petition, u/s 482 Cr.P.C., the applicants have challenged the entire proceedings of Criminal Case No. 1406 of 2008, u/s 323 I.P.C. pending in the court of Chief Judicial Magistrate, Hathras.

I have heard Sri Pramod Dwivedi, learned Counsel for the applicants and learned A.G.A for the State.

It transpires from the record that on the application of respondent No. 2 Malkhan Singh, the Sasni police of district Hathras registered a non-cognizable case on crime No. 143 of 2008, u/s 323 I.P.C as is evident from Annexure 1 and the police officer got the permission from the Magistrate concerned u/s 155(2) Cr.P.C. and after investigation, submitted charge-sheet (Annexure 3) against the accused-applicants. The learned Chief Judicial Magistrate vide order dated 11-7-2008 (Annexure 4) took cognizance and proceeded as State case. The accused-applicants moved application (Annexure 5) before the learned Magistrate to recall order dated 11-7-2008 taking cognizance. In that application, the procedure adopted by the trial court was also challenged. The learned Magistrate rejected that application vide order dated 11-9-2008 (Annexure 6) and aggrieved by the same this petition, u/s 482 Cr.P.C. has been preferred.

As regards rejection of application of accused-applicants for recalling order taking of cognizance is concerned that is legal and correct. Learned Counsel for the applicants has also conceded this legal position during his argument but as regard objection regarding procedure is concerned that has force.

It has been contended by learned Counsel for the applicants that when non-cognizable case is investigated by the police after getting permission, u/s 155(2) Cr.P.C. and submitted charge-sheet, the procedure of complaint case should be followed. The word "complaint" has been, defined u/s 2(d) of Cr.P.C. which runs as under:

2(d): - "Complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.

From the above definition, it is clear that when after investigation, the commission of non-cognizable Offence is disclosed and police officials conducting investigation submit charge-sheet u/s 190(b) Cr P.C. that police report has to be treated as complaint and the police officer submitting report shall be treated as complainant. Naturally when the police report has been treated as complaint, the procedure for complaint case shall be adopted for trial of the offence. No doubt, when on such police report, the cognizance is taken, it is not necessary for the Magistrate concerned to examine the complainant u/s 200 Cr.P.C. because it will be treated as complaint by the public servant acting in discharge of his official duty. His personal attendance on each and every date can also be dispensed with by the learned Magistrate as has been given u/s 256 Cr.P.C. Similar provision has been given u/s 249 Cr.P.C. and the discretion has been given to the Magistrate for dismissing or not dismissing the complaint in absence of complainant. This argument of learned Counsel for the applicants has no force that the cognizance taken by the learned Magistrate on the charge-sheet in non-cognizable case is bad and vitiates the entire proceedings. In this connection I would like to refer provisions of Section 460 Cr.P.C. which runs as under,

Irregularities which do not vitiate proceedingsIf any Magistrate not empowered by law to do any of the following things, namely:

(a) to issue a search warrant u/s 94;

(b) to order, u/s 155, the police to investigate an offence;

(c) to hold an inquest u/s 176;

(d) to issue process u/s 187 for the apprehension of a person within his local jurisdiction who has committed an offence outside the limits of such jurisdiction;

(e) to take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of Section 190;

(f) to make over a case under Sub-section (2) of Section 192;

(g) to tender a pardon u/s 306;

(h) to recall a case and try it himself u/s 410; or

(i) to sell property u/s 458 or Section 459,

erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered.

Sub-section (5) of Section 460 Cr.P.C. goes to this extent that even if cognizance is taken, Clause (a) or (b) of Sub-section (1) of Section 190 Cr.P.C. by a Magistrate not being empowered to do so, even then it will not vitiate the proceedings. In the present case before me, the police investigated the non-cognizable case with the permission of Magistrate u/s 155(2) Cr.P.C. and submitted charge-sheet, therefore, cognizance taken was u/s 190 Sub-section (1), Clause (b), Cr.P.C. for which the learned Magistrate was empowered. Nowhere in Section 460 Cr.P.C. it has been given that such procedural: mistake will vitiates the proceedings.

In view of above, the petition u/s 482 Cr.P.C. is partly dismissed and partly allowed. Learned Magistrate is directed to adopt procedure of complaint for the trial. The cognizance taken by him is not erroneous.