IN T HE HIGH COU R T OF JUDICATURE AT PATNA Cr. Misc. No.23178 of 2010 Jagdish Lal, son of Late Kumar Lal, resident of Chitadhi P.S.- Chainpur, District-Kaimur. ……….Petitioner. Versus 1. The State of Bihar. 2. Sheikh Sayeeduddin, son of late Sadruddin, resident of Sirsi, P.S.-Chainpur, District-Kaimur. …..Opposite Parties. ----------- For the petitioner : Mr. Anjum Perveen, Advocate. For the State : Mr. M. Haque, A.P.P. ----------- 2 08.08.2011 Heard learned counsel petitioner as well as learned Additional Public Prosecutor for the State. For an occurrence alleged to have committed on 10-04-2010, at a first count complainant, Sheikh Sayeeduddin approached the police on the basis of which Sanha No.206/2010 dated 12.04.2010 was entered while on the following day Complaint Petition No.435/2010 has been filed against the same set of accused bearing same allegation. In Sanha, police had submitted complaint as being non-cognizable punishable under Section 427 of the I.P.C. while in the complaint petition, after completing inquiry, cognizance was taken and the accused were summoned to face trial for an offence punishable under Sections 342, 380, 452, 453, 506, 504 I.P.C. and 27 of the Arms Act. One of the accused, Jagdish Lal has invoked extra ordinary power of the court envisaged under Section 482 of the Cr.P.C. on having his prayer refused by the court presiding over Complaint Case bearing 2 no.435(c)/2010 declining to accede with the prayer made by the petitioner under Section 210 of the Cr.P.C. on the ground that the prosecution which has been launched at the behest of police is not based upon report under Section 173 of the Cr.P.C. So far categorization of the cases are concerned, Section 2(d) defines xxx xxx xxx 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 compliant; and the police officer by whom such report is made shall be deemed to be the complainant; Police report has been defined under Section 2(r) which says “police report” means a report forwarded by a police officer to a Magistrate under sub-section (2) of Section 173. Therefore, after parallel scrutiny of the aforesaid two sub-sections, it is evident that though it happens to be a non-cognizable case, but its inception is guided by the police report even though subsequently is to be identified as complaint for the purpose of trial. Therefore it happens to be a police report submitted in accordance with sub-section (2) of Section 173 of the Cr.P.C. Having the position aforesaid, when the narration 3 of Annexure-1, complaint petition and Annexure-2, petition filed by O.P. No.2 before police is gone through, it is evident that the accused persons happens to be identical, the narration of occurrence is identical, P.O. is same and in the aforesaid background surely Section 210 sub-clause (2) of the Cr.P.C. will come into play which prescribes proceeding to be followed as police case after having been amalgamation of complainant. Therefore, the learned lower court misconstrued the factual as well as legal aspect as pointed out above. Though the petitioner should have approached the higher echelon under proper forum, however seeing the order illegal on its face is found to be sufficient to invoke extraordinary power prescribed Section 482 of the Cr.P.C., to secure the ends of justice. As such, the order impugned is set aside and the petition is allowed. The matter is remitted back to the learned lower court to consider it afresh in light of the aforesaid finding. PN (Aditya Kumar Trivedi, J.)