2012(2) Crimes 249 (Del.)
SHORT NOTE
DELHI HIGH COURT
Suresh Kait, J.
Shiv Charan and Ors.—Petitioners
versus
State—Respondent
Criminal MC No. 2668 of 2006
Decided on 3.10.2011

IMPORTANT POINT
In view of Section 195 of Code of Criminal Procedure, if the offences are covered under Sections 172 to 188 then as is provided under Section 195(1) being the offences of the non-cognizable nature. Therefore, the police has no power to register and to investigate the case without prior permission of the concerned Magistrate.

Headnote:Indian Penal Code, 1860—Sections 186, 353 and 506/34—Criminal Procedure Code, 1993—Section 155(4) and 195—Petitioners were charge-sheeted by police and Magistrate took cognizance of offence—Petitioners were alleged to have prevented Drugs Inspector from inspecting and examining records of chemist shop and physically pushed him out of shop and used threatening language—Order taking cognizance of offence on police challan challenged on ground that offence under Section 186 IPC was non-cognizable and there was no complaint by concerned public servant—Two offences however, one under Section 186 and other under Section 353 IPC were distinct offences—Proceedings under Section 186 IPC were liable to be quashed and trial Court could proceed with other offences.

       Held: As the present case is concerned, the FIR No.399/2003 was registered under Sections 186/353/506/34 Indian Penal Code, 1860. During investigation Section 22 (3) of Drugs and Narcotics Act 1940 were also added. Accordingly, the Charge-sheet was filed in the concerned Court. The concerned Court took the cognizance on 31.1.2004, thereafter, the matter was proceeded further.

       The law is settled on the issue that, if a case relates to more than one offence and at least one cognizable, the case shall be deemed to be cognizable notwithstanding that the other offences are non-cognizable as is provided under Section 155(4) of Code of Criminal Procedure.

       The law is also settled and in view of Section 195 of Code of Criminal Procedure, if the offences are covered under Section 172 to 188 then as is provided under Section 195 (1) being the offences of the non-cognizable nature. Therefore, the police has no power to register and to investigate the case without prior permission of the concerned Magistrate.

       In the instant case, Section 353 of Indian Penal Code, 1860 is also applicable against the petitioner. In view of a Judgment passed by the Supreme Court in AIR 1966 SC 177(5), where the Court has analyzed the provisions of Section 353 : of Indian Penal Code, 1860 and Section 186 of Indian Penal Code, 1860 and held that the two are distinct offences and the quality of the offences are also different, the Apex Court was of the opinion that in relation to provisions of Section 353 of Indian Penal Code, 1860 would equally apply to the provisions of Section 332 of Indian Penal Code, 1860. This being the position, the Apex Court quash the criminal proceedings so far as the charges under Section 186 of Indian Penal Code, 1860 is concerned and directed that the criminal proceedings would continue so far as the charges under Sections 332/34 of Indian Penal Code, 1860 are concerned, as has been opined in a case of Pankaj Agarwal v. State of Delhi and Anr., 2001(4) Scale 235.

       As far as the offence under. Section 186 is concerned, there is absolute bar m terms of sanction used in Section 195 of Cr.P.C., the same issue was also decided in a case of Daulat Ram (supra) in a case of Vasudev (supra).

       In my opinion the present case is squarely covered by Pankaj Agarwal (supra), and also the decision taken in the abovementioned case is applicable to the case in hand.

       Consequently, the proceedings under Section 186 of IPC are quashed. For the remaining offences, the trial court shall proceed further as per law.(Paras 27 to 33)