The Allahabad High Court on Friday stated that non-cognizable offences cannot be investigated by police without permission of Magistrate.
The bench of Justice Shamim Ahmed was dealing with the application filed to quash the charge proceedings in a case registered under Sections 171 H and 188 of I.P.C.
In this case, the applicant was contesting the position of Councilor in the Urban Local Bodies Election of 2017. The complaint alleged that the applicant had placed a poster on a pole in front of Ashok Jaiswal’s house. The FIR stated that the applicant, who was candidate from Ward No. 21 (Sardar Bhagat Singh Ward), had committed an offence under Section 171 H / 188 of the IPC.
The Investigating Officer took the applicant’s statement, during which the applicant denied the allegations. The following day the Investigating Officer recorded the statements of Opposite Party No.2 and a witness named Constable Narendra Singh under Section 161 of the Cr.P.C. Both supported the version presented in the FIR.
The bench opined that the said two offences are non-cognizable offences. Therefore, as per Section 155(2) of Cr.P.C., the police have no right or jurisdiction to investigate the matter, without prior permission of the Magistrate, who has got jurisdiction to try those offences. Therefore, the entire charge sheet filed by the police is vitiated by serious incurable defects and procedural irregularities.
High Court observed that the FIR and charge sheet fail to disclose any cognizable offence by the applicant, which would allow the police to investigate both cognizable and non-cognizable offenses simultaneously and file the charge sheet accordingly.
The bench opined that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is and in the interest of justice to permit a prosecution to continue.
Further, the High Court stated that the court cannot be utilized for any oblique purpose. If the chances of ultimate conviction are bleak, no useful purpose is served by allowing a criminal prosecution to continue.
The bench referred to the case of S.W. Palankattkar & others v. State of Bihar, where it was held by the Apex Court that:
“quashing of the criminal proceedings is an exception than a rule. The inherent powers of the High Court itself envisages three circumstances under which the inherent jurisdiction may be exercised:-(i) to give effect an order under the Code, (ii) to prevent abuse of the process of the court ; (iii) to otherwise secure the ends of justice. The power of High Court is very wide but should be exercised very cautiously to do real and substantial justice for which the court alone exists.”
High Court opined that the investigation done by the police is without jurisdiction and based on such an invalid investigation report; the cognizance taken by the Magistrate is also illegal. Secondly, the entire proceeding before the Magistrate is vitiated by serious incurable defects.
In view of the above, the bench allowed the application.
Case Title: Mohd. Rashid Khan v. State
Bench: Justice Shamim Ahmed
Case No.: APPLICATION U/S No. – 1926 of 2024
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