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2001 DIGILAW 476 (ORI)

MANAMATHA GIRI v. STATE OF ORISSA

2001-11-05

P.K.TRIPATHY

body2001
P. K. TRIPATHY, J. ( 1 ) A significant question relating to Section 155 (2) of the Code of Criminal Procedure. 1973 (in short the Code) has been raised by the petitioner in pursuing the relief for quashing of U. I. Case No. 29 of 1998 of the Court of J. M. F. C. Jaleswar. ( 2 ) PETITIONER is the accused in the above Criminal Proceeding. Prosecution report has been filed against him by the A. S. I. Kamardas Police Out Post under Bhogarai Police Station complaining that he committed the offence under section 323 I. P. C. It is stated in the report that on 12/11/1997 the occurrence took place in which the petitioner caused simple hurt to the injured because of a dispute which arose relating to repairing of a fence. Prosecution report was submitted on 21/1/1998. Learned Magistrate took cognizance of the offence and issued process against the petitioner when the petitioner refused to accept the process non-baiiabie warrant of arrest was issued against him. Before its execution on 10/8/2000, petitioner appeared in the case through counsel and filed two applications. One of such application was to allow his representation under section 205 Cr. P. C. and the other application was with the prayer to quash the cognizance because of violation of the mandatory provisions in sub-section (2) of Section 155 of the Code. On 10/5/2000, learned J. M. F. C. Jaleswar passed the impugned order rejecting both the applications. Learned Magistrate opined that he has no power to quash the proceeding and the prayer to dispense with the personal appearance is devoid of merit. Thereafter petitioner has filed this application under section 482 of the Code with the prayer to quash the proceeding on the ground of illegality which has cropped up for violation of the provisions in sub-section (2) of Sections 155 of the Code. Thereafter petitioner has filed this application under section 482 of the Code with the prayer to quash the proceeding on the ground of illegality which has cropped up for violation of the provisions in sub-section (2) of Sections 155 of the Code. ( 3 ) IN course of hearing, learned counsel for the petitioner drawing attention of this Court to the provision in sub-section (2) of Section 155 of the Code argued that the said provision is mandatory in nature for asking the permission of the Court to investigate a non-cognizable offence and when in this case the concerned Police Officer did not seek for such permission but completed the investigation and filed the Prosecution Report, therefore, the order of cognizance consequent upon such illegal investigation be regarded as non-sustainable and accordingly be quashed. ( 4 ) LEARNED Additional Government Advocate on the other hand referring to provision in section 450 of the Code and argued that such defect does not vitiate the proceeding. ( 5 ) ON a careful scrutiny of the procedural law, it appears that the provision in sub-section (2) of section 155 of the Code is mandatory in nature. Therefore, no Police Officer is authorised to undertake an investigation in a non-cognizable case without obtaining the order of a Magistrate having the power to try such cases or committed the case for trial. According to provision in Clause (b) of Section 460, if a Magistrate not empowered by law to order under section 155, the Police to investigate an offence then that amounts to an irregularity which does not vitiate proceedings. Therefore. Section 450 does not protect an investigation conducted in violation of section 155 (2) or if such investigation is not conducted in accordance with the provision in section 155 (3) of the Code. Therefore, to that extent argument of learned Additional Government Advocate is not correct, in as much as according to sub-section (2) of section 155, a Magistrate having power to try a case or having the power to commit a case has been given the jurisdiction to pass an order for investigation of a non-cognizable case. Therefore, to that extent argument of learned Additional Government Advocate is not correct, in as much as according to sub-section (2) of section 155, a Magistrate having power to try a case or having the power to commit a case has been given the jurisdiction to pass an order for investigation of a non-cognizable case. In that context clause (e) in Section 460 stands in the same footing inasmuch as if a Magistrate has not been specially empowered, as required under section 190 (2) of the Code to take cognizance of the offence, but he takes cognizance offences either under clause (a) or (b) of Section 190 (1) then such irregularity shall not vitat the proceeding. Therefore, on that ground also argument of learned Additional Government Advocate is not acceptable. ( 6 ) SECTION. 461 of the Code enumerates certain irregularities which vitiates proceedings. None of the clauses in that section has any bearing to the problem at hand. On the other hand, section 465 of the Code inter alia provides that any error, omission or irregularity in an order relating to entertaining a complaint or issuing summons or warrants or passing any order shall not be reversed unless in the opinion of the Court a failure of justice has in fact been occasioned thereby. ( 7 ) WHILE in sesin of somewhat a similar situation relating to investigation conducted by a Police Officer below the rank of Deputy Superintendent of Police though not authorised under law to undertake such investigation the Apex Court considered the implications of the mandatory nature of such directions and the procedural law in detail relating to investigation and propounded in the case of R. N. Rishid and another v. State of Delhi If, therefore, cognizance is in fact taken, on a police report vitiated by the breach or 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. 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 as appears from the cases in Prabhu v. Emperor, AIR 1944 PC 73 (C) and Lumbhardar Estahi v. The King. A. I. R. 1950 P. C. 26 (D ). 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 as appears from the cases in Prabhu v. Emperor, AIR 1944 PC 73 (C) and Lumbhardar Estahi v. The King. A. I. R. 1950 P. C. 26 (D ). T In this case except arguing on the illegality which was committed by the Police Officer petitioner has neither stated in the application under Section 482 of the Code nor during argument as to how he is prejudiced because of the above breach of law. ( 8 ) THERE is no specific provision declaring the Magistrate to take cognizance of the offence and to issue process if prima facie satisfied about existence of a prima facie case. In that respect as per the provision in subsection (1) of Section 190, a Magistrate having power and jurisdiction takes cognizance of any offence (1) upon receiving a complaint. (ii) upon a Police report. (iii) upon information received from any person other than a Police Officer, (iv) upon his own knowledge. ( 9 ) IN this case the P. R. submitted by the A. S. I. of Police is not in conformity with the provision in Section 173 (i) of the Code. Hence it cannot be regarded as a Police report. Hence the P. R. in this case can be entertained as a complaint. Since learned Magistrate has not followed the procedure in section 200 read with Section 190 (1) (a) of the Code, therefore, while not interfering with the order of cognizance this Court set aside the order of issue of process against the petitioner and directs learned J. M. F. C. Jaleswar to proceed with P. R. in accordance with the law treating the same as co m p Ia i nt. ( 10 ) ACCORDINGLY while setting aside this order in issuing process against the petitioner, this Court rejects the prayer to quash the order of cognizance or to quash the criminal proceeding in the court below. As far as relating to issue of process learned magistrate is directed to proceed with the case treating the same as a complaint under Section 200 of the Code. The Criminal Misc. case is disposed of accordingly. Petition allowed accordingly.