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Shivanand Giridhar Naik, Head Constable v. Senior Inspector Of Police, Bhiwandi Taluka And Another
Factual and Procedural Background
The petitioner, Shivanand Giridhar Naik, a Police Constable at Bhiwandi Taluka Police Station, was charged under section 145(2) of the Bombay Police Act, 1951, for alleged dereliction of duty by remaining absent from 18th April, 1992 to 3rd November, 1992 without prior permission. The charge-sheet was filed by the Bhiwandi Police Station in the Court of the Judicial Magistrate, First Class, 2nd Court, Bhiwandi in C.C No. 653 of 1993. The petitioner contended that the prosecution was illegal as the offence was non-cognizable and required prior permission from the Magistrate for investigation, which was not obtained. The petitioner voluntarily appeared before the Magistrate and availed bail. The matter was argued before the Court, including on prior occasions, focusing on whether the police had obtained the necessary Magistrate's permission to investigate the non-cognizable offence.
Legal Issues Presented
- Whether prosecution under section 145 of the Bombay Police Act, 1951, a non-cognizable offence, can be initiated without prior permission from the Magistrate under section 155(2) of the Code of Criminal Procedure, 1973.
- Whether the investigation and charge-sheet filed without such prior Magistrate permission is lawful and valid.
Arguments of the Parties
Petitioner's Arguments
- The offence under section 145 of the Bombay Police Act is punishable with imprisonment up to three months or fine up to Rs. 100 or both, and is classified as a non-cognizable offence.
- According to the Schedule of the Code of Criminal Procedure, 1973, non-cognizable offences require prior permission of the Magistrate before prosecution or investigation.
- The prosecution initiated without such prior Magistrate permission is illegal and the proceedings must be quashed.
The opinion does not contain a detailed account of the respondent’s arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Avinash v. State of Maharashtra, 1984 Mh. L.J 88; 1983 Cri. L.J 1833 | Investigation of non-cognizable offences without Magistrate's permission under section 155(2) CrPC is illegal. | The Court relied on this precedent to hold that the police investigation and charge-sheet without Magistrate's permission was without authority and liable to be quashed. |
Court's Reasoning and Analysis
The Court analyzed that section 145 of the Bombay Police Act, 1951, under which the petitioner was charged, is a non-cognizable offence punishable with imprisonment up to three months or fine or both. Under section 155(2) of the Code of Criminal Procedure, 1973, a police officer cannot investigate a non-cognizable offence without prior order of a Magistrate having jurisdiction to try or commit the case for trial. The Court noted the absence of any statement or evidence from the prosecution confirming that such Magistrate permission was obtained. This led to an adverse inference that no such permission was granted. The Court referred to the precedent in Avinash v. State of Maharashtra, which held that investigation without Magistrate’s permission in non-cognizable offences is illegal. Applying this principle, the Court concluded that the investigation and charge-sheet were without jurisdiction and the prosecution was liable to be set aside.
Holding and Implications
The Court allowed the Criminal Writ Petition No. 1463 of 1993 and quashed the prosecution initiated against the petitioner.
The direct effect of this decision is the setting aside of the charge-sheet and termination of the prosecution against the petitioner for the offence under section 145 of the Bombay Police Act. The Court did not set any new precedent but reaffirmed the legal requirement that police cannot investigate non-cognizable offences without prior Magistrate permission under section 155(2) CrPC.
1. This Criminal Writ Petition is filed by the petitioner/original accused Shivanand Giridhar Naik, being aggrieved by the filing of the charge-sheet against him by Bhiwandi Police Station in the Court of the Judicial Magistrate, First Class, 2nd Court, Bhiwandi in C.C No. 653 of 1993, arising out of C.R No. 233 of 1992 for offences punishable under section 145(2) of the Bombay Pol ice Act, 1951.
2. The allegation against the petitioner, as revealed from the charge-sheet, copy of which is annexed as Exhibits A and B to the Paper-book, are as follows:
3. The petitioner Shivanand Naik is working as Police Constable Buckle No. 1069 at Bhiwandi Taluka Police Station since 2nd August, 1990. The petitioner was given charge duty from 8.00 p.m of 18th April, 1992 till 8.00 a.m of 18th April, 1992. He was also responsible for forwarding the applications for leave for sanction and also of the registers concerning the general duties. At about 11.15 hours, when Police Sub-Inspector Mahangade took Inspection of records with the petitioner, it was noticed that some applications were still pending. On being asked about these applications, the petitioner informed that he had already handed over charge to Beat No. 1 to Head Constable Shri Murkar and no work was pending with him. The petitioner thereupon was asked to bring charge yadi. It is alleged that the petitioner went to bring this charge yadi from the office and since then, in dereliction of duty, he remained absent from duty without prior intimation for about 199 days from 18th April, 1992 till 3rd November, 1992. Notice also was issued to him under provisions of Bombay Police Act on 1st May, 1992 to remain present within twenty-four hours. However, in spite of the notice, the petitioner did not remain present or report for duty. Accordingly, report was sent to the Superintendent of Police, Thane Rural, as the petitioner had not resumed duty. The complainant Trumbak Parvat Jadhav, Assistant Police Inspector also asked the Superintendent of Police, Thane Rural for permission for filing case under section 145(2) of the Bombay Police Act, against the petitioner. Accordingly, the permission was granted on 23rd October, 1992. Thus, complaint came to be lodged against the petitioner that from 18th April, 1992 to 3rd November, 1992, without any written permission or prior permission, in dereliction of duty, he remained absent, and therefore, committed offence under section 145 of the Bombay Police Act. After completion of investigation, charge-sheet came to be filed in the Court of the Judicial Magistrate, First Class, 2nd Court, Bhiwandi vide Charge-sheet No. 11-7/1993 dated 18th February, 1993. As soon as the petitioner became aware of the pendency of the case, he voluntarily appeared before the Judicial Magistrate, First Class and availed bail, as he was called upon to do so.
4. It is the contention of the petitioner that his prosecution under section 145 of the Bombay Police Act, 1951 is totally illegal, since the said offence is punishable with imprisonment which may extend to three months or with fine which may extend to Rs. 100/- or with both. He has therefore contended that as per the Schedule of the Code of Criminal Procedure, 1973, section 145 of the Bombay Police Act is a non-cognizable offence, and therefore, there cannot be any prosecution without prior permission of the Magistrate under section 145, and therefore, prosecution initiated without such a permission is bad in law, and the proceedings have to be quashed, and if such a prosecution is launched, then it is illegal and therefore, the proceedings have to be quashed.
5. This matter was argued at length, and I was told that it was argued before the earlier bench also on the same point, but that, time was taken by the learned A.P.P to take instructions whether permission to investigate this non-cognizable case under section 145(2) of the Bombay Police Act was obtained from the Magistrate, having power to try the case or commit the case for trial, or not. On this ground alone, the matter was adjourned, at least on two occasions, before this Court also. However, the learned A.P.P is not able to make any statement. Adverse inference will have to be, therefore, drawn that no such permission as required under section 155(2) of the Code of Criminal Procedure, 1973 was taken by the Police Officer to investigate the case, which was pertaining to a non-cognizable offence.
6. section 155(2) of the Code of Criminal Procedure, 1973 lays down that no Police Officer shall investigate a non-cognizable case without the order of a Magistrate, having power to try such case or commit the case for trial. Since the alleged offence committed by the petitioner under section 145 of the Bombay Police Act, 1951 is a non-cognizable offence, the Police machinery had no authority to investigate into this offence, and therefore, the police ought to have obtained the permission or order from the Magistrate having power to try the said offence. This being the position, the entire investigation carried out and the charge-sheet filed by the police was without any authority or jurisdiction and therefore, the prosecution initiated against the petitioner is required to be set aside. Reference can be conveniently made to the decision of this Court in Avinash v. State of Maharashtra, 1984 Mh. L.J 88 : 1983 Cri. L.J 1833, wherein it has been held that the investigation carried out by the police in respect of non-cognizable offence, without permission obtained from the concerned Magistrate under section 155(2) of the Code of the Criminal Procedure, 1973, is illegal, and therefore, liable to be quashed.
7. In view of this position, the petition will have to be allowed. Hence, the following order:—
8. Criminal Writ Petition No. 1463 of 1993 is allowed. Rule made absolute in terms of prayer clause (b). Interim order dated 6th April, 1994 is hereby vacated.
Criminal writ petition allowed.
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