Point of Law: investigation of a non-cognizable offence by the police without the permission of the competent Magistrate is illegal, subsequent permission granted cannot cure the illegality as police officer has no jurisdiction to investigate non-cognizable offence without the order of the Magistrate having jurisdiction to try such case.

ORDER :

1. The petitioner is standing trial for offence under Sections 500 read with Section 120B of the IPC and 67 of the Information Technology Act, 2000 pursuant to registration of Crime No.68/2020 at Police Station Supela, District Durg, dated 28-1-2020 and consequent filing of charge-sheet against him. By this petition under Section 482 of the CrPC, he seeks quashment of FIR and criminal proceeding registered against him.

2. Respondent No.2 herein/complainant filed a complaint before Police Station Supela, District Durg alleging that co-accused Ashish Mishal from his mobile number 9009268440 had been forwarding defamatory messages on WhatsApp making defamatory allegations against the complainant which was investigated upon and the memorandum statement of co-accused Ashish Mishal was recorded in which he has stated that the petitioner has directed him to send messages against the complainant and the petitioner has also paid Rs. 50,000/- to him for that purpose. Accordingly, Rs.50,000/- was seized and thereafter, the petitioner and co-accused, both, were charge-sheeted for the aforesaid offences under Sections 500 read with Section 120B of the IPC and 67 of the Information Technology Act, 2000 (for short, ‘the IT Act’)

3. This petition has been preferred mainly on the ground that taking the contents of the FIR as it is, no offence under Section 67 of the IT Act is made out against the petitioner and alternatively, certificate under Section 65-B(4) of the Evidence Act, 1872 was mandatory to be filed with the charge-sheet which was not filed along with the charge-sheet and in view of the decision of the Supreme Court in the matter of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and others, (2020) 7 SCC 1, certificate under Section 65-B(4) of the Indian Evidence Act, 1872 is a mandatory requirement and therefore in the present case, once charge under Section 67 of the IT Act is quashed, cognizance of offence under Section 500 of the IPC, which is non-cognizable offence, cannot be taken on the police report in view of the provisions contained in Section 155(2) of the CrPC and also for the reason that complaint has not been filed by the person aggrieved before the Magistrate within the meaning of Section 199 of the CrPC.

4. Return has been filed by the respondents opposing the petition stating that only charges for the aforesaid offences have been framed against the petitioner, sufficient material is available on record and all the charges levelled against the petitioner will be established during the course of trial, as such, this is not the case where charges levelled against the petitioner can be quashed in exercise of jurisdiction under Section 482 of the CrPC, therefore, the petition be dismissed.

5. Ms. Aditi Singhvi, learned counsel appearing for the petitioner, would submit that taking the contents of the FIR as it is, no offence under Section 67 of the IT Act is made out against the petitioner, as neither the statement is defamatory nor certificate under Section 65B of the Evidence Act, 1872 has been enclosed with the charge-sheet which was mandatory to be filed along with the charge-sheet. Even otherwise, offence under Section 500 of the IPC is non-cognizable offence and by virtue of Section 155(2) of the CrPC, no police officer can investigate a non-cognizable case unless there is order of a Magistrate having power to try such case or commit the case for trial. She would further submit that the petitioner has been apprehended on the basis of memorandum of co-accused which is absolutely unsustainable and bad in law, as such, FIR and charge-sheet deserve to be quashed and the petitioner be acquitted of all the charges.

6. Mr. Ravi Kumar Bhagat, learned State counsel, would submit that upon due investigation and upon the memorandum statement of other co-accused Ashish Mishal, the petitioner has been impleaded in this case and charge-sheet has been filed. He would further submit that the petitioner is at liberty to di