Judgment 1. Heard both sides. 2. In the present application, the petitioner has challenged the order dated 27.8.1999 passed by the Chief Judicial Magistrate, Dhanbad, in CO. Case No. 88 of 1999 whereby he took cognizance of the offence under section 427 of the Indian Penal Code against the petitioner. 3. The relevant facts, concerning this case, are that on the basis of a complaint made by one Biren Chandra Mahto, Station Diary Entry No. 342 dated 14.8.1999 was made at Seraidheta Police Station. The allegations were that the petitioner had .broken the glass of back light of Maruti Car bearing Registration No. BR17J-7 belonging to opposite party no. 2. The police made enquiry into the allegations and submitted a complaint/report in the court of the Chief Judicial Magistrate, Dhanbad, praying to take action under section 427 of the Indian Penal Code which was registered as CO. Case No. 88 of 1999 and the learned Chief Judicial Magistrate Dhanbad, took cognizance of the offence under section 427 of the In-" dian Penal Code on the basis of the aforesaid complaint made by the police. 4. Mr. S. N. Rajgarhia, learned counsel for the petitioner has challenged the impugned order whereby the learned Chief Judicial Magistrate, Dhanbad took cognizance in the case on the ground that under section 155(2) of the Code of Criminal Procedure (for short the Code) 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, but in the instant case, although no first information report was lodged and the allegation disclosed the commission of non-cognizable offence under section 427 of the Indian Penal Code, the police did not take any order from a competent Magistrate to investigate the case and without such order, proceeded to make investigation. It was next submitted that the complaint submitted by the police cannot be treated as a complaint under section 2(d) of the Code and its Explanation which provides as hereunder: "2(d) 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; ExplanationA 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." 5. It was submitted that if the case would have been lodged in respect of a cognizable and non-cognizable offence in which the police was empowered to make investigation and after investigation if it would have been found by the police that a non-cognizable offence has been committed by the accused, then in that case, the report submitted by the police could have been validly treated as a complaint under section 2(d) of the Code read with its Explanation but that is not the case here, inasmuch, as the allegations and the report submitted to the police did not disclose the commission of any cognizable offence in which the police had power to make investigation rather from the very beginning it was a non-cognizable case under section 427 of the Indian Penal Code in which the police was not empowered to make investigation without the order of a competent Magistrate as provided under section 155(2) of the Code. As such the report submitted by the police is not a complaint within the meaning of Section 2(d) of the Code and its Explanation and the learned Chief Judicial Magistrate had no jurisdiction to take cognizance on the complaint filed by the police who had made investigation in illegal manner against the provision of law. It was, therefore, submitted that the entire proceeding is vitiated in law and the impugned order dated 27.8.1999 passed by the learned Chief Judicial Magistrate, Dhanbad, by which he has taken cognizance of the case against the petitioner deserves to be quashed. 6. On behalf of opposite party no. It was, therefore, submitted that the entire proceeding is vitiated in law and the impugned order dated 27.8.1999 passed by the learned Chief Judicial Magistrate, Dhanbad, by which he has taken cognizance of the case against the petitioner deserves to be quashed. 6. On behalf of opposite party no. 2, it was submitted that in the case of H.N.Rishbud and another V/s. State of Delhi (AIR 1955 Supreme Court 196), the Hon ble Supreme Court has held that : "If, therefore, cognizance is in fact taken, on a police report vitiated by a breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial whch follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the court for trial is well settled. Hence, where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby." (Para 9) When a breach of the mandatory provisions of S.5A of Prevention of Corruption Act is brought to the notice of the Court at an early stage of the trial the Court will have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly, and by such officer as it considers appropriate with reference to the requirements of S.5A of the Act." 7. On the basis of the decision cited above, learned counsel submitted that the order of cognizance passed by the learned Chief Judicial Magistrate, Dhanbad is perfectly valid and proper order which cannot be challenged by the petitioner. 8. On the basis of the decision cited above, learned counsel submitted that the order of cognizance passed by the learned Chief Judicial Magistrate, Dhanbad is perfectly valid and proper order which cannot be challenged by the petitioner. 8. With all respects to the decision of the Supreme Court cited on behalf of the opposite party no.2, as referred to above, i may say that in the case before His Lordship, illegality committed in the investigation was challenged at the stage when the case had reached to termination, but in the instant case, the position is not the same inasmuch as the impugned order of cognizance has been passed on 27.8.1999 and the instant application has been filed on 29.9.1999 and it is undisputed that there has not been any progress in the trial. In the same decision, the Hon ble Supreme Court held that: "If a breach of the mandatory provision is brought to the notice of the Court at an early stage of trial, the Court will have to consider the nature and extent of violation and pass appropriate orders for such reinvestigation." 9. Learned counsel for the petitioner relied on a decision in the case of Subodh Singh Modak V/s. The State (1974 CRI. L.J. 195) wherein it has been held by His Lordship of the Calcutta High Court that : "The provisions of Section 155(2) of the Code are mandatory. Where objection to non-conformance with those provisions is taken before termination of the case, the illegality is a material one not curable under section 537 and vitiate the ultimate order passed in the case. It is a non-conformance with the procedure established by law within the meaning of Article 21 of the Constitution. In the said decision, the ratio given in the decision of the Apex Court in 1955 Cri.L.J.526(SC) was explained and distinguished. 10. I have gone thorugh the judgment and l am of the view that it is fully applicable in the facts and circumstances of the present case, inasmuch as the petitioner has filed the instant application for quashing the impugned order of cognizance at the earliest stage. 10. I have gone thorugh the judgment and l am of the view that it is fully applicable in the facts and circumstances of the present case, inasmuch as the petitioner has filed the instant application for quashing the impugned order of cognizance at the earliest stage. It is an admitted fact that the police had not sought for order from a competent Magistrate to make investigation in the present case, which is under section 427 of the Indian Penal Code, which is a clear violation of the provision of Section 155(2) of the Code. Since the police did not follow the procedure established by law it is also violative of the provision of Article 21 of the Constitution of India which lays down that no person shall be deprived of his life or personal liberty except according to the procedure established by law. 11. Having regard to all the facts and circumstances of the case and the discussions made above, I am of the view that the impugned order dated 27.8.1999 passed by the Chief Judicial Magistrate, Dhanbad, by which he took cognizance in the case against the petitioner for an offence under section 427 of the Indian Penal Code cannot be sustained, hence, the same is quashed. 12. This application is, accordingly, allowed.