SHIV KUMAR AGARWAL Vs. STATE OF MEGHALAYA

JUDGEMENT

(1.) Whether a Magistrate can take cognizance of a non-cognizable offence punishable under Section 500, IPC on the basis of the police report submitted by the police under Section 173(2), Code of Criminal Procedure (Cr. P.C.) while investigating both a cognizable offence and a non-cognizable offence under Section 155(4), Cr. P.C. even after the accused is discharged from the cognizable case, is the moot point in this criminal petition under Section 482, Cr. P.C.

(2.) The controversy arose when, on 14-11-2005, the respondent Nos. 2, 3 and 4 lodged an FIR before the Officer-in-Charge of Shillong Sadar Police Station alleging that the petitioner and his associates have printed pamphlets and distributed them in and around Shillong calling them as anti-social elements, etc. with the intention to create enmity, hatred and ill-will between different communities and people and that the publications have damaged their reputation and prestige in the market. Again, on 16-11-2006, another FIR was lodged by the same respondents over the same allegations. Both the FIRs were jointly registered as Shillong Sadar Police Station Case No. 176(11)05, u/S. 505 (2)/ 500/34, dated 16-11-2007. On 10-2-2006, the police, after completion of the investigation, submitted the charge-sheet under Section 173, Cr. P.C. before the learned Chief Judicial Magistrate, Shillong, who, after hearing the panties, framed the charges under Section 505(2)/500, IPC. Admittedly, the offence punishable under Section 505(2), IPC is a cognizable offence, but the police did not obtain the previous sanction of the State Government or District Magistrate under Section 196(1A), Cr. P.C. for prosecuting the petitioner. This prompted him to move this Court under Section 482, Cr. P.C. for quashing the charge against him under Section 505(2), IPC. This Court in Criminal Petition No. 10(SH) of 2010 passed the order dated 4-2-2011 quashing the charge against the petitioner under Section 505 (2), IPC and remanded the case to the learned Chief Judicial Magistrate, Shillong for further proceeding against him for the offence of Section 500, IPC. Before the trial Court, the petitioner prayed for dropping the proceeding against him by contending that the proceeding was without jurisdiction inasmuch as the final report under Section 173, Cr. P.C. submitted by the police cannot be construed to be a complaint as the same was not filed by an aggrieved person as provided for in Section 199, Cr. P.C. The trial Court by the impugned order rejected the application. This is how this second round of litigation is launched by the petitioner.

(3.) Attacking the impugned order, Mr. N. Mozika, the learned counsel for the petitioner, contends that the final report under Section 173, Cr. P.C. was submitted by the police after investigation, and not on the basis of the complaint lodged by an aggrieved person and the police cannot be construed to be an aggrieved person within the meaning of Section 199, Cr. P.C, and the taking of cognizance of the offence by the trial Court when the complaint was not filed by an aggrieved person is wholly illegal and without jurisdiction. It is also the submission of the learned counsel that Section 155(4), Cr. P.C. undoubtedly permits the police to proceed with the investigation if the case relates to two or more offences in which at least one of them is a cognizable offence even if the other offences are non-cognizable offences, but this provision is a general provision which cannot override Section 199, IPC requiring a complaint to be made only by an aggrieved person, which cannot be circumvented by the police by filing a charge sheet under Section 173, Cr. P.C; what cannot be done directly, cannot be done indirectly. He further argues that the offence of defamation is a private offence which necessarily implies that the complaint is to be lodged by a private person except in case of the President of India, Vice-President of India, Governor of a State, the Administrator of Union Territory or a Minister of the Union, or of a State, or a Union Territory or any other public servant employed in connection with the affairs of the Union of a State and the prosecution to be conducted by a private counsel and not by an Assistant Public Prosecutor, and the trial Court has completely overlooked this vital provision of law and has in the process acted illegally in framing the charge against the petitioner under Section 500, IPC. Mr. N. D. Chullai, the learned Public Prosecutor, defends the impugned order and submits that once a non-cognizable offence like Section 500, IPC has been investigated by the police together with a cognizable offence, which is permissible under Section 155(4), Cr. P.C, the prosecution of the petitioner on the basis of the charge-sheet filed by the police cannot be faulted with and cannot be hit by Section 199(1), Cr. P.C. He, therefore, contends that the criminal petition has no merit and is, rather, an abuse of process of Court. Mr. M. F. Qureshi, the learned counsel for the private respondents supports the submission of the learned Public Prosecutor and submits that no interference is called for in the impugned order.