Full Judgment
1. Heard both sides.
2. By this petition the petitioner who is accused in Crime No. 191/94 of Bijapur Rural P.S. registered against him and four others for offences under Section 171(4) read with Section 109, I.P.C. seeks quashing of the investigation of the crime by the concerned police on the ground that the alleged offences are non-cognizable offences and, therefore, the police have no jurisdiction to investigate into the same.
3. On the first information of one Vijayakumar Patil received by the S.H.O. through the concerned Election Officer, the said Crime No. 191/94 was booked against petitioner and four others on 29-11-1994 at about 11.15 p.m. The place of incident is shown as at a distance of 5 Kms. from the said police station. Immediately after registration of the crime the S.H.O. (PSI) proceeded to the spot where co-accused Nos. 2 to 5 were present in an Ambassador car bearing No. MYB 27. Then they arrested by the PSI and the said car together with the cash, two note books and voters list were seized by him under a panchanama in the presence of panchas during the same night between 1 a.m. and 2 a.m. Thereafter, on the following morning he despatched the F.I.R. to the concerned Magistrate together with the said seizure panchanama and the case diary, which papers were received by the Magistrate on 22-11-1994 at 8 a.m. Along with those investigation papers an application was also submitted to the learned Magistrate requesting for permission to carry on further investigation. The learned Magistrate put his endorsement on that application itself granting the requisite permission.
4. Indisputably, the alleged offences against petitioner and others are non-bailable offences. There is a legal bar created by sub-section (2) of Section 155 of Cr.P.C. for the police to investigate the non-cognizable offence without the order of a competent Magistrate. This material provision is as extracted below.
'155. Information as to non-cognizable cases and investigation of such cases :-
(1) ......... .......... ......... ........
(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.
(3) to (4) ....... ....... ....... .......'
Admittedly, said crime No. 191/94 was registered and the further investigation to the aforesaid stage was carried on by the police without the requisite permission by the learned Magistrate.
5. Therefore, the material point that calls for determination is whether the investigation so done by the police is valid and if not, what order
6. The Supreme Court in Mrs. Rupan Deol Bajaj v. Kanwar Pal Singh Gill, ILR 1996 Karnataka 344 : (1996 Cri LJ 381) has detailed the circumstances justifying quashing of the investigation by the police into any crime. One of the material circumstances is spelt out as circumstance No. 4 at para 8 of its order. It is as follows :
'(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 office without an order of a Magistrate as contemplated under Section 155(2) of the Code.'
The same proposition is reiterated in a subsequent decision in Keshaw Lal Thakur v. State of Bihar, 1996(4) Crimes 121 (SC). This Court while dealing with a similar situation in Sudarshan Manchanda v. State of Karnataka, 1979(2) Kar LJ 449 has held :
'Investigations which started without requisite sanction or order of the jurisdictional Magistrate, as contemplated under Section 155(2), Cr.P.C. would not be validated by an order of the Magistrate, obtained subsequently.'
7. Therefore, in the light of the aforementioned pronouncements, the investigation in the instant case i.e. Crime No. 191/94 of Bijapur Rural P.S. commenced by the police for the said cognizable offences was without jurisdiction. The subsequent permission of the competent Magistrate obtained by the I.O. on 22-11-1994 does not validate the illegal investigation that was carried out by him. Therefore, the criminal proceeding initiated by the respondent police in the said crime No. 191/94 is liable to be quashed.
8. Therefore, the petition is allowed. The criminal proceedings in Crime No. 191/94 against this petitioner and all other co-accused is quashed.
9. Petition allowed.