Non-compliance with the mandatory provisions of Section 155(2) of the Criminal Procedure Code, which requires the police to obtain a prior order from a magistrate before investigating a non-cognizable offence, is a material irregularity that vitiates the subsequent proceedings and cannot be cured under Section 537 of the Criminal Procedure Code.

This Rule is at the instance of the accused-petitioner, Subodh Singh Modak, and is directed against an order dated the 22nd July, 1972 passed by Shri Prafulla Kumar Roy, Sessions Judge, Purulia in Criminal Revision No. 10 of 1972 setting aside an order dated 29-4-1972 passed by Shri B. K. Dutta, Judicial Magistrate, 1st Class Purulia in N.G.R. Case No. 130 of 1971 under Section 4 of the Bengal Criminal Law Amendment Act, 1942 quashing the criminal proceedings against him.

2. The facts leading on to the Rule can be put in a short compass. During the investigation of Manbazar P.S. Case No. 8 dated 21-3-1970 under Section 395 and 397 of the Indian Penal Code, the police searched a house of the accused-petitioner in the present Rule, namely Subodh Singh Modak, and recovered one transistor radio with one license in the name of one Jagadish Misra. The radio and the license were thereafter seized by the police on the footing that the accused-petitioner failed to give a satisfactory explanation how he came by the same. In course of investigation the name of Jagadish Chandra Misra also transpired as having forged the license. The radio which was recovered was found concealed in a wooden chest. On the facts and circumstances referred to above the Investigating Officer submitted a prosecution report before the Sub-divisional Judicial Magistrate, Purulia for taking cognizance under Section 4 of the Bengal Criminal Law Amendment Act, 1942. The accused, Subodh Singh Modak was thereafter released on bail. In course of the proceedings an application was filed on behalf of the accused-petitioner praying for dropping the entire proceeding on the ground that the offence under Section 4 of the Bengal Criminal Law Amendment Act, 1942 being a non-cognizable offence the Investigating Officer could not have investigated into the same without the requisite order of a Magistrate. On hearing the parties the learned Judicial Magistrate by his order dated 29-4-1972 found in favour of the accused and quashed the proceedings against him directing that he may be discharged from the bail bond. On a motion being preferred be the State of West Bengal Shri Prafulla Kumar Roy, Sessions Judge, Purulia ultimately allowed the revisional application, set aside the order of the learned trying Magistrate and remanded back the matter to him to decide the same in accordance with law. This order has been impugned and forms the subject-matter of the present Rule.

3. Mr. Nalin Chandra Banerjee, Advocate (with Mr. Arun Kumar Mukherjee, Advocate) appearing in support of the Rule on behalf of the accused-petitioner, contended that the learned Sessions Judge erred in his interpretation of law on the point and the same has resulted in a failure of justice, Mr. Banerjee in this context submitted that there is a patent non-conformance to the mandatory provisions of Section 155(2) of the Code of Criminal procedure vitiating the resultant proceedings and the learned Sessions Judge on a mis-interpretation of the decisions of this Court and also of the Supreme Court ultimately held that there was no illegality or impropriety and on that footing remanded the matter back. Mr. N. R. Biswas, Advocate appearing on behalf of the State, joined issue. Mr. Biswas contended that the investigation was really in the context of a cognizable offence under Sections 395 and 397, Indian Penal Code. Mr. Biswas next contended that the illegality was curable under Section 537, Criminal Procedure Code.

4. I have heard the learned Advocates appearing on behalf of the respective parties and gone through the materials on record. On ultimate analysis, I find that there is a considerable force behind the submissions of Mr. Banerjee. In the first place it is abundantly clear that the investigation was not in the context of cognizable offences, viz., under Sections 395 and 397, Indian Penal Code but only related to a search in the house of Subodh Singh Modak who was subsequently made an accused in the case