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2016 DIGILAW 3345 (ALL)

Kripa Shankar v. State of U. P.

2016-09-29

ABHAY MAHADEO THIPSAY

body2016
JUDGMENT Abhay Mahadeo Thipsay,J. 1. Heard Shri Rajendra Pratap Singh, learned counsel for the petitioners and the learned Additional Government Advocate. 2. The petitioners are the accused in criminal case no.506 of 2016 pending before the Additional Chief Judicial Magistrate, Sultanpur. The allegation against the petitioners is that they have committed an offence punishable under Section 427 of the Indian Penal Code. The petitioners are aggrieved by the order dated 4.2.2014 passed by the Magistrate whereby cognizance of the alleged offence was taken and the petitioners were summoned to appear before the Magistrate. They have, therefore, approached this court by filing the present petition praying that by invoking the inherent powers of this court, the order taking cognizance of the alleged offence be quashed and set aside. 3. The argument that is advanced by the learned counsel for the petitioners in support of his contention that the order taking cognizance and summoning the petitioners is bad in law is that 'the police have filed a charge-sheet against the petitioners in respect of an offence punishable under Section 427 of the Indian Penal Code, which is non-cognizable' and, therefore, the summoning order based on that 'charge-sheet' is bad in law. He submits that by virtue of the definition of a 'complaint' as given under Section 2(d) of the Code of Criminal Procedure [the 'Code'], such a report filed by the police shall be deemed to be a complaint and the police officer by whom such report is made, shall be deemed to be the complainant. 4. This argument is without any basis apart from being clearly misleading. In the first place, term 'charge-sheet' is not found in the Code of Criminal Procedure at all. It is basically used to denote the police report under Section 173 of the Code disclosing commission of certain offences by some person or persons. The explanation to Section 2(d) of the Code provides that 'a report made by the police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint'. Now, no body has said that the report submitted by the police in this case shall not be deemed to be a complaint and, therefore, the argument has to be treated as misleading. Now, no body has said that the report submitted by the police in this case shall not be deemed to be a complaint and, therefore, the argument has to be treated as misleading. The learned counsel for the petitioner simply assumes that the report in the present case is not being treated as a 'complaint' by the Magistrate and is being treated as 'charge-sheet'; and then argues how it cannot be treated as a 'charge-sheet' and how it has to be treated as a complaint. There is nothing in the summoning order which indicates that the Magistrate is treating the case as if instituted on a police report, by ignoring the provisions of the explanation to Section 2(d) of the Code. Moreover, this aspect cannot be brought into play for challenging the order of summoning the petitioners. The case in hand is to be tried as a summon case and, there is no different standard or different grounds, or different degree of satisfaction prescribed for summoning the accused persons, in cases instituted on police report and cases instituted on complaints, or 'deemed complaints'. The summoning order would be passed under the provisions of Section 204 of the Code in all the cases. 5. When this aspect of the matter was discussed, an attempt was made to suggest that 'since the case was instituted on a complaint, examination of the complainant under the provisions of Section 200 of the Code was necessary before issuing process'. This contention cannot be accepted. What the police officer has laid before the court is a report made by him after investigation and merely because it is declared in the explanation to Section 2(d) of the Code, that it shall be 'deemed' to be a complaint, it does not mean that the police officer is required to be examined on oath under the provisions of Section 200 of the Code before summoning the accused persons. The instant case would be clearly covered by clause (a) of the proviso to Section 200 of the Code and as such, there would be no necessity of examining the complainant before issuing process. 6. The learned counsel for the petitioners has relied on a decision delivered by a learned Single Judge of this court in the case of Ghanshyam Dubey @ Litile & others v. State of U.P. & Anr. 7. 6. The learned counsel for the petitioners has relied on a decision delivered by a learned Single Judge of this court in the case of Ghanshyam Dubey @ Litile & others v. State of U.P. & Anr. 7. I do not find that this judgment is applicable to the present case. A reading of the said judgment indicates that in that case, the cognizance was taken by the Magistrate 'as a State case'. There is nothing in the present case, to show that the Magistrate has taken cognizance of the alleged offence as a 'State case', or that he has ignored the explanation to Section 2(d) of the Code. At the cost of repetition, it may be observed that the summoning oder would be passed under Section 204 of the Code only, irrespective of whether the case is one instituted 'on police report' or 'otherwise than on police report'. Ironically, the procedure for trial of cases instituted 'on police report' would be favourable to the accused,- if at all the Magistrate adopts it in this case-as the accused would be entitled to get copies of the statements recorded during investigation as a matter of right, which they would not be entitled to get in a case instituted 'on complaint'. In the later case, they would get only a copy of the complaint-i.e. the report in this case- and will have to make a prayer to the Magistrate, for obtaining copies of the statements recorded during investigation. 8. Interestingly, the order summoning the accused was passed on 4.2.2014. On 26.2.2014 the petitioner appeared before the Magistrate, applied for bail and were duly granted bail. The case was then adjourned from time to time and was fixed on 6.4.2016 for framing of charge. Thereafter, the case was transferred to another court and when it was taken up on 6.6.2016, as the petitioners were not present before the court, non-bailable warrants of arrest were issued against the petitioners. It appears that thereafter, the petitioners did not remain present before the court and again non-bailable warrants of arrest have been issued. Now, interestingly, the petitioners had not taken any objections to the order issuing process, but had duly obeyed the same by remaining present before the court.The petitioners had shown their readiness to proceed with the trial without raising any contentions about the correctness of the order issuing process. Now, interestingly, the petitioners had not taken any objections to the order issuing process, but had duly obeyed the same by remaining present before the court.The petitioners had shown their readiness to proceed with the trial without raising any contentions about the correctness of the order issuing process. It is only when the non-bailable warrants of arrest were issued, it dawned upon the petitioners that they had been wrongly summoned. The petitioners then imagined that they had been summoned on a 'police report' or 'charge-sheet' and not on a 'complaint'. Apart from the fact that there is no basis for this imagination, it is rather interesting that till the non-bailable warrants were issued, they had not bothered about it. 9. There is no substance in the petition. 10. When the petition was being rejected, the learned counsel for the petitioners made some submissions with respect to an order issuing non-bailable warrants of arrest against the petitioners. Admittedly, the warrants have been issued because of the non-appearance of the petitioners before the court on a given date. If the contention of the petitioners is that there was justification for their non-appearance before the Magistrate on that date, that justification can be put forth before the Magistrate and a prayer for cancellation of non-bailable warrants of arrest, can be made. 11. The petition is rejected.