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2016 DIGILAW 1134 (RAJ)

Yunus v. State of Rajasthan

2016-08-04

P.K.LOHRA

body2016
ORDER : Mr. P.K. Lohra, J. Accused-petitioner has laid this misc. petition under Section 482 Cr.P.C. for quashing FIR No.05/2016 registered with Police Station Ratangarh, District Churu and all the proceedings undertaken pursuant thereto. 2. In the FIR aforesaid, the petitioner is charged for offence under Sections 41, 42 and 77 of the Rajasthan Forest Act, 1953 (for short, 'Act of 1953') 3. Learned counsel for the petitioner would contend that the offence attributed to him is not punishable beyond the period of three years and thus FIR as such is not sustainable. Learned counsel has also urged that Sections 41 and 42 of the Act of 1953 provides for a non-cognisable offence therefore investigating agency cannot proceed for investigation pursuant to said FIR as no permission was sought from the Magistrate. In support of his contentions, learned counsel has placed reliance on a decision of this Court in case of Ali Khan v. State of Rajasthan (S.B. Criminal Misc. Petition No. 1087/2015, decided on 11.03.2015). 4. Learned Public Prosecutor, in general, has opposed the prayer made in the petition. Learned Public Prosecutor further submits that charge-sheet in the matter has already been filed against the petitioner for the aforesaid offences, therefore, it is not worthwhile to exercise inherent powers for quashing FIR and further proceedings. 5. I have heard learned counsel for the parties, perused the judgment of this Court in Ali Khan's case (supra). 6. Before adverting to examine the ratio decidendi of the judgment of co-ordinate Bench in Ali Khan's case (supra), it is just and appropriate to examine the relevant provisions of Chapter (XII) Cr.P.C. under the caption Information to Police and their power to Investigate. Subsection (2) of Section 155 Cr.P.C. under Chapter (XI) envisages a clear embargo that Police Officer cannot investigate a non-cognisable case without the order of a Magistrate having power to try such case or commit the case for trial. Section 155 with emphasis on Sub-section (2) reads as under:- "155. Subsection (2) of Section 155 Cr.P.C. under Chapter (XI) envisages a clear embargo that Police Officer cannot investigate a non-cognisable case without the order of a Magistrate having power to try such case or commit the case for trial. Section 155 with emphasis on Sub-section (2) reads as under:- "155. Information as to non-cognisable 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-cognisable 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-cognisable 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 cognisable case. (4) Where a case relates to two or more offences of which at least one is cognisable, the case shall be deemed to be a cognisable case, notwithstanding that the other offences are non-cognisable." 7. There remains no quarrel that the offences for which petitioner is charged, i.e., 41, 42 and 77 of the Act of 1953, are non-cognisable offences. It is also an admitted position that no permission was sought from the Magistrate concerned to investigate the aforesaid offences. 8. In this view of matter the ratio decidendi in Ali Khan's (supra) can very well be pressed into service for quashing the FIR as well as the charge-sheet, which is subsequently submitted after completion of investigation. 9. In view of above discussion, the instant petition is allowed, FIR No. 05/2016 and the charge-sheet submitted pursuant thereto against the petitioner for the aforesaid offences and all other proceedings are quashed and set aside.