Debendra Rishi and Others vs State of Meghalaya and Others

Manisana, J.—This is an application u/s 482 of the Code of Criminal Procedure for quashing the investigation of cognizable cases, or cognizable offences, under Sections 153-A, 295-A and 297, IPC concerning Bagmara P.S. Case No. 19 of 1987 : GR Case No. 162 of 1987 of the Court of the Additional Deputy Commissioner, West Garo Hills, Tura.

In the present case, the police started investigation of a cognizable case or offence u/s 297, IPC. During the course of investigation, the police sought permission of the learned Additional Deputy Commissioner to add offences under Sections 153-A and 295-A. The learned Additional Deputy Commissioner by an order dated 20 April 1987 permitted to add the said offences and to investigate accordingly. The relevant portion of the order of the learned Additional Deputy Commissioner runs in the following terms:

Heard the submission of P.S.I. who submits that the F.I.R. contains ingredients for offence u/s 295-A, I.P.C. and 153-A, I.P.C. Perused the F.I.R. and I.O.''s report. The submission of P.S.I. agreed to Inform I.O. to investigate accordingly and submit report in time.

Mr. B.K. Das, the learned Counsel for the Petitioners, has submitted that the learned Additional Deputy Commissioner has taken cognizance of the offences under Sections 153-A and 295-A. But, u/s 196 of the Code, no Court shall take cognizance of any offence punishable under Sections 153-A and 295-A except with the previous sanction of the State Government. No sanction from the State Government has been obtained, Therefore, the learned Magistrate could not take cognizant of the offences under Sections 153-A and 295-A.

The question then is, Whether the learned Magistrate has taken cognizance of the offences under Sections 153-A aid 295 A, I.P.C. u/s 190(1)(b) of the Code, any Magistrate having jurisdiction may take cognizance of any offence upon a police report of sue a facts. In Section 173(1) of the Code, is provided that every investigation under Chapter XII of the Code shall be completed without unnecessary delay. Section 173(2)(i) of the Code provides that as soon as the investigation is completed, the officer-in-charge of the police station shall forward to the Magistrate empowered to take cognizance of the offence on a police report, a police report in the form prescribed by the State Government, stating the names of the parties, tie nature of the information, etc. as provided thereunder.

In Bhagwant Singh Vs. Commissioner of Police and Another, the Supreme Court has held;

Now, when the report forwarded by the officer in-charge of a police station to the Magistrate under Sub-section (2)(i) of Section 173 comes up for consideration by the Magistrate, one of two different situations may arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may do one of three things; (1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceeding or (3) he may direct further investigation under Sub-section (3) of Section 156 and require the police to make a further report. The report may on the other hand state that, in the opinion of the police, no offence appears to have been committed and where such t a report has been made, the Magistrate again has an option to adopt one of three courses: (1) he may accept the report and drop the proceeding or (2) he may disagree with the report and taxing the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) Le may direct further investigation to be made by the police under Sub-section (3) of Section 156.

(Emphasis are mine)

In view of the decision of the Supreme Court, the Magistrate, who receives the police report, may accept the report and take cognizance of the offence or take any other suitable action in the light of the above passage quoted from Bhagwant Singh (Supra). In other words, the Magistrate who receives the report u/s 173 will have to consider the report and judicially take a decision, whether or not to take cognizance of the offence (see also Abhinandan Jha and Others Vs. Dinesh Mishra,

In the present cast, the Magistrate has not taken cognizance for the following reasons. The learned Additional Deputy Commissioner has ordered to investigate the cognizable offences. Ordering investigation by the police, the Magistrate cannot be said to have taken cognizance of any offence (see Devarapalli Lakshminarayana Reddy and Others Vs. V. Narayana Reddy and Others, That apart, the police has not completed the investigation and bat not submitted the police report or charge-sheet. Therefore, in view of the above discussions, the question of taking cognizance does not arise at this stage. The question, whether the Magistrate has taken cognizance or not, will arise after the receipt of the police report by the Magistrate. At already stated, the learned Magistrate has not taken cognizance, therefore, the question of sanction u/s 196 also does not arise at this stage. For the reasons stated, the contention of Mr. Das cannot be accepted.

In the result, the petition is dismissed.