HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 48
Case :- APPLICATION U/S 482 No. - 14284 of 2009
Petitioner :- Ram Narayan & Others
Respondent :- State Of U.P. & Another
Petitioner Counsel :- P.K. Dubey
Respondent Counsel :- Govt. Advocate
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Hon'ble Vijay Kumar Verma, J.
"Whether permission under section 155 (2) of the Code of Criminal Procedure (in short 'the Cr.P.C.') to investigate the case can be granted by the magistrate on the basis of the application of complainant or other aggrieved person", is the main legal question that falls for consideration in this proceeding under section 482 Cr.P.C. by means of which prayer to quash the order dated 04.12.20097 passed by Judicial Magistrate/ Additional Civil Judge (Jr. Div.) Tilhar, Shahjahanpur, in Crl. Case No. 154 of 2007, arising out of NCR No. 114 of 2006, under sections 323, 504 IPC, P.S. Madanapur, District Shahjahanpur as well as order dated 03.06.2009 passed by Additional Session Judge/ Spl. Judge (E.C. Act), Shahjahanpur, in Crl. Revision No. 29 of 2009 (Ram Narayan & others vs. State of U.P. & another), have been made.
2. Heard Sri P.K. Dubey, learned counsel for the applicant and A.G.A. for the State
3.From the record, it transpires that NCR No. 114 of 2006, under sections, 323, 504 IPC was registered on the basis of the report made by Deena Nath, s/o Dharam (O.P. No. 2 herein) at P.S. Madanapur, District Shahjahanpur. The complainant Deena Nath moved an application before the Judicial Magistrate/ Additional Civil Judge (Jr. Div.) Tilhar, District Shahjahanpur, under section 155 (2) Cr.P.C. for granting permission to investigate the case. The learned magistrate, vide impugned order dated 04.12.2007 allowed that application and direction was issued to S.O. P.S. Madanapur to investigate the case after converting the same in proper sections. Order dated 04.12.2007 was challenged by the applicant-accused in the court of Sessions Judge Shahjahanpur by means of Crl. Revision No. 29 of 2008, which was decided by Additional Sessions Judge/ Spl. Judge (E.C. Act), vide impugned order dated 03.06.2009, whereby the revision has been dismissed. Both these orders have been challenged by the accused persons by means of this proceeding under section 482 Cr.P.C.
4.The main submission made by learned counsel for the applicants is that the magistrate concerned is not empowered to grant permission to investigate a non-cognizable case on the basis of the application moved by third person or complainant and such permission can be granted only on the report of police officer of the police station concerned and since the learned magistrate in present case has granted permission to investigate a non-cognizable case registered at NCR No. 114 of 2006 on the basis of the application moved by the complainant, hence the impugned order dated 04.12.2007 being illegal and without jurisdiction was liable to be set aside, but the learned lower revisional court did not consider the matter in proper perspective and Revision has been dismissed without sufficient reasons. The contention of the learned counsel for the applicants is that on registration of a non-cognizable case, permission to investigate can only be sought by S.O. of P.S. concerned or by some other police officer authorised by him and the magistrate is not empowered to entertain the application under section 155 (2) Cr.P.C. moved by the complainant or any other person.
5.In response, it is submitted by learned AGA that there is no legal bar for the magistrate to grant permission under section 155 (2) Cr.P.C. to investigate a non-cognizable case on the basis of the application moved by the complainant or aggrieved person.
6.I have given my thoughtful consideration to the submissions made by learned counsel for the parties. Section 155 Cr.P.C. reads thus:-
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 Stte Government may prescribe in this behalf, an 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.
(2) 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.Sub section (2) of Section 155 Cr.P.C. provides 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. Sub section (3) of Section 155 Cr.P.C. provides that 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. Sub section (2) of Section 155 Cr.P.C. does not envisage that permission to the police officer to investigate a non-cognizable case can be granted on the basis of the report of police officer only. In my opinion, such permission can be granted by the Magistrate on the basis of the application moved by the complainant or any other aggrieved person. In this context reliance can be placed on Kunwar Singh vs. State of U.P. 2007 (57) ACC 331, in which it is held by this Court that complainant/ third party also can move application before the magistrate for order to direct investigation in NCR case. In view of the law laid down by this Court in Kunwar Singh vs. State (supra), the impugned order dated 04.12.2007 passed by the learned magistrate concerned as well as the impugned order dated 03.06.2009 passed by learned lower revisional court do not require any interference by this Court, as there is no illegality in both these orders.
8.Consequently, the application under section 482 Cr.P.C. is hereby rejected.
