Even Subsequent Permission By Magistrate Can’t Cure Illegality Of Investigation Of Non-Cognizable Offence By Police Without Permission: Allahabad HC

The Allahabad High Court enunciated that the investigation of non-cognizable offence by the police without prior permission of the competent Magistrate is illegal and even subsequent permission by the Magistrate cannot cure such illegality.

The Lucknow Bench was dealing with an application under Section 482 of the Criminal Procedure Code (CrPC) filed by 28 accused persons seeking to stay the cognizance and summoning order of the Civil Judge.

A Single Bench of Justice Shamim Ahmed observed, “The provision in sub Section (2) of Section 155 of Cr.P.C., for asking permission of the Court to investigate a non-cognizable offence is mandatory in nature. Therefore, the investigation of non-cognizable offence by the police without prior permission of the competent Magistrate is illegal. Even mere accepting the charge sheet by the Magistrate and taking the cognizance of the offence does not validate the proceeding. Even subsequent permission by the Magistrate also cannot cure the illegality. As could be seen from Section 460 of Cr.P.C. these defects of non- taking permission before investigating a non-cognizable offence is also not curable.”

The Bench added that 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 and therefore, investigation into the non-cognizable offence without written order of the Magistrate is strictly contrary to the provision of this Section.

Advocate Manuvendra Singh appeared on behalf of the applicants while AGA-I Ashok Kumar Singh appeared on behalf of the opposite parties.

Brief Facts -

A case was registered against the applicants under Sections 143, 147, 281, 283, 188, and 269 of the Indian Penal Code (IPC) and Section 51(b) of the Disaster Management Act, 2005. An FIR was registered in 2021 according to which some people were going to take out a candle march from Shivpur Khurd and block the road of Kohandaur, Kandharpur regarding the arrest of the accused related to a murder. The accused persons along with 50-60 persons violated COVID-19 guidelines without following social distancing. Without the permission, people were coming carrying placards with anti-police slogans in their hands and raising slogans against the police.

When they saw the police coming to Shivpur intersection, they sat on the road going to Kohdaur near Khushhali Baba Temple and blocked the Kandharpur Road. The counsel for the applicants contended that the concerned Trial Court without applying its own mind, issued summoning order in absence of a separate complaint under Section 195(1)(a)(i) CrPC which is inevitable for the purpose of taking cognizance and putting the accused to trial. It was further argued that the FIR was registered under Section 188 IPC, which is without jurisdiction.

The High Court in view of the facts and circumstances of the case said, “The absence of a written complaint from the concerned public servant for the offence under Section 188 IPC violates the mandatory procedural requirement under Section 195(1)(a)(i) Cr.P.C. Therefore, the cognizance of this offence is legally unsustainable. The allegations under Sections 143, 147, 281, 283, and 269 IPC lack specific and concrete evidence. The FIR and charge sheet do not provide sufficient proof to substantiate the charges.”

The Court noted that the investigation done by the police in the case is without jurisdiction and based on such invalid investigation report, the cognizance taken by the Magistrate is also illegal. It added that the entire proceeding before the Magistrate is vitiated by serious incurable defects.

“In S.W. Palankattkar & others Vs. State of Bihar, 2002 (44) ACC 168, it has been held by the Hon'ble Supreme Court that quashing of the criminal proceedings is an exception than a rule. The inherent powers of the High Court itself envisages three circumstances under which the inherent jurisdiction may be exercised:-(i) to give effect an order under the Code, (ii) to prevent abuse of the process of the court ; (iii) to otherwise secure the ends of justice. The power of High Court is very wide but should be exercised very cautiously to do real and substantial justice for which the court alone exists”, it observed.

Accordingly, the High Court allowed the application and quashed the case against all the applicants.

Cause Title- Ashish Kumar Tiwari @ Rahul And 27 Others v. State of U.P. Thru A.C.S/Princ. Secy. Deptt. Home Govt. Lko. And Another (Neutral Citation: 2024:AHC-LKO:43062)

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