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1. The petitioners seek issuance of an appropriate writ/order/direction in the nature of prohibition quashing the orders dated 8th June, 2006 and 4th November, 2006 passed by the learned ACMM, New Delhi in case FIR No. 305/2006, Police Station Sarita Vihar, New Delhi.

2. The facts leading to the filing of the present writ petition are as follows: On 01.02.2006, FIR No. 104/2006 was registered under Sections 19, 21, 25, 27 and 29 NDPS Act against Rahul Mahajan and others by Police Station Tughlaq Road, New Delhi. On 08.06.2006, an application was filed by the SHO, Inspector Madanjit Singh, Police Station Tughlaq Road in the Court of the learned ACMM for the registration of a case under Section 182 IPC against the doctors and management of Apollo Hospital, wherein it was stated that since the offence under Section 182 IPC was a non-cognizable offence and the police cannot enter into investigation of such an offence suo moto, permission for investigation of the case under Section 182 IPC may be given.

(D. Kamini Lau) ACMM: New Delhi 8.6.06

4. Pursuant to the above order, a First Information Report bearing No. 305/2006 under Section 182 IPC was registered by the police of Police Station Sarita Vihar and investigation commenced against the doctors and management of the Apollo Hospital. On 30th October, 2006, a charge-sheet in FIR No. 305/2006 under Sections 182/201/109/114/120B IPC, Police Station Sarita Vihar was filed in the Court of the learned ACMM, New Delhi. The said charge-sheet was accompanied by a copy of the FIR Along with the complaint submitted by the complainant on 8th June, 2006 and was also accompanied by a formal complaint dated 30th October, 2006 under Section 195 Cr.P.C. by the same complainant, i.e., Inspector Madanjit Singh of Police Station Tughlaq Road.

30. eferring next to the scheme of Sections 154, 155 and 156 as contained in Chapter-XII of the Cr.P.C., Ms. Mukta Gupta contended that while the provisions of Section 156(3) provide for investigation into cognizable offences upon orders of a Magistrate empowered under Section 190 to order such investigation, in clear contrast the provisions of 155(2) provide for investigation of non-cognizable cases, laying down that no police officer shall investigate a non-cognizable case without the orders of a Magistrate having power to try such case or commit such case for trial. The application submitted by the SHO, Police Station Tughlak Road, for the registration of the case under Section 182 IPC and the investigation thereon was in accordance with the legislative mandate as set down in Section 155(2). The order of the learned ACMM dated 8th June, 2006 was, therefore, an order passed in exercise of the powers vested in the ACMM by virtue of Sub-section (2) of Section 155. No cognizance, as contended by Mr. Luthra, was taken by learned ACMM by order dated 8th June, 2006. Applying the same analogy, Ms. Gupta contended that the further contention of Mr. Luthra that, the learned ACMM had gravely erred by taking cognizance in the present case time and again, i.e., on 8th June, 2006 and again on 4th November, 2006, does not hold water.

53. The contention of Mr. Siddarth Luthra, the learned senior counsel for Dr. Prasad Rao that cognizance was taken by the learned ACMM on two different occasions, that is, on 8th June, 2006 and 4th November, 2006 and his further contention that the learned ACMM was bound to follow the procedure laid down in Chapter XV of the Cr.P.C. as set out in Sections 200-203, i.e., to record pre-summoning evidence, is again not borne out by the records. Clearly, no cognizance was taken by the learned ACMM by her order dated 8th June, 2006. The complainant/Inspector Madanjit Singh had moved an application for investigation of a non-cognizable offence and registration of an FIR in respect of the offence under Section 182 IPC on 8th June, 2006 and on the same date, that is, on 8th June, 2006, an order was passed by the learned ACMM directing registration of the FIR and investigation into the offence under Section 182 IPC. It was only after the submission of the Report by the SHO, Police Station Sarita Vihar that cognizance was eventually taken by the learned ACMM by her order dated 04.11.2006. The contention of Mr. Luthra that the so called charge-sheet was only a Report pursuant to an enquiry under Section 202 Cr.P.C. is also without merit. In the instant case, clearly no orders were passed by the learned ACMM under Section 202 of the Code. It is trite law that the investigation envisaged by Section 202 contained in Chapter XV is different and distinct from the investigation contemplated under Sections 155 and 156 of the Code, contained in Chapter XII, which deals with "Information To The Police And Their Powers To Investigate".