AVINASH MADHUKAR MUKHEDKER Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This criminal writ petition under Article 227, of the Constitution of India is filed by the petitioner accused (hereinafter referred to as the petitioner ) challenging the legality and correctness of the order dated July 13, 1982, passed by the Additional Sessions Judge, Thane.

(2.) By this petition the petitioner seeks to challenge the maintainability of the criminal prosecution launched against him under section 124 of the Bombay Police Act, 1951, (Bombay Act No. XXII of 1951) hereinafter referred to as the Act . This petition raises a neat question of law and in order to appreciate the rival contentions, it would be necessary to set out the allegations of the prosecution case. It is common ground that the petitioner was charge-sheeted under section 124 of the Act. It is further alleged in the charge-sheet that on December 16, 1980, at about 11.45 hours, when house of the petitioner was searched several articles of foreign make were found in his possession. These articles were not owned by the petitioner, but, however, he was found in possession of the same. Upon further enquiry it transpired that some of the articles of foreign make Were sold by the petitioner to the witnesses and in regard to any of these articles the petitioner failed to account for such possession. It is further recited in the charge-sheet that there is reason to believe that these articles are stolen property or property fraudulently obtained and retained in possession by the petitioner. The charge-sheet, therefore, recites that the petitioner has committed an offence punishable under section 124, of the Act.

(3.) It is common ground that preceding the charge-sheet the Police Officer attached to Shaliapur Police Station carried out the investigation and the petitioner was also arrested on December 17, 1980, and thereafter came to be released on December 20, 1 980, under the orders of the Magistrate. The Investigating Officer submitted the charge-sheet on January 30, 1981 to the Judicial Magistrate, First Class, Shahapur. On September 1, 1981, the petitioner made an application Ex. 7 challenging the legality and maintainbility of the said criminal prosecution for offence under section 124 of the Act. The main contention raised in this application Ex. 7 by the petitioner is that the investigation having been made by the police in non-cognizable offence without thin order of the Magistrate the entire investigation is vitiated and, therefore the trial cannot be held on the basis of such illegal investigation. In support of this contention the petitioner strongly relied upon the provisions of section 155(2), of the Criminal Procedure Code. According to the petitioner in view of this mandatory provision contained in 15(2) of the Criminal Procedure Code no Police Officer could have investigated non-cognizable offence without the order of the Magistrate having power to try such case or commit the case for trial. The petitioner, therefore, prayed that the trial was illegal and he bp acquitted. It is common ground that no orders were obtained by the investigating Officer from the competent Magistrate before the investigation was commenced in this case.