1998 Supreme(Raj) 867

RAJASTHAN HIGH COURT AT JAIPUR BENCH
M.A.A.Khan, J.
Badri Narayan and another - Appellant
Versus
State of Rajasthan and another - Respondent
S.B. Cr. Misc. Petition No. 858 of 1996.
Decided On : 5-01-1998

The Magistrate cannot take cognizance of an offence under the Jaipur Development Authority Act 1982 on the basis of a police report. Cognizance can only be taken upon a complaint in writing of the facts constituting such offence made by the Authority or by a person expressly authorized in this behalf by the Authority.

Headnote:

JDA ACT - SECTION 75 - COGNIZANCE OF OFFENCES - COMPLAINT BY JDA OR AUTHORIZED PERSON - POLICE REPORT NOT SUFFICIENT - SECTION 72 - ENCROACHMENT ON PUBLIC LAND - INVESTIGATION BY DY.S.P. - NO IMPLIED AMENDMENT OF SECTIONS 75, 82 AND 92 - MAGISTRATE CANNOT TAKE COGNIZANCE ON POLICE REPORT - PROCEEDINGS QUASHED.

Fact of the Case:

Petitioners challenged the validity and legality of the order framing charge against them for offence under section 72 of the Jaipur Development Authority Act 1982 (the "Act") and the competence of the Magistrate to have taken cognizance of the said offence upon a police report and summoned them as accused thereunder. The continuance of the proceedings initiated on the basis of a police report and not on the basis of a complaint by the JDA or a person authorized by it in that behalf, as mandated in Section 75 of the Act, was alleged to be amounting to abuse of the process of court and it was prayed that such proceedings be quashed and dropped.

Finding of the Court:

The court held that the Magistrate could not have taken cognizance of the offence under section 72 of the Act and summoned the petitioners as accused thereunder on the basis of the police report submitted under section 173(2) Cr.P.C. by the SHO, Police Station Sanganer, Jaipur after completion of the investigation of the offence by a police officer not below the rank of a Dy.S.P. Even if it be assumed that the Dy.S.P was attached to the Special Police Station which was created for the purposes of dealing with the criminal cases arising under the Act and the Dy.S.P was a police officer duly authorized by the Authority under section 82 or some other provision of the Act to investigate an offence under section 72 (though neither any argument was advanced in that behalf nor any material on the record of the lower court was referred to for raising such an assumption or supposition). Then the Dy.S.P was required, in view of the clear mandate of section 75, to place the result of the investigation carried on by him before the Authority and the Authority itself or through a person expressly authorized by it in that behalf could have filed a complaint in writing of the facts constituting an offence under section 72 of the Act. In any case the Police could have filed no report under section 173 (2) in the present matter and the learned Magistrate had no jurisdiction to entertain such a police report and take cognizance of offence under section 72 of the Act in exercise of his powers under section 190 (1 )(b) Cr.PC. The Act in its section 75 clearly and specifically restricted his powers under section 190 Cr.RC. and he could have taken cognizance of an offence under the Act only under section 190"l)(a) Cr.PC. on a complaint in writing made by the JDA or by a person express authorised in this behalf by the JDA. The cognizance taken by the learned Magistrate on the basis of the police report under section 173 Cr.PC. being inherently bad in law, all orders made and proceedings taken subsequent to the order of taking cognizance in this case are invalid and ineffective and deserve to be set- aside as such.

Issues: 1. Whether the Magistrate could have taken cognizance of the offence under section 72 of the Act and summoned the petitioners as accused thereunder on the basis of the police report submitted under section 173(2) Cr.P.C. by the SHO, Police Station Sanganer, Jaipur after completion of the investigation of the offence by a police officer not below the rank of a Dy.S.P? 2. Whether the Dy.S.P was attached to the Special Police Station which was created for the purposes of dealing with the criminal cases arising under the Act and the Dy.S.P was a police officer duly authorized by the Authority under section 82 or some other provision of the Act to investigate an offence under section 72?

Ratio Decidendi: 1. The Magistrate could not have taken cognizance of the offence under section 72 of the Act and summoned the petitioners as accused thereunder on the basis of the police report submitted under section 173(2) Cr.P.C. by the SHO, Police Station Sanganer, Jaipur after completion of the investigation of the offence by a police officer not below the rank of a Dy.S.P. 2. Even if it be assumed that the Dy.S.P was attached to the Special Police Station which was created for the purposes of dealing with the criminal cases arising under the Act and the Dy.S.P was a police officer duly authorized by the Authority under section 82 or some other provision of the Act to investigate an offence under section 72 (though neither any argument was advanced in that behalf nor any material on the record of the lower court was referred to for raising such an assumption or supposition). Then the Dy.S.P was required, in view of the clear mandate of section 75, to place the result of the investigation carried on by him before the Authority and the Authority itself or through a person expressly authorized by it in that behalf could have filed a complaint in writing of the facts constituting an offence under section 72 of the Act. In any case the Police could have filed no report under section 173 (2) in the present matter and the learned Magistrate had no jurisdiction to entertain such a police report and take cognizance of offence under section 72 of the Act in exercise of his powers under section 190 (1 )(b) Cr.PC. The Act in its section 75 clearly and specifically restricted his powers under section 190 Cr.RC. and he could have taken cognizance of an offence under the Act only under section 190"l)(a) Cr.PC. on a complaint in writing made by the JDA or by a person express authorised in this behalf by the JDA. The cognizance taken by the learned Magistrate on the basis of the police report under section 173 Cr.PC. being inherently bad in law, all orders made and proceedings taken subsequent to the order of taking cognizance in this case are invalid and ineffective and deserve to be set- aside as such.

Final Decision: The petition was allowed. The impugned order was set-aside, the criminal proceedings pending in the court of the learned Magistrate against the petitioners quashed and dropped and the petition allowed. Consequently both the petitioners were discharged of the offence under section 72 of the Act and therein bail-bonds were cancelled. It was, however, made clear that this order shall not debar either of the parties from their rights to other remedies, if any, available to them under the Act or under the relevant provisions of any other law.