Point of law : When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified.

JUDGMENT :

YOGENDRA KUMAR SRIVASTAVA, J.

1. The present case brings to the fore the legal conundrum relating to issues seemingly circumambient the interpretation of the provisions under Section 2(d) of the Code of Criminal Procedure, 1973 [the Code] and the explanation appended to the section.

2. Heard Sri. S.N. Mishra alongwith Sri. Amit Kumar Singh, learned counsel for the applicants and Sri. Vinod Kant, learned Additional Advocate General along with Sri. Pankaj Saxena, learned Additional Government Advocate-I appearing for the State-opposite party.

3. The present application under Section 482 of the Code has been filed seeking to quash the entire proceedings of Criminal Case No. 3412 of 2020 (State vs. Mahendra Kumar Chaudhary and Others), arising out of N.C.R. No. 75 of 2019, under Sections 323, 504 of the Indian Penal Code, 1860 [the Penal Code] Police Station Bakhira, District Sant Kabir Nagar including charge-sheet dated 30.09.2019 as well as cognizance order dated 29.07.2020 passed by learned Judicial Magistrate, Sant Kabir Nagar.

4. As per facts of the case, pleaded in the application, proceedings of the Criminal Case No. 3412 of 2020 (State vs. Mahendra Kumar Chaudhary and Others) were initiated with the registration of NCR No. 75 of 2019, under Sections 323 and 504 IPC at Police Station Bakhira, District Sant Kabir Nagar.

5. Learned Additional Advocate General has taken instructions which indicate that an order under Section 155(2) of the Code was passed by the Magistrate directing investigation and pursuant thereto a “police report” under Section 173(2) of the Code dated 29.07.2019 was placed before the Magistrate upon which cognizance was taken on the same date.

6. The principal submission, which is sought to be raised to seek quashing of the proceedings, is that the complaint having been made in respect of non-cognizable offence and the police report also having been submitted with regard to non-cognizable offence, in view of the explanation to Section 2(d) of the Code, the police report shall be deemed to be a complaint and the case would be required to be proceeded with as a complaint case. In support of his submissions learned counsel places reliance upon the judgments in the cases of Ghanshyam Dubey @ Litile and Others vs. State of U.P. and Another, 2013 (4) ADJ 474, Dr. Rakesh Kumar Sharma vs. State of U.P. and Another, 2007 (9) ADJ 478 and Alok Kumar Shukla vs. State of U.P. and Another [Application u/s 482 Cr.P.C. No. 42698 of 2013, decided on 26.11.2013].

7. Learned Additional Advocate General has controverted the aforesaid contention by submitting that the explanation to Section 2(d) of the Code would come into play only in a situation where to begin with the complaint which was lodged was in respect of a cognizable offence but after investigation the police report which was submitted disclosed a non-cognizable offence. He submits that in the present case where the proceedings were initiated pursuant to registration of an NCR in respect of non-cognizable offence, and the same was investigated upon an order passed by the Magistrate under Section 155(2) of the Code and the police report subsequent thereto disclosed non-cognizable offence, the explanation under Section 2(d) of the Code would not be attracted. To support his contention, learned Additional Advocate General has placed reliance upon the judgment of the Supreme Court in the case of Keshab Lal Thakur vs. State of Bihar, (1996) 11 SCC 55.

8. It has further been pointed out that looking at the nature of the offence disclosed in the police report, the case which is to be tried would be a summons case and the procedure prescribed for the same would be as per Chapter XX of the Code, wherein there is no distinction, with regard to manner in which the trial is to proceed, between cases instituted on a police report and those instituted otherwise than on a