ORDER :

1. This petition has been filed under Section 482 of the Code of Criminal Procedure to quash Annexure-A charge sheet filed in Crime No. 1921/2011 of Perumbavoor Police Station which has been pending as C.C. No. 959/2013 before the Judicial First Class Magistrate Court, Perumbavoor.

2. The petitioner is the sole accused in the above crime. Respondents are State of Kerala as well as the defacto complainant.

3. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor in detail.

4. The learned counsel for the petitioner would submit that in this case, when the 2nd respondent/defacto complainant lodged a complaint before the Magistrate Court alleging commission of offences punishable under Sections 376 and 493 of IPC, the same was forwarded to Perumbavoor Police by the Magistrate for investigation. During investigation, the Investigating Officer found that the offence punishable under Section 493 of IPC alone was made out while reporting that there are no materials to hold that the accused/petitioner committed the offence punishable under Section 376 of IPC. The point argued by the learned counsel for the petitioner is that as per the charge sheet now filed by the Investigating Officer, the only offence alleged to be committed by the accused is one under Section 493 of IPC. Therefore, it is argued that in view of the bar under Section 198 of Cr.P.C. the Court cannot take cognizance for the offence punishable under Section 493 of IPC, acting on the police report. Therefore, the cognizance is bad in law and as such the same is liable to be set aside.

5. Whereas the learned Public Prosecutor opposed this contention contending that when non-cognizable offence along with cognizance offence being investigated, there is no bar as argued by the learned counsel for the petitioner. As such this petition must fail.

6. In view of the rival arguments, the question arises is; what is the legal effect of a Final Report filed by the police finding commission of non-cognizable offence/offences on completing investigation involving allegation of commission of cognizable and non-cognizable offences?

7. To be on the facts of this case, it is crystal clear from Annexure-A charge sheet that the Magistrate forwarded a complaint alleging commission of offences inclusive of cognizable and non-cognizable offences. During investigation, the Investigating Officer found that only non-cognizable offence was made out. Accordingly, he had filed Annexure-A Final Report. Acting on the Final Report, the learned Magistrate proceeded the matter and took cognizance for the offence punishable under Section 493 of IPC.

8. No doubt, Section 198 of Cr.P.C. provides that no court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some persons aggrieved by the offence. In the case at hand, the complainant rightly lodged complaint before the proper court, which in turn forwarded to the police for investigation, since the complainant alleged commission of ‘cognizable’ and ‘non-cognizable’ offences.

9. At the same time, Section 2(d) of Cr.P.C. defines a complaint as under:

“2. Definitions - In this Code, unless the context otherwise requires:

(a) xxx xxx xxx

(b) xxx xxx xxx

(c) xxx xxx xxx

(d) “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.

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 complainant.”

10. Reading the explanation to the definition under Section 2(d) of Cr.P.C. it is clear that a report made by the police officer in a case which discloses, after investigation, the commission of a n