THE HON’BLE SRI JUSTICE N. TUKARAMJI WRIT PETITION No.9462 OF 2016

ORDER

This Writ Petition is filed with the following relief:

“To issue a Writ of Certiorari or any other appropriate Writ, Order or Orders, Direction or Directions to quash the FIR No.66 of 2016 dated 10.03.2016 on the file of 2^nd respondent by declaring the same as illegal and amounting to abuse of legal process and pass such other order or orders as this Court may deem fit and proper.

………”

2.1 Ms. Vedula Chitralekha, learned Counsel for the petitioner, contends that the averments in the report merely describe the involvement of two tall individuals, and apart from a vague apprehension, there is nothing in the material to indicate the petitioner’s participation in the alleged offence. It is therefore urged that implicating the petitioner as an accused is ex facie arbitrary and unsustainable.

2.2. Further submits that the crime was registered without any legal foundation. The learned Magistrate, by order dated 08.01.2016, directed the police to “take cognizance” of the matter and issue an FIR-an approach, it is argued, that contravenes the procedure prescribed under the Code of Criminal Procedure, 1973 (“Cr.P.C.”), particularly in relation to non-cognizable offences, where the police are prohibited from investigating without the Magistrate’s prior permission under Section 155(2)

Cr.P.C.

2.3. Additionally points out a procedural discrepancy, while the official memo bears the date 08.01.2016, the signature of the learned Magistrate is dated 07.01.2016. This inconsistency, according to the petitioner, is improbable and indicative of procedural impropriety. On these grounds, she prays that the proceedings be quashed.

3.1. Mr. Mahesh Raje, Learned Government Pleader for Home submits that the report disclosed a non-cognizable offence under Section 427 of the Indian Penal Code, 1860 (“IPC”), and accordingly, the Station House Officer (“S.H.O.”) placed the matter before the Magistrate as required under Section 155(2) Cr.P.C. The learned Magistrate thereafter issued the impugned official memo directing registration of a case and investigation.

3.2. It is contended that the expression “take cognizing” in the official memo is a misnomer and should be understood contextually as “granting permission to investigate.” The substance of the order, read as a whole, reflects the Magistrate’s intent to authorize registration of an FIR and investigation under Section 427 IPC, rather than taking cognizance in the judicial sense contemplated under Section 190 Cr.P.C.

3.3. The learned Government Pleader further submits that the discrepancy in the dates beneath the Magistrate’s signature and the memo’s body is a clerical or inadvertent error and, in the absence of any allegation of mala fides or personal interest, cannot constitute a ground for quashment of proceedings. It is argued that since the police report discloses a prima facie occurrence of an offence, the petitioner’s involvement, if any, can only be ascertained upon investigation. Interference at this preliminary stage would, therefore, stifle the process of investigation and frustrate the ends of justice. Hence, dismissal of the petition as prayed for.

4. I have perused the record and the submissions made by both parties.

5. The report filed by respondent No.3 alleges that the windshield of his car was broken and that two tall individuals were seen fleeing the scene. His watchman further stated that the petitioner, along with two tall persons, was earlier observed surveying the building. These averments indicate an occurrence of mischief within the meaning of Section 427 IPC. The petitioner’s primary grievance is that he was implicated without material basis. However, the record reflects that the police report contained information sufficient to justify investigation into the alleged act. At the inception, the extent of involvement of any individual cannot be conclusively determined; this determination must await proper investigation.