# Mahendra Kumar Chaudhary & Ors v. State of U.P. & Anr

- **Citation:** (2022) 1 ILRA 416
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-01
- **Case number:** Application U/S 482 Cr.P.C. No. 17371 of 2020
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-kumar-chaudhary-ors-v-state-of-u-p-anr-47471
- **Pages:** 21

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power
-
Sections
154,155(2),156,173(2),190,200,
202
&
205 Section 2(d) - Complaint - Section
2(d) 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 complaint; and the police officer by
whom such report is made shall be
deemed to be the complainant - Indian
Penal Code, 1860 - Section 323,504 -

Proceedings initiated with registration of an NCR
-
relating
to
non-cognizable
offence
-
investigation carried out by police - pursuant to
an order of the Magistrate under Section 155(2)
of the Code - police report under Section
173(2) disclosing non-cognizable offence -
cognizance taken by the Magistrate - Application
for quashing entire proceeding.

HELD:-In view of the set of facts, the same
would not be covered within the purview of the
explanation to Section 2(d) to bring it within the
ambit of the term "complaint". Magistrate has
rightly taken cognizance.(Para - 47)

Application u/s 482 Cr.P.C. dismissed. (E7)

List of Cases cited:-

## Text

_Characters 0–39,937 of 63,643. This is a partial read: ask again with offset=39937 for what follows._

416 INDIAN LAW REPORTS ALLAHABAD SERIES
now it is not open to the applicant to claim
bail under proviso (a) to Section 167(2) of
the Code and he is custody on the basis of
orders of remand passed under other
provisions of the Code and at this stage
proviso (a) to Section 167(2) shall not be
applicable.
Formulated
questions
are
decided in negative.

24. The Magistrate, however, without
excluding the day of the first remand
reached the conclusion that the chargesheet has been submitted within 90 days of
the first remand as provided under proviso
(a) of Section 167(2) of the Code.
Therefore, if all these aspects are kept in
view, I am of the considered view that in
the present facts, the Chief Judicial
Magistrate, Allahabad was justified in its
conclusion arrived through the order dated
13.7.2021 impugned herein that the chargesheet has been filed within time and rightly
rejected the application. Therefore, there is
no infringement of Section 167(2) of the
Code.

25. The result of the above discussion,
I do not find any merits in the instant
application under Section 482 of the Code
and the same is liable to be dismissed.
Therefore, the application is dismissed.
----------
(2022)01ILR A416
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.12.2021

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Application U/S 482 Cr.P.C. No. 17371 of 2020

Mahendra Kumar Chaudhary & Ors.
 ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Amit Kumar Singh, Sri S.N. Mishra, Sri
S.P. Pandey, Sri Balram Mishra

Counsel for the Opposite Parties:
A.G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power
-
Sections
154,155(2),156,173(2),190,200,
202
&
205 Section 2(d) - Complaint - Section
2(d) 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 complaint; and the police officer by
whom such report is made shall be
deemed to be the complainant - Indian
Penal Code, 1860 - Section 323,504 -

Proceedings initiated with registration of an NCR
-
relating
to
non-cognizable
offence
-
investigation carried out by police - pursuant to
an order of the Magistrate under Section 155(2)
of the Code - police report under Section
173(2) disclosing non-cognizable offence -
cognizance taken by the Magistrate - Application
for quashing entire proceeding.

HELD:-In view of the set of facts, the same
would not be covered within the purview of the
explanation to Section 2(d) to bring it within the
ambit of the term "complaint". Magistrate has
rightly taken cognizance.(Para - 47)

Application u/s 482 Cr.P.C. dismissed. (E7)

List of Cases cited:-

1. Ghanshyam Dubey @ Litile & ors. Vs St. of
U.P. & anr., 2013 (4) ADJ 474

2. Dr. Rakesh Kumar Sharma Vs St. of U.P. &
anr., 2007 (9) ADJ 478

3. Alok Kumar Shukla Vs St. of U.P. & anr.,
Application u/s 482 Cr.P.C No. 42698 of 2013,
decided on 26.11.2013
1 All. Mahendra Kumar Chaudhary & Ors. Vs. State of U.P. & Anr.
417
4. Keshab Lal Thakur Vs St. of Bihar, (1995) 11
SCC 55

5. Emperor Vs Ghulam Hussain, AIR 1925
Lahore 237

6. Jagdeo Panday & anr. Vs N.C. Hill, Assist.
Superintendent of Police, Myitkyina,AIR 1938
Rangoon 257

7. Emperor Vs Babulal Munnilal, AIR 1936
Nagpur 86

8. Bholanath Das & ors. Vs Emperor, 28 CWN
490

9. Hatimali & anr. Vs The Crown, AIR (37) 1950
Nagpur 38

10. St. of Rajasthan Vs Mahmood Ghasi
Musalman & anr., AIR 1962 RAJASTHAN 1

11. Mithilesh Kumari & anr Vs Prem Behari
Khare, (1989) 2 SCC 95

12. S.Sundaram Pillai Vs V.R.Pattabiraman &
ors., (1995) 1 SCC 591

13. Burmah Shell Oil Storage & Distributing Co.
of India Ltd. Vs CTO, AIR 1961 SC 315

14.
Bihta
Cooperative
Development
Cane
Marketing Union Ltd. Vs Bank of Bihar, AIR 1967
SC 389

15. Hiralal Rattanlal Vs St. of U.P., (1973) 1 SCC
216

16. Dattatraya Govind Mahajan Vs St. of Mah.,
(1977) 2 SCC 548

17. H.N. Rishbud & ors. Vs St. of Delhi, AIR
1955 SC 196

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. The present case brings to the fore
the legal conundrum relating to issues
seemingly circumambient the interpretation
of the provisions under Section 2(d) of
the Code of Criminal Procedure, 19731 and
the explanation appended to the section.

2. Heard Sri S.N. Mishra alongwith
Sri Amit Kumar Singh, learned counsel for
the applicants and Sri Vinod Kant, learned
Additional Advocate General along with
Sri Pankaj Saxena, learned Additional
Government Advocate-I appearing for the
State-opposite party.

3. The present application under
Section 482 of the Code has been filed
seeking to quash the entire proceedings of
Criminal Case No. 3412 of 2020 (State
Vs. Mahendra Kumar Chaudhary and
others), arising out of N.C.R. No. 75 of
2019, under Sections 323, 504 of the
Indian Penal Code, 18602, Police Station
Bakhira, District Sant Kabir Nagar
including charge sheet dated 30.09.2019
as well as cognizance order dated
29.07.2020 passed by learned Judicial
Magistrate, Sant Kabir Nagar.

4. As per facts of the case, pleaded in
the
application,
proceedings
of
the
Criminal Case No.3412 of 2020 (State Vs.
Mahendra Kumar Chaudhary and Others)
were initiated with the registration of NCR
No. 75 of 2019, under Sections 323 and
504 IPC at Police Station Bakhira, District
Sant Kabir Nagar.

5. Learned Additional Advocate
General has taken instructions which
indicate that an order under Section 155(2)
of the Code was passed by the Magistrate
directing investigation and pursuant thereto
a "police report" under Section 173(2) of
the Code dated 29.07.2019 was placed
before
the
Magistrate
upon
which
cognizance was taken on the same date.
418 INDIAN LAW REPORTS ALLAHABAD SERIES

6. The principal submission, which is
sought to be raised to seek quashing of the
proceedings, is that the complaint having
been made in respect of non-cognizable
offence and the police report also having
been submitted with regard to noncognizable
offence,
in
view
of
the
explanation to Section 2(d) of the Code, the
police report shall be deemed to be a
complaint and the case would be required
to be proceeded with as a complaint case.
In support of his submissions learned
counsel places reliance upon the judgments
in the cases of Ghanshyam Dubey @
Litile And Others vs. State of U.P. and
Another3, Dr. Rakesh Kumar Sharma
vs. State of U.P. and Another4 and Alok
Kumar Shukla vs. State of U.P. and
Another5.

7. Learned Additional Advocate
General has controverted the aforesaid
contention
by
submitting
that
the
explanation to Section 2(d) of the Code
would come into play only in a situation
where to begin with the complaint which
was
lodged was
in
respect
of
a
cognizable
offence
but
after
investigation the police report which was
submitted disclosed a non-cognizable
offence. He submits that in the present
case
where
the
proceedings
were
initiated pursuant to registration of an
NCR
in
respect of non-cognizable
offence, and the same was investigated
upon an order passed by the Magistrate
under Section 155(2) of the Code and
the police report subsequent thereto
disclosed non-cognizable offence, the
explanation under Section 2(d) of the
Code would not be attracted. To support
his
contention,
learned
Additional
Advocate General has placed reliance
upon the judgment of the Supreme Court
in the case of Keshab Lal Thakur vs.
State of Bihar6.

8. It has further been pointed out that
looking at the nature of the offence
disclosed in the police report, the case
which is to be tried would be a summons
case and the procedure prescribed for the
same would be as per Chapter XX of the
Code, wherein there is no distinction, with
regard to manner in which the trial is to
proceed, between cases instituted on a
police report and those instituted otherwise
than on a police report i.e. a complaint. It is
accordingly, submitted that the present case
being a summons case there would be no
material change in the procedure of trial
and as such the applicant cannot be said to
have been prejudiced by the order of
cognizance passed by the Magistrate.

9. As regards the judgment in the case
of Ghansyam Dubey alias Litile (supra),
it is submitted that the decision having been
passed without considering authoritative
pronouncement in the case of Keshab Lal
Thakur (supra) and also the relevant
statutory provisions, the same cannot be
said to be a conclusive authority on the
point.

10. In order to appreciate the rival
contentions, the relevant provisions under
the Code may be adverted to.

"2. Definitions.--In this Code,
unless the context otherwise requires,--

(c) "cognizable offence" means
an offence for which, and "cognizable
case" means a case in which, a police
officer may, in accordance with the First
Schedule or under any other law for the
time being in force, arrest without warrant;
1 All. Mahendra Kumar Chaudhary & Ors. Vs. State of U.P. & Anr.
419

(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 complaint; and the police officer by
whom such report is made shall be deemed
to be the complainant;

(h) "investigation" includes all
the proceedings under this Code for the
collection of evidence conducted by a
police officer or by any person (other than
a Magistrate) who is authorised by a
Magistrate in this behalf;

(l) "non-cognizable offence" means
an offence for which, and "non-cognizable
case" means a case in which, a police officer
has no authority to arrest without warrant;

(n) "offence" means any act or
omission made punishable by any law for the
time being in force and includes any act in
respect of which a complaint may be made
under section 20 of the Cattle-Trespass Act,
1871 (1 of 1871);

(o) "officer in charge of a police
station" includes, when the officer in charge of
the police station is absent from the stationhouse or unable from illness or other cause to
perform his duties, the police officer present at
the station-house who is next in rank to such
officer and is above the rank of constable or,
when the State Government so directs, any
other police officer so present;

(r) "police report" means a
report forwarded by a police officer to a
Magistrate under sub-section (2) of section
173;

(w) "summons-case" means a case
relating to an offence, and not being a warrantcase;

(x) "warrant-case" means a case
relating to an offence punishable with death,
imprisonment for life or imprisonment for a
term exceeding two years;

155. Information as to noncognizable cases and investigation of
such cases.--(1) When information is given
to an officer in charge of a police station of
the commission within the limits of such
station of a non-cognizable offence, he
shall enter or cause to be entered the
substance of the information in a book to
be kept by such officer in such form as the
State Government may prescribe in this
behalf, and refer the informant to the
Magistrate.

(2)
No
police
officer
shall
investigate a non-cognizable case without
the order of a Magistrate having power to
try such case or commit the case for trial.

(3) Any police officer receiving
such order may exercise the same powers
in respect of the investigation (except the
power to arrest without warrant) as an
officer in charge of a police station may
exercise in a cognizable case.

(4) 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 case, notwithstanding that the
other offences are non-cognizable.
420 INDIAN LAW REPORTS ALLAHABAD SERIES

173. Report of police officer on
completion of investigation.--(1) Every
investigation under this Chapter shall be
completed without unnecessary delay.

(1A) The investigation in relation
to an offence under Sections 376, 376A,
376AB, 376B, 376C, 376D, 376DA,
376DB or 376E of the Indian Penal Code
(45 of 1860) shall be completed within two
months from the date on which the
information was recorded by the officer in
charge of the police station.

(2) (i) As soon as it is completed,
the officer in charge of the police station
shall forward to a Magistrate empowered to
take cognizance of the offence on a police
report, a report in the form prescribed by
the State Government, stating--

(a) the names of the parties;

(b) the nature of the information;

(c) the names of the persons who
appear
to
be
acquainted
with
the
circumstances of the case;

(d) whether any offence appears
to have been committed and, if so, by
whom;

(e) whether the accused has been
arrested;

(f) whether he has been released
on his bond and, if so, whether with or
without sureties;

(g)
whether
he
has
been
forwarded in custody under section 170;

(h) whether the report of medical
examination of the woman has been
attached where investigation relates to an
offence under sections 376, 376A, 376AB,
376B, 376C, 376D, 376DA, 376DB or
section 376E of the Indian Penal Code (45
of 1860).

(ii)
The
officer
shall
also
communicate, in such manner as may be
prescribed by the State Government, the
action taken by him, to the person, if any,
by whom the information relating to the
commission of the offence was first
given.

(3) Where a superior officer of
police has been appointed under section
158, the report shall, in any case in which
the State Government by general or special
order so directs, be submitted through that
officer, and he may, pending the orders of
the Magistrate, direct the officer in charge
of the police station to make further
investigation.

(4) Whenever it appears from a
report forwarded under this section that the
accused has been released on his bond, the
Magistrate shall make such order for the
discharge of such bond or otherwise as he
thinks fit.

(5) When such report is in respect
of a case to which section 170 applies, the
police
officer
shall
forward
to
the
Magistrate along with the report--

(a) all documents or relevant
extracts thereof on which the prosecution
proposes to rely other than those already
sent to the Magistrate during investigation;

(b) the statements recorded under
section 161 of all the persons whom the
prosecution proposes to examine as its
witnesses.
1 All. Mahendra Kumar Chaudhary & Ors. Vs. State of U.P. & Anr.
421

(6) If the police officer is of
opinion that any part of any such statement
is not relevant to the subject-matter of the
proceedings or that its disclosure to the
accused is not essential in the interests of
justice and is inexpedient in the public
interest, he shall indicate that part of the
statement and append a note requesting the
Magistrate to exclude that part from the
copies to be granted to the accused and
stating his reasons for making such request.

(7) Where the police officer
investigating the case finds it convenient so
to do, he may furnish to the accused copies
of all or any of the documents referred to in
sub-section (5).

(8) Nothing in this section shall
be deemed to preclude further investigation
in respect of an offence after a report under
sub-section (2) has been forwarded to the
Magistrate
and,
where
upon
such
investigation, the officer in charge of the
police station obtains further evidence, oral
or documentary, he shall forward to the
Magistrate a further report or reports
regarding such evidence in the form
prescribed; and the provisions of subsections (2) to (6) shall, as far as may be,
apply in relation to such report or reports as
they apply in relation to a report forwarded
under sub-section (2).

190. Cognizance of offences by
Magistrates.--(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.

(2) The Chief Judicial Magistrate
may empower any Magistrate of the second
class to take cognizance under sub-section
(1) of such offences as are within his
competence to inquire into or try.

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 reexamine them.
422 INDIAN LAW REPORTS ALLAHABAD SERIES

202. Postponement of issue of
process.--(1) Any Magistrate, on receipt of
a complaint of an offence of which he is
authorised to take cognizance or which has
been made over to him under section 192,
may, if he thinks fit, and shall, in a case
where the accused is residing at a place
beyond the area in which he exercises his
jurisdiction postpone the issue of process
against the accused, and either inquire into
the case himself or direct an investigation
to be made by a police officer or by such
other person as he thinks fit, for the
purpose of deciding whether or not there is
sufficient ground for proceeding:

Provided that no such direction
for investigation shall be made--

(a) where it appears to the
Magistrate that the offence complained of
is triable exclusively by the Court of
Sessions; or

(b) where the complaint has not
been made by a Court, unless the
complainant and the witnesses present (if
any) have been examined on oath under
section 200.

(2) In an inquiry under subsection (1), the Magistrate may, if he thinks
fit, take evidence of witness on oath:

Provided that if it appears to the
Magistrate that the offence complained of
is triable exclusively by the Court of
Session, he shall call upon the complainant
to produce all his witnesses and examine
them on oath.

(3) If an investigation under subsection (1) is made by a person not being a
police officer, he shall have for that
investigation all the powers conferred by
this Code on an officer in charge of a police
station except the power to arrest without
warrant.

205. Magistrate may dispense
with personal attendance of accused.--(1)
Whenever a Magistrate issues a summons,
he may, if he sees reason so to do, dispense
with the personal attendance of the accused
and permit him to appear by his pleader.

(2) But the Magistrate inquiring
into or trying the case may, in his
discretion, at any stage of the proceedings,
direct the personal attendance of the
accused, and, if necessary, enforce such
attendance in the manner hereinbefore
provided."

11. The corresponding provisions
contained under the old Code i.e. Criminal
Procedure Code, 18987, which are also
required to be referred to, are as follows:-

"4. Definitions. - (I) In this Code
the following words and expressions have
the following meanings, unless a different
intention appears from the subject or
context : --

(h) "Complaint" - "complaint"
means the 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 it does not
include the report of a police officer:

154. Information in cognizable
cases. - Every information relating to the
commission of a cognizable offence if
given orally to an officer in charge of a
police-station, shall be reduced to writing
by him or under his direction, and he read
over to the informant; and every such
1 All. Mahendra Kumar Chaudhary & Ors. Vs. State of U.P. & Anr.
423
information, whether given in writing or
reduced to writing as aforesaid, shall be
signed by the person giving it, and the
substance thereof shall be entered in a book
to be kept by such officer in such form as
the Local Government may prescribe in
this behalf.

155.
Information
in
noncognizable
cases.
-
(1)
When
information is given to an officer in
charge
of
a
police-station
of
the
commission within the limits of such
station of a non-cognizable offence, he
shall enter in a book to be kept as
aforesaid
the
substance
of
such
information and refer the informant to
the Magistrate.

(2)
No
police-officer
shall
investigate
a
non-cognizable
case
without the order of a Magistrate of the
first or second class having power to try
such case or commit the same for trial,
or of a Presidency Magistrate.

(3) Any police-officer receiving
such order may exercise the same
powers in respect of the investigation
(except the power to arrest without
warrant) as an officer in charge of a
police-station
may
exercise
in
a
cognizable case.

156.
Investigation
into
cognizable cases. - (1) Any officer in charge
of a police-station may, without the order of
a Magistrate, investigate any cognizable
case which a Court having jurisdiction over
the local area within the limits of such
station would have power to inquire into or
try under the provisions of Chapter XV
relating to the place of inquiry or trial.

(2) No proceeding of a
police-officer in any such case shall at
any stage be called in question on the
ground that the case was one which such
officer was not empowered under this
section to investigate.

(3) Any Magistrate empowered
under Section 190 may order such an
investigation as above-mentioned.

173. Report of police-officer. -
(1) Every investigation under this Chapter
shall be completed without unnecessary
delay, and, as soon as it is completed, the
officer in charge of the police-station
shall-

(a)
forward
to
a
Magistrate
empowered to take cognizance of the offence
on a police-report, a report in the form
prescribed by the Local Government, setting
forth the names of the parties, the nature of
the information and the names of the persons
who appear to be acquainted with the
circumstances of the case, and stating
whether the accused (if arrested) has been
forwarded in custody, or has been released on
his bond, and, if so, whether with or without
sureties, and

(b) communicate, in such manner
as may be prescribed by the Local
Government, the action taken by him to the
person, if any, by whom the information
relating to the commission of the offence was
first given.

(2) Where a superior officer of
police has been appointed under Section
158, the report shall, in any cases in which
the Local Government by general or special
order so directs, be submitted through that
424 INDIAN LAW REPORTS ALLAHABAD SERIES
officer, and he may, pending the orders of
the Magistrate, direct the officer in charge of
the
police-station
to
make
further
investigation.

(3) Whenever it appears from a
report forwarded under this section that the
accused has been released on his bond, the
Magistrate shall make such order for the
discharge of such bond or otherwise as he
thinks fit.

(4) A copy of any report
forwarded under this section shall, on
application, be furnished to the accused
before the commencement of the inquiry or
trial :

Provided that the same shall be
paid for unless the Magistrate for some
special reason thinks fit to furnish it free of
cost.

190. Cognizance of offences by
Magistrates. - (1) Except as hereinafter
provided,
any
Presidency
Magistrate,
District
Magistrate
or
Sub-divisional
Magistrate, and any other Magistrate
specially empowered in this behalf, may
take cognizance of any offence -

(a) upon receiving a complaint of
facts which constitute such offence :

(b) upon a report in writing of
such facts made by any police-officer;

(c) upon information received
from any person other than a police-officer,
or upon his own knowledge or suspicion,
that such offence has been committed.

(2) The Local Government, or the
District Magistrate subject to the general or
special orders of the Local Government,
may empower any Magistrate to take
cognizance under sub-section (1), clause
(a) or clause (b), of offences for which he
may try or commit for trial.

(3) The Local Government may
empower any Magistrate of the first or
second class to take cognizance under subsection (1), clause (c), of offences for
which he may try or commit for trial."

12. The provisions relating to
information to the police and their powers
to investigate are contained under Chapter
XII of the Code of Criminal Procedure,
1973. Section 154 of the Code provides for
the manner of giving information to an
officer in-charge of the police station
relating to commission of a cognizable
offence, and the manner in which the same
is to be reduced in writing and entered in a
book maintained for the purpose. Section
155 of the Code relates to giving of
information as to non-cognizable cases and
investigation of such cases. Sub-section (1)
thereof, provides that when information is
given to an officer in-charge of a police
station of the commission within the limits
of such station of a non-cognizable offence,
he shall enter it in the prescribed book and
refer the informant to the Magistrate. Subsection (2) states that no police officer shall
investigate a non-cognizable case without
the order of a Magistrate having power to
try such cases or commit the case for trial.
As per sub-section (3), any police officer
receiving such order may exercise the same
powers in respect of the investigation as an
officer in charge of a police station may
exercise in a cognizable case, except the
power to arrest without warrant.

13. In terms of Section 156(1) of the
Code, any officer in-charge of a police
station may investigate any cognizable
1 All. Mahendra Kumar Chaudhary & Ors. Vs. State of U.P. & Anr.
425
offence, without the order of a Magistrate.
Sub-section (3) of Section 156 provides
that any Magistrate empowered under
Section 190 may order an investigation.

14. Section 173 of the Code, as per
terms of sub-section (1) and sub-section (2)
thereof, lays down that every investigation
under Chapter XII shall be completed
without
unnecessary
delay
and
on
completion the officer in charge of the
police
station
shall
forward
to
the
Magistrate empowered to take cognizance
of the offence on a police report, a report in
the prescribed form setting forth the
required particulars.

15. Section 190 of the Code relates to
cognizance of offences by Magistrates and
falls under Chapter XIV, which is in
respect of conditions requisite for initiation
of proceedings. Section 190 of the Code
lays down that the concerned Magistrate
may take cognizance of any offence in
three contingencies, namely; (a) upon
receiving a complaint of facts which
constitute such offence, (b) upon a police
report of such facts, and (c) upon
information received from any person other
than a police officer or upon his own
knowledge, that such offence has been
committed.

16. Now referring to the provisions
under 1898 Code (old Code), Section 190
of the old Code contemplates cognizance
of offences being taken by Magistrates in
three contingencies, namely; (a) upon
receiving a complaint of facts which
constitute such offence, (b) upon a report
in writing of such facts by any police
officer, and (c) upon information received
from any person other than a police
officer, or upon his own knowledge or
suspicion, that such offence has been
committed.

17. The power to take cognizance
under Section 190(1)(b) of the old Code
could be attracted only upon a report in
writing of any police officer under
Section 173 of the said Code. The report
under Section 173 could follow either
upon investigation by a competent police
officer into a cognizable offence or
investigation by a competent police
officer into a non-cognizable offence
made under an order of the Magistrate as
contemplated under Section 155(2) of the
old Code. Such a report would not be
held to be a complaint having been
excluded as per terms of Section 4(1)(h)
of the old Code. A report by the police
following an investigation into a noncognizable case made without the order
of a Magistrate, could not be treated as a
valid report by the police officer for the
purposes of Section 173 or Section
190(1)(b) of the old Code; however, it
could be treated as a complaint for the
purposes of Section 190(1)(a) of the old
Code, leaving it open to the Magistrate to
take cognizance thereupon. It was also
open to the Magistrate to decline to take
cognizance
or
to
order
fresh
investigation, depending on the facts and
circumstances of the particular case.

18. A comparison of the provisions
under the old Code and the Code, as it
presently stands, would go to show that
Sections 154, 155, 156, 173 and 190 of the
Code are more or less, the same as the
corresponding provisions of the old Code,
except that Section 190(1)(b) refers to "a
police report" and not a "report of the
police officer". The old Code does not
define "a police report" or " a report of the
426 INDIAN LAW REPORTS ALLAHABAD SERIES
police officer"; Section 2(r) of the new
Code defines a "police report" as a report
forwarded by a police officer to a
Magistrate under sub-section (2) of Section
173. Section 2(d) of the new Code defines a
"complaint" in a manner which is as same
in the old Code except that it excludes ''a
police report' instead of excluding the
''report of the police officer' as in the old
Code. In addition, an explanation has been
added to the definition of "complaint"
which states that a report made by a police
officer in case which discloses, after
investigation, the commission of a noncognizable 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.

19. In order to appreciate the
aforementioned changes, a comparative
overview of the relevant sections may be
shown in a tabular form:-

Criminal Procedure
Code, 1898 (the old
Code)
Criminal
Procedure Code,
1973 (the Code)
Section
4(1)(h)-
"complaint" means the
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 it does not include
the report of a police
officer.
Section
2(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
complaint; and the
police officer by
whom such report
is made shall be
deemed to be the
complainant;

--
Section
2(r)
─
"police
report"
means
a
report
forwarded
by
a
police officer to a
Magistrate under
sub-section (2) of
Section 173;

Section 190(1)(b) ─
upon
a
report
in
writing of such facts
made by any policeofficer;
Section
190(1)(b)
─ upon a police
report
of
such
facts;

20. Under the old Code, in some
cases, it was held that "report of a police
officer" as was the expression used, and
excluded from the definition of the term
"complaint", under the old Section 4(1)(h),
meant report in a cognizable offence and
the report in a non-cognizable offence
would be treated as a complaint. (See
Emperor v. Ghulam Hussain8, Jagdeo
Panday and Another v. N.C. Hill, Assist.
Superintendent of Police, Myitkyina9)
1 All. Mahendra Kumar Chaudhary & Ors. Vs. State of U.P. & Anr.
427

21. The contrary view taken in some
cases was that the expression "complaint"
excludes police report whether in a
cognizable or non-cognizable offence. (See
Emperor
v.
Babulal
Munnilal10,
Bholanath
Das
and
Others
v.
Emperor11, Hatimali and Another v.
The Crown12, State of Rajasthan v.
Mahmood
Ghasi
Musalman
and
Another13).

22. Essentially there was a conflict in
the decisions on two points: (i) whether
report of a police officer in a noncognizable case investigated without the
order of a Magistrate as required by Section
155(2) would fall under the old Section
190(1)(b);
(ii)
whether
definition
of
"complaint" under Section 4(1)(h) applied
to a police report.

23. The Law Commission in its 41st
Report14, in order to resolve the conflict
recommended that the definition should
make it clear that the report made by police
on an unauthorised investigation of a noncognizable case is a complaint and
accordingly,
in
the
definition
of
"complaint", the words "a police report",
were to be substituted for "report by a
police
officer"
and
the
following
explanation was proposed to be inserted.

"Explanation.- A report made by
a police officer in a non-cognizable case
investigated without conforming to the
provisions of sub-section (2) of section 155
shall be deemed to be a complaint."

24. The definition of "police report"
was also proposed to be inserted vide
Section
2(r).
Further,
under
Section
190(1)(b), the words "police report of such
facts" were to be substituted for "report in
writing of such facts made by a police
officer" with the object of limiting it to a
report under Section 173; leaving other
kinds of reports by a police officer to be
treated as complaint. (41st Report, pp. 910, 102-103)

25. The relevant extracts from the
Law Commission Report are as follows:-

"1.26 (v). The definition of
"complaint" in clause (h) was discussed in
detail in the previous Report15. In view of
the conflicting decisions and uncertainty in
regard to this definition and the connected
provisions in sections 173, 190, 207A and
251A of the Code, the Commission
recommended that the definition should
make it clear that the report made by the
police on an unauthorized investigation of a
non-cognizable case is a complaint. We
agree with this recommendation and
propose to substitute for the words "the
report of a police officer" in clause (h) the
words "a police report". A definition of
police report will have to be added in this
section.

1.27 (ii) As indicated in the
previous paragraph, sub-para. (v), a clause
will be necessary defining "police report"
as follows: --

"(rr) 'police report' means a report
by a police officer to a Magistrate under
sub-section (1) of section 173."

xxx

15.72. The group of sections,
from section 190 to section 199B, describes
the methods by which, and the limitations
subject to which, various Criminal Courts
are entitled to take cognizance of offences.
428 INDIAN LAW REPORTS ALLAHABAD SERIES

Section 190 first mentions the
classes of Magistrates entitled to take
cognizance, and then says that cognizance
may be taken--

"(a) upon receiving a complaint
of acts which constitute such offence;

(b) upon a report in writing of
such facts made by any police officer;

(c) upon information received
from any person other than a police officer
or upon his own knowledge or suspicion
that such offence has been committed."

15.73. Clause (c) is of limited
practical importance as resort to it is not
had in many cases. Leaving that alone, and
speaking broadly, the cases fall into two
categories: --

(1) those started on complaint;
and

(2) those started on a policereport.

A "complaint" is defined in
section 4(1) (h) as not including the
"report of a police officer". It seems to
us, however, that there is no practical
advantage in distinguishing a case started
on a complaint from a case started on
"the report of a police officer" which is
not given under section 173. In Chapter
XXI of the Code, where two different
procedures are laid down for the trial of
two different kinds of cases, the point of
distinction is whether the case was
instituted on a "police report" or not, and
the expression "the report of a police
officer" is not used. The same is the case
in Chapter XVIII.

15.74. At first sight, of course,
the difference in meaning between a
"police report" and the "report of a police
officer" may seem slight, but authoritative
decisions show that the expression "police
report", which was in fact the expression
used in clause (b) of section 190(1) before
1923, has a technical connotation, limited
to a report made by an investigating officer
under section 173 of the Code. Such an
investigation can only be of a cognizable
offence, or if made into a non-cognizable
offence, it must be with the permission of a
Magistrate required by section 155. We,
therefore,
consider
it
important
that
Magistrates should be readily able to
distinguish a case instituted on a "police
report" from any other kind of case; and to
facilitate this, we propose, that the
expression "police report" should be clearly
defined in the Code itself, and the
definition
should
follow
the
judicial
decisions, limiting it to a report made under
section 173. For the same reasons, we
propose that clause (b) of section 190, subsection (1) should mention only a "police
report", leaving other kinds of reports by a
police officer to be treated as complaints.
We have already proposed the necessary
verbal alteration in the definition of
"complaint" now contained in section 4.

15.75. These proposals, we hope,
will do away with the controversy whether the
present wording of section 190(1) (b) does or
does not include a report made regarding a
non-cognizable offence investigated by a
police officer without the orders of a
Magistrate, which on occasions has arisen. At
the same time, there will be a clear-cut
division between cases properly investigated
by the police and others, and the distinction
between cases instituted on a police report and
other cases will be easy to make."
1 All. Mahendra Kumar Chaudhary & Ors. Vs. State of U.P. & Anr.
429

26. The Joint Committee while
approving the recommendation of the Law
Commission, in order to clarify the
intention that the report will be deemed to
be a complaint only if the offence is
discovered after investigation by the police
to be a non-cognizable one, redrafted the
explanation, as is in the present form.

27. It would be apposite to state that
the Law Commission Report may be
referred to as an internal aid to a statutory
construction to ascertain the legislative
intent behind the provision, particularly in a
situation where a particular enactment or
amendment
is
the
result
of
the
recommendation of the Law Commission
of India, as held in Mithilesh Kumari &
Anr vs Prem Behari Khare16.

28.

Section
2(d)
alongwith
explanation, as it finds place under the new
Code, is as follows:-

"(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 complaint; and the police officer by
whom such report is made shall be deemed
to be the complainant;"

29.