WARES ALI & ORS. Vs. STATE

JUDGEMENT

(1.) This is an application under Sections 397 and 401 read with Sec. 482 Crimial P.C. Petitioners have come against the order passed by the 8th Metropolitan Magistrate rejecting the prayer of the petitioners for quashing the Criminal proceeding arising out of Taltala P.S. Case No. 37 dated 31.1.95 under Sections 341/454/506 I.P.C. In short the facts are that Md. Soleman as de facto complainant lodged a written complaint to the P. S. but that was not acted upon by the police. Then the said Soleman approached the Court of the learned Chief Metropolitan Magistrate with a written complaint against the present petitioners with the prayer to send it to the Officer-in-Charge concerned for starting a police cate treating the said complaint as F.I.R. the learned Chief Metropolitan Magistrate without sending the said petition of complaint to the Officer-in-Charge, Taltala P.S. sent it to the Dy. Commissioner, Central under Sec. 165 (3) Cr P. C. for causing Investigation. D.C., Central on his part sent that complaint to the O.C., Taltala P. S. for investigation and the police recorded the F.I.R. case on that basis and took up Investigation and submitted a charge sheet after investigation. After the filing of the charge sheet the present petitioners filed an application before the trial Magistrate praying for their discharge from the case on the ground that the investigation was not legal as one complaint was already there with the police and as such second complaint is not tenable in law. Both sides bought over the issue armed with the decision in their favour.

(2.) The provision of Sec. 156(3) Crimial P.C. contains that the Officer-in-Charge of a police station can take up Investigation on receipt of a written complaint forwarded to the Officer-in Charge concerned by the Magistrate with a direction to treat that complaint as F.I.R. Thus it appears that the provision of Sec. 156(3) confers the power of Investigation to the Officer-in-Charge of a police station. Under sub-section (1) the Officer-in-Charge of a police station may Investigate any cognizable case and under sub section (3) any Magistrate empowered under Sec. 190 Crimial P.C. may order such investigation as mentioned above, i.e., under Sec. 156(1). Therefore, the power has been gives to the Magistrate to direct investigation by the Officer in-Charge of s police station and not by any Superior Officer like D.C., Central. Accordingly, the initial order passed by the learned Chief Metropolitan Magistrate was wrong and not according to law. Therefore, the subsequent proceedings followed from that order all have turned bad and illegal.

(3.) It is true that the investigation was done by the Officer-in-Charge, Taltala P. S. but that was done at the behest of the D. C., Central, but the D.C., Central has not been empowered to direct the officer-in-Charge under Sec. 156(3) Cr. P. C. to take up Investigation. As such any such direction given by the D. C., Central to Investigate lithe basis of the is complaint that was sent to him under Sec. 156(3) Cr. P. C. was a direction without jurisdiction and without any sanction of law. Therefore, the Investigation taken up by the police in pursuance to such direction was also wrong and illegal.