MANAMATHA GIN Vs. STATE OF ORISSA

JUDGEMENT

(1.) A significant question relating to Section 155 (2) of the Code of Criminal Procedure. 1973 (in short the Code) has been raised by the petitioner in pursuing the relief for quashing of U.I. Case No. 29 of 1998 of the Court of J.M.F.C. Jaleswar.

(2.) Petitioner is the accused in the above Criminal Proceeding. Prosecution report has been filed against him by the A.S.I. Kamardas Police Out Post under Bhogarai Police Station complaining that he committed the offence under section 323 I.P.C. It is stated in the report that on 12/11/1997 the occurrence took place in which the petitioner caused simple hurt to the injured because of a dispute which arose relating to repairing of a fence. Prosecution report was submitted on 21/1/1998. Learned Magistrate took cognizance of the offence and issued process against the petitioner when the petitioner refused to accept the process non-baiiabie warrant of arrest was issued against him. Before its execution on 10/8/2000, petitioner appeared in the case through counsel and filed two applications. One of such application was to allow his representation under section 205 Cr. P.C. and the other application was with the prayer to quash the cognizance because of violation of the mandatory provisions in sub-section (2) of Section 155 of the Code. On 10/5/2000, learned J.M.F.C. Jaleswar passed the impugned order rejecting both the applications. Learned Magistrate opined that he has no power to quash the proceeding and the prayer to dispense with the personal appearance is devoid of merit. Thereafter petitioner has filed this application under section 482 of the Code with the prayer to quash the proceeding on the ground of illegality which has cropped up for violation of the provisions in sub-section (2) of Sections 155 of the Code.

(3.) In course of hearing, learned counsel for the petitioner drawing attention of this Court to the provision in sub-section (2) of Section 155 of the Code argued that the said provision is mandatory in nature for asking the permission of the Court to investigate a non-cognizable offence and when in this case the concerned Police Officer did not seek for such permission but completed the investigation and filed the Prosecution Report, therefore, the order of cognizance consequent upon such illegal investigation be regarded as non-sustainable and accordingly be quashed.