G. S. Singhal v. State

1. By the present petition the Petitioner prays for quashing of FIR NO. 92/2003 under Section 323/341 IPC registered at PS Defence Colony, New Delhi and the charge sheet dated 27th April,· 2003 filed in the abovementioned FIR.

2. Brief facts relating to the present petition are that on 14th March, 2003 _,..-...., the Complainant/Respondent No. 2 Ms. Kusum Sharma filed a complaint against the Petitioner wherein it was alleged that when she was visiting one Mr. Kapil Nishcal at his residence in flat No. 11, D-36, South Extension -II, New Delhi, the Petitioner gave beatings to the C,omplainant with a pipe and CRL.M.C. 216412011 page 1 of10 2011:DHC:10571 also threatened to kill her. On the basis of this complaint the aforementioned FIR was registered against the Petitioner. A charge sheet was filed against the Petitioner on 27th April, 2003 under Sections 323/341 IPC. Learned Metropolitan Magistrate vide order dated 16th July, 2004 discharged the Petitioner for offences punishab]e under Section 341 IPC observing that there was no evidence against the Petitioner regarding the offence committed under Section 341 IPC. Thereafter he framed charges against the Petitioner for the offences punishable under Section 323/506 IPC. Against this order of learned Trial Court a Revision Petition was filed by the Petitioner before the Learned Additional Sessions Judge. In the said revision petition after perusing the FIR and the <Drder passed by the learned Metropolitan Magistrate it was held that there was no allegation of continuous alarm of losing life at the instance of Petitioner, therefore, no case of criminal intimidation punishable under Section 506 IPC was made - out. There was no allegation of wrongful restraint punishable under Section 341 IPC thus, the only allegation which remained against the Petitioner was of causing simple hurt punishable under Secti@n 323 IPC. The order on charge passed by learned Metropolitan MagistraJte dated 16th July, 2004 was modified and it was directed to proceed with trihl against the Petitioner only CRL.M.C. 2164/2011 page 2 of10 for offence under Section 323 IPC.

3. Learned counsel for the Petitioner states that after the charge under Section 341 IPC against the Petitioner was quash~d/not found in absence of any allegation, the Trial Court has proceeded to try the offence punishable under Section 323 IPC. The same was based on a'police investigation report which was not permissible. It is contended that the Trial Court has ignored the law prescribed under Section 155 (2) of Cr.P.C. wherein it is provided that the Court cannot take cognizance of a non-cognizable offence on the basis of investigation conducted by the police. As there was no allegation of restraint in the present case and the only allegation was of a non-cognizable offence, the Trial Court has erroneously taken the[1] cognizance ofthe same on the basis of a police charge sheet. The provision under Section 155 (2) Cr.P.C. is a mandatory provision and the policb officer has no power to investigate a non-cognizable offence without prioir permission or order ofthe concerned Magistrate. Reliance is placed on Rupan Deal Bajaj vs. K.P.S. Gill, 1996 Crl.LJ 381 (SC) to contend that where the allegations in the FIR do not constitute a non-cognizable offence, no investigation is permitted by a police officer without an order of a MagistTiate as contemplated under Section 155 (2) Cr.P.C. Learned Trial Court has ignored the fact that CRL.M.C. 2164/2011 page 3 of10,-, Section 341 IPC was invoked by the police with the mala fide intention only for the purpose to override the effect of Section 155 (2) Cr.P.C. Thus the cognizance taken by the learned Trial Court is bad in law and the FIR and the charge sheet are liable to be quashed.

4. Learned APP on the other hand contends that there is no error in the cognizance taken by the learned Trial Court. It is: contended that even ifthe Petitioner was discharged of the offence punishable under Section 341 IPC but there exists a prima facie case against the Petitioner for offence punishable under Section 323 IPC. Section 190 (l) (b) ofCr.P.C. shows that a Magistrate can take cognizance of a offence irr~spective of whether it is a cognizable offence or a non-cognizable offence upon a police report I disclosing such facts as would constitute conu:nission 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. Reliance is placed on A. Subhash Babu vs. State of A.P. and another, Manu/SC/084512011 and $rij Bhushan vs. State and Another, 168 (2010) DLT 334.

5. I have heard learned counsel for the part[es and perused the record. The main contention of learned counsel for the Petitioner is that since the CRL.M.C. 2164/2011 page[4] of10 offence punishable under Section 341 IPC was not made out and an offence under Section 323 IPC is a non-cognizable offence, thus the investigation conducted is illegall and cognizance was bad in law. The aspect which this Court needs to look into is that firstly if in the FIR there exists both cognizable and non-cognizable offences and when the accused is discharged of the cognizable offence whether the cognizance·taken on the police report is valid or not; and secondly, if the cognizance taken is valid then who will -- be treated as the complainant in the said FIR. Section 155(2) dealing with the information of non-cognizable offences and investigation of same reads as under:- "155(2) No police officer shaH investigate a noncognizable case without the order of a Magistrate I having power to try such case or commit the case for trial."

6. Section 190 ofthe Cr.P.C. which deals with cognizance of offence by the Magistrate reads as under:- "190. Cognizance of offence by: Magistrate.- (1). ' Subject to the provisions ofthis Chapter, any Magistrate • I of the first class, and any Magistrate o~ the second class specially empowered in this behalf uhder sub-section (2), may take cognizance ofany offence- (a) upon receiving a compl~int of facts which constitute such offenlce; (b)upon a police reportof such. facts; CRL.M.C. 216412011 pageS of10

(c) upon information receivtd from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of second class to take ~ognizance under sub-section (1) of such offences as: are within his competence to inquire into or try."

7. Hon'ble Supreme Court in H.N. Rishhufi and another v. State of Delhi,AIR 1955 SC 196 observed that:- "A defect or illegality in investjigation, however serious, has no direct bearing on the c9mpetence or the procedure relating to cognizance or tral. 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 ofthe Court to take co~izance." "While no doubt, in one sense~ clauses (a), (b) and (c) of section 190(1) are conditibns requisite for taking of cognizance, it is not posJible to say that I 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 tU.eed not pause to consider) and in any case cognizance sp taken is only in the nature of error in a proceeding antecedent to the trial." CRL.M.C. 2164/2011 page 6 of10 - "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 ~vestigation can be shown to have brought about a miscarriage of justice."

8. This Court in Ranbir Prakash v. State, 27{}1985) DLT 242 observed that- "12. I may make it clear that the foundation of the jurisdiction of the Magistrate for taking cognizance does not depend upon the validity 1 or invalidity of investigation. It only depends upon th~ set of facts and circumstances placed before the court from which the court comes to the conclusion that. it constitutes a commission of offence. The correct pd>sition, therefore, would be that even an invalid report by a police officer can be treated to be a complaint of facts constituting an offence and the Magistrate is fully competent to take cognizance under clause (a) of sub-section (1) of Section 190 Cr.P.C. and the proced~ to be followed would be one followed in a complaint case. Taking of cognizance under Section 190 Cr. P.C.~ is restricted only I under clause (b) of sub-section (1) while clause (a) of this section is wider in its sweep and there is nothing to prevent a Magistrate to treat an invalid!police report as a complaint and take cognizance of the same. In that view ofthe matter a defect or illegality in investigation, howsoever serious has no direct ! bearing on the competence or the procedure relating:to cognizance or trial. No doubt, a police report w~ich results from investigation is provided in clause (b) of sub-section (1) of Section 190 as the material on w~ch cognizance is taken but it cannot be maintained that' a valid and legal police report is the only foundation ofjurisdiction ofthe court to take cognizance under Section: 190 Cr. P.C. CRL.M.C. 2164/2011 page 7of10 9.

13. Section 2(d) of the Code of Criminal I Procedure indeed excludes from the ~efmition of a complaint a 'police report'. This, ho~ever, does not deprive the police officer of his right to make a complaint instead of a report, much less[1] does it deprive the court of its power to treat such i a report as a complaint and to proceed upon the !facts disclosed therein, if it discloses commission of an offence. Even under clause (a) of sub-section (1) of $ection 190 Cr. P.C. if the complaint for some reason is invalid of the Magistrate can still act upon the infonrlation contained therein as the object of this clause i$ to enable the Magistrate to see that justice ·is vindicated, notwithstanding the fact that the per~ns individually aggrieved are unwilling or for some r~ason unable to I prosecute. In that view of the matter, I:am of the view that the first limb of argument urge~ by Mr. Dutt breaks. Jurisdiction of the Mag~strate · to take cognizance is independent of the mander in which the facts constituing commission of offenc~ are discovered and placed before the Magistrate." Thus, from a perusal of the aforenoted Sections and judicial pronouncements, it is clear that even if a cognizable offence is not made out against the Petitioner and cognizance is taken by the Magistrate, it would not nullify the investigation and such cognizance wou[d not be bad in law. Also in such cases, the police report can be treated as a complaint and the police officer being a public servant becomes the com~lainant. Section 2 (d) of Cr.P.C. defmes complaint as under:- CRL.M.C. 216412011 page[8] of10 I

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10. The explanation makes it possible for the Cpurt to take cognizance of a non-cognizable offence even on the basis of a police report by treating it as a complaint. The report made by a police offiper is to be treated as a complaint. The complaint can be oral and need not be necessarily in writing. Since the Magistrate takes cognizance of the offence, the proceedings on taking cognizance would be initiated even thou~ the persons who have committed the offence were not known at that time. The police officer who is a public servant is competent to make a complaint and there is nothing in,, - I law which prevents a Court from taking cognizance on a complaint made by a police officer. Hence, the cognizance on a coJjnplaint filed by a public servant in discharge of his official duties can be ~aken without examining him and other witnesses. CRL.M.C. 2164/2011 page 9 of10 /1

11. Thus it is clear that where a charge-sheet ~has been filed for both a cognizable as well as non-cognizable offence & thereafter the proceedings in the cognizable offences are dropped/discharged the same shall be treated as a complaint and the Police Officer by whom such a report is made shall be deemed to be the complainant. It is on this that the Magistrate is empowered under Section 190(1)(a) of Cr.P.C. to take cognizance. Sub-clause (4) of Section 155 Cr.P.C. inter alia provides that where a case relates to two or, more offences of which at least one is cognizable, the case shall be deemed· to be a cognizable, notwithstanding that other offences are non-cognizable. Thus, the bar of Section 155 (2) ofthe Code on investigation is not attracted.

12. Learned Additional Sessions Judge has held that a prima facie case of wrongful restraint is not made out and only a case under Section 323 IPC is made out against the Petitioner. Thus the Trial for offence under Section 323 IPC would continue with the police report being treated as a complaint and the Investigating Officer, the complainant. Thus, I am of the opinion that the present petition has no merit. The Petition is accordingly dismissed. ~~ MUKTA GUPTA, J. JULY 27, 2011/'vn'