2010 Supreme(Bom) 1007

In the High Court of Bombay at Goa
MR. JUSTICE A.S. OKA & THE HONOURABLE MR. JUSTICE F.M. REIS
Vishwajit P. Rane
Versus
State of Goa & Others
CRIMINAL WRIT PETITION NO. 38 OF 2009 WITH CR.MISC.APPLICATION NO.15 Of 1010
Decided on: 21-07-2010

Headnote:Criminal Procedure Code, 1973 - Section 154 - Penal Code, 1860, Section 506 Part II - Constitution of India, Article 243, Schedule VII, Item 2, List-III - Powers of State Government to amend Code - Notification issued by Government of Goa declaring any offence punishable under Sections 186, 189, 228, 298, 506 or 507, IPC committed within State of Goa shall be cognizable and any offence punishable under Section 188 or 506, IPC shall be non-bailable - Challenged by petitioner - Held - Cr PC, 1973 is law enacted by Parliament under Item-2 of List III of Schedule VII of Constitution - It can only be amended by an act of Parliament - State Government cannot amend same by issuing a Notification - Section 506 of IPC remains as non-cognizable offence - Police Officer cannot investigate offence without an order from Magistrate under Section 155(2) of Cr PC - Registration of FIR under Section 154, Cr PC illegal and liable to be quashed - Complaint by intervenor under Section 200, Cr PC can be dealt with in accordance with law. - In the present case the explanation to Section 2(d) will not help the Police as it is applicable only when policy after investigation of a cognizable offence find that a case of commission of non-cognizable offence is made out. In the present case, the police registered First Information Report in a case where offence was admittedly non cognizable and proceeded with the investigation without obtaining order under Section 155(2) of the said Code of 1973.The investigation was carried out without authority of law. Thus the investigation stands vitiated. In the case of Vithal Puna Koli (Shirsath) and others v. State of Maharashtra and another, 2006 (2) Bom CR (Cri) 1994 (AB) : 2006 DGLS (Cri) soft 1346 : 2006 All MR (Cri) 301, a learned Single Judge of this Court has taken a view that a Police Officer cannot investigate non-cognizable case without an order of the concerned Magistrate and that in such a case entire investigation is vitiated and is liable to be set aside. The same is the view taken by this Court in the case of Shri Mukesh Laxman Das Talreja v. The Inspector of Police, Kasturba Marg Police Station and another, 2006 (2) Bom CR (Cri) 76 : 2006 DGLS (Cri) Soft 142 : 2006 All MR (Cri) 1589.

        At this stage, it must be stated here that the Intervenor appearing in person has relied upon an order of this Court dated 23 September, 2008 passed in Criminal Writ Petition No. 47/2008. It must be noted here that the Intervenor has filed a private complaint being Criminal Case No. 124/ 2007/B in the Court of the Judicial Magistrate First Class, at Panaji, Goa against the petitioner and his wife. On 10 July, 2007, an order has been passed by the learned Magistrate on the said private complaint directing the Police Officer to make investigation in accordance with Section 202 of the said Code of 1973. An order passed during the pendency of the said private complaint was challenged by the Intervenor by filing Criminal Writ Petition No. 47/2008. While disposing of the said writ petition, the learned Single Judge recorded a statement of the learned Public Prosecutor that a charge sheet on the basis of the First Information Report subject-matter of the challenge in the present petition will be filed. In the said decision, this Court has noted that though allegation of commission of the offence was made by the Intervenor against the petitioner and his wife, the police recorded the First Information Report only against the petitioner. As the aforesaid statement recorded in the said writ petition was not complied with by the police, it appears that a contempt petition was filed by the Intervenor in this Court. In the said contempt petition a statement was recorded that the charge-sheet was filed on 8 May, 2009. In both the matters, this Court was not called upon to consider the legality and validity of registration of the First Information Report. The orders passed in the said two proceedings by this Court have not decided the issue of legality of the investigation.

       Hence, registration of the First Information Report No. 130/2007 is itself illegal and, therefore, the same will have to be quashed and set aside. Consequently, the investigation and the charge-sheet will have to be also quashed and set aside.

       It must be noted here that the Intervenor had given an information to the Officer in charge of Police station of commission of a non-cognizable offence. Now the officer in charge will have to proceed in accordance with Section 155 of the said Code of 1973 on the basis of the said information. Hence, Court pass the following order :

        T he First Information Report No. 130/ 2007 of Old Goa Police Station is quashed and set aside. Therefore, the investigation carried out on the basis of the said First Information Report is illegal. Hence Court quash and set aside and the charge sheet filed by the police in the said case.

        The information given by the Intervenor to the concerned Police Officer on 22nd August 2007 was of commission of non-cognizable office. Therefore, the officer concerned shall act in accordance with Section 155 of the Code of Criminal Procedure, 1973.

       Court makes it clear that Court had not dealt with the merits of the allegations made by the Intervenor against the petitioner. Court also makes it clear that notwithstanding this order, criminal case No. 124/2007/B filed by the Intervenor against the petitioner will proceed in accordance with law.

       After the judgment was pronounced, the Intervenor appearing in person states that the private complaint to which a reference has been made in Clause (iii) of the operative part of the judgment of this Court has been since withdrawn. Hence, the last part of Clause (iii) of the operative part of the judgment stands deleted.