Satish Kumar Singh, Sushil Kumar Singh and Narendra Bahadur Singh vs State of U.P. and Kanta Prasad

Ravindra Singh, J.—Heard Sri P.N. Tripathi, learned Counsel for the applicants and learned A.G.A. for the State of U.P.

This application has been filed with a prayer to quash the proceeding of Criminal Case No. 50 of 2008 (State v. Narendra Bahadur and Ors.) under Sections 323 and 504 I.P.C., P.S. Barsathi, District Jaunpur pending in the court of learned Judicial Magistrate-I, Jaunpur.

The facts in brief of this case are that the O.P. No. 2 Kanta Prasad lodged NCR No. 105 of 2006 u/s 323 and 504 I.P.C. at police station Barsathi thereafter an application u/s 155(2) Cr.P.C. was filed by O.P. No. 2, the same was rejected on 26.09.2006 by learned A.C.J.M.-I, Jaunpur. The order dated 26.09.2006 passed by learned A.C.J.M.-I, Jaunpur was set aside by learned Additional Sessions Judge, Court No. 1 Jaunpur on 16.03.2006 in Criminal Revision No. 553 of 2006 and the case was remitted to the court of learned Magistrate concerned to pass a fresh order thereafter the learned A.C.J.M.-I, Jaunpur has passed a fresh order dated 19.04.2007 directing the officer in-charge of police station concerned to investigate the NCR No. 105 of 2006. In pursuance of the order dated 19.04.2007 the NCR No. 105 of 2006 was investigated, after investigation the I.O. submitted the charge sheet dated 02.07.2007 in the court of learned A.C.J.M.-I, Jaunpur who took the cognizance on 29.09.2007 subsequently the matter was transferred to the court of learned Judicial Magistrate-I where it has been numbered as Criminal Case No. 50 of 2008.

It is contended by learned Counsel for the applicants that in the present case the learned Magistrate concerned has taken the cognizance and summoned the applicants on 29.09.2007 on the basis of the charge sheet submitted by the I.O. under Sections 323 and 504 I.P.C., both the offences are non cognizable but according to the explanation of definition of complaint as defined in Section 2(d) of Cr.P.C. which reads as under:

A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shail be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;

The present case is covered by the explanation Clause of Section 2(d), therefore, in the present case the police report (charge sheet) submitted by the I.O. shall be deemed to be a complaint and the police officer by whom such report is made shall be deemed to be a complainant. Therefore, the commencement of the proceeding shall be in accordance with the procedure prescribed by Code of Criminal Procedure, 1973 in a complaint case. In the present case proper procedure for commencement of the proceeding has not been followed by learned Magistrate concerned, the cognizance taken by the learned Magistrate concerned is illegal, therefore, the proceeding pending in the court of learned Magistrate concerned are illegal and is liable to be set aside.

In reply of the above contention it is submitted by learned A.G.A. that in the present case the charge sheet has been submitted the same has been filed in the court concerned because no other mode of filing police report has been provided by the Cr.P.C. There was no other alternative to the officer in-charge except to file the (Police report) charge sheet in the court of learned Magistrate concerned. The learned Magistrate concerned has taken the cognizance on that charge sheet after perusing the police report. The learned Magistrate concerned has not committed any illegality in taking the cognizance and there is no illegality in the commencement of further proceeding, which shall be as of a complaint case. The present application is devoid of merits, it may be rejected.

Considering the submission made by learned Counsel for the applicants, learned A.G.A. and from the perusal of the record it appears that in the present case the charge sheet has been submitted by police officer in a non-cognizable offence in the court of learned Magistrate concerned who has taken the cognizance after considering the police report (charge sheet) and summoned the applicants to face the trial at the time of taking the cognizance. The learned Magistrate concerned has not expressed the view that the proceeding of this case shall be commenced as a state case, it has been clearly defined in the ''Explanation'' Clause of Section 2(d) of Cr.P.C. relating to the definition of complaint that police report in a case which disclosed after investigation the commission of non cognizable offence, shall be deemed to be complaint and the police officer by whom such report is made shall be deemed to be complaint, there is no controversy on this issue. The issue is whether such police report disclosing the commission of non-cognizable offence may be submitted in the court of a Magistrate concerned and on such report the court concerned is empowered to take the cognizance, to deal with this issue the perusal of Explanation Clause of Section 2(d) is essentially required which provides that such report shall be made, it means it shall be submitted before the court of learned Magistrate concerned. In case such report is made to the court of learned Magistrate concerned, the learned Magistrate concerned shall be under obligation to pass the appropriate order for the purpose of the cognizance. The learned Magistrate concerned is empowered to take the cognizance of any offence after receiving complaint of facts which constitute such offence as defined u/s 190(a) of Cr.P.C. which reads as under:

Cognizance of offences by Magistrates.-(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub-section (2), may take cognizance of any offence

(a) upon receiving a complaint of facts which constitute such offence;

The learned Magistrate concerned is empowered to take cognizance on the basis of a complaint. In such circumstances if the charge sheet submitted by a Police Officer constituting a non cognizable offence, the same shall be deemed as a complaint, the learned Magistrate concerned is always empowered to take the cognizance on such charge-sheet (Police Report). In the present case also the learned Magistrate concerned has taken the cognizance on the basis of the police report which has been submitted by a Police Officer in respect of the commission of non cognizable offence.

The learned Magistrate concerned has not committed any error in taking the cognizance, but the commencement all the further proceedings shall be as a complaint case, not as a state case, therefore, the order taking the cognizance summoning the applicant to face the trial passed by learned Magistrate concerned is not suffering from any illegality or irregularity and there is no illegality in the prosecution of the applicant. Therefore, the prayer for quashing the proceeding of above mentioned case is refused.

However, considering the facts and circumstances of the case it is directed that in case applicants appear before the court concerned within 30 days from today and apply for bail, the same shall be heard and disposed of on the same day by the courts below in accordance with the provisions of law.

With this direction, this application is finally disposed of.