Allahabad High Court
Rakesh Singh And 2 Others vs State Of U.P. And Anr on 2 August, 2021
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 49
Case :- APPLICATION U/S 482 No. - 9742 of 2021
Applicant :- Rakesh Singh And 2 Others
Opposite Party :- State Of U.P. And Anr
Counsel for Applicant :- Pradeep Singh Sengar
Counsel for Opposite Party :- G.A.
Hon'ble Vivek Agarwal,J.
1. Heard Sri Gopal Krishna Pandey, learned counsel for the applicants and Sri Vikas Goswami, learned AGA for the State.
2. Learned counsel for the applicants submits that this Application has been filed seeking quashing of the impugned charge-sheet No.NIL of 2002 dated 6.04.2002 submitted in Case No.859 of 2014 arising out of NCR No.08 of 2002 dated 09.02.2002, under Sections 323 and 504 IPC, Police Station-Rasra, District-Ballia.
3. Learned counsel for the applicants submits that NCR was recorded on 09.02.2002 against the present applicants, for an incident which took place on 08.02.2002. It is submitted that statements of witnesses were recorded and, thereafter, charge-sheet was filed, on which cognizance was taken by the learned Additional Chief Judicial Magistrate-I, Ballia on 20.06.2002. It is submitted that in terms of the provisions contained in Section 2(d) of Cr.P.C., court concerned was not entitled to take cognizance on the charge-sheet.
4. In his turn, Sri Vikas Goswami, learned AGA for the State has placed reliance on the judgment of Rajasthan High Court in case of Devi Singh and another Vs. Shiv Ram Singh; AIR 1960 Raj. 150, and submits that if police investigation is carried out on the instructions of the Magistrate, as has been done in this case, and is mentioned in the Application itself that on 13.02.2002, learned Additional Chief Judicial Magistrate-I Ballia directed the Police to investigate the matter, then charge-sheet can be filed and cognizance can be taken by the Magistrate.
5. In this regard, reliance is placed on para-5 of the judgment which reads as under:-
"It may be observed that the word 'complaint' has been defined under Section 4 (h), Cr. P.C., and according to that definition, it means "an allegation made orally or in writing to a Magistrate with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence, but it does not include the report of a Police officer."
It is quite clear from this definition that a report of the Police officer is not included within the meaning of the term 'complaint'. In the present case, the Magistrate has taken cognizance on a report made by a Police officer and therefore it cannot be said that the case proceeded on a complaint. As pointed out above, the learned Sessions Judge seems to be under the impression that simply because the offence was not cognizable, the Police officer could not make a report and the report made by him should only be treated as a complaint. The learned Sessions Judge is clearly mistaken in his view that the Police can make a report only in a cognizable case and that it cannot make a report in any non-cognizable case.
It seems that the attention of the learned Sessions Judge was not invited to the provisions of Section 155 which permit, a Police officer to make an investigation even in a non-cognizable case, though he cannot do so without an order of a Magistrate of the First Class or Second Class having power to try such case or commit the same for trial. It cannot be denied with any justification that if a Police officer makes an investigation into a non-cognizable case on the orders of a Magistrate and if he makes a report after investigation, it will be a report covered by Section 173, Cr. P. C., and would be a Police report and not a private complaint."
6. After hearing learned counsel for the parties and agreeing with learned counsel for the applicants, that provisions contained in Cr.P.C., 1898, where Section 4 (1)(h) defines word 'complaint' does not contain an explanation and, therefore, in that context, judgment rendered by Rajasthan High Court in Devi Singh and another (supra) is not applicable, inasmuch as, the Code of Criminal Procedure, 1973, below Section 2(d) contains an explanation which provides that 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 complaint, and the police officer by whom, such report is made shall be deemed to be the complainant.
7. In view of such explanation, impugned order is quashed.
8. Matter is remitted to the Court of learned Additional Chief Judicial Magistrate-I Ballia for treating the case to be a complaint case, and the I.O. as a complainant and, thereafter proceed with the matter in accordance with law.
9. In above terms, Application is disposed off.
Order Date :- 2.8.2021
Ashutosh
