KESHAV LAL THAKUR Vs. STATE OF BIHAR

JUDGEMENT

(1.) Special leave granted

(2.) On a report lodged by Jnanendra Parchchya, Anu Mandal Padadhikari, Gooda, a case under Section 31 of the Representation of the People Act, 1950 ('act' for short) was registered against Keshav Lal Thakur, the appellant herein, by Thakur Gangti Police Station and on completion of investigation a report in final form was submitted praying for his discharge on the ground that the offence was a non-cognizable one. On that report the Chief Judicial Magistrate,gooda, took cognizance as in his view, a prima facie case was made out against the appellant; and aggrieved thereby he moved a petition under Section 482 Criminal Procedure Code before the Patna High court wherein he contended, inter alia, that the a cognizance was barred by limitation under Section 468 Criminal Procedure Code. A learned Judge of the High court, who entertained the petition, ultimately dismissed the same being of the view that under Section 473 Criminal Procedure Code cognizance could be taken beyond the period of limitation. The above order of the High court is under challenge before us in this appeal

(3.) 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 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 Criminal Procedure Code. Of course, the police is entitled to investigate into a non- cognizable offence pursuant to an order of a competent Magistrate under Section 155 (2 Criminal Procedure Code but, admittedly, no such order was passed in the instant case. That necessarily 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 Explanation to Section 2 (d) Criminal Procedure Code, 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 non-cognizable offence has been made out