Deepak Arora and Another vs State of Rajasthan

H.R. Panwar, J.—With the consent of learned Counsel for the parties, the matter is finally heard at admission stage.

By the instant criminal miscellaneous petition u/s 482 Code of Criminal Procedure , the petitioners have challenged the order dt. 30.06.2008 passed by Additional Chief Judicial Magistrate No. 3, Bikaner (for short, "the trial Court" hereinafter) in Criminal Case No. 580/2001 and the order dt. 03.12.2001 whereby the trial Court took the cognizance of the offence u/s 186 Indian Penal Code against the petitioners on the basis of complaint submitted by the police.

I have heard learned Counsel for the parties. Carefully gone through the orders impugned. It is contended by learned Counsel for the petitioners that the offence u/s 186 is non-cognizable offence and therefore, without permission or direction of the Judicial Magistrate, the police has no jurisdiction to investigate and file the challan. Learned Counsel for the petitioners has relied on a decision of this Court in Vikky v. State of Rajasthan 2006 (1) R. Cr.D. 132 (Raj.) wherein this Court observed that on complaint filed the complainant with the concerned S.H.O. for offence under Sections 186 and 189 Indian Penal Code, the police investigated the matter and filed report before the trial Court on which the trial Court took cognizance of the offences. In that case, there was no order of Magistrate directing police to investigate the case in respect of noncognizable offence. On these premises, this Court held that entire investigation conducted by police and subsequent orders passed by Court taking cognizance are bad in law. The controversy involved in the instant case is squarely covered by the decision of this Court.

In the instant case as appears from the order impugned and material available on record, it is clear that police investigated the case for the offence u/s 186 Indian Penal Code being non-cognizable without there being any direction or permission of Judicial Magistrate and, therefore, entire investigation and subsequent order taking cognizance is bad in law.

In this view of the matter, the criminal misc. petition is allowed in terms of the order passed by this Court in Vikky v. State of Rajasthan (supra). The orders impugned dt. 30.06.2008 and 03.12.2001 are hereby set aside and the proceedings taken under such orders against the petitioners before the trial Court stands hereby quashed.

Since the criminal miscellaneous petition has been allowed, the stay petition stands disposed of.