STATE OF WEST BENGAL Vs. JOGINDAR MULLICK

JUDGEMENT

(1.) THIS Rule, at the instance of the State of West Bengal, is directed against an order dated January 25, 1978 passed by the learned Judicial Magistrate, 5th court, Sealdah discharging the accused opposite party, Jogindar Mallick, from a prosecution under Section 33a of the calcutta Subarban Police Act, 1866 (hereinafter referred to as the Act ).

(2.) IT has been alleged that the accused was found in possession of six bunddles of human bones at Nilratan Sarkcar hospital on July 7, 1974 and as he failed to account for such possession, he was arrested by a police officer of the Entally police Station. He was produced before the learned Police Magistrate, Sealdah on the self-same day and was released on bail. After completion of investigation into the case, a report was submitted by the Officer-in-Charge on October 7, 1974 praying for prosecution of the accused under Section 33a of the Ant. The substance of the accusation was explained to the accused under Section 251. of the Code of Criminal Procedure, 1973 (hereinafter referred to as the code) to which he pleaded not guilty. After a few witnesses on behalf of the prosecution were examined, an application was filed by the accused stating that the proceeding against him was not legally maintainable having regard to the fact that no prior permission was obtained from a competent Magistrate to investigate into the offence alleged against him, which was a non-cognizable one, as required under Section 155 (2)of the Code. This application was opposed by the petitioner by contending that the offence alleged against the accused was a cognizable one and therefore the provisions of Section 155 (2) of the Code had no application. The learned Magistrate accepted the contention of the accused opposite party that the offence was a non cognizable one and held that as there was no order of a competent Magistrate permitting the police to investigate into the offence, the proceeding against the accused was bad in law. On such finding by the impugned order, he discharged the accused and directed that the seized goods be returned to the person from whom seized.

(3.) WHILE the learned Advocate for the opposite party was present at the time of the hearing of the Rule on january 10, 1979. no one was present on behalf of the petitioner. Under such circumstances. this Court was deprived of the opportunity of hearing the learned Counsel for the State. Be that as it have. from the revisional application it appears that the Only ground that has been raised on behalf of the petitioner is that the offence under Section 33a of the Act a cognizable one and as such Section 155 (2) of the for has no manner of application. The learned advocate on behalf of the opposite party contended that the maximum punishment for the commission of an offence under Section 33a of the Act being imprisonment for a term of three months, the offence was not cognizable one under Section 2 (c) of the Code, and as such the police could not have investigated into the offence without order of a competent Magistrate. In the context of the contentions raised on behalf of the parties, the first point to be decided is whether the offence under Section 33 a of the Act is a cognizable one or not.