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1970 Supreme(Del) 52
DELHI HIGH COURT
Pritam Singh Safee, J.
JUGAL KISHORE AND ANOTHER
VERSUS
STATE
Criminal Revn. No. 261 of 1970 (From order of H. C. Goel, Addl. S.J., Delhi,)
Decided on : 12-3-1970, August 3, 1971.
An investigation of a non-cognizable offence can only be initiated with the permission of a Magistrate, and such permission can only be granted if the police officer in charge of the police station has received information about the commission of the offence.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 155 - INVESTIGATION OF NON-COGNIZABLE OFFENCE - VALID PERMISSION - REQUIREMENTS - INTENTIONAL INSULT - PROVOCATION - SECTION 504, INDIAN PENAL CODE - INTERPRETATION.
Fact of the Case:
The petitioners were charged with intentionally insulting Mahatma Gandhi and thereby provoking his followers to break the public peace, under Section 504/34 of the Indian Penal Code. The petitioners challenged the validity of the charge, arguing that no valid permission had been obtained for investigating the case against them, as required by Section 155(2) of the Criminal Procedure Code.
Finding of the Court:
The court found that the order passed by the District Magistrate on December 19, 1968, granting permission for the investigation of the case, was not valid because it was not based on an information received by the police officer in charge of the police station, as required by Section 155(1) of the Code. The court also found that the report submitted by the Superintendent of Police C.I.D. on December 17, 1968, which formed the basis of the District Magistrate's order, did not disclose that any person had been provoked within the meaning of Section 504 of the Indian Penal Code.
Issues: 1. Whether the order passed by the District Magistrate on December 19, 1968, granting permission for the investigation of the case, was valid. 2. Whether the report submitted by the Superintendent of Police C.I.D. on December 17, 1968, disclosed that any person had been provoked within the meaning of Section 504 of the Indian Penal Code.
Ratio Decidendi: The court held that the order passed by the District Magistrate on December 19, 1968, was not valid because it was not based on an information received by the police officer in charge of the police station, as required by Section 155(1) of the Code. The court also held that the report submitted by the Superintendent of Police C.I.D. on December 17, 1968, did not disclose that any person had been provoked within the meaning of Section 504 of the Indian Penal Code. Therefore, the investigation was unauthorized and the charge framed against the petitioners was quashed.
Final Decision: The court quashed the charge framed against the petitioners.
This petition raises a grievance, against the charge framed on the 28th April, 1969 :
"I, A. C. Kher, Magistrate First Class. New Delhi hereby charge you. Jugal Kishore and Ghamandi Lal as follows :-
That you on or about 15/16-12-1968, at Delhi in furtherance of common intention of you both by getting posters (Mark "A")) containing insulting language for Mahatma Gandhi printed and pasted at different places in Delhi including Parliament Street House intentionally insulted Mahatma Gandhi and thereby provoked followers of Mahatma Gandhi, including R. C. Madan and K. L. Bahl, P.Ws. intending or knowing that such provocation is likely to cause breach of public peace and thereby committed an offence-punishable under Section 504/34, I.P.C. and within my cognizance.
And I hereby direct that you be tried by me on the said charge.
Sd/-
A. C. Kher Magistrate, 1st Class 28-4-1969."
2. It is urged on behalf of the petitioners that no valid permission, as contemplated by Section 155(2) of the Criminal Procedure Code (hereinafter called "the Code") had been obtained for investigating the case against them and the charge framed is even otherwise illegal. Section 155 of the Code is :-
"155(1) When information is given to an officer-in-charge of a police-station of the commission within the limits of station of a non-cognizable offence, he shall enter in a book, to be kept as aforesaid, the substance of such information and refer the information to the Magistrate.
(2) No police-officer shall investigate a non-cognizable case without the order of a Magistrate of the first or second class having power to to try such case, or commit the same for trial, or of a Presidency Magistrate.
(3) Any police-officer receiving such order, may exercise the same powers in respect of the investigation (except the power of arrest without warrant) as an officer-in-charge of a police-station may exercise in a cognizable case."
3. The foregoing provision shows that information must be received by the police officer in charge of a police officer in charge of a police station, regarding the commission of a non-cognizable offence. Unless, he has received such an information, he cannot proceed even to record it in terms of Section 155(1) of the Code.
4. Whenever an officer-in-charge of a police-station has received and entered the information, regarding a non-cognizable offence having been committed he is to refer the informant to the Magistrate Sub-section (2) makes it clear that no police officer will have the authority no investigate a non-cognizable case without an order of a Magistrate of the First or Second Class having power to try such case or, to commit the same for trial, or in case of a Presidency town, he may receive the permission from a Presidency Magistrate.
5. It is only after receiving the order, that the police officer will get the authority, in terms of sub-section (3) to exercise same powers in respect of the investigation of a non-cognizable offence, as an officer in charge of a police station may exercise in cognizable case. He will be having the foregoing authority except the power to arrest without warrant.
6. Mr. D. R. Sethi appearing for the State relying upon the order passed by the District Magistrate Delhi on the 19th of December, 1968, submits that the said order constituted valid permission for the investigation of the offence :
The order is :-
"S.P. (South) may please see S.P. Special Branch's report of 17-12-1968 a copy of which is placed below. Shri G. L. Gupta and Shri J. K. Azad of the People's Society Delhi have used very insulting language for Mahatma Gandhi, which may provoke some people to break the public peace or to commit any other offence. You may therefore, register a case under Section 504 of the Code I.P.C. and get it investigated thoroughly.
2. This may be treated as permission under Section 155(2) of the Criminal P.C. for investigating this case.
Sd/-
x x 19-12-68 (B. N. Tandon) District Magistrate, Delhi.
