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The power to take cognizance under Section 190(1)(b) of the old Code could be attracted only upon a report in writing of any police officer:-High court of Allahabad

Petitioner seek a direction to the respondent to recall of witness power to be invoked to meet the ends of justice for strong and valid reasons with cautions and circumspection, and the same issue was held in the judgement passed by a single bench judge Hon’ble Dr Yogendra Kumar Srivastava,JIn the matter, Mahendra Kumar Chaudhary And Others V/s State of U.P. and Another [APPLICATION U/S 482 No. – 17371 of 2020] dealt with an issue mentioned above.

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, 19731 and the explanation appended to the section.

The 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. the State of Bihar.

The court perused the facts and arguments presented in the case at hand, the proceedings were initiated with the registration of an NCR relating to non-cognizable offence and the investigation was carried out by the police pursuant to an order of the Magistrate under Section 155(2) of the Code and thereafter a police report under Section 173(2) also disclosing non-cognizable offence was placed whereupon cognizance was taken by the Magistrate. 

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Judgment reviewed by Sakshi Mishra

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