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,
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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.
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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
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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-
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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.
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K. SUJANA, J
Date: 26.04.2024
SAI
