Virendra Vikram Singh, J.
1. Heard learned counsel for the applicants and learned AGA for the State-respondent. The present application u/s 482 Cr.P.C. has been filed for quashing of the charge sheet dated 11.6.2013 filed in pursuant to N.C.R. No. 284/2012, u/s 506, IPC, P.S. Civil Lines, District Rampur as also the order of taking cognizance thereon.
2. It has been argued that the cognizance on the charge sheet for offence u/s 506, IPC is bad in law as Section 506, IPC is cognizable in view of the notification No. 777/VIII 9-4(2)-87 dated July 31, 1989 published in the U.P. Gazette, Extra, Part-4, Section (kha) dated 2
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nd August, 1989, which has been declared illegal by the Judgment of the Division Bench of this Court in the case of Virendra Singh and Others Vs. State of U.P. and Others, , since the cognizance has not been taken as complaint case and further that the murder case in which the applicants are wanted and is likely to be terminated by way of filing the final report.
3. The submission in the present application is that charged offences are non-cognizable and the learned Magistrate may pass an order taking cognizance if he so desires by proceeding under Chapter XV of the Code of Criminal Procedure. Reliance has been placed on the explanation to section 2(d) of the Code of Criminal Procedure.
4. Learned A.G.A. has stated that no useful purpose would be served in issuing notice to the opposite party no. 2 as it will only delay the proceedings of the present case.
5. It is not disputed that the charges against the applicants relates to non-cognizable cases, for which the explanation appended to section 2(d) Cr.P.C. stands attracted which reads as follows:-
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 complaint.
6. The order of taking cognizance, which is impugned in the present application nowhere tells as to whether the cognizance has been taken on police report under the Provisions of Section 190(1)(a) Cr.P.C. or u/s 190(1)(b) Cr.P.C. treating the charge sheet to be complaint. Thus, the cognizance appears to have been taken treating the chargesheet as complaint and the Investigating Officer, the person submitting the chargesheet/police report as complainant.
7. It cannot be disputed that the Investigating Officer is a public servant. Hence in view of the proviso (a) appended to section 200 Cr.P.C., the Magistrate was not required to record the statement of the complainant or the witnesses under sections 200 and 202 Cr.P.C. The proviso (a) to section 200 Cr.P.C. reads as follows:
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 discharge of his official duties or a Court has made the complaint;
8. Even if for the sake of arguments it be assumed that the Magistrate has wrongly taken cognizance u/s 190(1)(b) in place of Section 190(1)(a) Cr.P.C. The proceedings cannot be vitiated in view of the provisions of Section 460 Cr.P.C.
9. At this juncture, it is proper to mention Provision of Section 460 Cr.P.C. which reads as follows:
Legal provisions regarding irregularities which do not vitiate proceedings u/s 460 of the Code of Criminal Procedure, 1973.
According to Section 460 of the Code of Criminal Procedure, if any Magistrate not empowered by law to do any of the following things, namely:
(a) To issue a search-warrant u/s 94, i.e., search of place suspected to contain stolen property, forged documents, etc.;
(b) To order the police to investigate u/s 155, i.e., information as to non-cognizable cases and investigation of such cases;
(c) To hold an inquiry u/s 176, i.e., inquiry by Magistrate into cause of death;
(d) To issue process for the apprehension of a person within his local jurisdiction who has committed an offence outside the limits of such jurisdiction u/s 187 which deals with the power to issue summons or warrants for offence committed beyond local jurisdiction;
(e) To take cognizance of an offence under clause (a) or clause (b) of sub-section (1) of Section 190 this deals with the cognizance of offences by Magistrates;
(f) To make over a case under sub-section (2) of Section 192 which deals with the making over of cases of Magistrates?
(g) To tender a pardon u/s 306 which deals with tender of pardon to accomplice?
(h) To recall a case and try it himself u/s 410 which deals with the withdrawal of cases by Judicial Magistrate;
(i) To sell property u/s 458 which deals with procedure where no claimant appears within six months or Section 459 which deals with power to sell perishable property, erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered.
10. Since from the record of the case nothing reflects that the cognizance on chargesheet has been taken u/s 190(1)(b) Cr.P.C. as police report, hence there does not appear any breach of any provisions of Cr.P.C.
11. Sub-Section (e) of Section 460 makes it abundantly clear that if the Magistrate has in good faith or even erroneously has taken cognizance u/s 191(a) or 191(b) Cr.P.C., the proceedings cannot be vitiated.
12. The entire thrust of argument on behalf of the applicants is that the Magistrate should have taken cognizance under the Provisions of Section 191(1)(a) and not u/s 191, 190(1)(b) Cr.P.C. Even if it be admitted that the cognizance taken was not proper or even without jurisdiction, the proceedings cannot be vitiated as it has been prayed for. In view of Provision of Section 460(e) Cr.P.C.. The charge sheet or the cognizance taken by the Magistrate in the present case cannot be quashed.
13. There being no merit in the present application, the same is hereby rejected.
14. However, the trial court is impressed upon to proceed in the case as per the procedure provided for the complaint case. It is being made clear that the trial shall not be conducted denovo and the statement of the witnesses, if have already been recorded shall not be recorded afresh.