Bombay High Court
Shivanand Giridhar Naik vs The Senior Inspector Of Police And Anr. on 19 June, 2000
Equivalent citations: 2000CRILJ4776
Author: Pratibha Upasani
Bench: Pratibha Upasani
ORDER Pratibha Upasani, J.
1. This criminal writ petition is filed by the petitioner/original accused Shivanand Giridhar Naik, being aggrieved by the filing of the charge-sheet against him by Bhiwandi Police Station in the Court of the Judicial Magistrate, First Class, 2nd Court, Bhiwandi in C.C. No. 653 of 1993, arising out of C.R. No. 233 of 1992 for offences punishable under Section 145(2) of the Bombay Police Act, 1951.
2. The allegation against the petitioner, as revealed from the charge-sheet, copy of which is annexed as Exhibits A and B to the Paper-book, are as follows :
The petitioner Shivanand Naik is working as Police Constable Buckle No. 1069 at Bhiwandi Taluk a Police Station since 2nd August, 1990. The petitioner was given charge duty from 8.00 p.m. of 18th April, 1992 till 8.00 a.m., of 18th April, 1992. He was also responsible for forwarding the applications for leave for sanction and also of the registers concerning the general duties. At about 11.15 hours, when Police Sub-Inspector Maharigade took inspection of records with the petitioner, it was noticed that some applications were still pending. On being asked about these applications, the petitioner informed that he had already handed over charge to Beat No. 1 to Head Constable Shri Murkar and no work was pending with him. The petitioner thereupon was asked to bring charge yadi. It is alleged that the petitioner went to bring this charge yadi from the office and since then, in dereliction of duty, he remained absent from duty without prior intimation for about 199 days from 18th April, 1992 till 3rd November, 1992. Notice also was issued to him under provisions of Bombay Police Act on 1st May, 1992 to remain present within twenty-four hours. However, in spite of the notice, the petitioner did not remain present or report for duty. Accordingly, report was sent to the Superintendent of Police Thane Rural, as the petitioner had not resumed duty. The complainant Trumbak Parvat Jadhav, Assistant Police Inspector also asked the Superintendent of Police Thane Rural for permission for filing case under Section 145(2) of the Bombay Police Act, against the petitioner. Accordingly, the permission was granted on 23rd October, 1992. Thus, complaint came to be lodged against the petitioner that from 18th April, 1992 to 3rd November, 1992, without any written permission or prior permission, in dereliction of duty, he remained absent, and therefore, committed offence under Section 145 of the Bombay Police Act. After completion of investigation, charge-sheet came to be filed in the Court of the Judicial Magistrate, First Class, 2nd Court, Bhiwandi vide Charge-sheet No. II-7/1993 dated 18th February, 1993. As soon as the petitioner became aware of the pendency of the case, he voluntarily appeared before the Judicial Magistrate, First Class and availed bail, as he was called upon to do so.
3. It is the contention of the petitioner that his prosecution under Section 145 of the Bombay Police Act, 1951 is totally illegal, since the said offence is punishable with imprisonment which may extend to three months or with fine which may extend to Rs. 100/- or with both. He has therefore contended that as per the Schedule of the Code of Criminal Procedure, 1973, Section 145 of the Bombay Police Act is a non-cognizable offence, and therefore, there cannot be any prosecution without prior permission of the Magistrate under Section 145, and therefore, prosecution initiated without such a permission is bad-in-law, and the proceedings have to be quashed, and if such a prosecution is launched, then it is illegal and therefore, the proceedings have to be. quashed.
4. This matter was argued at length, and I was told that it was argued before the earlier Bench also on the same point, but that, time was taken by the learned A. P. P. to take instructions whether permission to investigate this non-cognizable case under Section 145(2) of the Bombay Police Act was' obtained from the Magistrate, having power to try the case or commit the case for trial, or not. On this ground alone, the matter was adjourned, atleast on two occasions, before this Court also. However, the learned A.P.P. is not able to make any statement. Adverse inference will have to be, therefore, drawn that no such permission as required under Section 155(2) of the Code of Criminal Procedure, 1973 was taken by the Police Officer to Investigate the case, which was pertaining to a non-cognizable offence.
5. Section 155(2) of the Code of Criminal Procedure, 1973 lays down that 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. Since the alleged offence committed by the petitioner under Section 145 of the Bombay Police Act, 1951 is a non-cognizable offence, the Police machinery had no authority to investigate into this offence, and therefore, the police ought to have obtained the permission or order from the Magistrate having power to try the said offence. This being the position, the entire investigation carried out and the charge-sheet filed by the police was without any authority or jurisdiction and therefore, the prosecution initiated against the petitioner is required to be set-aside. Reference can be conveniently made to the decision of this Court in Avinash v. State of Maharashtra 1983 Cri LJ 1833, wherein, it has been held that the investigation carried out by the police in respect of non-cognizable offence, without permission obtained from the concerned Magistrate under Section 155(2) of the Code of the Criminal Procedure, 1973, is illegal, and therefore, liable to be quashed.
6. In view of this position, the petition will have to be allowed. Hence, the following order :
Criminal Writ Petition No. 1463 of 1993 is allowed. Rule made absolute in terms of prayer clause (b). Interim order dated 6th April, 1994 is hereby vacated.