KESHA V LAL THAKUR

STATE OF BIHAR

OCTOBER 11, 1996

(M.K. MUKHERJEE AND S.P. KURDUKAR, JJ.)

Code of Criminal Procedure, 1973 :

Sections 2(d), 154, 155, 468, 473, 482-Case filed under S.31 of Rep- C resentation of People Act against the appellant-On completion of investiga~

ti on report was submitted for his discharge on the ground that the offence was a non cognizable one-Chief Judicial Magistrate took cognizance-Appellant moved a petition for quashing the cri1"1inal proceedings on the ground that cognizance was bamd by limitation-High Court dismissing the petition-on appeal held, the offence is non-cognizable and Police could not have D registered a case for such offence-Police could investigate into a non-cognizable offence pursuant to the order of a competent Magistrate-But no such order was passed-Hence Police could have neither investigated into the offence nor submit a report on which the question of taking cognizance could have arisen.

E CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1803 of 1996.

From the Judgment and Order dated 12.4.96 of the Patna High Court in Cr!. M. No. 16722 of 1995.

F D.P. Gupta, S.C. Maheshwari, H.C. Ashok Mathur, A.P.S. Tomar

and Ms. Sandhya Goswami for the Appellant.

H.L. Aggarwal and B.B. Singh for the Respondent.

The following Order of the Court was delivered :

Special leave granted.

On a report lodged by Jnanendra Parchchya, Anu Manda!· Padadhikari, Gooda, a case under Section 31 of the Representation of Peoples Act, 1950 ('Act' for short) was registered against Keshav Lal Thakur, the H appellant herein, by Thakur Gangti Police Station and on completion of 578

KL THAKUR v. STATE 579

investigation a report in final form was submitted praying for his discharge A on the ground that the offence was a non-cognizable one. On that report the Chief Judicial Magistrate, Godda, took cognizance as in his view, a prim a f acie case was made out against the appellant; and aggrieved thereby he moved a petition under Section 482 Cr. P.C. before the Patna High Court wherein he contended, il}ter alia, that the cognizance was barred by B limitation under Section 468 Cr. P.C. A learned Judge of the High Court, who entertaind the petition, ltimately dismissed the same being of the view that under Section 473 Cr. P.C. cognizance could be taken beyond the period of the limitation. The above order of the High Court is under challenge before us in this appeal.

We need not go into the question whether in the facts of the instant case the above view of the High Court is proper or not for the impugned proceeding has got to be quashed as neither the police was entitled to investigate into the offence in question nor the Chief Judicial Magistrate

to take cognizance upon the report submitted on completion of such D investigation. On the own showing of the police, the offence under Section 31 of the Act is non-cognizable and therefore, the police could not have registered a case for such an offence under Section 154 Cr. P.C. Of course, the police is entitled to investigate into a noncognizable offence pursuant to an order of a competent Magistrate under Section 155 (2) Cr. P.C. but, admittedly, no such order was passed in the instant case. That necessarily E means, that neither the police could investigate into the offence in question nor submit a report on which the question of taking cognizance could have arisen. While on this point, it may be mentioned that in view of the proviso to Section?( d) Cr. P.C., which defines 'complaint', the police is entitled to submit, after investigation, a report relating to a non-cognizable offence in which case such a report is to be treated as a 'complaint' of the police officer concerned, but that explanation will not be available to the prosecution here as that relates to a case where the police initiates investigation into a cognizable offence - unlike the present one - but ultimately finds that only a noncognizable offence has been made out.

On the conclusions as above we allow this appeal and quash the impugned proceedings.

G.N.

Appeal allowed.