Sashikant Rajguru vs State
2010 Latest Caselaw 1479 Del

2
*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+                     Crl.M.C. No.3690/2009

%                     Reserved on:      16th March, 2010
                      Date of Decision: 17th March, 2010

#     SASHIKANT RAJGURU                          ..... Appellant
!                Through:        Ms. Kamal Joshi, Adv.


                      versus


$     STATE                                 ..... Respondent
^                     Through:     Mr. Jaideep Malik, APP

*     CORAM:
      HON'BLE MR. JUSTICE V.K. JAIN


      1.    Whether the Reporters of local papers
            may be allowed to see the judgment?        No

      2.    To be referred to the Reporter or not?     No

      3.    Whether the judgment should be             No
            reported in the Digest?



: V.K. JAIN, J.

1. This is a petition under Section 482 of the Code of Criminal

Procedure against the order dated 20th April, 2009 whereby the

learned Additional Sessions Judge dismissed a Revision Petition

filed by the petitioner against the charge framed against him

under Section 506 of IPC.

2. The case of the prosecution is that the appellant had

repeatedly raped the prosecutrix between 14.8.2000 to 5.3.2001.

The FIR was accordingly registered under Section 376 of IPC

and chargesheet against the petitioner was filed under Section

376, 506(1) and 342 of IPC. Vide order dated 18.11.2004,

charges against the petitioner was framed for the offence

punishable under Section 420, 328, 366 and 376 of IPC.

However, vide subsequent order dated 30.11.2004, Section 376

and 420 were deleted and a charge under Section 506 of IPC

was directed to be framed against the petitioner. This Court vide

order dated 4.4.2005, remanded the matter to the Additional

Sessions Judge for sending the case to the Court of Metropolitan

Magistrate, since offence under Section 506 was triable by the

Magistrate. However, the learned Magistrate again committed

the case to Court of Sessions noting that this Court had not

deleted the charges punishable under Section 328 and 366 of

IPC, both of which were triable by Court of Sessions. This Court

vide order dated 14.9.2007 deleted the offence punishable under

Section 328 of IPC and clarified that the petitioner was to be

charged only for the offence under Section 506 of IPC. The

learned Magistrate accordingly framed charge against the

petitioner under Section 506 of IPC.

3. During the course of hearing, the learned counsel for the

petitioner sought quashing of the charge solely on the ground

that the offence under Section 506 of IPC being non-cognizable,

the Police could not have carried out investigation without order

of the Magistrate under Section 155(2) of Cr.P.C. and, therefore,

the cognizance taken and the charge framed against the

petitioner is bad in law.

4. A perusal of the judgment of this Court in Narendra

Kumar and Others vs. State And Others, 2004 CRL.L.J.2594,

would show that vide notification dated 11.1.1933 issued under

Section 10 of Criminal Amendment Act (1932), the then Chief

Commissioner of Delhi, the offence punishable under Section

506 of IPC was made cognizable and non-bailable though the

Code of Criminal Procedure, 1898 categorized this offence as

non-cognizable and bailable. This Court, in the case of

Narendra Kumar (supra) was of the view that continuance of

the notification without reviewing the situation from time to time

had the tendency to subvert the law enacted by the Parliament

and, therefore, directed that the notification dated 11.1.1933

shall cease to be in operation from 15.1.2004 till the Government

took a view of overall situation and decided as to the necessity of

its continuation. This Court did not quash the notification and

did not invalidate it from the time it was issued. Thus, the

notification declaring the offence under Section 506 of IPC to be

cognizable continued to be valid till 15.1.2004.

5. The FIR in this case was registered in the year 1971 and

even the chargesheet was filed much prior to 15.1.2004. The

first chargesheet against the petitioner is dated 16.5.2002 when

he was a Proclaimed Offender and the second chargesheet

against him is dated 4.3.2003, which was filed after his arrest

and grant of bail to him. Thus, the investigation was carried out

at a time when the offence under Section 506 of IPC was still a

cognizable offence. Subsequent order of this Court, invalidating

the notification and thereby making the offence under Section

506 of IPC non-cognizable will not invalidate the investigation

carried till that time. At the time of registration of FIR as well as

at the time of carrying out investigation, the Police was fully

competent to carry out investigation even in respect of offence

punishable under Section 506 of IPC since it was a cognizable

offence at that point of time.

6. Therefore, I find no merit in the contention that the offence

under Section 506 of IPC being non-cognizable, no charge

against the petitioner under that Section could have framed.

7. Even if I proceed on the assumption that the offence

under Section 506 of IPC was non-cognizable even at the time

investigation was carried out that by itself will not be a good

ground for this Court to quash the charge, in exercise of

jurisdiction under Section 482 of the Code of Criminal

Procedure. I had occasion to examine this issue in

Crl.M.C.3484/2009 decided on 6.1.2010. In that case the FIR

was registered and chargesheet was filed under Section 323 and

341 of IPC. However, during the course of argument, the

learned Metropolitan Magistrate was of the view that under

Section 323 and 341 of IPC was not made out. Relying upon the

decision of this Court in 'Dr. Lata & Anr. Vs. State & Anr. '

2009(2) JCC 903, it was contended before this Court that since

offence under Section 341 of IPC has not made out and the

offence under Section 323 of IPC is a non-cognizable offence, the

investigation having been conducted illegally, the cognizance

was bad in law and the proceedings were, therefore, liable to be

quashed. Noting the provisions of Section 190(1) of Code of

Criminal Procedure, this Court, inter alia, observed as under:-

"6.Thus cognizance can be taken by the Magistrate upon (a)receipt of a complaint disclosing facts constituting commission of an offence (b)upon a police report disclosing such facts or (c)on his own knowledge.

7. A bare perusal of Clause (b) above, would show that the Magistrate can take cognizance of any offence, irrespective of whether it is a cognizable offence or a non- cognizable offence upon a police report disclosing such facts as would constitute commission of an offence. The foundation of the jurisdiction of the Magistrate for

taking cognizance of an offence does not depend upon the validity or otherwise of an investigation carried out by the police. It depends only upon the set of facts and circumstances placed before the Court, from which the Court comes to a conclusion that they constitute commission of an offence. It would, therefore, not be correct to say that cognizance of an invalid police report is prohibited necessarily in law and is, therefore, a nullity.

8. In „H.N. Rishbud vs. State of Delhi', AIR 1955 SC 196, the Hon‟ble Supreme Court inter-alia observed as under: "A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190, Cr.P.C. as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance...

While no doubt, in one sense, Clauses (a),

(b) and (c) of Section 190(1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under Clause (a) or (b) of Section 190(1), (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial...

If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it

cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice..."

9. Therefore, even if investigation was invalid for want of order of the Magistrate under Section 155(2) of the Code of Criminal Procedure, the police report based upon such an investigation is not nullified and does not become nonest merely on account of this procedural lapse in the investigation and it is very much permissible for the Court to take cognizance even of a non-cognizable offence, on the basis of the evidence collected during such an investigation, unless some prejudice is shown to have been caused to the accused for want of requisite order under Section 155(2) of the Code."

8. Referring to the definition of the complaint given in Section

2(d) of Code of Criminal Procedure, this Court, inter alia, held as

under:-

12. Definition of „complaint‟ given in the Code of Criminal Procedure, 1898 did not include the above referred explanation. The purpose of adding the explanation in the Code of Criminal Procedure, 1973 was to make it possible for the Court to take cognizance of a non-cognizable offence even on the basis of a police report, by treating it as a complaint. If the report made by a police officer is to be treated as a complaint, it is immaterial whether the investigation was carried out on receipt of information disclosing commission of cognizable as well as non-cognizable offence and during the course of investigation, commission of only a non-

cognizable offence was found or it was carried out on the basis of complaint which disclosed commission only of a non- cognizable offence and was conducted without obtaining requisite orders from the Magistrate under Section 155(2) of the Code. Section 190(1) does not say as to who can make complaint. The complaint can be oral and need not necessarily be in writing. It is also not necessary that the complaint should be made only by the victim of the crime. Since the Magistrate takes cognizance of the offence, the proceedings on taking cognizance would be initiated even though the persons who had committed the offence were not known at that time. The complainant can also be a public servant. The police officer, who is a public servant is competent to make a complaint and there is nothing in law which prevents a Court from taking cognizance on a complaint made by a police officer, if it discloses the commission of an offence. There is no provision in the Code of Criminal Procedure, which prevents a Magistrate from taking an invalid police report into consideration and taking cognizance on the basis of the facts disclosed in such a report. In fact, even before enactment of the Code of Criminal Procedure, 1973, it was held in a number of decisions including „A. Kanniyah vs. State' AIR 1967 Madras 390, 'Kanti Lal vs. State' AIR 1970 Bombay 225 and „Public Prosecutor vs. A.V. Ramiah‟ 1958 Cr.L.J. 737 that where a police officer carries investigation into a non-cognizable offence, without the order of the Magistrate, and files a charge sheet, such a charge sheet can be treated as a complaint. The judicial pronouncement has been given statutory recognition by adding the explanation to the definition of complaint in the Code of Criminal Procedure, 1973. In taking this view, I am

fortified by the decisions of this Court in „Ranbir Prakash vs. State‟ 27 (1985) DLT 242 and „Narain Singh vs. State‟ 1986 Rajdhani Law Reporter 545. Similar view was taken in „Chaman Prakash vs. State‟ 2007 (3) JCC 1983, „Kamal Kishore Kalra vs. State‟ 151 (2008) DLT 546 and a recent decision of this Court in Crl.M.C. 642/2009 decided on 11th December, 2009. The cognizance on a complaint filed by a public servant, in discharge of his official duties can be taken without examining him and other witnesses. Hence the cognizance taken in this case cannot be said to be bad in law.

For the reasons given in the preceding paragraphs, I find

no merit in this petition and the same is hereby dismissed.

(V.K.JAIN) JUDGE MARCH 17 , 2010 'sn'