Delhi High Court

Jamal Nasir vs State & Anr. on 20 December, 2010

Author: A. K. Pathak

          IN THE HIGH COURT OF DELHI: NEW DELHI

+              CRL. M.C. No.6704/2006

%              Judgment decided on: 20th December, 2010

JAMAL NASIR                                    .....PETITIONER

                          Through:Mr. Sudhir Nandrajog, Sr.Adv.
                                  with Mr. Adib M.Khan, Adv.

                          Versus


STATE & ANR.                                   .....RESPONDENTS

                          Through: Mr. M.P. Singh, APP &
                                   Mr. V.P. Singh, Adv.

Coram:
HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers
          may be allowed to see the judgment?                No

       2. To be referred to Reporter or not?                 No

       3. Whether the judgment should be
          reported in the Digest?                            Yes

A.K. PATHAK, J. (Oral)

1. Petitioner seeks quashing of the FIR No. 297/2006

under Section 500 IPC registered at Police Station Timarpur

by way of present petition under Section 482 of Code of

Criminal Proceedure (Cr.P.C.)

2. Short legal question which needs to be answered in this

petition is "whether FIR can be registered by the Station

House Officer of a Police Station in a non-cognizable offence,

without obtaining permission of the Metropolitan Magistrate

of the concerned area, where offence had allegedly been

committed?"

3. Factual matrix of the case is that the respondent No. 2

had filed a complaint with the concerned Police Station

alleging therein that petitioner, who is an Advocate and

Retainer of North Delhi Power Limited (NDPL) threatened him

by saying "TUM VAHI SARDAR HO JO NDPL KE UPER

BAHUT SE CASE FILE KAR DETE HO ME DEKHTA HU TUM

KITNE CASE FILE KARTE HO". When respondent No. 2

requested the petitioner not to speak in that manner with an

old man of aged about 68 years, he yelled "you old cheat and

fraud I will pull out your beard and put it into your buttock".

Respondent No. 2 protested by saying that he will lodge a

complaint against him with the higher authorities, at which

petitioner became furious and uttered "SARDAR TU JA YAHA

SE, TERE KO MEIN JAAN SE MAR DUNGA, VO COMPANY

WALE MERE KIYA KAR LENGE". It was alleged that on

account of aforesaid spoken words by the petitioner,

respondent No. 2 had been defamed in the society, inasmuch

as his reputation in the eyes of the persons present there was

lowered.

4. On the basis of said complaint, FIR in question has

been registered on 21st June, 2006. It may be noted here that

respondent had also filed an application under Section 156(3)

Cr.P.C. before the Metropolitan Magistrate on 20th March,

2006 wherein SHO was called upon to submit action taken

report. On 22nd June, 2006, SHO replied in the court that

FIR had been registered under Section 500 Cr.P.C. Perusal of

Trial Court Record shows that at no stage direction was given

to SHO Police Station to register FIR.

5. Perusal of 1st Schedule of the Code of Criminal

Procedure, 1973 (Cr.P.C.) makes it abundantly clear that

offence under Section 500 IPC is a non-cognizable offence.

6. Section 155 Cr.P.C. reads as under:

"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 order 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 deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable."

7. Perusal of sub-section 2 of Section 155 Cr.P.C. makes it

clear that no police officer can investigate a non-cognizable

offence without the order of a Magistrate having power to try

such case or commit the case for trial. In view of the above

legal position, Station House Officer of the Police Station

Timarpur could not have registered the case and investigated

the same. Admittedly, in this case no such permission under

sub-section 2 of Section 155 Cr.P.C. had been taken by the

concerned police officer.

8. In Kanshi Ram vs. State, 86 (2000) Delhi Law Times,

609, a Single Judge of this Court has held that where FIR

discloses a cognizable as well as non-cognizable offence, the

police is not debarred from investigating any non-cognizable

offence which may arise on the same facts. He can include

that non-cognizable offence in the charge-sheet which he

presents for a cognizable offence. But if the information

discloses only a non-cognizable offence, the police officer

cannot investigate the offence without the requisite sanction

under sub-section 2 of Section 155 Cr.P.C. In the said case,

from the facts disclosed in the FIR, only commission of an

offence under Section 323 IPC was disclosed. In order to

obviate the mandatory provision of sub-section 2 of Section

155 Cr.P.C., Station House Officer had added certain sections

of cognizable offence. The learned Single Judge came to the

conclusion that in the facts of the case only non-cognizable

offence was disclosed, thus, quashed the complaint.

9. Coming back to the facts of this case, SHO had

registered the case without any permission and/or direction

of the Metropolitan Magistrate as envisaged under Section

155 (2) Cr.P.C. Thus, the FIR 297/2006, which discloses

commission of a non-cognizable offence is liable to be

quashed.

10. Bare reading of such Section 156(3) makes it clear that

a non-cognizable offence cannot be a matter for investigation

by the police under the said provision, which otherwise, deals

with cognizable offences. Relevant it would be to refer to

Section 156 of the Cr.P.C., at this stage, which reads as

under:

"156.(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.