Dismissed¶18

Harishchandra and Others v. State of U.P. and Ors.

Allahabad HC2 Dec 2022CRLP/6561/2010

Case brief

AI extract

What is this about?

Section 155(2) Cr.P.C. mandatory — no police investigation of a non-cognizable case without Magistrate's order (Gangadhar Narayan Nayak relied on); NCR No. 19 of 2003 (Ss. 323, 504 IPC) superseded by F.I.R. Case Crime No. 258 of 2004 (Ss. 452, 323, 504, 506 IPC, cognizable) lodged on direction of senior police officers; investigation conducted only after F.I.R., so no S.155(2) permission needed; charge sheet free of illegality/irregularity; Allahabad HC writ petition dismissed (2.12.2022).

What did the court decide?

Section 155(2) Cr.P.C. is mandatory: no police officer shall investigate a non-cognizable case without an order of the Magistrate. ¶13

Harishchandra and Others Vs State of U.P. and Ors. — Allahabad HC (2022) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

¶18

Issue for consideration

Whether the investigation conducted on NCR No. 19 of 2003 without the Magistrate's permission required under Section 155(2) Cr.P.C., and the charge sheet filed thereafter, are void ab initio.

¶7

Court's answer

Section 155(2) Cr.P.C. is mandatory: no police officer shall investigate a non-cognizable case without an order of the Magistrate.

¶13

Ratio / Principle

Nothing on record shows that any investigation was carried out on the NCR without the Magistrate's permission before its conversion into an F.I.R.; the investigation appears to have been conducted only after the F.I.R. was lodged.

¶16

Key takeaways

Since the F.I.R. (Case Crime No. 258 of 2004) was lodged for cognizable offences, no permission under Section 155(2) Cr.P.C. was required.ratio¶17
There is no illegality or even irregularity in the investigation and the filing of the charge sheet.ratio¶17

Detailed headnote1 paragraphs

Criminal Misc. Writ Petition No. 6561 of 2010 (High Court of Judicature at Allahabad, Saurabh Shyam Shamshery, J., order dated 2.12.2022) — dismissed. The petitioners/applicants contended that investigation on NCR No. 19 of 2003 (Sections 323, 504 I.P.C., P.S. Indergarh, District Kannauj, 04.12.2003) was undertaken without the Magistrate's order mandated by Section 155(2) Cr.P.C., rendering the investigation and the subsequent charge sheet under Sections 452, 323, 504, 506 I.P.C. void ab initio, relying on Ramesh Chandra Gupta v. State of U.P. (2022 SCC OnLine SC 1634), Krishna Lal Chawla v. State of U.P. ((2021) 5 SCC 435) and Gangadhar Narayan Nayak v. State of Karnataka (2022 SCC OnLine SC 337). The Court held Section 155(2) Cr.P.C. mandatory (relying on Gangadhar, supra) but found that, on the complainant's complaint to higher police officers, F.I.R. Case Crime No. 258 of 2004 under Sections 452, 323, 504, 506 I.P.C. (cognizable offences) was lodged and investigation was conducted only after the F.I.R.; hence no Section 155(2) permission was required and there was no illegality or even irregularity in the investigation or the filing of the charge sheet. The application was rejected.

¶1

Court No. - 84

¶2

Case :- CRIMINAL MISC. WRIT PETITION No. - 6561 of 2010

¶3

Petitioner :- Harishchandra And Others Respondent :- State Of U.P. And Ors. Counsel for Petitioner :- Mayank Bhushan Counsel for Respondent :- Govt. Advocate

¶4

Hon'ble Saurabh Shyam Shamshery,J.

¶5

Heard Sri Mayank Bhushan, learned counsel for petitioners and Sri Sunil Srivastava, learned A.G.A. for State.

¶6

In present case, a non-cognizable report was registered being NCR No. 19 of 2003 under Section 323, 504 I.P.C. at Police Station- Indergarh, District- Kannauj on 04.12.2003 for alleged incident took place on same day against applicants.

¶7

Learned counsel for applicants submits that any investigation on a non-cognizable report can be initiated after mandatory permission from Magistrate required under Section 155(2) Cr.P.C. and since without permission, investigation was conducted on abovereferred NCR and thereafter charge sheet was submitted under Sections 452, 323, 504, 506 I.P.C., therefore, entire investigation is rendered void ab initio .

¶8

In support of his contention, learned counsel has placed reliance on judgments passed, Ramesh Chandra Gupta vs. State of U.P. and others, 2022 SCC Online SC 1634 as well as Krishna Lal Chawla and another vs. State of U.P. and others, (2021) 5 SCC 435 that for non cognizable offence, police after order of Magistrate is empowered to investigate in such a manner as a cognizable offence accept power to arrest without a warrant.

¶9

Learned counsel for applicants also placed reliance upon a

¶10

judgment of Supreme Court in Gangadhar Narayan Nayak alias Gangadhar Hiregutti vs. State of Karnataka and Others, 2022 SCC Online SC 337 , that as per Section 155(2) for non-cognizable offence, an order is required to be taken from Magistrate to investigate.

¶11

Per contra, Sri Sunil Srivastava, learned A.G.A. submits that initially an NCR was lodged, however, complaint was made by complainant before higher police officers and under direction, F.I.R. was lodged being Case Crime No. 258 of 2004 under Sections 452, 323, 504, 506 I.P.C. that i.e. for cognizable offence also, therefore, there was no basis to conduct investigation in absence of any prior order of a Magistrate as required under Section 155(2) Cr.P.C. for cognizable noncognizable offence.

¶12

Heard learned counsel for parties and perused record.

¶13

The law in regard to investigation on non-cognizable report is settled that in case of a non-cognizable offence, after taking a report, officer in charge shall give information to Magistrate as per Section 155(1) Cr.P.C. Language of Section 155(2) Cr.P.C. makes it clear and in terms it is mandatory that no police officer shall investigate non-cognizable case without order of Magistrate. Therefore, said provision is mandatory and required to comply with procedure of investigation of non-cognizable offence (see Gangadhar ( supra )).

¶14

Facts of present case as discussed above as well as from perusal of record are that initially an NCR was lodged against applicants for non-cognizable offence under Sections 323, 504 I.P.C. but complainant being aggrieved with NCR, approached senior police officer who directed to concerned police officer to lodge an F.I.R. and accordingly, F.I.R. was lodged being Case

¶15

Crime No. 258 of 2004 under Sections 452, 323, 504, 506 I.P.C. which have cognizable offence also.

¶16

There is nothing on record that before converting it to be an F.I.R., any investigation was conducted without permission of Magistrate as required under Section 155(2) Cr.P.C. on NCR rather it appears that investigation was conducted only after F.I.R. was lodged.

¶17

Therefore, in facts of present case, no permission was required under Section 155(2) Cr.P.C. as F.I.R. was lodged for cognizable offence, wherein after investigation, charge sheet was filed and in my view, there is no illegality or even irregularity in investigation and filing of charge sheet.

¶18

In view of above, argument of learned counsel for applicants has no legal force, hence, application is rejected.

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Order Date :- 2.12.2022 Nirmal Sinha

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Digitally signed by NIRMAL SINHA Date: 2022.12.08 16:57:56 IST Reason: Location: High Court of Judicature at Allahabad

Harishchandra and Others v. State of U.P. and Ors.

Case brief

What is this about?

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Harishchandra and Others v. State of U.P. and Ors.

Case brief

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What did the court decide?

What the court decided

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