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Judgment
C.Y. Somayajulu, J.—Private complaint filed by the first respondent for offences under Chapter XXI I.P.C., when referred to police for investigation by the Magistrate was investigated into by the police and they filed a charge sheet against the petitioners for offences under Chapter XXI IPC, which was taken cognizance of by the learned Magistrate as C C No.168 of 2003. This petition is filed by A.2 and A.3 therein to quash the proceedings in the said C.C.
The contention of the learned counsel for the petitioners is that in view of Section 199(1) Cr.P.C., the learned Magistrate was in error in taking cognizance of a case on a police report the proceedings in the CC are liable to be quashed. The contention of the learned counsel for the first respondent is since offences under Chapter XXI IPC are non cognizable, first respondent filed a private complaint and since the learned magistrate referred the same to police for investigation, police can investigate into a non cognizable offence also, and so the police investigating into the case and filing a charge sheet, should be construed as a case being taken cognizance on the complaint of the first respondent himself.
I am agree with the contention of the learned counsel for the first respondent that in the circumstances stated by him the charge sheet filed by the police should be construed as a complaint filed by the first respondent himself. Section 2(d) and (r) Cr.P.C. define ''complaint'' and '' police report'' respectively and Section 2(d) Cr.P.C. specifically excludes ''police report'' from the definition of ''complaint''. Therefore, it is clear that '' police report'' is not and cannot be a '' complaint''. As per Section 2(r) Cr.P.C. '' police report'' means the report forwarded by the police officer to the magistrate u/s 173(2) Cr.P.C. which is in Chapter XII of Cr.P.C which deals with information to police and their power to investigate. Section 173 Cr.P.C. deals with the report of the police officer on completion of investigation.
Chapter XV Cr.P.C. containing Sections 200 - 203 deals with ''complaints to magistrate''. Since ''complaint'' and ''police report'' are different and since Section 199(1) Cr.P.C. mandates the Court to refrain from taking cognizance of offences punishable under Chapter XXI IPC except on a '' complaint'' made by some person aggrieved by the offence, in view of the language employed in Section 199(1) there is no scope for a Court taking cognizance of an offence punishable under Chapter XXI IPC on a ''police report''. In view of Section 199 Cr.P.C. it is clear that for taking cognizance of an offence under Chapter XXI IPC the Court cannot but and should only follow the procedure in Chapter XV Cr.P.C.
In view of the embargo placed on Courts from taking cognizance of offences under Chapter XXI IPC except on a ''complaint'' by the person aggrieved, the learned magistrate taking cognizance of offences under Chapter XXI Cr.P.C. on ''police report'', is improper and so the proceedings in the C.C. are liable to be and hence are quashed.
Since the proceedings are being quashed on technical grounds, that too because of procedural irregularity committed by the Magistrate in referring the complaint to the police for investigation, and not due to any fault or laches on the part of first respondent, and since the act of the Court should prejudice none, quashing of this complaint would not debar the first respondent from initiating fresh proceedings against the petitioners, if so, wishes.
The Criminal Petition is accordingly allowed and the proceedings in C.C.No. 168 of 2003 are quashed. This order would not debar the first respondent initiating proceedings against the accused under Chapter XXI IPC, afresh as per Section 199(1) Cr.P.C.