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2023 DIGILAW 1360 (JHR)

Devendra Kumar v. State of Jharkhand

2023-11-22

ANIL KUMAR CHOUDHARY

body2023
JUDGMENT : 1. Heard the parties. 2. This Writ Petition has been filed under Article 226 of the Constitution of India with a prayer to quash the entire criminal proceeding arising out of Godda Nagar P.S. Case No. 0299 of 2022, corresponding to G.R. No. 939 of 2023 including the order taking cognizance dated 12.06.2022 which date has wrongly been mentioned due to printing error and in fact, the said order was passed on 12.06.2023 because in the order itself, there is reference to the final form which was submitted on 09.05.2023 and if the order would have been passed on 12.06.2022, the same could not have any reference to the final form dated 09.05.2023 whereby and where under, the cognizance for the offence punishable under Section 186, 201, 204 and 120B of Indian Penal Code has been taken against the petitioner. 3. It is submitted by the learned counsel for the petitioner that all the offences are non-cognizable still erroneously, the FIR was registered and police wrongly submitted the charge sheet because of printing error and the same was also intimated to the learned Chief Judicial Magistrate, Godda vide letter dated 03.06.2023 by the I.O. of the case, a copy of which has been annexed at Annexure-2 of this writ petition. It is next submitted by the learned counsel for the petitioner that subsequent to registration of the FIR, police completed the investigation and despite the fact that police submitted final form stating that offences alleged in the FIR were all non-cognizable offences still, the learned Magistrate took cognizance of all non-cognizable offences. It is then submitted by the learned counsel for the petitioner that initiation of the criminal proceeding against the petitioner by way of filing the FIR is bad in law and contrary to the provision of Section 155 (2) of Cr.P.C. Relying upon the judgment of Hon’ble Supreme Court of India in the case of State of Haryana & Ors. vs. Bhajan Lal & Ors. reported in 1992 Supp (1) SCC 335, paragraph no.102 of which reads as under:- “102. vs. Bhajan Lal & Ors. reported in 1992 Supp (1) SCC 335, paragraph no.102 of which reads as under:- “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” It is submitted by the learned counsel for the petitioner that as per clause (2) and (4) of the said paragraph no.102 of the case of State of Haryana & Ors. vs. Bhajan Lal & Ors. (supra), since the FIR itself was not sustainable in law, in the absence of any cognizable offences involved in the said FIR and admittedly, police investigated the case without the order of the Magistrate as required under Section 155 (2) of the Cr.P.C hence, it is submitted that the Magistrate ought not have taken cognizance of the offences. 4. Learned counsel for the petitioner next relied upon the judgment of a coordinate Bench of this Court in the case of Dr. Nishikant Dubey vs. The State of Jharkhand & Ors. in W.P. (Cr.) No. 299 of 2020 dated 30.03.2022 wherein, the coordinate Bench has observed that as the Magistrate in that case has not treated the charge sheet submitted for non-cognizable offences to be a complaint and without treating the charge sheet as complaint, the learned Magistrate has taken cognizance, the same is not permissible in law and submits that the said judgment of coordinate Bench of this Court in W.P. (Cr.) No. 299 of 2020 has been upheld by the Hon’ble Supreme Court of India as Special Leave to Appeal (Crl.) No. 10435 of 2022 filed against the said judgment has been dismissed by the Hon’ble Supreme Court of India; vide its order dated 07.11.2022. Hence, it is submitted that entire criminal proceeding arising out of Godda Nagar P.S. Case No. 0299 of 2022, corresponding to G.R. No. 939 of 2023 including the order taking cognizance dated 12.06.2023 be quashed and set aside. 5. Learned counsel for the State and the learned counsel for the respondent no.2 opposes the prayer to quash the entire criminal proceeding arising out of Godda Town P.S. Case No. 0299 of 2022, corresponding to G.R. No. 939 of 2023 including the order taking cognizance dated 12.06.2023. Learned counsel for the respondent no.2 submits that paragraph no. 102 of the judgment of State of Haryana & Ors. vs. Bhajan Lal & Ors. (supra) is not ratio decidendi of the judgment but it is only a obiter dictum. It is next submitted by the learned counsel for the respondent no.2 that the FIR can be registered for non-cognizable offences also but the police cannot investigate the case, hence, there is no illegality in the registration of the FIR nor there is any illegality in taking cognizance by the Magistrate. It is next submitted by the learned counsel for the respondent no.2 that even though the police officer is not empowered to carry out investigation in any case involving only non-cognizable offences still, if the police officer investigated such case, the proceeding of such police officer shall not be called in question on the ground that the case was one; which such officer is not empowered to investigate; in view of Section 156 (2) Cr.P.C. Hence, it is submitted that this writ petition being without any merit be dismissed. 6. Having heard the submissions made at the Bar and after going through the materials available in the record, so far as the contention of the learned counsel for the respondent no.2 that the observations made by the Hon’ble Supreme Court of India in the case of State of Haryana & Ors. vs. Bhajan Lal & Ors. (supra) is not ratio decidendi of the judgment is concerned; after going through the paragraph no. vs. Bhajan Lal & Ors. (supra) is not ratio decidendi of the judgment is concerned; after going through the paragraph no. 102 of the said Judgment as the Hon’ble Supreme Court of India has in no uncertain terms has extracted and reproduced category of cases by way of illustration wherein the power under Article 226 of Constitution of India or the inherent power under Section 482 Cr.P.C. could be exercised either to prevent abuse of process of court or otherwise to secure the ends of justice, this Court has no hesitation in holding that the observations made by the Hon’ble Supreme Court of India are binding precedent and the same is the law declared by the Supreme Court of India; in terms of Article 141 of Constitution of India. 7. So far as the contention of the learned counsel for the respondent no.2 that the FIR can be registered for non-cognizable offences is concerned, in the considered opinion of this Court in view of settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of State of Haryana & Ors. vs. Bhajan Lal & Ors. (supra) and Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra & Ors. reported in 2021 SCCOnLine SC 315 and in view of Section 154 and 155 of Cr.P.C., which reads as under: “154. Information in cognizable cases. (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read Over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. (2) A copy of the information as recorded under sub- section (1) shall be given forthwith, free of cost, to the informant. (2) A copy of the information as recorded under sub- section (1) shall be given forthwith, free of cost, to the informant. (3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence. 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. (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.” The plain reading of which reveals that the procedure laid down for the officer in charge of a police Station on receiving the information about the commission of a cognizable offence and a non-cognizable offence are entirely different; in the sense that in case of a cognizable offence, the officer in charge of the police station is supposed to ensure that the information is signed by the person who intimates about commission of cognizable offence and after reading the information in the book the copy of the same is to be supplied to the informant free of cost and police can investigate such case, without the direction of the court whereas in case of non-cognizable offence, there is no requirement of the information being signed by the informant and section 155 of the Code of Criminal Procedure envisages that the officer in charge of the police station will refer such information to the Magistrate and the bars the officer in charge of the police station to investigate the case without the order of the Magistrate; this Court is of the considered view that there is no merit in such contention of the learned counsel for the respondent no.2 that an FIR can be registered even if all the offences alleged to have been committed are non-cognizable offences. From the discussions made above; this Court has no hesitation in holding that FIR can be registered by the officer in charge of a police station; if and only if at least one of the cognizable offences is alleged to have been committed. 8. From the discussions made above; this Court has no hesitation in holding that FIR can be registered by the officer in charge of a police station; if and only if at least one of the cognizable offences is alleged to have been committed. 8. So far as the contention of the learned counsel for the respondent no.2 that if the police officer investigated a case involving only non-cognizable offences; without the order passed by the Magistrate for the same, the proceeding of such police officer shall not be called in question on the ground that the case was one; which such officer is not empowered to investigate; in view of Section 156 (2) Cr.P.C. is concerned, it is pertinent to refer Section 156 Cr.P.C. which reads as under:- “156. Police officer’s power to investigate cognizable case.—(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned” (emphasis supplied) A plain reading of Section 156 Cr.P.C. has in no uncertain manner reveals that the words “in any such case” referred to Section 156 (2) Cr.P.C. obviously refers to the cases as envisaged under Section 156 (1) Cr.P.C. Hence, this Court is not inclined to accept the submission made by the learned counsel for the respondent no.2 that in none of the cases under no circumstances, the proceeding of the any of the police officer can be called into question on the ground that the case was one; which such officer was not empowered to investigate. More so, because the words “under this Section” appearing in Section 156 (2) Cr.P.C. also makes it crystal clear that the protection given to the proceeding of the police officer is only in respect of the powers of the police officer to investigate cognizable offences as envisaged under Section 156 Cr.P.C. and by no stretch of imagination such protection can be extended to hold that even if a police officer investigates a non-cognizable offences without the orders of the Magistrate, therefor, still, the same protection as envisaged under Section 156 (2) Cr.P.C. can be given to the proceeding of the concerned police officer. 9. Now coming to the facts of the case, this Court has no hesitation in holding that in view of the undisputed facts that FIR of Godda Nagar P.S. Case No. 0299 of 2022 was registered only in respect of non-cognizable offences; therefore, the registration of such an FIR was bad in law and the investigation of the case involving only non-cognizable offences, police without the order passed by the Magistrate; was also not sustainable in law. Further, in the absence of any valid report as envisaged under Section 173 of Cr.P.C. submitted by the police and as Magistrate has not treated the report submitted by the police in this case of fun investigating the case involving only non-cognizable offences, without the order of the Magistrate, therefor; to be a complaint rather as the Magistrate concerned has treated such report submitted by the police to be one filed under Section 173 of Cr.P.C. and having acted upon that and having taken cognizance of the offence; the same is not in accordance with law. Hence, the same being not sustainable in law; is liable to be set aside. 10. Because of the discussions made above, this Court has no hesitation in holding that continuation of the criminal proceeding will amount to abuse of process of law and this is a fit case where the entire criminal proceeding arising out of Godda Nagar P.S. Case No. 0299 of 2022, corresponding to G.R. No. 939 of 2023 including the order taking cognizance dated 12.06.2023 be quashed and set aside. 11. Accordingly, the entire criminal proceeding arising out of Godda Nagar P.S. Case No. 0299 of 2022, corresponding to G.R. No. 939 of 2023 including the order taking cognizance dated 12.06.2023 is quashed and set aside. 12. 11. Accordingly, the entire criminal proceeding arising out of Godda Nagar P.S. Case No. 0299 of 2022, corresponding to G.R. No. 939 of 2023 including the order taking cognizance dated 12.06.2023 is quashed and set aside. 12. In the result, this writ petition is allowed.