Allahabad High Court
Dr. Santosh Kumar Saxena vs The State And Another on 11 December, 2013
Bench: Zaki Ullah Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 8
Case :- MISC. SINGLE No. - 8102 of 2013
Petitioner :- Dr. Santosh Kumar Saxena
Respondent :- The State And Another
Counsel for Petitioner :- Pranshu Agrawal
Counsel for Respondent :- Govt.Advocate
Hon'ble Zaki Ullah Khan,J.
Heard Sri Pranshu Agrawal, learned counsel for the petitioner as well as Sri Mahendra Pratap Singh Tomar, learned A.G.A. for the State and perused the record.
The police has after investigation submitted a charge-sheet under Section 504 I.P.C. which is non-cognizable. The procedure has been prescribed under Section 2(d) explanation of Cr.P.C. which is as under:-
"(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 non-cognizable offence shall be deemed to be a complaints and the police officer by whom such report is made shall be deemed to be the complainant"
Learned counsel prayed that in view of the explanation of Section 2(d) of Cr.P.C., the Magistrate ought to have registered a complaint case and summoned the station officer and then proceed as a complaint case. In support of his argument, learned counsel for the petitioner cited a judgment of learned Single Judge of this Court in Ghanshyam Dubey @ Litile & Ors. vs. State of U.P. & Another, reported in [2013(2)JIC 830 (All)]. In para 5 of the said judgment, the learned Single Judge has held as under:
"5. It has been provided in the explanation to section 2(d) of the Criminal Procedure Code that a report made by the 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, in view of this explanation, the charge-sheet submitted by the police in the above case under Sections 323, 504, 506 I.P.C. could not be treated to be police case, but it would be deemed to be a complaint and the police officer who submitted the charge-sheet is to be deemed to be the complainant. As such, the order passed by the learned Magistrate for taking cognizance on the charge-sheet as a state case is illegal and is liable to be set aside "
learned counsel expressed his argument on this ruling and argued that the Hon'ble Judge of this Court has passed the order and the facts of the case directly attracts the facts of the instant case. The order passed by the Magistrate suffers from gross irregularities. The part of the order was cured during the revision but the revisional court also did not quash the order.
I have gone through the facts of the case mentioned in the petition as well as the relevant provision of law and Section 2(d) of Cr.P.C. and explanation thereof. There is only one Section in Cr.P.C. in which the Magistrate can take cognizance i.e. Section 190 (1) Cr.P.C.
Section 190 (1) Cr.P.C. is reproduced as under:
"190. Cognizance of offences by Magistrates-section-190 of Cr.P.C.
(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;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed."
There is a provision regarding complaint also. In Section 200 Cr.P.C., the provision has also been mentioned regarding the procedure of the complaint case.
Section 200 of Cr.P.C. is reproduced as under:-
"200. Examination of complainant. A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: 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; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192: Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re- examine them."
It is very clear that when a complaint in writing is made by a public servant acting or purporting to discharge of his official duties then it is not necessary that the complainant be examined but only thing is that the Magistrate has to follow the procedure of the complaint cases i.e. immediately switching over to Section 204 and take cognizance under Section 190(1) (b) Cr.P.C. Therefore, there is no illegality in the order passed by the Magistrate. He has taken cognizance on the report of police and exercised jurisdiction under Section 190(1)(b) of Cr.P.C. By virtue of provision mentioned under Section 200 Cr.P.C., the police officer in discharge of official duty submitted charge-sheet in non cognizable case. The Magistrate is well within his rights and he will initiate the process in accordance with complaint case now. Since the Magistrate has taken cognizance, he has to only follow the procedure of the complaint case. Therefore, there is no need to interfere in the working of the Magistrate. The writ of Certiorari is premature and it is not maintainable.
Accordingly, it is dismissed in limine.
Order Date :- 11.12.2013
akhilesh/-
