In this judgment from Hon’ble High Court of Kerala held that,
Legal Point:
Section 198(1) of the Cr.P.C provides that no court shall take cognizance of an offence punishable under Chapter XX of the IPC except upon a complaint made by some person aggrieved by the offence. Section 493 comes under Chapter XX of the IPC. Therefore cognizance could be taken only upon a complaint. Section 2(d) of the Cr.P.C which defines ‘complaint’ specifically excludes a police report.
Finally,
if a complaint contains allegations about commission of offence under section 498A of the IPC which is a cognizable offence, apart from allegations about the commission of offence under section 494 of the IPC, the court can take cognizance thereof even on a police report. That is not the case in the present case. Here section 420 IPC, a cognizable offence, was shown in the FIR and the charge-sheet without any basis whatsoever. You cannot bypass section 198 of the Cr.P.C by simply adding a cognizable offence in the FIR and the charge-sheet without any basis as was done in the present case. Section 420 IPC was shown in the present case only to get over the bar under section 198 (1) of the Cr.P.C. That ‘smartness’ cannot be permitted. Magistrates shall be very careful and cautious when they are called upon to take cognizance of an offence falling under Chapter XX of the IPC upon a police report. The Magistrate shall ascertain whether the investigating officer included a cognizable offence in the FIR, charge-sheet et cetera only to get over the bar under section 198 (1) of the Cr.P.C. It is crystal clear in the present case that section 420 of the IPC is shown only to bypass the bar under section 198 (1) of the Cr.P.C.
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