The police cannot investigate a non-cognizable offense without an order from the Magistrate having power to try or commit the case for trial, as per Section 155(2) CrPC.

Vijay Bishnoi, J.

This Criminal Misc. Petition under section 482 CrPC has been filed by the petitioner with a prayer for quashing of the FIR No.30/2015 lodged at Police Station, Sheo, District Barmer for the offences punishable under sections 420, 192 IPC.

2. The impugned FIR has been lodged on the basis of a complaint filed by the complainant mainly with the allegation that the petitioner while contesting election for the post of Sarpanch of Gram Panchayat, Dharvi Kalla in the General Election, 2015, submitted false declaration regarding his children in the nomination form. It is also contended that as per the provisions of Rajasthan Panchayati Raj Act, any person having more than two children after 27.11.1995 is not qualified to contest the election for the post of Member or Chairperson of a Panchayati Raj Institution and the petitioner was having more than two children after 27.11.1995, but with the intention to make him eligible to contest election made false declaration about number of his children and their date of birth, therefore, he has committed the offence of cheating and forgery.

3. The challenge to the impugned FIR is made by the petitioner mainly on the ground that from bare reading of the allegations contained in the impugned FIR, no case for commission of cognisable offence is made out and even if the allegations contained in the impugned FIR are taken as it is, then also the only offence, which can be made out against the petitioner is of furnishing false information/evidence before a public servant. It is contended that the offence of furnishing false information/evidence while contesting election is a non-cognisable offence and, therefore, as per sub-section (2) of section 155 CrPC, the police has no jurisdiction to investigate into the non-cognisable offences without there being any order from the Magistrate concerned and as such the impugned FIR registered against the petitioner is liable to be quashed and set aside.

4. Per contra, the learned Public Prosecutor opposed the prayer of the petitioner while contending that since the allegations contained in the impugned FIR constitute an offence, the impugned FIR cannot be quashed.

5. Heard learned counsels for the rival parties and perused the impugned FIR.

6. The cheating is defined in section 415 of the Indian Penal Code, which reads as under:

"415. Cheating.-Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".

7. For the offence of cheating, there should be an averment in the complaint that the accused by using fraudulent means induces a person so cheated to deliver some valuable security etc.

8. From bare reading of the impugned FIR, it is clear that there is no averment to the effect that the accused by using fraudulent means induces the complainant or any person so cheated to deliver some valuable security etc. Hence, the offence punishable under section 420 IPC cannot be said to be made out from allegations contained in the impugned FIR.

9. It is noticed that in the impugned FIR, there is no allegation to the effect that the petitioner has prepared a false document and used it as a genuine one. The main allegation in the impugned FIR against the accused is to the effect that he has furnished false declaration regarding his children in the nomination form and on the basis of which, he has contested the election though he was not qualified to do so. Furnishing false information before a public servant cannot be equated with the execution of a false document. If what is executed is not a false document, there is no forgery and if there is no forgery,