Andhra Pradesh High Court - Amravati
Satish Kumar Arya, vs The State Of Andhra Pradesh on 19 October, 2022
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
CRIMINAL PETITION No.2369 of 2022
ORDER:
A complaint was filed against the petitioner and registered
as Crime No.37 of 2021 in IV Town Police Station,
Visakhapatnam under Sections 420, 465, 468 and 471 of I.P.C.
2. The gravamen of the charge was that the petitioner
had relied upon fabricated certificates of study to create an
image for himself and thereby induced people by cheating.
3. The Investigating Officer, after investigation, filed a
preliminary charge sheet in which it was stated that a
supplementary charge sheet would be filed after receiving
further information and verification of the genuineness of the
certificate of the accused (the petitioner herein).
4. After receipt of the preliminary charge sheet, the I
Additional Chief Metropolitan Magistrate at Visakhapatnam had
taken cognizance of the matter and the case was numbered as
C.C.No.4373 of 2021.
5. The typed copy of the order of cognizance filed by the
petitioner shows that cognizance was taken on 20.11.2021
treating the preliminary charge sheet as a charge sheet.
6. The petitioner aggrieved by the said cognizance
taken by the Magistrate has approached this Court by way of
the present criminal petition seeking an order for setting aside
the impugned order of cognizance dated 20.11.2021.
7. Sri P.Veera Reddy learned Senior Counsel, appearing
for Sri G.Rama Gopal, learned counsel for the petitioner submits
that a Magistrate could take cognizance under Section 190
Cr.P.C only after a police report had been filed on the facts of
the case. He submits that the term "police report" as defined in
Section 2(r) of the Criminal Procedure Code defines "police
report" to mean "a report forwarded by a police officer to a
Magistrate under sub-section (2) of Section 173. In turn, Section
173 of Cr.P.C states that a report under 173(2) can only be filed
after investigation has been completed. He would also point out
to Section 173(8) which permits the investigating officer to file
supplementary charge sheets in the event of further
investigation throwing up fresh further evidence relating to the
case.
8. Sri P.Veera Reddy, the learned Senior Counsel also
relies upon a Judgment of the erstwhile High Court of Andhra
Pradesh reported in Bandi Kotayya vs. State
(S.H.O.Nandigama and others)1 at paragraph No.10 which
reads as follows:
"It may now be taken as settled by a recent decision of the
Supreme Court in Pravin Chandra Modi v. The State of
Andhra Pradesh Criminal Appeal No. 49 of 1964 : (AIR 1965
SC 1185), that a police report need not necessarily be one
under Section173, Criminal Procedure Code and Section
190 (1) (b) takes in reports other than those contemplated
by Section 173. In other words, all reports under Section
173 are police-reports, but all police-reports need not be
reports under Section 173. That being the position, a
preliminary charge-sheet is no doubt a police report, but
the Magistrate holding an inquiry under Section 207-
A Criminal Procedure Code, does not, indeed cannot, take
cognizance of the offence mentioned in that report and
proceed with the inquiry upon receipt of such a report. He
must wait for the report under Section 173, which would be
forwarded to him by the police after completing their
investigation. Only then, can he commence the inquiry as is
apparent from the provisions of Sub-section (1) of Section
207-A Criminal Procedure Code."
9. Sri P.Veera Reddy, the learned Senior Counsel would
contend that in view of the above position of law, the Magistrate
could not have taken cognizance at the stage of a preliminary
charge sheet and should have waited for the final report
described in Section 173(2) being filed.
AIR 1966 Andhra Pradesh 377
10. Sri K.Ratangapani Reddy, learned counsel for the
2nd respondent/complainant submits that the provisions of
Section 190 Cr.P.C make it amply clear that a Magistrate can
take cognizance on the basis of a report given by any person, a
report given by the police and also information given to the
Magistrate or even suo-motu. He submits that in such
circumstances, the information set out in the preliminary charge
sheet can always be treated as information given from any other
source and consequently treat the order of cognizance as a
regular order of cognizance which does not suffer from any
infirmity.
11. Section 190(1) of Cr.P.C provides for a Magistrate to
take cognizance on the basis of information given to him/her
from any one of the three separate sources mentioned therein
which are as follows:
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.
12. The language of sub section (c) of Section 190(1)
elucidates the clear distinction between a police report
mentioned under "b" and information received from any person
under "c". In view of this definition, a Magistrate can take
cognizance on the basis of a police report only if the said report
meets the requirements of the definition under Section 2(r) of
Cr.P.C read with 173(2) of Cr.P.C. The view expressed by the
Division Bench of the erstwhile High Court of Andhra Pradesh
supports this view.
13. In the circumstances, it must be held that the order
of cognizance passed by the Magistrate on 20.11.2021 was not
taken on a final report specified under Section 190(1)(b). As
such, the said order of cognizance is set aside leaving it open to
the Magistrate to await the filing of a final report meet the
requirements of Section 2(r), 173(2) and 191(b) of Cr.P.C before
considering the said final reports for the purposes of taking
cognizance or not.
14. Accordingly, the Criminal Petition is allowed.
As a sequel, pending miscellaneous petitions, if any, shall
stand closed.
____________________________
R. RAGHUNANDAN RAO, J.
19.10.2022
RJS.
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
CRIMINAL PETITION No.2369 of 2022
19.10.2022
RJS
