State of Punjab vs Baldev Singh

V.S. Aggarwal, J.

This revision petition has been filed by the State of Punjab directed against the order passed by the learned Chief Judicial Magistrate, Ropar dated 19.1.1987. The relevant facts are that a case was registered at Police Station Nangal (FIR No. 20 dated 16.3.1986). The Judicial Magistrate, Anandpur Sahib committed the respondents to the Court of Sessions with respect to offence punishable under Sections 304/34 IPC. The learned Sessions Judge, Ropar on 30.7.1986 found that no offence exclusively triable by the Court of Sessions was made out against the respondents. Accordingly, under Section 228 of the Code of Criminal Procedure, the Sessions Judge remitted the case to be proceeded and tried in accordance with law.

The learned Chief Judicial Magistrate, Ropar held that a case only under Section 323 IPC would be made on account of the two injuries on the leg of Kewal Kishan. It is a noncognizable offence. The police could not investigate the same without the permission of the Judicial Magistrate. The investigation, therefore, was vitiated because it was conducted without the necessary permission. Accordingly, the learned trial court dropped the proceedings permitting the complainant, if so advised to file a criminal complaint. Aggrieved by the same, the present revision petition has been filed by the State of Punjab.

When the same was listed for hearing, none appeared for the respondents. In these circumstances, the revision petition which has been pending for 10 years has to be decided without hearing the respondents'' learned counsel.

On behalf of the State it was alleged that the learned Judicial Magistrate was not justified in dropping the proceedings merely because it was found that the offence punishable under Section 323 IPC which is a non cognizable offence was drawn.

To appreciate the said argument, reference can be made to the expression "cognizable offence" defined under Section 2(c) and "non cognizable" offence defined under Section 2(1) of the Code of Criminal Procedure. The same read :

"2(c). "cognizable offence" means an offence for which, and "cognizable case" means a case in which a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant."

.... .... ..... ....

2(1). "noncognizable offence" means an offence for which, and "noncognizable case" means a case in which, a police officer has no authority to arrest without warrant."

It is apparent from the above quoted definitions of cognizable and non cognizable offence that in case of noncognizable offence, the police has no authority to arrest without warrants. There is no controversy that the offence punishable under Section 323 IPC is a noncognizable offence. Subsection (2) of Section 155 of the Code of Criminal Procedure further prescribes that no police office shall investigate a noncognizable case without order of a Magistrate having power to try such case or commit the case for trial. Relying on the said provisions, the learned trial court held that since investigation had been effected pertaining to a noncognizable case without order of the Magistrate, the case as against the respondents has to be dropped. But in this regard we cannot lose sight of the expression "complaint" defined under Section 2(d) of the Code of Criminal Procedure. It is being reproduced below for the sake of facility :

"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;

Explanation. A report made by a police officer in a case which discloses, after investigation, the commission of a noncognizable 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."

The explanation to Section 2(d) of the Code of Criminal Procedure clinches the issue in favour of the petitioner. It clarifies that if a report has been made which discloses commission of a noncognizable offence after investigation, then it should be deemed to be a complaint. The Police Officer by whom such report is made shall be deemed to be the complainant.

This question had been considered by the Calcutta High Court in the case of Biswanath Saraf v. The State, 1978 Cri.L.J. 318. Herein the investigation had started under the old Criminal Procedure Code. At that time, the offences were noncognizale. Subsequently, the offences were made cognizable under the Code of Criminal Procedure, 1973. The investigation had been conducted without the order of the Court. Section 2(d) of the Code of Criminal Procedure was discussed. It was held that it could be taken as a complaint by the police officer. The findings of the Court were :

"Even if it is held that since the investigation was under the old Code and at that time the offences were noncognizable, the learned Magistrate could have taken cognizance on the basis of the challan for noncognizable offences which according to explanation to Section 2(d), is a complaint. The explanation to Section 2(d) provides that a report made by a police officer in a case which discloses, after investigation the commission of noncognizable offence, shall be deemed to be a complaint and the police officer by whom the report is made shall be deemed to be the complainant. Therefore, under Section 190(1)(a) the learned Magistrate could take cognizance on the basis of a complaint as the challan in the present case would be and the police officer being a public servant he need not be examined under Section 200 of the Criminal P.C. by virtue of Section 200(a)."

Same question was considered by the Kerala High Court in the case of P. Kunhimuhammed v. State of Kerala, 1981 Cri.L.J. 356. The Court considered as to what is the effect when a case is investigated by the police and it is a noncognizable offence that is made out. The Kerala High Court taking note of Section 2(d) of the Code of Criminal Procedure held that report of the police officer despite the investigation being contrary to Section 155(2) of the Code of Criminal Procedure could be treated as a complaint.

The facts of the present case clearly show that the case was registered with respect to the offence punishable under Section 304/34 IPC. It is a cognizable offence. After investigation, the learned Sessions Judge when the case was committed to the Court of Sessions found that offence drawn was not triable by the Court of Sessions. It was subsequently found by the Chief Judicial Magistrate, Ropar that a noncognizable offence was made out. This became apparent after investigation. Therefore, explanation to Section 2(d) of the Code of Criminal Procedure would come into play because after the investigation was completed it was disclosed that a noncognizable offence has been committed. Therefore, the Court though could take cognizance under Section 190 Code of Criminal Procedure should have treated the same as a complaint and the police officer who submitted the report as a complainant. The order passed by the learned trial court, therefore, cannot be justified.

For these reasons the revision petition is allowed. The impugned order is set aside. It is directed that the learned trial court would treat it as a complaint filed by the police officer who submitted the report under Section 173 Cr.P.C. and would proceed in accordance with law.