Telangana High Court

Khaji Khaja Anwarulla Another vs State Of A.P., on 26 October, 2022

Bench: G.Radha Rani

           THE HON'BLE Dr.JUSTICE G.RADHA RANI

            CRIMINAL REVISION CASE No.944 of 2014

ORDER:-

      This Criminal Revision Case is filed by the petitioners/accused

Nos. 1 and 2, aggrieved by the order dated 10.04.2014 in Crl.M.P.No.485

of 2014 in C.C.No.289 of 2010 on the file of the Court of the Judicial

Magistrate of First Class at Bodhan.


2.    Heard learned counsel for the revision petitioners and learned

Public Prosecutor for the respondent.

3. Learned counsel for the revision petitioners submitted that the

petitioners were accused in C.C.No.289 of 2010 on the file of the Court

of the Judicial Magistrate of First Class at Bodhan. The Sub Inspector of

Police registered a case as Crime No.103 of 2010 under Sections 186, 323

and 506 of IPC on 06.04.2010 against the revision petitioners/accused

No.1 & 2 herein. Later, the charge sheet was filed by the police on

19.07.2010 under Sections 186, 323 and 506 of IPC against the

petitioners/accused No.1 & 2 herein. All the aforesaid offences were

non-cognizable. As per Section 155 of Cr.P.C., no police officer shall

investigate the non-cognizable offences without the order of Magistrate.

                                                                        Dr.GRR,J
                                     2                           crlrc_944_2014

In the above case, all the offence were non-cognizable but the police

officer did not obtain any permission from the Magistrate for

investigation and not followed the procedure prescribed under Section

155 of Cr.P.C. as such, the proceedings in the above case were vitiated

and the petitioners were entitled for discharge. The petitioners filed a

petition under Section 258 of Cr.P.C. to stop the proceedings vide

Crl.M.P.No.485 of 2014, but the said petition was dismissed by the

Judicial Magistrate of First Class at Bodhan on 10.04.2014. The Court

below ignored the binding decisions of this Court which was cited by the

learned counsel for the petitioners. The decisions relied by the

petitioners/accused No.1 & 2 were more relevant than the decisions

relied by the State and prayed to allow the revision by setting aside the

orders in Crl.M.P.No.485 of 2014 in C.C.No.289 of 2010 dated

10.04.2014 and to discharge the petitioners.

4. Learned Public Prosecutor also submitted that the judgments relied

by the learned counsel for the petitioners are holding the field even now.

5. Perused the record. As per the charge sheet filed by the police

Bodhan, on 06.04.2010 at 1:00 P.M., the complainant B. Ramarao,

PC.1682 of P.S. Bodhan alleged a report in the police station stating that Dr.GRR,J 3 crlrc_944_2014

while he was attending to his court duty, the duty Head Constable Sri

Mohan HC.211 called him over cell phone and asked him to escort one

prisoner from Sub-Jail to the Court of Judicial Magistrate of First Class at

Bodhan due to shortage of men. On that he along with HG.135 went to

Sub-Jail and brought the prisoner, Jameel Patel and made him sit down

on the Bench in the premises of the Court. Meanwhile, mother and

brother of the deceased in Crime No. 103 of 2010 (wife of Jameel Patel)

came to Jameel Patel abused him in filthy language by stating that he had

killed their daughter. The mother of the deceased slapped on the cheek of

Jameel Patel, who is in judicial custody. When the complainant

interfered to pacify the matter, both the mother and brother of the

deceased obstructed the complainant while he was discharging his lawful

duties and threatened said Jameel Patel with dire consequences.

6. Basing on the said report, the S.I. of Police, Bodhan registered a

case and after investigation filed charge sheet against accused Nos.1 and

2 for the offences punishable under Sections 186, 323, 506 of IPC.

7. The case was taken cognizance by the Judicial Magistrate First

Class, Bodhan and was numbered as C.C.No.289 of 2010. While the

matter stood, thus, the petitioners/accused No.1 & 2 filed a petition under Dr.GRR,J 4 crlrc_944_2014

Section 258 of Cr.P.C. to stop the proceedings against them alleging that

the offences under Sections 186, 323, 506 of IPC were non-cognizable.

As per Section 155 of Cr.P.C., no police officer shall investigate the non-

cognizable offences without the order of Magistrate. The Police Officer

not following the procedure mentioned in Cr.P.C. amounts to

transgressing the proceedings under Section 155(2) of Cr.P.C. and prayed

to discharge from the said case.

8. Counter was filed by the prosecution in the said case and on

hearing the learned counsel for the petitioners and the learned Assistant

Public Prosecutor, the trial Court dismissed the petition.

9. Learned counsel for the petitioners relied upon the decisions of this

Court in V. Sudhakar Vs. R.Rama Mohan Rao and others1 and also in

Javvadi Raghu and others V. State and another2.

10. The trial Court placing reliance on the citations relied by the

prosecution in A. Kanniyah V. State3, Kanti Lal Vs. State4, Public

2006(1) ALD (Crl.) (NOC) 17 (AP) dated 10.11.2004

2006(2) ALD (Crl.) 634 (AP) dated 12.07.2006

AIR 1967 Madras 390

AIR 1970 Bombay 225 Dr.GRR,J 5 crlrc_944_2014

Prosecutor Vs. A.V.Ramiah5, Ranbir Prakash V. State6, Narain

Singh V. State7, Chaman Prakash V. State8, Kamal Kishore Kalra

Vs. State9 and of its own case in Crl.M.C.No.642 of 2009 dated on

11.12.2009 observed that where the police officer carried investigation in

a non-cognizable offence, without the order of the Magistrate and filed

charge sheet, such charge sheet could be treated as a complaint and the

cognizance on a complaint filed by a public servant in discharge of his

official duty could be taken without examining him and other witnesses

and the cognizance taken in the case could not be said to be bad in law.

11. This Court in V. Sudhakar Vs. R.Rama Mohan Rao and others

(supra) held as follows:

"It is seen that by virtue of a notification in G.O.Ms.No.732, Home (Court-B) dated 15.12.1991. (issued under Criminal Law Amendment Act, 1932 and Ordinance No.6 of 1972) published in A.P. Gazette Part I Extraordinary, dated 9.12.1991, offences punishable under sections 186, 188, 189, 190, 228, 295-A, 298, 505, 506 and 507 IPC are made cognizable offences and offences under Sections 188 and 506 IPC are made non-

bailable offences. It should be noted that Ordinance No.6 of 1972 promulgated amending certain provisions of the Criminal Law Amendment Act, 1932 was ameded by A.P. Act 25 of 1979. In view of Section 1(2) of the Criminal Law Amendment

1958 Crl. Law Journal, 737

27(1985) DLT 242

1986, Rajdhani Law Reporter 545

2007(3)JCC, 1983

151(2008) DLT 546 Dr.GRR,J 6 crlrc_944_2014

Act 1932, that Act had no application to the territories which, immediately before the 1st November, 1956, were comprised in Part B States. So it is clear that the Criminal law Amendment Act, 1932, was not in force in Hyderabad District of which Uppal, which presently is in Ranga Reddy District, was a part. It is only by virtue of Act 25 of 1979, i.e. the Criminal Law Amendment Act (A.P. Extension and Amendment) Act, 1979 was the Criminal Law Amendment Act, 1932 extended to the whole of A.P. with effect from the date of that Act. By virtue of that A.P. Act 25 of 1979, sub-section (3) was introduced in Section 10 (Power of State Government to make certain offences cognizable and non-bailable) of the Criminal Law (Amendment) Act, 1932. As per sub-section (3) of Section 10, a notification issued under sub-section (2) shall be in force for six months only, but the State Government may, by a like notification extend it for any period not exceeding six months if they are satisfied that in the public interest it is necessary or expedient so to do.

Thus, it is clear from sub-section (3) of Section 10 of the Criminal Law Amendment Act, 1932, that any notification issued under sub-section (2) of Section 10 of that Act would be in operation only for six months and the Government may, by a like notification, extend it for any period not exceeding six months, if it is satisfied that it is in the public interest it is necessary or expedient to do so. The above notification in G.O.Ms.No.732, referred to above, came into force on 09.12.1991. By virtue of Section 10(3) of the Criminal Law Amendment Act, 1932 that notification ceases to have effect after six months from the date of notification. Since no other notification extending the period of its validity is issued by the Government under sub-section (3) of Section 10 of the Criminal Law Amendment Act, 1932, it is clear that by the date of alleged offence, which took place on 8.11.1999, the notification in G.O.Ms.No.732 Home (Court-B) dated 15.12.1991, was not in force. Therefore, offence under Sections 186 and 506 IPC remains non-cognizable offences."

Dr.GRR,J 7 crlrc_944_2014

12. This Court in Javvadi Raghu and others V. State and another

(2 supra) by extracting the same judgment and observing the factual

aspect of the said case that the police had not obtained permission before

proceeding with investigation in the said crime registered for the offences

under Section 323 r/w Section 34 of IPC held that admittedly Section 323

IPC was a non-cognizable offence, with regard to Section 506 of IPC, the

offence was made cognizable only for 6 months and subsequently, the

period was not extending and therefore, on the date of incident in

question, the offence under Section 506 of IPC was also non-cognizable.

It was observed in para 5 is as follows:

"5. As per Section 155 Cr.P.C., if information regarding non- cognizable offences is given to an officer in-charge of a police station, he has to enter the substance of that information in a book to be kept in the form prescribed by the State Government, and refer the informant to the Magistrate. In this case, there is nothing on record to show that the police followed such procedure and obtained permission from the Magistrate to investigate into the case. Therefore, police taking cognizance, and investigating into a non-cognizable offence without the permission of the Magistrate, is wholly contrary to the provisions of Cr.P.C. and is vitiated. Therefore, the proceedings against the accused in C.C. No.157 of 2005 are liable to be quashed and accordingly the same are hereby quashed."

13. In the present case also, the offences under Sections 186, 323 and

506 of IPC were non-cognizable offences and police officer could not Dr.GRR,J 8 crlrc_944_2014

conduct investigation into the non-cognizable offences without obtaining

permission from the Magistrate as mandated under Section 155 of Cr.P.C.

But, the trial Court ignoring the binding precedents of this Court, as well

as against the provision of Section 155(2), Cr.P.C., placed reliance on the

judgments of other High Courts which were only having a persuasive

value.

14. The Delhi High Court in 'Narain Singh Vs. State (Delhi

Administration)' (7 supra) considered the several decisions of various

High Courts on this aspect. It also considered the judgment of the

Hon'ble Apex Court in H.N.Rishbud and another Vs. State of Delhi10.

The same is extracted for ready reference. It held that,

"(11) If this be the correct legal position the question would naturally arise whether the report of a police officer which has been termed as kalendra can be said to be a police report within the meaning of Section 190(1)(b)of the Code in view of the express prohibition contained in Section 155 of the Code debarring a police officer to investigate anon-cognizable offence without prior permission of the concerned Magistrate. Section 155(1) provides that when an 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. Sub-

1955 AIR 196 Dr.GRR,J 9 crlrc_944_2014

section (2) thereof lays down that 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. It is thus obvious that after entering information with regard to a non-cognizable offence in the diary maintained at the police station the police officer should refer the informant to the Magistrate. He may, of course, also report the case to the Magistrate for orders under Sub-section (2). However, it is manifest that it is only under the orders of a Magistrate that the police can investigate into a non-cognizable offence. Further the provision in the Section requiring an order of the Magistrate, for investigation is a mandatory provision and cannot be treated as merely directory. Consequently an investigation conducted in violation thereof is illegal. The question would, however, arise as to whether the defect or illegality in investigation debars the Magistrate from taking cognizance on the basis of the report eventually submitted by the police officer or whether it would vitiate a trial based on such investigation. This question came up for consideration before the Supreme Court in H.N. Rishbud and another v State of Delhi, , which was a case under the Prevention of Corruption Act. There the investigation into an offence under Section 5(2) of the said Act was conducted by a police officer without obtaining an order of the Magistrate as required by Section 5(4) of the said Act. The Supreme Court held that the provision of the Section requiring an order of a Magistrate to a police officer, not otherwise authorised to investigate, was mandatory and the investigation bore the stamp of illegality. However, it observed : "A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190, Criminal Procedure Code as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance......................? While no doubt, in one sense. Clauses (a), (b) and (c) of Section 190(1) are conditions requisite Dr.GRR,J 10 crlrc_944_2014

for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still, fall either under Clause (a) or (b) of Section 190(1) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial. To such a situation Section 537, Criminal Procedure Code (Old) is attracted."

(12) But, their Lordships sounded a note of caution that if the breach of the mandatory provision is brought to the notice of the Court at a sufficiently early stage of the trial, the Court while not declining cognizance will have to consider the nature and extent of the violation and pass appropriate orders for such re- investigation as may be called for, wholly or partly and by such officer as it considers appropriate with reference to the requirement of law."

15. In the present case, the breach of the mandatory provision along

with the binding citations are brought to the notice of the Court at the

early stage of the trial itself. But, the Court not considering the same or

not passing appropriate orders for re-investigation, as it considered

appropriate with reference to the requirement of law as suggested by the

Hon'ble Apex Court is considered as inappropriate as it is allowing the

illegality in investigation continuing even after the same was brought to

its notice. Hence, it is considered fit to allow the Criminal Revision Case

by setting aside the orders of the Judicial Magistrate of First Class, Dr.GRR,J 11 crlrc_944_2014

Bodhan in Crl.M.P.No.485 of 2014 in C.C.No.289 of 2010 dated

10.04.2014.

16. In the result, this Criminal Revision Case is allowed by setting