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2014 DIGILAW 262 (TRI)

Narendra Pratap Singh v. State of Tripura

2014-07-08

S.C.DAS

body2014
JUDGMENT S.C. Das, J. 1. This petition under Section 397 read with Section 401 and Section 482 of CrPC is filed by the petitioners named above, challenging order dated 17.12.2007, taking cognizance of offence punishable under Section 323 of CrPC and order dated 20.01.2009 rejecting prayer of discharge made under Section 258 of CrPC, passed by learned Judicial Magistrate, First Class, Agartala, West Tripura, in connection with case No. Misc. 993 of 2007 and further prayed for discharging them from the liability of the criminal case. 2. Heard learned counsel, Mr. Sekhar Dutta for the petitioners and learned P.P., Mr. A. Ghosh for the State respondent and learned senior counsel, Mr. P.K. Biswas, assisted by learned counsel, Mr. P. Majumder for respondent No. 2, the de facto complainant. 3. Fact, necessary for disposal of the present petition, is that the de facto complainant, Sri Kamal Ranjan Ghosh, respondent No. 2 herein, submitted a First Information Report in writing to SI Balaram Sen, Officer In-charge of Lembucherra Police Outpost under Lefunga PS alleging that on 05.11.2007 during office hours the de facto complainant, Kamal Ranjan Ghosh was performing his duties in Poultry Division of ICAR, Lembucherra and at that time the accused petitioner, Dr. Suresh Malik, Supervising Officer of Poultry Division, ICAR, arrived there and picked up an altercation with Kamal Ranjan Ghosh and all on a sudden Sri Malik caught hold collar of Sri Kamal Ranjan Ghosh and started dragging him. At that time, the other accused Dr. Narendra Pratap Singh, Joint Director of ICAR, Lembucherra, who was at a short distance rushed there and started punching blows on the face of the de facto complainant, Kamal Ranjan Ghosh and, as a result, Kamal Ranjan Ghosh fell down and started shouting. The incident was witnessed by some other staff who were present on the spot. 3.1. On receipt of that complaint, SI Balaram Sen made GD Entry No. 142 dated 05.11.2007 in the G.D. Book of Lembucherra Police Outpost and started investigation of the incident. 3.2. The incident was witnessed by some other staff who were present on the spot. 3.1. On receipt of that complaint, SI Balaram Sen made GD Entry No. 142 dated 05.11.2007 in the G.D. Book of Lembucherra Police Outpost and started investigation of the incident. 3.2. On 12.11.2007, SI Balaram Sen, O/C of Lembucherra Police Outpost made a prayer to the learned Chief Judicial Magistrate, Agartala, West Tripura praying for permitting him to submit Police Report (P.R. in short) under Section 323 of IPC and the prayer was forwarded through the O/C, Lefunga PS and that prayer of SI Balaram Sen was placed before the learned Judicial Magistrate, First Class, Agartala, through learned Chief Judicial Magistrate and by order passed on that day learned Magistrate, First Class, allowed the police officer to submit P.R. under Section 323 of IPC. 3.3. Thereafter on 17.12.2007, SI Balaram Sen of Lembucherra Police Outpost submitted the P.R. against the petitioners for commission of offence punishable under Section 323 of IPC on the basis of which cognizance has been taken by impugned order 17.12.2007 and the petitioners were summoned to appear before the Court of Judicial Magistrate, First Class, Agartala, West Tripura. 3.4. On receipt of the summons, the accused petitioners appeared and they were released on bail. Thereafter, on 20.01.2009 the accused petitioners filed an application under Section 258 of CrPC praying for discharging them from the criminal prosecution and that prayer has been rejected by learned Judicial Magistrate, First Class by impugned order dated 20.01.2009, and hence, the present petition, challenging both the order, taking cognizance and the order rejecting prayer under Section 258 of CrPC. 4. Learned counsel, Mr. Dutta appearing for the accused petitioners has argued that SI Balaram Sen, the investigating officer did not comply the provisions of Section 155 of CrPC, and hence, the criminal proceeding has been vitiated and the accused petitioners are liable to be discharged. He has further argued that the allegations made in the police report are vague, uncertain and suffer from inherent improbabilities which the learned Magistrate while taking cognizance has failed to consider and, therefore, the cognizance taken cannot stand and is liable to be interfered and quashed. In fine, Mr. He has further argued that the allegations made in the police report are vague, uncertain and suffer from inherent improbabilities which the learned Magistrate while taking cognizance has failed to consider and, therefore, the cognizance taken cannot stand and is liable to be interfered and quashed. In fine, Mr. Dutta, learned counsel has submitted that the Magistrate mechanically passed order dated 20.01.2009 and rejected the petition under Section 258 of CrPC and that order is also liable to be set aside and quashed. 5. Learned P.P., Mr. Ghosh has submitted that, to be fair on the issue, it is apparent that I.O. investigated the case without obtaining permission from the Magistrate which is the basic requirement of Section 155(2) of CrPC. Since the investigation has been done without permission of the Magistrate, to be fair, the criminal proceeding cannot sustain in view of the provisions of Section 155 of CrPC. 6. Learned senior counsel, Mr. Biswas has submitted that on receipt of the information from the de facto complainant, Kamal Ranjan Ghosh, the police officer entered the fact in the GD Book of the police outpost, and as it appears, he, thereafter, investigated the case and made a prayer to the Magistrate for filing P.R. and accordingly by order dated 11.12.2007 learned Magistrate considering the prayer of the I.O. permitted him to file the P.R., and that since permission has been obtained by the police officer before submission of P.R., irregularity, if any, has been cured in view of the provision under Section 460(b) of CrPC. According to Mr. Biswas, learned senior counsel, the provisions of Section 155 should not be so strictly construed to the extent that permission of the Magistrate should be taken before initiation of the investigation, what is required by the provisions is that a permission should be taken before a P.R. is submitted and since permission has been taken in the present case and, thereafter, P.R. has been submitted, the irregularity should be ignored and therefore cognizance taken by the Magistrate by order dated 17.12.2007 and subsequent order dated 20.01.2009 rejecting prayer under Section 258 of CrPC were justified and need not be interfered. It is also argued by learned senior counsel, Mr. It is also argued by learned senior counsel, Mr. Biswas that when the learned Magistrate has already permitted the police officer to submit P.R., the criminal prosecution against the accused petitioners should proceed and the burden is on the accused petitioners to show at the time of trial as to how they have been prejudiced by the police report. 7. In support of his argument learned counsel, Mr. Dutta has referred the following case laws: 1. 2008(1) GLT 545, Brijesh Pandey v. Sipra Dey & Anr. 2. (2008) 4 GLR 437, Ramesh Kumar Jain & Anr. v. State of Tripura & Anr. 3. MANU/SC/0345/1992 : AIR 1992 SC 1915, Punjab National Bank v. Surendra Prasad Sinha. 4. AIR 1998 SC 128, M/s. Pepsi Foods Ltd. V. Special Judicial Magistrate. 5. (2013) 2 TLR 161, Brijesh Panday, IAS v. State of Tripura & Ors. On the contrary, in support of his argument learned senior counsel, Mr. Biswas has relied on the following case laws: 1. AIR 1962 BOMBAY 263, Gulabsingh v. State. 2. AIR 1955 SC 196 , H.N. Rishbud v. State of Delhi. 3. AIR 1957 SC 737 , Narayan Rao v. State of Andhra Pradesh. 4. AIR 1958 Kerala 194, State of Kerala v. Devassy. 5. 1986 CriLJ 332, State of Maharashtra v. P.C. Tatyaji. 8. Section 155 of CrPC authorizes a police officer to investigate non-cognizable offences subject to certain conditions. Once investigation is completed subject to compliance of the provisions of Section 155 a police officer is authorized to submit a police report and when such a report is submitted, the police report shall be treated as a complaint and the police officer shall be termed as a complainant, in terms of Section 2(d) of CrPC. On receipt of such a complaint the Magistrate is authorized to take cognizance in terms of Section 190(1)(a) of CrPC. 9. Learned Judicial Magistrate, First Class, by impugned order dated 17.12.2007 has taken cognizance considering the complaint, i.e. the police report, and the order is not a detailed order but the order reflects that the learned Magistrate on receipt of the complaint has considered it and has taken cognizance under Section 323 of IPC. 10. Section 155 of CrPC reads as follows: 155. 10. Section 155 of CrPC reads as follows: 155. Information as to non-cognizable cases and investigation of such cases.--(1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate. (2) 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. (3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case. (4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable. A meticulous reading of the above provision makes it clear that a police officer in the event of receipt of an information of non-cognizable offence- (i) shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as prescribed by the State Government; (ii) he shall refer the informant to the Magistrate; (iii) he shall not investigate the non-cognizable case without the order of the Magistrate having power to try such case or commit the case for such trial; (iv) on receipt of an order from the Magistrate the police officer may investigate the offence and may exercise the same power as the officer may exercise it in a cognizable case. 11. It is not disputed that SI Balaram Sen, the IO (complainant) received an information in writing from the de facto complainant (respondent No. 2) which disclosed a non-cognizable offence punishable under Section 323 of IPC and he entered the information in the General Diary Book of Lembucherra Police Outpost vide GD Entry No. 142 of 2011 dated 05.11.2007. 11. It is not disputed that SI Balaram Sen, the IO (complainant) received an information in writing from the de facto complainant (respondent No. 2) which disclosed a non-cognizable offence punishable under Section 323 of IPC and he entered the information in the General Diary Book of Lembucherra Police Outpost vide GD Entry No. 142 of 2011 dated 05.11.2007. It is an admitted position that on receipt of the information of the offence, after making the GD Entry, the police officer started investigation and after completing the investigation by filing a petition dated 12.11.2007 through O/C Lefunga PS, the complainant, SI Balaram Sen, i.e. the I.O. of the case, made a prayer before the Chief Judicial Magistrate for permission to submit P.R. under Section 323 of IPC and on the basis of that prayer learned Judicial Magistrate, First Class by impugned order dated 11.12.2007 permitted the police officer to submit the P.R. 12. Let us first see whether the provision of Section 155 of CrPC is mandatory or directory in nature. The language of Section 155 of CrPC makes it abundantly clear that the legislature at its wisdom used the word, 'shall' in the provision to make it peremptory or mandatory. 12.1. Whether an enactment is mandatory or directory depends on the scope and the object of the statute. Where the enactment demands the performance of certain provision and/or certain action without any option or discretion, it will be called peremptory or mandatory. On the other hand, if the acting authority is vested with discretion, choice or judgment, the enactment is directory. In deciding whether the provision is directory or mandatory, one has to ascertain whether the power is coupled with a duty of the person to whom it is given to exercise it. If so, then it is imperative. Generally the intention of the legislature is expressed by mandatory and directory verbs, such as 'may', 'shall' and 'must'. However, sometimes the legislature uses such words interchangeably. In such cases, the interpreter of the law has to consider the intention of the legislature. If two interpretations are possible, it is the settled position of law, then the one which preserves the constitutionality of the particular statutory provisions should be adopted and the one which renders it unconstitutional and void should be rejected. In such cases, the interpreter of the law has to consider the intention of the legislature. If two interpretations are possible, it is the settled position of law, then the one which preserves the constitutionality of the particular statutory provisions should be adopted and the one which renders it unconstitutional and void should be rejected. Lord Campbell observed that there can be no universal applications as to when a statutory provisions be regarded as merely directory and when mandatory. Maxwell says that it is impossible to lay down any general rule for determining whether a provision is mandatory or directory. The Supreme Court has time and again held that the question whether a statute is mandatory or directory, is not capable to generalization and that in each case the Court should try and get at the real intention of the legislature by analyzing the entire provisions of the enactment and the scheme underlying it. In other words, it depends on the intent of the legislature and not upon the language in which the intent is clothed. The intent of the legislature must be ascertained not only from the phraseology of the provision, but also from its nature, design and consequences which would follow from construing it from one form or another. The words, 'may', 'shall' and 'must' should initially be deemed to have been used in their natural and ordinary sense. May signifies permission and implies that the authority has been allowed discretion. In the case of State of U.P. v. Jogendra Singh, AIR 1963 SC 1618 ] the Supreme Court has observed that there is no doubt that the word, 'may' generally does not mean 'must' or 'shall'. But it is well settled that the word, 'may' is capable of meaning 'must' or 'shall' in the light of the context. It is also clear that when a discretion is conferred upon a public authority coupled with an obligation, the word, 'may' sometimes be construed to mean command. 'Shall'--in the normal sense imports command. It is well settled that the use of the word, 'shall' does not always mean that the enactment is obligatory or mandatory. It depends upon the context in which the word, 'shall' occurs and the other circumstances. Unless an interpretation leads to some absurd or inconvenient consequences or contradicts with the intent of the legislature the Court shall interpret the word, 'shall' in mandatory sense. 12.2. It depends upon the context in which the word, 'shall' occurs and the other circumstances. Unless an interpretation leads to some absurd or inconvenient consequences or contradicts with the intent of the legislature the Court shall interpret the word, 'shall' in mandatory sense. 12.2. The provision of Section 155 of CrPC, as it apparently appears, has been worded very carefully to make the intention of the legislature clear that it is mandatory in nature since it is incorporated some statutory safeguards which are made peremptory to be observed by the police while investigating upon a non-cognizable offence. The statutory safeguards must be strictly complied with, for their conceived in public interest and were provided as a guarantee against frivolous and vexatious prosecution. Except Section 155 there is no other provision in the Code empowering a police officer to investigate a non-cognizable offence in any other manner. The provision stipulates that a police officer must not investigate a non-cognizable case without an order of a Magistrate. The provisions of sub-section(2) of Section 155, therefore, cannot be made nugatory by rendering a police report as a valid report under Section 190(1) of CrPC. 12.3. I have, therefore, no hesitation to arrive at a conclusion that the provisions of Section 155 of CrPC are peremptory or mandatory in nature and noncompliance of sub-section(2) of Section 155 will make the investigation beyond jurisdiction and, therefore cognizance taken by a Court on the basis of the police report of such unlawful investigation should be rejected. 13. In the case at hand, it is an admitted position that the incident occurred on 30.10.2007. Respondent No. 2, the de facto complainant submitted information in writing to the officer In-charge of Lembucherra Police Outpost on 05.11.2007 and the complainant, i.e. the O/C of the police Outpost, SI Balaram Sen started investigation. After completion of investigation he submitted prayer to the Magistrate on 12.11.2007 to permit him in submitting police report against the accused petitioners for commission of offence punishable under Section 323 of IPC which is a non-cognizable offence. It is, therefore, evident that the mandatory provision has been violated. 13.1. Learned senior counsel, Mr. Biswas has submitted that since permission has been ultimately obtained from the Magistrate the irregularity has been cured as per the provision prescribed in Section 460(b) of CrPC. 13.2. The relevant part of Section 460 reads thus: 460. It is, therefore, evident that the mandatory provision has been violated. 13.1. Learned senior counsel, Mr. Biswas has submitted that since permission has been ultimately obtained from the Magistrate the irregularity has been cured as per the provision prescribed in Section 460(b) of CrPC. 13.2. The relevant part of Section 460 reads thus: 460. Irregularities which do not initiate proceedings.--If any Magistrate not empowered by law to do any of the following things, namely:- (b) to order, under section 155, the police to investigate an offence; ... erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered. 13.3. Section 155 prescribes that the officer In-charge of the police station on receipt of an information of a non-cognizable offence after making entry in the G.D. Book shall refer the informant to the Magistrate and then shall obtain an order from the Magistrate having power to try the case or commit the case. Clause (b) of Section 460 only stipulates that if the permission is given by a Magistrate who is not empowered to try a case that much of irregularity will be cured and not beyond it. I cannot, therefore, agree with the submission of learned senior counsel, Mr. Biswas that the irregularity is liable to be cured applying the provision of Section 460(b) of CrPC. 13.4. Learned senior counsel, Mr. Biswas relying on the decision of the apex Court in the case of H.N. Rishbud (supra) has submitted that in that reported case permission of the Magistrate was not obtained as required under the Prevention of Corruption Act but the Supreme Court has held that the total investigation shall not vitiate. In that reported case, charges were under Section 120B and 420 of IPC and Section 7 of the Essential Supplies (Temporary Powers) Act, 1946 and also under Section 5(2) of the Prevention of Corruption Act and for prosecution under Section 5(2), sanction as required under Section 5(4) for investigation by an officer below the rank of Deputy Superintendent of police was not obtained and while deciding that case the Supreme Court has held that when the Legislature has enacted in emphatic terms such a provision it is clear that it had a definite policy behind it. The Court also held that when the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, while not declining cognizance, will have to take necessary steps to get the illegality cured and the defect rectified, by ordering such investigation and the circumstances of an individual case may call for. We may gainfully refer here para 9 and 10 of the judgment which reads as follows: 9. The question then requires to be considered whether and to what extent the trial which follows such investigation is vitiated. Now, trial follows cognizance and cognizance is preceded by investigation. This is undoubtedly the basic scheme of the Code in respect of cognizable cases. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance or trial. It is only with reference to such a breach that the question as to whether it constitutes an illegality vitiating the proceedings or a mere irregularity arises. 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. Section 190, Cr. P.C. is one out of a group of sections under the heading "Conditions requisite for initiation of proceedings." The language of this section is in marked contrast with that of the other sections of the group under the same heading, i.e., Sections 193 and 195 to 199. These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. 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. But Section 190 does not. 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. To such a situation Section 537, Cr. P.C. which is in the following terms is attracted: Subject to the provisions herein before contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any enquiry or other proceedings under this Code, unless such error, omission or irregularity, has in fact occasioned a failure of justice. 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. 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 Zutshi v. The King', AIR 1950 PC 26 (D). These no doubt relate to the illegality of arrest in the course of investigation while we are concerned in the present cases with the illegality with reference to the machinery for the collection of the evidence. This distinction may have a bearing on the question of prejudice or miscarriage of justice, but both the cases clearly show that invalidity of the investigation has no relation to the competence of the Court. This distinction may have a bearing on the question of prejudice or miscarriage of justice, but both the cases clearly show that invalidity of the investigation has no relation to the competence of the Court. We are, therefore, clearly, also, of the opinion that 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. (10) It does not follow, however, that the invalidity of the investigation is to be completely ignored by the Court during trial. When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such reinvestigation as the circumstances of an individual case may call for. Such a course is not altogether outside the contemplation of the scheme of the Code as appears from section 202 under which a Magistrate taking cognizance on a complaint can order investigation by the police. Nor can it be said that the adoption of such a course is outside the scope of the inherent powers of the Special Judge, who for purposes of procedure at the trial is virtually in the position of a Magistrate trying a warrant case. When the attention of the Court is called to such an illegality at a very early stage it would not be fair to the accused not to obviate the prejudice that may have been caused thereby, by appropriate orders, at that stage but to leave him to the ultimate remedy of waiting till the conclusion of the trial and of discharging the somewhat difficult burden under section 537, Cr. P.C. of making out that such an error has in fact occasioned a failure of justice. It is relevant in this context to observe that even if the trial had proceeded to conclusion and the accused had to make out that there was in fact a failure of justice as the result of such an error, explanation to section 537, Cr. P.C. indicates that the fact of the objection having been raised at an early stage of the proceeding is a pertinent factor. P.C. indicates that the fact of the objection having been raised at an early stage of the proceeding is a pertinent factor. To ignore the breach in such a situation when brought to the notice of the Court would be virtually to make a dead letter of the peremptory provision which has been enacted on grounds of public policy for the benefit of such an accused. It is true that the peremptory provision itself allows an officer of a lower rank to make the investigation if permitted by the Magistrate. But this is not any indication by the Legislature that an investigation by an officer of a lower rank without such permission cannot be said to cause prejudice. When a Magistrate is approached for granting such permission he is expected to satisfy himself that there are good and sufficient reasons for authorising an officer of a lower rank to conduct the investigation. The granting of such permission is not to be treated by a Magistrate as a mere matter of routine but it is an exercise of his judicial discretion having regard to the policy underlying it. In our opinion, therefore, when such a breach 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 section 5A of the Act. It is in the light of the above considerations that the validity or otherwise of the objection as to the violation of section 5(4) of the Act has to be decided and the course to be adopted in these proceedings, determined. 13.5. Relying on the case of H.N. Rishbud (supra), Justice U.L. Bhat of Kerala High Court in the case of P. Kunhumuhammed v. State of Kerela reported in 1981 CriLJ 356 carefully elucidated the law and we may gainfully quote here para 16 of the judgment which reads as follows: 16. It is therefore clear that there is only minor change introduced by the provisions of the new Code. A consideration of the judicial precedents referred to above in the light of the changes made in the new Code, would suggest the following propositions as being applicable under the new Code. It is therefore clear that there is only minor change introduced by the provisions of the new Code. A consideration of the judicial precedents referred to above in the light of the changes made in the new Code, would suggest the following propositions as being applicable under the new Code. (1) Section 155(2) of the new Code prohibits investigation by a police officer into a non-cognizable offence without the order of a Magistrate. A violation of this provision would stamp the investigation with illegality. (2) This defect in the investigation can be obviated and prejudice to the accused avoided by the Magistrate ordering investigation under Section 202 of the Code. (3) The report of a police officer following an investigation contrary to Section 155(2) could be treated as a complaint under Section 2(d) and Section 190(1)(a) of the Code if at the commencement of the investigation the police officer is led to believe that the case involved commission of a cognizable offence or if there is doubt about it and investigation establishes only commission of a non-cognizable offence. (4) If at the commencement of the investigation it is apparent that the case involved only commission of a non-cognizable offence, the report followed by investigation cannot be treated as a complaint under Section 2(h) or Section 190(1)(a) of the Code. (5) Whenever a report of a police officer relating to a non-cognizable offence is brought to the notice of a Magistrate he has to look into the matter and apply his judicial mind and find out whether, (a) it is a case where reinvestigation has to be ordered under Section 202 of the Code, or (b) whether it could be treated as a complaint under Section 2(h) and Section 190(1)(a) of the Code and if so cognizance could be taken, (c) or whether it is a case where the report cannot be treated as a complaint under Section 2(h) and Section 190(1)(a) of the Code or, (d) it is a fit case for taking cognizance taking into consideration all the attendant circumstances. (6) If these aspects are not brought to the notice of or adverted to by the Magistrate at that stage and trial is concluded, the trial cannot be said to be vitiated on account of the defect as the defect in the investigation precedent to trial could be cured by Section 465 of the new Code, unless failure of justice has been occasioned thereby. 14. I cannot agree with the submission of learned senior counsel, Mr. Biswas that relying on the ratio of H.N. Rishbud(supra) cognizance taken in the present case may be held valid and may not be interfered since H.N. Rishbud(supra) was for a cognizable offence and for one of the alleged offence the investigation officer was not authorized one and therefore the Supreme Court has held that such irregularity may be cured even at the later stage taking appropriate step but has not held that the investigation is valid. 14.1. We may refer here the case of Vishnu Kondaji Jadhav v. State of Maharashtra reported in 1995 Supp.(4) SCC 408, wherein the apex Court while considering a similar question as to the permission to the inspector of police to investigate an offence under Section 5A of the Prevention of Corruption Act has held that since the inspector of police did not obtain permission of the Magistrate his investigation in respect of the offence was beyond jurisdiction. 14.2. A Single Bench of Delhi High Court in the case of Mam Chand v. State reported in 1999 CriLJ 1512 has held that sub-section(2) of Section 155 of the Code creates a legal bar for police to investigate into a non-cognizable offence without obtaining an order from a competent Magistrate and it is a mandatory provision and investigation carried in violation thereof is illegal. 14.3. A Hon'ble Single Judge of Calcutta High Court in the case of Subodh Singh Modak v. State reported in 1974 CriLJ 185 has held that violation of Section 155(2) of CrPC is a non-compliance of the procedure established by law. 14.4. The apex Court in the case of Rupan Deol Bajaj v. K.P. Gill reported in 1996 CriLJ 381 has held that where the allegations in the FIR do not constitute a cognizable offence but constitute a non-cognizable offence, no investigation is permitted by a police officer without an order of the Magistrate as contemplated under Section 155(2) of CrPC. 14.5. The apex Court in the case of Rupan Deol Bajaj v. K.P. Gill reported in 1996 CriLJ 381 has held that where the allegations in the FIR do not constitute a cognizable offence but constitute a non-cognizable offence, no investigation is permitted by a police officer without an order of the Magistrate as contemplated under Section 155(2) of CrPC. 14.5. In the case of Siddanagouda v. State of Karnataka reported in 1998 Crilj 2162 learned Singe Judge of the Karnataka High Court has held that the investigation made without permission of the competent Magistrate as contemplated by Section 155(2) of CrPC is illegal. Subsequent permission of competent Magistrate obtained by police officer does not validate the illegal investigation. In para 7 of the judgment the Court has held thus- 7. Therefore, in the light of the aforementioned pronouncements, the investigation in the instant case i.e. Crime No. 191/94 of Bijapur Rural P.S. commenced by the police for the said cognizable offences was without jurisdiction. The subsequent permission of the competent Magistrate obtained by the I.O. on 22-11-1994 does not validate the illegal investigation that was carried out by him. Therefore, the criminal proceeding initiated by the respondent police in the said crime No. 191/94 is liable to be quashed. 15. The question that the accused persons are to show as to how they are prejudiced, does not arise at all in the given facts and circumstances of this case, since the police report itself is beyond jurisdiction and cognizance should not have been taken on the basis of such police report. It is a settled principle of law that where law has prescribed a certain action to be taken in a certain manner, that should be taken in such manner as prescribed by law and not otherwise. The provision of Section 155 is found to be mandatory in nature. The police officer, on receipt of the information from the de facto complainant, was bound to refer the informant to the Magistrate and thereafter would obtain order from the Magistrate to investigate into the offence but he has deliberately did not do so. Had it been done, according to law, what would happen, whether the Magistrate would give permission to the police officer or not is a question, cannot be decided now. Had it been done, according to law, what would happen, whether the Magistrate would give permission to the police officer or not is a question, cannot be decided now. As alleged, respondent No. 2, the de facto complainant was a subordinate official in the premises of Lembucherra ICAR Poultry Division and he alleged that his superior authority, i.e. the Supervising Officer and Joint Director, assaulted the de facto complainant in the office premises by fists and blows. The petitioners submitted numerous documents with the revisional application to show that the de facto complainant was negligent in performing his duty and there were lot of indiscipline or inaction on his part in discharging of his duty for which he was cautioned in many occasions but those documents cannot be taken into consideration at this stage and I cannot also agree with the submission of learned counsel, Mr. Dutta that there is no material to take cognizance. If the police report is found in order, based on the fact stated in the police report the Magistrate was empowered to take cognizance, but, since the investigation is beyond jurisdiction cognizance taken on the basis of the police report pursuant to such investigation cannot stand and is liable to be interfered and set aside. The decisions referred by learned counsel, Mr. Dutta are all relates to taking of cognizance and the power of the Court under Section 482 of CrPC, etc., which in my considered opinion, has no relevance to decide the present issue at hand. 16. The case of Gulabsingh(supra), referred by learned senior counsel, Mr. Biswas is distinguishable to that of the fact of the present case. The question of sanction raised in that reported case and the finding was substantially relying on Rishbud's case(supra). I find no relevance to apply of the ratio of that decision in the given facts and circumstances of this case. Similarly, the case of Narayan Rao(supra) has also no relevance in the facts and circumstances of this case. The case of Devassy (supra) is also based on Rishbud's case(supra) and the ratio of that decision also cannot be applied in the facts and circumstances of the present case. 17. Similarly, the case of Narayan Rao(supra) has also no relevance in the facts and circumstances of this case. The case of Devassy (supra) is also based on Rishbud's case(supra) and the ratio of that decision also cannot be applied in the facts and circumstances of the present case. 17. In view of the discussions made above, I am of the considered opinion and has no hesitation to hold that the investigation conducted by the complainant SI Balaram Sen was beyond jurisdiction and so cognizance taken on the basis of the police report as a result of such investigation is bad in law and, therefore the criminal prosecution initiated against the accused petitioners by order dated 17.11.2007 is quashed. The revisional application is accordingly allowed. The accused petitioners are liable to be discharged. 18. Send back the L.C. records along with a copy of this judgment.