Rajasthan High Court - Jodhpur
Rahul Kumar & Anr vs State on 11 September, 2017
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 565 / 2017
1. Rahul Kumar S/o Sh. Chhagan Lal, Aged About 39 Years, By
Caste Sharma, Resident of 5D Block, Sriganganagar.
2. Narayan Prasad S/o Sh. Bramdat, Aged About 71 Years, By
Caste Sharma, Resident of 2/18 Housing Board, Sriganganagar.
----Petitioners
Versus
The State of Rajasthan.
----Respondent
_____________________________________________________
For Petitioner(s) :Mr. Rakesh Matoria
For Respondent(s) :Mr. MS Panwar, PP
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 11/09/2017
1. Petitioners have preferred this misc. petition under Section 482 of Cr.P.C. for quashing of FIR as well as further proceedings in FIR No.277/2015 dated 05.07.2015 registered at Police Station Kotwali, Sriganganagar for offence under Section 13 of the Rajasthan Public Gambling Ordinance 1949.
2. At the outset, learned counsel for the petitioner has submitted that Schedule 2 of Cr.P.C. which is classification of offences against other laws in the Cr.P.C., reads as follows :-
"II CLASSIFICATION OF OFFENCES AGAINST OTHER LAWS _____________________________________________________________________ Offence Cognizable or non- Bailable or by what cognizable" Non-bailable Court triable (2 of 6) [CRLMP-565/2017] If punishable with death, cognizable Non-bailable Court of session imprisonment for life, or Imprisonment for more than 7 years.
If punishable with Ditto Ditto Magistrate of first class imprisonment for 3 years and upwards but not more than 7 years.
if punishable with Non-cognizable Bailable Any Magistrate imprisonment for less than 3 y ears or with fine only.
3. Learned counsel for the petitioner thereafter has drawn attention of the Court to the definition in 2C and 2L, the definition given in 2L and 2C of the Cr.P.C., reads as follows :-
"2C- "cognizable offence" means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant;
2L- "non-cognizable offence'' means an offence for which, and "non-cognizable case" means a case in which, a police officer has no authority to arrest without warrant;"
4. Learned counsel for the petitioner has thereafter drawn attention of the Court to Section 155 of Sub-section 2 of the Cr.P.C. which reads as follows :-
"155. Information as to non-cognizable cases and investigation of such cases.- (1). ----------------------
(3 of 6) [CRLMP-565/2017] (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."
Thus, it is apparent that offence under Section 41/42 of the Rajasthan Forest Act, 1953 is non-cognizable offence and petitioner can only be prosecuted by filing a complaint by the authorised/competent Officer. No FIR in the present case, could have been registered. Further, Police Officer concerned has not obtained permission from the Magistrate concerned for investigation of the offence.
In view of the above, the proceedings initiated in pursuance of the impugned FIR cannot be sustained and are liable to be set aside. Consequently, the present petition is accepted and the impugned FIR is quashed along with all subsequent proceedings. However, liberty is granted to the competent authorised Officer to file a complaint in accordance with the provisions of law, if it is not barred by limitation."
5. Learned counsel for the petitioner has thus, impressed upon the Court that going by the Cr.P.C. as well as other judgment passed by this Court in the matter of Forest Act etc., the offences which are non-cognizable were not permitted to be investigated without the order of the Magistrate who was having the power to try such cases or committed the case for trial. Learned counsel for the petitioner has further shown the provision charged against the present petitioner which is Section 13 of the Rajasthan Public Gambling Ordinance 1949, which is reads as follows :-
"13. Gaming and setting birds and animals to fight in public streets ; Destruction of instrument of gaming found in public streets.- A police officer may (4 of 6) [CRLMP-565/2017] apprehend without warrant any person found gaming in any public street, place, or thoroughfare; or Any person setting any birds or animals to fight in any public street, place or thoroughfare; or Any Person there present aiding and abetting such public fighting of birds and animals;
Such person, when apprehended shall be brought without delay, before a magistrate, and shall be liable to a fine not exceeding [one hundred rupees.] or to imprisonment either simple or rigorous for any term not exceeding [one month].
Any such police officer may seize all instruments of gaming found in such public place or on the person of those whom he shall so arrest and the magistrate may on conviction of the offender order such instruments to be forthwith destroyed. "
6. Learned counsel for the petitioner has relied upon the judgment passed by a co-ordinate Bench of this Court in the matter of Ali Khan Vs. State of Rajasthan, S.B. Cr. Misc. Petition No.1087/2015, decided on 11.03.2015 at Jaipur Bench. The relevant portion of this judgment, reads as under :-
"Schedule - II of Code of Criminal Procedure, 1973 giving classification of offences qua other laws, the offence for which FIR has been registered will be tried as non-cognizable offence.
Section 155(2) of the Code of Criminal Procedure reads as under -
"155. Information as to non-cognizable cases and investigation of such cases.- (1). ----------------------
(5 of 6) [CRLMP-565/2017] (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."
"Thus, it is apparent that offence under Section 41/42 of the Rajasthan Forest Act, 1953 is non-cognizable offence and petitioner can only be prosecuted by filing a complaint by the authorised/competent Officer. No FIR in the present case, could have been registered. Further, Police Officer concerned has not obtained permission from the Magistrate concerned for investigation of the offence.
In view of the above, the proceedings initiated in pursuance of the impugned FIR cannot be sustained and are liable to be set aside. Consequently, the present petition is accepted and the impugned FIR is quashed along with all subsequent proceedings. However, liberty is granted to the competent authorised Officer to file a complaint in accordance with the provisions of law, if it is not barred by limitation."
7. After hearing counsel for the parties, this Court finds that the Cr.P.C. categorically mentions classification of offences against other laws and definition. The offences punishable with more than 7 years broadly as cognizable offences and to be tried by session whereas the offences having imprisonment 3 years to up to 7 years are also cognizable triable by Magistrate first class and the offences punishable with imprisonment for less than three years or with fine are non- cognizable offences triable by any magistrate. The offence for non- cognizable offences show that the arrest shall not be made in the cognizable offence without a warrant. Thus, the bifurcation between the cognizable and non-cognizable as per the Cr.P.C. is that the lessor offence as scheduled in the classification of the Cr.P.C shall require more stronger scrutiny by the Judicial Magistrate and therefore, in the (6 of 6) [CRLMP-565/2017] definition itself, the need of warrant for arrest has been prescribed. It is further noted that Section 155 of Sub-section 2 of the Cr.P.C. also clearly reads that in case of non-cognizable cases, the investigation cannot be done by the police without the order of the Magistrate having power to try such cases or committed the case for trial.
8. Thus, the Court has also carefully perused the Section 13 of the Rajasthan Public Gambling Ordinance 1949, which stipulates the fine of Rs.100 and imprisonment up to one month. Thus, the offence alleged falls under the category of minimum gravity offence and as per schedule of the Cr.P.C. shall be in the category of non-cognizable offence as Section 13 itself does not prescribe as to whether the offence is cognizable or non-cognizable. Once, this Court is of the opinion that the offence is non-cognizable then this Court deems it appropriate to allow the present misc. petition by quashing the present proceedings in FIR No.277/2015 registered at Police Station, Kotwali Sriganganagar for the offence 13 of the Rajasthan Public Gambling Ordinance, 1949 as admittedly the respondents did not make a point that a proper order was obtained from the Magistrate before making any investigation in the present case.
9. In view of the above, the proceedings initiated in pursuance of the impugned FIR cannot be sustained and are liable to be set aside. Consequently, the present petition is accepted and the impugned FIR is quashed along with all subsequent proceedings. However, liberty is granted to the competent authorised Officer to file a complaint in accordance with the provisions of law, if it is not barred by limitation.
(DR. PUSHPENDRA SINGH BHATI)J. sudheer