Court holds that charges under Sections 298 and 504 IPC are non-cognizable; magistrate erred in proceeding as a State case, but trial court may continue as a complaint case in accordance with law.
The Allahabad High Court has set aside a summoning order passed by a Chief Judicial Magistrate in Agra after holding that a police report filed in respect of non-cognizable offences under Sections 298 and 504 of the Indian Penal Code cannot be treated as a regular police case.
Justice Saurabh Srivastava delivered the ruling while hearing an application filed by Vikram Singh @ Vishwa Vikram Singh seeking quashing of the charge sheet dated September 20, 2023, the cognizance and summoning order dated December 21, 2023, and the entire criminal proceedings arising out of Case Crime No. 0678 of 2022.
The applicant’s counsel argued that since the alleged offences under Sections 298 and 504 IPC are non-cognizable, the investigation report submitted by the police had to be treated as a complaint under the Explanation to Section 2(d) of the Code of Criminal Procedure. It was submitted that the Magistrate committed a legal error by taking cognizance as if it were a State case. Reliance was placed on the earlier decision in Shakila Bano v. State of U.P.
The State opposed the plea, but did not dispute the legal position raised by the applicant. The High Court also dispensed with notice to the second opposite party, observing that only a legal issue had been raised.
Referring to the statutory definition of “complaint” under Section 2(d) Cr.P.C. and its Explanation, the Court noted that a police report disclosing, after investigation, the commission of a non-cognizable offence is deemed to be a complaint, and the police officer is deemed to be the complainant.
On that basis, the Court held that the charge sheet filed in the present matter ought to have been treated as a complaint case rather than a police case. The Magistrate, therefore, fell into legal error in taking cognizance and issuing summons on the assumption that it was a State case.
Accordingly, the High Court set aside the summoning order dated December 21, 2023, but only in respect of the applicant. The application was partly allowed. At the same time, the Court clarified that its order would not prevent the trial court from proceeding further with the matter as a complaint case, if required, and in accordance with law.
In an additional observation, the Court also referred to the documents filed with the application and warned against instructions allegedly imposed by superior authorities regarding wearing a “Santa Claus Red Cap,” remarking that such conduct could disturb workplace harmony and sentiments. The Court cautioned that such directions should not be repeated.
Bottom Line:
Non-cognizable offences - Police report in respect of offences under Sections 298 and 504 IPC has to be treated as complaint in view of Explanation to Section 2(d) Cr.P.C. - Magistrate commits legal error in taking cognizance as a State case - Summoning order liable to be set aside with liberty to proceed as complaint case.
Statutory provision(s): Section 2(d) Explanation, Criminal Procedure Code, 1973, Sections 298 and 504, Indian Penal Code, 1860
Vikram Singh @ Vishwa Vikram Singh v. State of U.P., (Allahabad) : Law Finder Doc Id # 2982723
