Cognizance under Section 186 IPC cannot be taken in absence of a complaint by the appropriate public servant, and police reports for non-cognizable offenses must follow required legal procedures.

JUDGMENT :

AJOY KUMAR MUKHERJEE, J.

1. Petitioner herein has prayed for quashing of proceeding being N.G.R case no. 8848 of 2018 presently pending before learned Chief Judicial Magistrate, Tamluk, arising out of Kolaghat Police Station NCR Case No. 185 of 2018 under section 186 of the Indian Penal Code ( IPC ).

2. On 25th March, 2018 an accident occurred due to collusion between the vehicle of the petitioner and a truck. One Rabi Sankar Das, a member of National Volunteer Force (NVF) who was on duty at that place was allegedly requested by the petitioner to interfere and to take action against the truck driver but said Rabi Sankar allegedly abused the petitioner and also allegedly assaulted him.

3. The petitioner thereafter lodged a written complaint against said Rabi Sankar under section 341/323 IPC being Kolaghat Police Station case no. 134 of 2018. The petitioner also lodged a complaint with the superior officer of West Bengal National Volunteer Force Directorate on 10th April, 2018 and the said commandant of West Bengal National Volunteer Force Directorate forwarded the complaint to the Superintendent of police, Purba Medinipur for conducting necessary enquiry against said Rabi Sankar.

4. Immediate after such administrative action being taken against Rabi Sankar, at his behest, a prayer was made by one Mihir Kumar Sahu, Sub- Inspector of Police attached with Kolaghat Police Station, before the Chief Judicial Magistrate, Purba Medinipur asking for permission to conduct enquiry against the petitioner. Learned Magistrate by an order dated 16th April, 2018 allowed such prayer and directed him to submit a report on completion of the enquiry. After such enquiry a prosecution report (P.R) was submitted under section 186 of the IPC in connection with Kolaghat P.S G.D.E no. 1275 of 2018 dated 25th March, 2018 and G.D.E no. 279 of 2018 dated 6th May, 2018 by said Sub-Inspector of Police Mihir Kumar Sahu and on the basis of the same by the order dated 28th May, 2018 the court below took cognizance and issued process against the petitioner directly.

5. Being aggrieved by the impugned proceeding Mr. Ayan Bhattacharjee learned Senior Advocate appearing on behalf of the petitioner submits that the Magistrate concerned ought not to have permitted to conduct enquiry to be initiated by the concerned Sub-Inspector of police as there is no such provision for directing an enquiry for alleged non-cognisable offence. It is only under section 155(2) of the Cr.P.C. that a Magistrate can permit the police officer to conduct investigation in connection with a non-cognizable offence. However such permission was never sought for and infact no prayer was made before the Magistrate in terms of section 155(2) of the Code praying for investigation.

6. He further submits that since the offence under section 186 of the IPC is a non-cognizable offence, the concerned police officer could not have conducted any enquiry nor the learned Magistrate could have permitted any enquiry/investigation when the Magistrate is debarred form taking cognizance on the basis of police report submitted in connection with such an offence under the provision of section 195(1) of the Cr.P.C.

7. He further submits that section 195(1) of the Cr.P.C. mandates that no Magistrate can take cognizance for an offence under section 186 of the IPC except a complaint lodged by the public servant concerned or any person directly superior to such public servant. That apart said Rabi Sankar is not a public servant within the meaning of section 21 of the . Even if it is presumed for the sake of argument that he is