SUDHANSHU KAMAL MAZUMDAIR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) AN interesting question of law has been projected in connection with this revisional application. A police officer submitted after investigation, a prosecution report against the present petitioner accused in respect of an offence punishable under section 323 I. P. C. An offence under the said section is non-cognizable. In view of section 155 (2) Cr. P. C. no police officer can investigate a non-cognizable case without the order of a competent Magistrate. Sub-section (3) of Section 155 Cr. P. C. provides that any police officer receiving such order of a competent Magistrate to investigate a non cognizable case 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. Sub-section (1) of section 155 requires that when information about the commission of a non-cognizable offence is given to the officer in charge of a police station such officer shall record the same and refer the informant to the Magistrate. Therefore the picture that emerges on a reading of the subsections (1), (2) and (3) of Section 155 cr. P. C. is that on receipt of information about the commission of a non-cognizable offence the officer-in-charge of the police station is required to record the information in the prescribed book and to refer the informant to. the Magistrate, instead of taking up any investigation into the matter. There is an express prohibition that no police officer shall investigate a non-cognizable case without the order of a competent Magistrate and it is only after receiving such order of a competent Magistrate to investigate any particular non-cognizable case the police officer may exercise the same powers in respect of the investigation as is available for investigating a cognizable case except the power to arrest without warrant It is therefore evident that the order or permission of the competent Magistrate to investigate a non-cognizable case must be obtained beforehand. In other words, there must be prior permission or order of the Magistrate so as to authorise police investigation in a non-cognizable case. Sub-section (4) of section 155 Cr. P. C. however provides that where a case relates to two or more offences of which at least one is cognizable case. Sub-section (4) of section 155 Cr. P. C. however provides that 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 in which event however the police will be entitled to investigate in respect of all offences, cognizable and non-cognizable, involved in the case.

(2.) IN our present case the police was, it seems, activated by a telephonic information received at the police station at 23. 45 hours on the 4th July, 1988 and the police after investigation submitted prosecution report on 20th July, 1988 under Section 323 L. P. C. as already noted. The question that has been primarily raised in this revisional application by the petitioners accused is that the polios investigated the case without any permission or order of the Magistrate although it was a non-cognizable case and as such the cognizance taken by the learned Magistrate on the basis of police report in respect of a non-cognizable offence is bad in law and as such the cognizance taken by the learned Magistrate on the basis of police report in respect of a non-cognizable offence is bad in law and as such the entire proceeding is liable to be quashed. The G. D. entry by which the police was activated does not disclose commission of any cognizable offence. In the prosecution report it is stated that a prayer was made to the learned S. D. J. M. for obtaining necessary permission to inquire into the matter. Neither the prosecution report nor the I. O. in his evidence says that any permission was in fact granted by the learned Magistrate in favour of the police to investigate the case. Making of a prayer for permission and grant of permission are entirely different matters. Mere seeking permission will not authorise the police to investigate a non-cognizable case so long permission is not actually granted by the competent Magistrate. In the prosecution report mention has been made of a copy of order-sheet dated 18th July, 1988 of the learned S. D. J. M. 's Court in connection with the concerned G. D. entry. The order sheet, either the original or any copy thereof, is however not traceable. It is argued on behalf of the opposite parties that the said order-sheet would have shown that necessary permission' had been granted by the learned Magistrate for police investigation. As I have already mentioned the prosecution report was submitted on the 20th July, 1988. Even if it is assumed that the missing order-sheet dated the 18th July, 1988 would have shown that the learned magistrate had granted permission to investigate the case obviously such permission must have been granted. if at all, on the 18th July, 1988, that is, the date on which the said order sheet was drawn up. But it appears that police on receipt of the information about the commission of the offence on 4th July, 1988 took up the investigation and made spot inquiries on July, 1988. Therefore it is evident that the investigation had been started by the police before obtaining the permission or order of the magistrate in that behalf. Evidently, therefore, the police did not act in conformity with the provision of section 155 Cr. P. C. On receipt of the prosecution report the learned Magistrate however took cognizance on 18th august, 1988 and thereafter the case proceeded and the prosecution examined during trial as many as 8 witnesses including the Investigating officer and most of the witnesses were also cross-examined on behalf of the accused petitioners. Virtually the prosecution witnesses have all been examined and the proceeding in the court below has reached the stage of examination of the accused persons under section 313 Cr. P. C. when the proceeding has been challenged.

(3.) ON the question of law whether the cognizance taken by the learned magistrate on the basis of the prosecution report submitted in respect of an offence under section 323 I. P. C. is bad, several decisions have been cited at the bar. In support of his argument that the investigation without the order of a Magistrate under the mandatory provision of section 155 (2)Cr. P. C. is bad in law and therefore the entire proceeding is liable to be quashed, Mr. Dey, the learned Advocate for the petitioner has relied upon the Single Bench decisions of this court in Harilal Shaw vs. State of West bengal, 89 CWN 557, Pannalal Manna v. State, 1990 C. Crlr (Cal) 179 and abdul Halim vs. State of West Bengal, MR 1961 Cal, 257. In support of his argument that illegality is illegality and that in such case delay in raising the objection is immaterial, Mr. Dey has also relied on the Division Bench decisions of the court in Jay Shankar Jha vs. State, 86 CWN 242 and utpalendu Mahato vs. State, 94 CWN 981. It is however to be noted that in none of those decisions, the decision of the Supreme Court in H. N. Rishbud vs. State of Delhi AIR 1955 SC 196 was considered. In the said supreme Court decision in Rishbud it has been held that a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. Mr. Dey has attracted my attention to the following observation of the Supreme Court in rishbud (at page-204, ibid) : "we are, therefore clearly, also of the opinion that where the cognizance of the case has in fact been taken and the case has in fact been taken and the case has proceeded to termination, the invalidity of the preceeded to termination, the invalidity of the precedent investigation does not vittate the result, unless miscarriage of justice has been caused thereby".