Munna Yadav and Others vs State of U.P. and Tri Bhuwan Gaur

Poonam Srivastava, J.—Heard Shri L.S Yadav counsel for the applicant and learned A.G A.

The prayer in this application is to quash the order dated 18.62005 vide annexure No 1 to the affidavit filed in support of this application.

On 14.6.2005 certain altercation took place between nephew of the complainant and the applicant-Ram Bachan yadav The cross cases were instituted which resulted in institution of N.C.R. No 46 of 2005 at the instance of the opposite party No.2 Subsequently, an application was moved u/s 155(2) Cr.P.C. Learned Magistrate accepted the application and directed the concerned police station to investigate the matter This order is impugned in this application whereby the police was directed to investigate the matter under Sections 147, 279, 392, 323/34, 504, 506 I.P.C. read with Section 3(1)(X) SC/ST Act.

The objection raised on behalf of the applicants is that the Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989, ("hereinafter referred to as the SC/ST Act") is a Special Act and, therefore, the permission to investigate the matter u/s 155(2) Cr.P.C. vests with the Special Court alone and only the prosecutors appointed u/s 155 of the said Act. are entitled to prosecute on behalf of the State

In the instant case, the order is only for limited purpose to register and investigate on an application moved u/s 155(2) Cr.P.C. The admitted facts are that N C.R. was registered but the matter was not being investigated and, therefore, on an application moved u/s 155(2) , the impugned order has been passed The investigation is still in progress and no charge sheet has been filed In the circumstances, the objection of the learned counsel for the applicant is premature In the event, the charge sheet was filed and cognizances was taken by a court other than a Special Court, constituted u/s 14 SC/ST Act only then the grievance of the applicants could be accepted At present the matter is being only investigated and there is no separate agency to investigate the case under the SC/ST Act and I.PC.. Therefore, the first objection of the applicants being without any basis is rejected

The second objection raised by the counsel for the applicants that it is for the court to direct the investigation of a N ( R but not on insistence of complainant or the first informant It is argued that since an application was moved by the opposite party Tribhuwan for investigation, the court could not pass an order on the basis of such an application and, therefore, the order impugned is without jurisdiction

Section 154 Cr.P C relates to information of cognizable offences whereas Section 155 relates to information of non-cognizable cases and investigation of such cases. Section 155(2) clearly bars investigation of a non cognizable case without the order of the Magistrate having power to try such case or commit the case for trial. In the instant case, the complainant has made an application bringing to the notice of the Magistrate that the N.C.R. is not being investigated, therefore, the Magistrate has only directed the police investigate the matter on the basis of certain documents brought on record by the opposite party No.2 and no illegality has been committed whatsoever

The third objection is that without permission of the court, the accused cannot be arrested by the concerned police station

In the instant case, there is no such allegation which goes to show that the police has taken any steps to arrest the applicants The reliance has been placed on two decisions in the cases Avinash Madhukar Mukhedkar Vs. The State of Maharashtra, and AIR 1936 253 (Privy Council) .

In the instant case, the learned Magistrate has only directed the police on the basis of an application moved u/s 155(2) Cr.P.C. to investigate the matter and no further. The order only speaks that after investigation, the police will apprise the Magistrate and report the matter after completing the investigation

The learned counsel for the applicant has tried to invoke the inherent jurisdiction during the investigation, which cannot be done in view of the Full Bench decision in the case of Ram Lal Yadav v. State of U.P., 1989 U.P. CR 79.

On perusal of the entire paper book it is apparent that the learned Magistrate was satisfied from the injury report as well as from the other document brought before him that the matter should be investigated. He has directed the concerned police station to do so The argument on behalf of the counsel for the applicants that the police cannot arrest the applicants is ill founded. There is nothing on record to show that the police is going to arrest the applicants. In the facts and circumstances of the case, there is no substance in the arguments of the applicants This application lacks merit and is rejected However, it is made clear that no coercive measure shall be taken against the applicants till a Competent court takes cognizance of offence on the basis of police report.