Chaman Prakash vs State

S. Ravindra Bhat, J.—This revision is directed against an order of the learned Additional Sessions Judge dated 12.3.2007 whereby the petitioner''s application for dropping the proceedings was rejected. It is contended that the proceedings against that petitioner accused was itself not maintainable and as a result the impugned order cannot be sustained.

The petitioner was accused of having committed offences under Sections 323/341/354/506 IPC in an incident where the complainant alleged that he had slapped her and sought to intimidate her. The complainant was an office bearer of the local Residents Welfare Association. Learned Counsel contends that the allegations in the FIR taken as a whole did not disclose in the commission of any cognizable offence and that the inclusion of Sections 323/354/506 were merely to confer jurisdiction with the police to investigate into the matter as otherwise the so-called injuries were simple in nature.

The trial court had by order dated 8.9.2006, framed a notice in respect of the offences including the offence u/s 354. That order was carried in appeal to the learned Additional Sessions Judge who directed the deletion of the charge u/s 354. On the strength of this it was contended before the trial court that the surviving charge u/s 323 could not be framed as the investigation was conducted without compliance with the mandatory provisions under Sections 155(2) Cr.P.C., i.e. that there could be no investigation by police into non-cognizable offences.

Learned counsel for the petitioner has pressed into service certain judgments of this court namely Brahm Dutt v. State, 1996 JCC 183 ; Surender v. State, 1997 JCC 45 and Kanshi Ram Vs. State, in support of his argument that if the allegations point to commission of offences which are non-cognizable in nature such facts are discovered subsequently, the entire proceedings and investigation stand vitiated.

Learned counsel for the respondent opposed the petition and submitted that in this case the trial court''s impugned order could not be faulted as the court had no jurisdiction to drop the proceedings. It was contended that the present was not a case where the court felt in the first instance that no cognizable offence was made out; indeed the Magistrate had framed charge for the offence u/s 354. Under these circumstances the investigation in its entirety could not be faulted.

The factual narrative would show that the allegations against the petitioner was of his having assaulted and "heavily slapped" the complainant, office bearer of the Local Residents Welfare Association. She had visited the petitioner on the basis of some dispute in the vicinity. The complainant stated about the alleged threatening behaviour of the petitioner as well as the assualt. Although subsequently the charge u/s 354 was dropped nevertheless the fact remains that in the first instance the Magistrate proceeded to frame notice under that offence.

I am not persuaded to accept the line of reasoning in the cases cited on behalf of the petitioner. Undoubtedly there are certain observations in those cases suggestive of the entire investigation being vitiated if the court discovering, at a later stage that no cognizable offence is made out. However each case had to be decided on the facts and attendant circumstances. In this case the court in the first instance did not accept the submission that only a non-cognizable offence was made out. Further Section 460(2) lists out irregularities which vitiate the proceedings. A reading of this would show that if the Magistrate proceeds to make an order to investigate the offence, u/s 155 into the incident which may turn out to be one involving a non-cognizable offence, that does not by itself vitiate the proceedings. This is further strengthened by Section 155(4), which provides that if two offences, one non-cognizable, and the other cognizable, are alleged, the case shall be deemed to be a non-cognizable case, notwithstanding that the other offences are non-cognizable. Such being the situation investigation and further proceedings in respect of an FIR, where eventually only non-cognizable offences can be pressed, would not vitiate the entire proceedings. There is no taint of illegality attached to the investigation. This aspect was not discussed in the judgments cited; they did not consider the impact and effect of Section 460, or Section 155(4). In view of the above conclusion I see no infirmity in the impugned order. The petition is accordingly dismissed.