Allahabad High Court
Ravindra Kumar Tyagi vs State Of U.P. Thru. Prin. Secy. Home ... on 9 September, 2024
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:62515 Court No. - 13 Case :- APPLICATION U/S 482 No. - 8024 of 2024 Applicant :- Ravindra Kumar Tyagi Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Civil Sectt. Lko And Another Counsel for Applicant :- Ajay Bahadur Yadav Counsel for Opposite Party :- G.A. Hon'ble Saurabh Lavania,J.
1. Heard Mohd. Ahmad and Mohd. Shoeb Khan, Advocates, holding brief of Shri Ajay Verma, counsel for the applicant and Shri Jugal Kishor, learned A.G.A. for the State.
2. In view of the settled proposition on the issue involved in this application, the notice of opposite party No. 2/ Shri Dubhnath Tyagi is dispensed with.
3. By means of the present applicant, the applicant has sought the following main relief:
"Wherefore it is most respectfully prayed that this Hon'ble Court y kindly be pleased to quash the charge sheet dated 29-12-2020 and summoning order dated 26-02-21 in pursuant to first information report no- 333/2020, Case No. 416/2021, under section 504, 507 IPC, P.S. Jalalpur, District- Ambedkar Nagar, (State of U.P Versus Ravindra Kumar Tyagi) pending before Additional Chief Judicial Magistrate Ambedkar Nagar and further be pleased to stay the entire proceedings of first information report no- 333/2020, Case No. 416/2021, under section 504, 507 IPC, P.S. Jalalpur, District- Ambedkar Nagar, (State of U.P Versus Ravindra Kumar Tyagi), to meets the ends of justice."
4. For the purposes of seeking relief, quoted above, it is stated that the FIR No. 0733 was lodged on 09.11.2020, under Sections 507, 504 IPC. This FIR was lodged by the opposite party No.2 namely Sri Dubhnath Tyagi. It is also stated that the offence indicated in the FIR under Section 504 & 507 IPC was non-cognizable offence, accordingly, the FIR itself ought not to have been lodged by the concerned police and the same ought not to have been lodged as NCR.
5. It is also stated that in a non-cognizable offence, the police upon an enquiry is under obligation to seek permission from the concerned Magistrate and in the instant case, no such permission was sought obviously for the reason that directly an FIR was lodged on the written complaint made by the opposite party No.2.
6. Counsel for the applicant also stated that in view of the observations made by the Hon'ble Apex Court in the case of State of Haryana and Others Vs. Ch. Bhajan Lal and Others reported in 1992 AIR 604 wherein it has been observed that where the allegations in the FIR do not constitute a cognizable offence but constitute only non-cognizable offence, no investigation is permitted by a police officer without the order of a Magistrate as provided under Section 155(2) of the Code of Criminal Procedure, 1973 (Now repealed).
7. Learned A.G.A. for the State opposed the aforesaid prayer but he could not dispute the settled proposition of law on the aforesaid aspect.
8. Considered the aforesaid and perused the record.
9. Undisputedly, the offence(s) under Section(s) 504 and 507 IPC are non-cognizable as per First Schedule of CrPC.
10. Under Section 154, the FIR in a cognizable offence may be registered by the in-charge of the police station. Section 155 prescribes the information as to non-cognizable cases and manner of investigation of such cases. Section 156 provides the power to investigate a cognizable case to a police officer. Section 157 specifies a procedure for investigation. On perusal of these provisions, it is apparent that the officer in charge of the police station is having power to investigate any cognizable case without the order of the Magistrate and while investigating the same, he shall forthwith report the same to the Magistrate who is having power to take cognizance of such offence. In the cases where the commission of cognizable offence is there, the officer in charge of the police station is competent to investigate the matter without the order of Magistrate, but in case of non-cognizable offences, after taking the report, the officer-in-charge shall refer the matter to the Magistrate as per Section 155(1).
11. Regarding 'investigation' related to non-cognizable offence, Section 155(2) CrPC indicates as under:
"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"
12. Section 155(2) CrPC provides that no Police Officer shall investigate a non-cognizable case without the order of the Magistrate having power to try such case for trial. The language of Section 155(2) makes it clear that it is mandatory that no police officer shall investigate a non-cognizable case without the order of the Magistrate. Therefore, the said provision is mandatory and required to be complied with prior to investigating a non-cognizable offence.
13. The Hon'ble Apex Court in Keshav Lal Thakur v. State of Bihar [Keshav Lal Thakur v. State of Bihar, (1996) 11 SCC 557 : 1997 SCC (Cri) 298], the case related to the non-cognizable offence under Section 31 of the Representation of the People Act, 1950, observed as under:
"3. We need not go into the question whether in the facts of the instant case the above view of the High Court is proper or not for the impugned proceeding has got to be quashed as neither the police was entitled to investigate into the offence in question nor the Chief Judicial Magistrate to take cognizance upon the report submitted on completion of such investigation. On the own showing of the police, the offence under Section 31 of the Act is non-cognizable and therefore the police could not have registered a case for such an offence under Section 154CrPC. Of course, the police is entitled to investigate into a non-cognizable offence pursuant to an order of a competent Magistrate under Section 155(2)CrPC, but, admittedly, no such order was passed in the instant case. That necessarily means, that neither the police could investigate into the offence in question nor submit a report on which the question of taking cognizance could have arisen. While on this point, it may be mentioned that in view of the Explanation to Section 2(d)CrPC, which defines "complaint", the police is entitled to submit, after investigation, a report relating to a non-cognizable offence in which case such a report is to be treated as a "complaint" of the police officer concerned, but that explanation will not be available to the prosecution here as that relates to a case where the police initiates investigation into a cognizable offence?unlike the present one?but ultimately finds that only a non-cognizable offence has been made out."
14. The Hon'ble the Apex Court in the case of State of Haryana Vs. Bhajan Lal reported in 1992 Supp (1) SCC 335, held as under:-
"102.(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 F.I.R. 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;
(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."
15. In view of the aforesaid including the observations made by the Hon'ble Apex Court in the judgments, referred above, as also the explanation of Section 2(d) Cr.P.C., this Court is of the view that instant case interference is required. Accordingly, the instant application is party allowed. The summoning order dated 26.02.2021 is hereby quashed with a direction to the Magistrate for passing appropriate order as per law after taking note of explanation to Section 2(d) Cr.P.C..
Order Date :- 9.9.2024 (Manoj K.)