Judgment:
Surinder Singh, J.
1. In both the appeals, the accused-respondents were acquitted by the learned trial Court for want of permission of the Magistrate to investigate the non-cognizable offences under Section 155 (2) of the Code of Criminal Procedure, in short 'the Code'.
2. As the common question of law is involved in both the cases, therefore, taken up together for its decision.
3. The facts of Criminal Appeal No. 160 of 2002 may be noted thus. On 15.11.1995 at about 4 a.m., the police party headed by ASI Shyam Lal intercepted Truck No. HPA-1986 allegedly transporting khair wood, concealed under the limestone powder bags. The respondents failed to produce the permit, thus, the khair wood was taken into possession and an FIR No. 484/95 case under Section 379 of the Indian Penal Code and Sections 41 and 42 of the Indian Forest Act, was registered against them, in police station Paonta Sahib.
4. During the investigation, it came to the notice that the khair wood was cut from Khasra No. 139, owned by respondent No. 2 Sant Singh, therefore, the police dropped Section 379 of the Indian Penal Code, but came to the conclusion that an offence under Section 4 of the Land Preservation Act, 1978 read with Sections 41 and 42 of the Indian Forest Act was committed by the respondents, as such, filed the police report under Section 173 of the Code of Criminal Procedure in the trial Court to take cognizance of the said offences.
5. In Criminal Appeal No. 311 of 2002, on 23.9.1996, at about 6 a.m., the respondents were found transporting the logs of fuel-wood in Tractors No. HPN-2131, HP-17-3603, PJB-9351 and HP-17-3557, without any pass/permit. The police lodged the FIRs and presented the challan under Section 173 Cr.P.C. against the respondents, under Sections 41 and 42 of the Indian Forest Act and Sections 181 & 192 of the Motor Vehicles Act.
6. The offences under Sections 41 and 42 of the Indian Forest Act is punishable with imprisonment for a period of two years and with fine, which may extend to Rs. 5,000/-, whereas the offence under Section 4 of the Land Preservation Act, 1978 is punishable with imprisonment for a period of six months and the offence under Section 181 of the Motor Vehicles Act is punishable with three years imprisonment or fine and under Section 192 for one year and fine.
7. Undisputedly, the above offences are non-cognizable, as per Schedule-II of the Code.
8. Section 155 of the Code provides the procedure for the investigation of the non-cognizable offences and it reads as under:
155. Information as to non-cognizable case and Investigation of such cases:
(1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate.
(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) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.
(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, not withstanding that the other offences are non-cognizable.
[Emphasis supplied]
9. This Section directs that the substance of information relating to the commission of a non-cognizable offence lodged in a police station shall be entered in the station diary and the informant shall be referred to the Magistrate as the police are debarred from investigating it under Sub-section (2) of the Code. The Section applies where the information relates solely to a non-cognizable offence. But while investigating a cognizable offence and presenting charge-sheet for cognizable offence, the police are not debarred from investigating any non-cognizable offence, arising out of the same facts and including them in their final report, as per Sub-section (4) of the Section aforesaid.
10. The bar laid down in Section 155 (1) and (2) of the Code is only confined to the 'non-cognizable offences', but where the set of facts constitute cognizable as well as non-cognizable offences, the police will be fully within its right to investigate into those set of facts.
11. In Cr. Appeal No. 311 of 2002, all the offences were non-cognizable. On getting the information of the commission of non-cognizable offences the police should have either sought the permission to investigate the case or should have referred the information to the Magistrate.
12. Even in a cognizable case, the moment the police had come to the conclusion that the cognizable case is not made out, in no case, the challan under Section 173 of the Code could have been presented in the Court for the non-cognizable offences, if the police are not permitted by the Magistrate to investigate the case for the commission of such offences. The investigation if carried out would vitiate the entire proceedings being illegal and the Magistrate is not empowered to take the cognizance, on the basis of the charge-sheet submitted by the police under Section 173 of the Code, as held by the Apex Court in State of Haryana and Ors. v. Ch. Bhajan Lal and Ors. : AIR 1992 SC 604 (para 108) and reliance can also be put on the judgments rendered in Shivanand Giridhar Naik v. Senior Inspector of Police and Anr. : 2000 Cr.L.J. 4776, Illies Ali v. State of West Bengal : 1997 Cr.L.J. 803 and Mam Chand and Ors. v. State : 1999 Cr.L.J. 1512.
13. Thus for the above reasons, the order of acquittal passed by the learned trial Court cannot be interfered with. Accordingly both the appeals are dismissed.
The respondents are discharged of their bail bonds entered upon by him during the proceedings of the case.
Send down the records.