Police Has No Jurisdiction To Investigate A Non-Cognizable Case Without Prior Permission Of Magistrate: Allahabad HC

The Allahabad High Court said that the police has no jurisdiction to investigate a non-cognizable case without the prior permission of Magistrate.

The Lucknow Bench of the Court was deciding an application under Section 482 of the Criminal Procedure Code (CrPC) filed by a man praying to quash a chargesheet along with cognizance/summoning order passed by the Additional Chief Judicial Magistrate arising out of a case under Sections 171H and 188 of the Indian Penal Code (IPC).

A Single Bench of Justice Shamim Ahmed observed, “This Court further finds that the above said two offences are non-cognizable offences. Therefore, as per Section 155(2) of Cr.P.C., the police have no right or jurisdiction to investigate the matter, without prior permission of the Magistrate, who has got jurisdiction to try those offences. Therefore, the entire charge sheet filed by the police is vitiated by serious incurable defects and procedural irregularities.”

The Bench said that investigation of non-cognizable offence by the police without prior permission of the competent Magistrate is illegal.

Advocates Chandan Srivastava, Rajneesh Kumar Singh and Yogesh Somvanshi represented the applicant in this case.

Brief Facts -

The counsel for the applicant submitted that the applicant was contesting on the post of Councilor in Urban Local Bodies Election, 2017. During that period, an F.I.R. was lodged by the opposite party i.e., a Sub Inspector against the applicant alleging therein that one poster was put on a pole situated in front of house of a person. Further allegation in the F.I.R. was that the applicant was a candidate from Ward No. 21 i.e. Sardar Bhagat Singh Ward and the aforesaid act of the applicant was an offence under Sections 171 H and 188 of IPC.

The counsel for the applicant further submitted that the Investigating Officer recorded the statement of the applicant, wherein he denied the allegations. The Investigating Officer recorded the statement of the Sub Inspector and one witness under Section 161 Cr.P.C., wherein they supported the version of F.I.R.

The High Court in view of the facts and circumstances of the case noted, “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. 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. Therefore, investigation into the non-cognizable offence without written order of the Magistrate is strictly contrary to the provision of this Section.”

The Court added that the F.I.R. as well as the charge sheet, do not disclose that there was any cognizable offence made by the applicant, so as to enable the police to investigate both the cognizable and non- cognizable offences together and to file the charge sheet and therefore, the entire charge sheet papers and on the basis of which the criminal case is registered is liable to be quashed.

“This Court also finds that the trial court while summoning the applicant by impugned order has totally failed to appreciate the factual and legal aspect of the matter. The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage”, it also observed.

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

Accordingly, the High Court allowed the application and quashed the criminal proceedings.

Cause Title- Mohd. Rashid Khan v. State of UP Thru. Addl. Chief Secy. Deptt. Home Lko. And Another (Neutral Citation: 2024:AHC-LKO:22798)

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