Non-cognizable offences require a magistrate's order for police investigation, and failure to obtain such an order renders the FIR invalid.

ORDER

1. In wake of onslaught of COVID-19, abundant caution is being taken while hearing the matters in Court.

2. Counsel for the petitioner as well as learned Additional Advocate General jointly submits that the proposition in-question is settled in Hasam Khan & Ors. Vs. State of Rajasthan (S.B. Criminal Misc. Petition No.2254/2017, decided on 10.08.2017), judgment whereof reads as follows :

"1. This criminal misc. petition under Section 482 Cr.P.C. has been preferred for quashing FIR No.72/2017 registered at Police Station, Bajju, District Bikaner for the offence under Section 41/42 of the Forest Act.

2. Learned counsel for the petitioner submits that the matter is squarely covered by the judgment rendered by a coordinate Bench of this Court in Mohan Ram @ Manaram Vs. State of Rajasthan, reported in 2016 (3) Cr.L.R. (Raj.) 1144, wherein the following order had been passed:-

"This criminal misc. petition under Section 482 Cr.P.C. has been filed by the petitioner with a prayer for quashing the proceedings of Criminal Case No. 1811/2015 pending in the Court of Judicial Magistrate, Balotra, District Banner (hereinafter referred to as 'the trial court') against the petitioner.

In the present case, the trial court vide order dated 19.11.2015 took cognizance against the petitioner for the offences punishable under Sections 41, 42/77 of Rajasthan Forest Act, 1953 (hereinafter referred to as 'the Act of 1953). Learned counsel for the petitioner has argued that the FIR was lodged against the petitioner for the offences punishable under Sections 41 and 42/77 of the Act of 1953 by the Head Constable Sujan Singh of the Police Station Sindhari, District Barmer on 11.10.2015. It is contended that the offence punishable under Sections 41 and 42/77 of the Act of 1953 are non-cognizable offence and as per the provisions of Sub-Section (2) of Section 155 of the Code of Criminal Procedure, no police officer shall investigate into non-cognizable case without order of Magistrate having power to try such case or commit the case for trial. It is argued that the FIR in the present case, could not have been registered because there was no order from the Magistrate having power to try such case or commit the case for trial. It is further argued that the trial court, without taking into consideration the above position of law, has illegally proceeded against the petitioner and has taken cognizance against him for the offences punishable under Sections 41, 42/77 of the Act of 1953 vide order dated 19.11.2015.

In support of above contentions, learned counsel for the petitioner has placed reliance upon the judgments of this Court in the case of Pintu Dey Vs. State of Rajasthan & Anr. decided on 9.4.2015 and Pappu Ram Vs. State of Rajasthan reported in 2015 (1) Cr.L.R. (Raj.) 304.

Learned Public Prosecutor has opposed the criminal misc. petition and has argued that as per the provisions of Section 64 of the Act of 1953, any Police Officer has power to arrest any person without warrant against whom a reasonable suspicion exists of his having been involved in any forest offence punishable with imprisonment for one month or upwords and, therefore, the police officer is also competent to register and investigate any FIR against any person in which the complaint is made for commission of offences under Sections 41 and 42 of the Act of 1953.

However, learned Public Prosecutor has fairly conceded that the punishment provided under Sections 42 and 77 of the Act of 1953 are less than 3 years, therefore, the offences punishable under Sections 42 and 77 of the Act of 1953 are non-cognizable offences.

Heard learned counsel for the petitioner and perused the impugned order.

Sub-section (2) of section 155 of CrPC reads as under:

"(2) No police officer shall investigate a noncognizable case without the order of a Magistrate having power to try such case or commit the case for trial."

Part-II of Schedule-I of CrPC reads as under:

"II - CLASSIFICATION OF OFFENCES AGAINST OTHER LAWS