STATE Vs. LAL SINGH

JUDGEMENT

(1.) By this petition the State challenges the order of the Learned Additional Sessions Judge dated 12 th December, 2008 whereby the Learned Additional Sessions Judge set aside the order of the Learned Metropolitan Magistrate dated 2 nd September, 2008 dismissing the application of the Respondents seeking discharge under Section 155 (2) Cr.P.C.

(2.) Briefly the facts giving rise to the filing of the present petition are that the complainant Madan Gopal Arora was working as a Labour Inspector at Labour Department in Jhilmil Colony, Vishwakarma Nagar, Shadara and on 17 th December, 2007 at about 10.30 AM he had gone to deliver a letter of meeting at the Mother Dairy office. After delivering the letter to the Assistant Manager, Mother Dairy Shri R.T. Wadhwa and Vice-President Shri Rajbir when he was coming back to his office, the Respondents came and abused the complainant and gave beatings. On the allegations of the complainant FIR No. 624/2007 under Section 186/353/34 IPC was registered at PS Mandawali and after investigation charge-sheet was filed for offence punishable under Section 186/353/34 IPC.

(3.) The Learned Metropolitan Magistrate after hearing the parties on the order on charge came to the conclusion that no offence under Section 186/353/34 IPC was made out and the Respondents were liable to the prosecuted for offence punishable under Section 323/34 IPC. Thus, vide order dated 3 rd June, 2008 the Learned Metropolitan Magistrate directed framing of notice against the Respondents under Section 323/34 IPC. The Respondents filed an application before the Learned Metropolitan Magistrate under Section 155 (2) Cr.P.C. seeking discharge in view of the fact that offence under Section 323 IPC is a non-cognizable offence and the Police could not have investigated the offence without the prior permission of the Learned Metropolitan Magistrate. Relying on Chaman Prakash Vs. State,2007 3 JCC 1983the Learned Metropolitan Magistrate dismissed the application as not maintainable. Aggrieved by the said order dated 2 nd September, 2008 the Respondents filed a revision petition before the Learned Additional Sessions Judge. The Learned Additional Sessions Judge vide the impugned order dated 12 th December, 2008 set aside the order of the Learned Metropolitan Magistrate dismissing the application under Section 155 (2) Cr.P.C. on the ground that the Magistrate should not have converted the case under Section 323/34 IPC because neither the cognizance was taken of that offence initially nor Police has alleged that any offence under Section 323/34 IPC was made out nor any permission has been sought by the Police to investigate the case of non-cognizable offence which is mandatory in nature. Hence the present petition.