Investigation Into Non-Cognizable Offence Sans Magistrate's Permission Is Illegal; Subsequent Nod Is Immaterial: Allahabad HC

The Allahabad High Court has observed that the investigation of a non-cognizable offence by the police without prior permission of the competent Magistrate is illegal, and subsequent permission by the Magistrate cannot cure this illegality. Referring to the provision under sub Section (2) of Section 155 of CrPC, a bench of Justice Shamim Ahmed noted that asking permission of the Court to investigate a non-cognizable offence is mandatory in nature, and if such permission isn't taken, merely accepting the charge sheet by the Magistrate and taking the cognisance of the offence does not validate the proceeding. “Though the charge sheet is filed after due investigation without prior permission of the Court and that the Magistrate has accepted the charge sheet and taken the cognizance, it does not mean to show permission is granted by the Magistrate to investigate such non- cognizable offence. Therefore, investigation into the non-cognizable offence without written order of the Magistrate is strictly contrary to the provision of this Section,” the Court observed. The single judge observed thus while quashing entire criminal proceedings and cognizance and summoning orders against 28 persons under sections 143, 147, 281, 283, 188, 269, IPC & 51(b) Disaster Management Act, 2005. Per the prosecution's case, in May 2021, the accused and 50-60 persons violated the COVID-19 guidelines issued by the District Magistrate, Pratapgarh, without following social distancing. It was alleged that without any permission, people were coming carrying placards with anti-police and anti-police slogans with their hands and raising anti-police slogans. When they saw police approaching them, they sat on the road and blocked the Kandharpur Road. An FIR was lodged under the aforesaid sections. It was the case of the accused persons that the police lodged an FIR and also submitted a Police Report under Section 188 IPC, which is without jurisdiction as Section 195(1) CrPC specifically provides that no court shall take cognizance of any offence under Sections 172 to 188 except upon a complaint in writing of the public servant. Perusing the Section 188 IPC read with Section 195(1)(a)(i) CrPC, which mandates that no court shall take cognizance of an offence under Section 188 IPC, except on a written complaint by the concerned public servant. In this case, the Court noted that the absence of such a complaint invalidated the cognizance of the offence under this section. The Court remarked: “As provided by section 195(1)(a) (i) CrPC, a court cannot take cognizance of an offence under section 188 IPC without a written complaint from the concerned public servant. The absence of such a complaint in the current case makes the cognizance and summoning order dated 13.09.2022 legally unsustainable…”. Further, the Court noted that Section 188 of IPC, which is declared as a non-cognizable and bailable offence and as per Section 155(2) CrPC, mandates the police concerned that such police officer shall investigate the non-cognizable offence only with the permission of the Magistrate only. “Therefore, as per Section 155(2) of CrPC, the police have no right or jurisdiction to investigate the matter, without prior permission of the Magistrate, who has got jurisdiction to try those offences. Therefore, the entire charge sheet filed by the police is vitiated by serious incurable defects and procedural irregularities,” the Court said. Against this backdrop, the Court observed that the absence of a written complaint from the concerned public servant for the offence under Section 188 IPC violated the mandatory procedural requirement under Section 195(1)(a)(i) CrPC. Therefore, the cognizance of this offence is legally unsustainable. Regarding the allegations under Sections 143, 147, 281, 283, and 269 IPC, the Court said they lacked specific and concrete evidence, and the FIR and charge sheet did not provide sufficient proof to substantiate the charges. In view of this, the Court quashed the chargesheet and summoning order of the Civil Judge (Senior Division) / FTC IInd Pratapgarh as well as the entire criminal proceedings against the applicants. Appearances Case title - Ashish Kumar Tiwari @ Rahul And 27 Others vs. State Of U.P. Thru. A.C.S/Prin. Secy. Deptt. Home Govt. Lko. And Another 2024 LiveLaw (AB) 396 Case citation: 2024 LiveLaw (AB) 396 Click Here To Read/Download Order

Investigation Into Non-Cognizable Offence Sans Magistrate's Permission Is Illegal; Subsequent Nod Is Immaterial: Allahabad HC

Sparsh Upadhyay

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