Point of Law: Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.

JUDGMENT :

1. Heard Sri. Ashok Kumar Dwivedi, learned Counsel for the Applicant and learned AGA for the State-respondents.

2. By means of the present application under Section 482 of the Criminal Procedure Code the applicant has prayed for quashing of the charge sheet dated 18.01.2007 in Criminal Case No. 305 of 2007 (State vs. Rakesh Kumar Shukla) under Sections 504 and 506 IPC, Police Station Kotwali Nagar, District Banda, pending in the Court of Chief Judicial Magistrate, Banda, which has been instituted by an application under Section 156 (3) Cr.P.C., filed on 25-11-2006 by the opposite party number 2.

3. The accused-applicant and the informant-opposite party no.2 are neighbors. The applicant lives in House No. B-81 whereas the informant lives in House No. B-82, Awas Vikas Colony, P.S. Kotwali, District-Banda. The informant/respondent no.2 had filed an application under Section 156 (3) Cr.P.C. against the applicant alleging that the applicant had fired at him with the intention to kill him and when several persons from the locality gathered there, he went away threatening to kill the informant. In furtherance of the aforesaid application, a First Information Report was lodged. The applicant had filed Criminal Misc. Application No. 15344 of 2006 and on 27.11.2006, this Court passed the following order:

“Heard Sri R.R.Singh, counsel for the applicant and A.G.A.

Having heard the submissions and perusing the materials on record, this application is finally disposed of with the direction that pursuant to the impugned order dated 19.10.2006 passed by C.J.M., Banda on the application of opposite party no.2 under Section 156 (3) Cr.P.C., if any case has been registered against the applicant at P.S. registered against the applicant at P.S. Kotwali, district-Banda, then investigation in the matter may go on, but the applicant shall not be arrested till submission of the report under Section 173(2), Cr.P.C. provided he cooperates with the investigation.”

4. An investigation was carried out pursuant to the aforesaid FIR and statements of six witnesses were recorded. After completion of investigation, the police has submitted the charge sheet no. 11/2007 on 18.11.2007 stating that upon investigation, from the statements of the witnesses and inspection of the site of occurrence, commission of the offence under Section 307 IPC was not found and merely offences under Sections 504 and 506 IPC was found to have been committed. The charge sheet has been forwarded to the court for trial of the applicant.

5. Sri Ashok Kumar Dwivedi, learned counsel for the applicant has argued that although originally the first information report was lodged under Sections 307, 504, 506 IPC but during investigation, the allegation of commission of offence under Section 307 IPC was found to be false and only a case under Sections 504 and 506 IPC was found to be made out against the applicant, both of which are non-cognizable offences and, therefore, the case against the applicant can only proceed as a complaint. In support of his submission, he has invited attention of the Court to the Explanation appended to Section 2 (d) of Cr.P.C. In order to appreciate his submission, the relevant provision of Cr.P.C. is being reproduced below: -

“(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”

6. Ashok Kumar Dwivedi has placed reliance on a judgment of this Court in Dr. Rakesh Kumar Sharma vs. State of U.P. and another reported in 2007 (9) ADJ 478, in which case originally the FIR was lodged under Section 307. However, after investigatio