Telangana High Court
Md.Arif Ahmed , Arif Ahmed vs The State Of Telangana on 26 April, 2024
THE HONOURABLE SMT. JUSTICE K. SUJANA
CRIMINAL PETITION No.6289 of 2023
ORDER:
This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') to quash the proceedings against the petitioners/accused Nos.1 and 2 in C.C.No.32 of 2015, on the file of the learned III Metropolitan Magistrate, Hyderabad, registered for the offences punishable under Sections 41(d)/102 of Cr.P.C and Section 171 (E), (H) of the Indian Penal Code, 1860 (for short 'the IPC').
2. Brief facts of the case are that respondent No.2/de facto complainant lodged a complaint before the Police, Afzalgunj Police Station, Hyderabad against the petitioners and other accused stating that on 07.05.2014 petitioner No.2 received an information from petitioner No.1 that their Delhi Control Office is sending an amount of Rs.6,00,000/- through Hawala to meet the election expenses and asked him to collect the same and forward to Kurnool. Petitioner No.1 instructed petitioner No.2 to forward the token number through SMS. On receipt of the said SMS petitioner No.2 contacted accused No.3, who instructed petitioner No.2 to come to Bannaji Market, Hyderabad to collect the said amount with token number. As per the instructions of accused No.3, 2 SKS,J Crl.P.No.6289 of 2023 petitioner No.2 met him at the said place and received an amount of Rs.6,00,000/- from accused No.3. Basing on the said complaint, Police registered a case in Crime No.267 of 2014 and after completion of investigation, they filed charge sheet before the II Additional Chief Metropolitan Magistrate, Hyderabad.
3. Heard Sri Shaikh Mohd. Rizwan Akhtar, learned counsel appearing on behalf of the petitioners as well as Sri S. Ganesh, learned counsel appearing on behalf of respondent No.1.
4. Learned counsel for the petitioners submitted that the allegations leveled against the petitioners are vague and are non- cognizable offences. As per Section 155 of Cr.P.C. if the allegations are non-cognizable, the Police cannot initiate the proceedings without taking prior permission from the concerned Court. In the present case, without taking any permission by the Police, they initiated the proceedings and registered the case and filed charge sheet. Hence, prayed the Court to quash the proceedings against the petitioners.
5. On the other hand, learned Assistant Public Prosecutor would submit that since there are serious allegations against the petitioners, quashing of proceedings at this stage do not arise. As such, prayed the Court to dismiss the petition. 3
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6. Section 155 of Cr.P.C. reads as follows:
"155. Information as to non-cognizable cases and investigation of such cases.
(1) When information is given to an officer in charge of a Police Station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate.
(2) No police officer shall investigate a non-cognizable case without the of a Magistrate having power to try such case or commit the case for trial.
(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case. (4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemd to be a cognizable case, notwithstanding that the other offences are no cognizable."
7. Having regard to the submissions made by both the learned counsel and having gone through the material available on record, it appears that the offences are non-cognizable. Perusal of Section 155 of Cr.P.C. would reveal that the Police have no right or jurisdiction to investigate the matter without prior permission of the Magistrate to try non-cognizable offences. In the present case, the Police have registered the FIR and filed charge sheet without 4 SKS,J Crl.P.No.6289 of 2023 obtaining prior permission from the concerned Court, which can vitiates the trial.
8. At this stage, it is pertinent to note the judgment of the Hon'ble Supreme Court in Keshav Lal Thakur vs. State of Bihar 1, wherein it is held as under:
"We need not go into the question whether in the facts of the instant case the above view of the High Court is proper or not for the impugned proceeding has got to be quashed as neither the police was entitled to investigate into the offence in question nor the Chief Judicial magistrate to take cognizance upon the report submitted on completion of such investigation. On the own showing of the police, the offence under Section 31 of the Act is non cognizable and therefore, the Police could not have registered a case for such an offence under Section 154 Dr. P.C of course, the police is entitled to investigate into a non-cognizable offence pursuant to an order of a competent Magistrate under Section 155 (2) Dr. P.C. but, admittedly, no such order was passed in the instant case. That necessarily means, that neither the police could investigate into the offence in question nor submit a report on which the question of taking cognizance could have arisen. While on this point, it may be mentioned that in view of the proviso to Section 2 (d) Dr. P.C., which defines 'complaint', the police is entitled to submit, after investigation, a report a relating to a non-1
AIRONLINE 1996 SC 1175 5 SKS,J Crl.P.No.6289 of 2023 cognizable offence in which case such a report is to be treated as a 'complaint' of the police officer concerned, but that explanation will not be available to the prosecution here as that related to a case where the police initiates investigation into a cognizable offence - unlike the present one - but ultimately finds that only a non-cognizable offence has been made out."
9. In view thereof, the investigation is invalid and the cognizance taken by the Magistrate is also illegal. Hence, the proceedings against the petitioners are liable to be quashed.
10. Accordingly, the Criminal Petition is allowed and the proceedings against the petitioners in C.C.No.32 of 2015 on the file of the learned III Metropolitan Magistrate, Hyderabad are hereby quashed.
Miscellaneous applications, if any pending, shall also stand closed.
_______________ K. SUJANA, J Date: 26.04.2024 SAI