A very unfortunate family incidence is brought before us.
See below for lengthy explanations;
1. Your BIL was let off due to non-cognizable / bailable nature of chargesheeted offence being under S. 323 IPC is indeed a non – cognizable / bailable offence.
2. What happened at PS is that Charge sheet is prepared taking into interest one offence i.e. S. 323 IPC. If there were other family members involved from BIL side then probably S. 341 and S. 34 IPC would have come into play but that is not the case in hand.
3. Further a police officer who is a public servant is capable to file the charge sheet before Jurisdiction Magistrate Court to treat it as Complaint case. Once that is done Notice will be issued to your BIL and he has to appear before concerned Court. My guess is he will come prepared with a S. 251 CrPC Application. That besides the point now the Magistrate has to take cognizance U/s 323 IPC and same is detailed much more than that what a layman shall understand but helpful to a worried brother as to knowing administration of Justice practice procedure as to fate of such charges where it is going to lead to your sister’s safety and security is call of the day under such briefs before us! Hence read below process explanation and consult a Criminal Lawyer immediately before such efforts goes waste;
A. The first argument your BIL side will do is on S. 251 CrPC stating that non cognizable offence is made out against them on the basis of the allegations made in the FIR and no permission had been taken from the Magistrate for carrying out investigation into non-cognizable offence. They will further state that the offence under S. 323 of IPC is a non-cognizable offence, the investigation having been conducted illegally, cognizance was bad in law and the proceedings are, therefore, liable to be quashed etc. We donot know how strong your BIL side may be but my guess is they will pop latest re. Dr. Lata & Anr. Vs. State & Anr. 2009 (2) JCC 903 to buttress their argumentative skills. Relax this is our usual defense tactic K
B. The demolishing argument from your side to above rests is in interpreting correctly S. 190 (1) CrPC before Bench, which deals with cognizance of offences by Magistrate and reads as under:
“190. Cognizance of offence by Magistrate-
(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…”
C. Thus from above cognizance can be taken by the Magistrate upon (a) receipt of a complaint disclosing facts constituting commission of an offence (b) upon a police report disclosing such facts or (c) on his own knowledge. A bare perusal of Clause (b) above, would show that the Magistrate can take cognizance of any offence, irrespective of whether it is a cognizable offence or a non-cognizable offence upon a police report disclosing such facts as would constitute commission of an offence. The foundation of the jurisdiction of the Magistrate for taking cognizance of an offence does not depend upon the validity or otherwise of an investigation carried out by the police. It depends only upon the set of facts and circumstances placed before the Court, from which the Court comes to a conclusion that they constitute commission of an offence. It would, therefore, not be correct to say that cognizance of an invalid police report is prohibited necessarily in law and is, therefore, a nullity.
D. The above argument should be buttressed with case law re.: H.N. Rishbud vs. State of Delhi’, AIR 1955 SC 196 where the Hon’ble Supreme Court inter-alia observed as under:
“A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to
cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190, Cr.P.C. as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance…
While no doubt, in one sense, Clauses (a), (b) and (c) of Section 190 (1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under Clause (a) or (b) of Section 190(1), (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial…
If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial
which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice…”
E. The above is the method to cover over Bar of S. 190 (1) CrPC for a simple reason if your BIL side argues vehemently that the investigation was invalid for want of order of the Magistrate under S. 155 (2) CrPC, the police report based upon such an investigation is not nullified and does not become non est merely on account of this procedural lapse in the investigation and it is very much permissible for the Court to take cognizance even of a non-cognizable offence, on the basis of the evidence collected during such an investigation, unless some prejudice is shown to have been caused to the accused for want of requisite order under S. 155 (2) CrPC.
F. Here a doubt element your side shall throw in before Magistrate Court stating that assuming that the provisions of S. 155 (2) CrPC are mandatory and the police report based upon facts discovered during such an investigation cannot form the basis for taking cognizance under S. 190 (1) (b) CrPC cognizance can still be taken, on the basis of such a report, under S. 190 (1) (a) CrPC. Your side also shall plead out reasoning before Bench and that is that “Complaint” has been defined in S. 2 (d) of CrPC which states as under:
2 (d) “complaint” means any allegation made orally or in writing to a Magistrate, which 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.”
G. Mind it the definition of ‘complaint” given in the Code of Criminal Procedure, 1898 did not include the above referred explanation. The purpose of adding the explanation in the Code of Criminal Procedure, 1973 was to make it possible for the Court to take cognizance of a non-cognizable offence even on the basis of a police report, by treating it as a complaint. If the report made by a police officer is to be treated as a complaint, it is immaterial whether the investigation was carried out on receipt of information disclosing commission of cognizable as well as non-cognizable offence and during the course of investigation, commission of only a non-cognizable offence was found or it was carried out on the basis of complaint which disclosed commission only of a non-cognizable offence and was conducted without obtaining requisite orders from the Magistrate under S. 155 (2) CrPC. Further S. 190 (1) CrPC does not say as to who can make complaint. The complaint can be oral and need not necessarily be in writing. It is also not necessary that the complaint should be made only by the victim of the crime. Since the Magistrate takes cognizance of the offence, the proceedings on taking cognizance would be initiated even though the persons who had committed the offence were not known at that time. The complainant can also be a public servant. The police officer, who is a public servant is competent to make a complaint and there is nothing in law which prevents a Court from taking cognizance on a complaint made by a police officer, if it discloses the commission of an offence. There is no provision in the Code of Criminal Procedure, which prevents a Magistrate from taking an invalid police report into consideration and taking cognizance on the basis of the facts disclosed in such a report. In fact, even before enactment of the Code of Criminal Procedure, 1973, it was held in a number of decisions including re.: A. Kanniyah vs. State [AIR 1967 Madras 390] Kanti Lal vs. State [AIR 1970 Bombay 225] and also in Public Prosecutor vs. A.V. Ramiah [1958 Cr.L.J. 737] that where a police officer carries investigation into a non-cognizable offence, without the order of the Magistrate, and files a charge sheet, such a charge sheet can be treated as a complaint. The judicial pronouncement has been given statutory recognition by adding the explanation to the definition of complaint in the Code of Criminal Procedure, 1973.
Final punch submission from your side shall be that the cognizance on a complaint filed by a public servant, in discharge of his official duties can be taken without examining him and other witnesses. Hence the cognizance taken in this case cannot be said to be bad in law. So there gets thrown out your BIL’s S. 251 CrPC application and any chance of quash happening in near future which is first line of defense accused sorts to and is based on our observations in several similar cases.
And what the Magistrate Court may now announce is going to be good for your sister’s and nephew's case and it may be similar to;
“For the reasons stated above, the petitioners must face
trial for the offence punishable under S. 323 of IPC”
BTW. S. 323 IPC bare act and its ingredients are as follows;
“323. Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either descripttion for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
CLASSIFICATION OF OFFENCE
Punishment—Imprisonment for 1 year, or fine of 1,000 rupees, or both—Non-cognizable—Bailable—Triable by any Magistrate—Compounded by the person to whom the hurt is caused.
Ingredients of an offence
If hurt actually caused is simple, a person cannot be held guilty of voluntarily causing grievous hurt even if it was in his contemplation.
If he intended, or knew himself to be likely to cause only simple hurt, he cannot be convicted for the offence under section 325 even if the resultant hurt was grievous. In other words, to constitute the offence of voluntarily causing hurt, these must be complete correspondence between the result and the intention or the knowledge of the accused”
In nutshell facts before us may turn out be argumentatively interesting case for prudent Crl. law practice advocates to take J
PS.: Read HT, Delhi of today and yesterdays (front page) news of a toddler tossed, with bite marks and grievously hurt result of a fatherless teen read with unfortunate teen pregnancy and tormented life of a teen and state of the toddler in AIIMS battling for life. Though not drawing parallel into your briefs but you are stating in your brief that your BUL threw the child …..so safety, security and precautions and timely legal aid is call of the day as per facts before us.