Section 2(d) CrPC defines a complaint: “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.
Section 155 CrPC
Information as to non-cognizable cases and investigation of such cases.—(1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate. (2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. (3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case. (4) 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.
So, if a persons gives an information regarding a non-cognizable offence to police, he has no other option but to refer the informant to magistrate. However sub-clause (2) and (3) empowers the police officer to investigate a non-cognizable case if Magistrate permits it. Such an investigation would finally result in a report under 173(2) of CrPC. The question is whether such a police report is a complaint or a police report for the purpose of Section 190 CrPC?
Section 190 CrPC
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence— (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
In Mahendra Kumar Chaudhary vs State Of U.P (2021) , 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) was placed before the Magistrate upon which cognizance was taken on the same date. The contention raised in the case was 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? The High Court held as follows:
(1) Where the police report has been submitted following investigation in a non-cognizable case without conforming to the provisions of sub-section (2) of Section 155, the same would be deemed to be a complaint.
(2) Where the police investigates a case relating to a cognizable offence, which discloses, after investigation, the commission of a non-cognizable offence, the same would also be deemed to be a complaint by virtue of the explanation to Section 2 (d).
(3) Where a non-cognizable offence is reported and upon an order by the Magistrate under sub-section (2) of Section 155, the same is investigated and the police report, which is submitted, also discloses non-cognizable offence, the same would not be covered within the purview of the explanation to Section 2 (d) to bring it within the ambit of the term ‘complaint’.
It would therefore follow as a legal proposition that in case where commission of a non-cognizable offence alone is alleged, at the commencement of the investigation, cannot and does not, fall within the scope of the explanation, so as to bring it within the purview of a “complaint”. The explanation takes within its sweep only a case, where at the stage of commencement of the investigation commission of a cognizable offence is alleged or where it is doubtful as to whether it relates to a cognizable or a non-cognizable offence, and the investigation discloses only the commission of a non-cognizable offence; other categories, stand excluded by necessary implication.
The question which really arises in this is regarding the intention of the legislature while adding explanation to the definition of complaint. The above decision of Allahabad High Court does not look into that. According to the High Court, if police investigates a non-cognizable case, with permission of magistrate, the police report cannot be treated as a complaint. But if the investigation is without permission of magistrate, such a police report can be treated as a complaint.
This incongruity made us dive deep into this query and we found a Delhi High Court judgment which made observations regarding the intention of the legislature. In Lajpat Rai Sehgal vs State 1983 CriLJ 888, it was observed thus: “The intention of the legislature, by adding this deeming provision in the explanation, appears to be to the effect that a culprit must not be allowed to escape and must be brought to book. The explanation does not speak of authorised or unauthorised investigations. All it refers to, is a police report made after investigation. After an investigation there is no doubt that the police officer has to submit a report. This report as in the present case must be deemed to be the complaint and the police officer, the complainant.” The Court also held that the fact that permission had been granted under S. 155(2) of the Code to authorize the investigation would not take the police report out of the purview of deemed complaint as defined in S. 2(d) and the explanation thereto.
On the point (1) made in Allahabad HC judgment, there is a judgment by Kerala High Court in P. Kunhumuhammed vs State Of Kerala 1981 CriLJ 356 which reads as follows: The decisions referred to above arising under the old Code, made it clear that the report of a police officer in a non-cognizable offence following any investigation made without an order of the Magistrate can be treated as a complaint for the purposes of Section 190(1)(a) and Section 4(1)(h) of the old Code. This position can no longer continue to the same extent and in the same manner under the new Code. That is because of the restricted scope of the Explanation to Section 2(d) of the new Code. If the Legislature wanted to follow the judicial precedents under the old Code, the Explanation could merely have stated that the report made by a police officer in a case relating to commission of a non-cognizable offence shall be deemed to be a complaint. Instead, the Explanation states that the 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. In other words, it is clear that a case where commission of a non-cognizable offence alone (is alleged or disclosed) at the commencement of the investigation cannot and does not fall within the scope of the Explanation. The Explanation takes within its scope only a case at the beginning of the investigation of which commission of a cognizable offence is alleged or disclosed or where it is doubtful if it relates to commission of a cognizable offence or a non-cognizable offence and investigation discloses only the commission of a non-cognizable offence. Other categories are excluded from the purview of the Explanation.
Similarly, the Supreme Court, in Keshav Lal Thakur vs State Of Bihar (1996) 11 SCC 557, dealt with a similar fact situation, and quashed the criminal proceedings and made the following observations: 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 Dr. P.C. 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) Dr. P.C. 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 proviso to Section 2 (d) Dr. P.C., which defines ‘complaint’, the police is entitled to submit, after investigation, a report a 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 related 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.
Following the above Supreme Court judgment, the Andhra High Court in Guguloth Jagan v. State of Telangana (2015 KHC 3624) held as follows : If the report ultimately filed by the police though discloses a non-cognizable offence, still it can be deemed to be a complaint and cognizance can be taken by the Court. Or in a given situation, in a non- cognizable case the police conducts an investigation after obtaining permission of the concerned Magistrate and files a report, the same also can be covered under the explanation to Sec.2(d) of Cr.P.C.
In Md. Makfur Rahman And Anr. vs Md. Kajimul Hussain Baruah 2007 CriLJ 1536, 2007 (3) GLT 447, the Gauhati High Court, following the above Supreme Court judgment, held thus : Without any order from a Magistrate, when a police officer conducts an investigation into a case, which involves commission of non-cognizable offence, and submits, on completion of such an investigation, report, no Magistrate can take cognizance of offence on the basis of such a report.
So as the answer to this query, the Allahabad High Court says that, for the purpose of taking cognizance, a police report after investigation (after obtaining order of Magistrate) into non- cognizable offence is not to be treated as a complaint, but as a police report. Such a police report is a deemed complaint as per the judgment of Delhi High Court.