The investigation of non-cognizable offences without the order of a Magistrate is illegal and cannot be cured. The impugned FIR must disclose a cognizable offence to justify an investigation by the police.

JUDGEMENT

1. In the instant petition, the petitioner has called into question FIR No. 152/2018 for offences under section 316/323/109 RPC registered with the police Station, Rajouri.

2. It appears that respondent No. 2/complainant lodged a written report with the SHO, Police Station, Rajouri on 29.03.2018. In the said report, it was alleged that the petitioner happens to be her husband with whom she has entered into wedlock on 05.03.2016. According to the complainant, after about three months of the marriage, the petitioner and his relatives including his parents, brother and sister started harassing and beating her. It was further alleged that the complainant became pregnant and in the month of January 2017, when she was pregnant, the petitioner and his aforesaid relatives conspired with each other and brother of the petitioner, Anuj Sharma pushed her down the stairs, as a result of which she fell down and experienced pain in her belly. It is further alleged that the petitioner, husband of the complainant, arranged her treatment and she was administered some medicines as a consequence whereof, miscarriage took place. The complainant has further alleged that she was thrown out of her matrimonial home and she started living with her parents.

3. On the basis of the aforesaid report, the Police registered impugned FIR for offences under sections 316/323/109 RPC and started investigation of the case. Vide order dated 17.04.2018, passed by this Court in the instant petition, investigation to the extent of offence under section 316 RPC was stayed, but it appears that the investigation of the case continued in respect of the other offences.

4. The petitioner has challenged the impugned FIR primarily on the ground that all the offences alleged in the impugned FIR are non-cognizable in nature, as such, it was not open to the police to register the FIR and undertake the investigation of the case without permission of the Magistrate. It has been contended that the investigation of the impugned FIR is without jurisdiction and, as such, the same deserves to be quashed. The other ground urged by the petitioner is that as per the medical report, there was no positive evidence with regard to the pregnancy of the complainant, as such, offences under sections 313 and 316 of RPC are not otherwise made out against the petitioner. It has been contended that once the registration of basic FIR in respect of non-cognizable offences is without jurisdiction, the Investigating Agency cannot add cognizable offences during the investigation of the case.

5. The respondent-State has filed its objections to the petition and has filed the status report with regard to the investigation. As per the status reports filed by the Investigating Agency, after registration of the impugned FIR, the statements of the witnesses under section 161 Cr.P.C. were recorded, on the basis of the which, offences under sections 316 and 498-A RPC were added and offence under section 316 RPC was dropped. Status reports further indicate that during the course of the investigation, the Investigating Officer called the complainant for recording her statement under section 161 Cr.P.C. but she has not responded so far.

6. Respondent No. 2/complainant has also filed her response to the petition. In her response, it has been contended that this Court in exercise of its jurisdiction under section 482 Cr.P.C. cannot embark upon an inquiry to ascertain the veracity of the contention of the petitioner that there was no positive evidence with regard to the pregnancy of the complainant. It has been further submitted that admittedly, the complainant had lodged two more complaints before the police prior to lodging of the impugned FIR, in which specific allegations were made by her regarding demand of dowry by the accused including the petitioner, as also regarding harassment perpetrated upon her by the accused in connection with demands of dowry. According to respondent No. 2, merely because the FIR ha