Shri Vishwajit P. Rane vs State of Goa and The Police Inspector, Incharge of Old Goa Police Station, Old Goa, Ilhas, Goa (Shri Aires Rodrigues

We have heard the Learned Counsel appearing for the Review Petitioner in support of the Review petition which is on two grounds. The Review Petitioner is the intervenor in the writ petition. The Learned Counsel for the Review Petitioner submitted that in fact there was an order u/s 155(2) of the Criminal Procedure Code 1973 passed by the learned Magistrate. The Learned Counsel pointed out that the said order is at page 116 of the writ petition. The second contention is that the decision of the Apex Court in the case of State of Bihar V/s Ganesh Choudary and Others (2001) 2 SCC 245 has not been considered by this Court.

We have considered the submissions of the Learned Counsel appearing for the Petitioner. The paragraph no.6 of our judgment in the writ petition notes that when a query was made to the Review Petitioner appearing in person as to whether there was any order passed by the Magistrate u/s 155(2) of the Code of Criminal Procedure 1973, he specifically stated that there was no such order passed. The Learned Counsel appearing for the petitioner stated that the said order has been passed on the private complaint filed by the Petitioner. The said Private complaint has been admittedly withdrawn by the Review Petitioner. It must be stated that when the writ petition was heard, the Review petitioner appearing in person had not pointed out that he had already withdrawn the private complaint. The fact of withdrawal of the complaint was brought to the notice of the Hon''ble Court only after the judgment was pronounced.

The said order on the Private Complaint reads thus:

Perused the complaint. This statement u/s 200 of Cr.P.C and heard the complainant. Issue letter to the P.I. Old Goa Police station to investigate into the case and to submit his report on or before 17.9.2007, at 10.00.a.m..

Thus, it is clear that the said order has been passed on the Private complaint, after the statement of the Petitioner was recorded u/s 200 of Code of Criminal Procedure, 1973. It is well settled law that after recording verification of the complainant on a private complaint in accordance with section 200 of the Code of Criminal Procedure, 1973, the learned Magistrate is powerless to go back and pass order either u/s 155 or u/s 156 of the said Code. Only three options are open for the learned Magistrate in such a case viz., to issue process, or to pass an order for investigation u/s 202 or to dismiss the complaint. Thus, on a plain reading of the said order dated 10th September, 2007, it is an order passed u/s 202 of the said Code of 1973 on a private complaint filed by the Petitioner. The Review Petitioner appeared in the writ petition in person at the time of final hearing. At that time it was never his case that there was an order passed by the learned Magistrate u/s 155 (2) of the said Code. His submission was to the contrary.

Now coming to the decision in the case of State of Bihar (supra), in the judgment in the writ petition, we have extensively quoted a judgment of the Apex Court in the case of Keshav Lal Thakur Vs. State of Bihar, . The Apex Court held that the police are not entitled to register a non-cognizable offence u/s 154 of the said Code of 1973. It is further held that the police are entitled to investigate into a non-cognizable offence pursuant to an order of a competent Magistrate u/s 155(2) of the said Code. The Apex Court further held that if an order u/s 155(2) of the said Code is not passed, it necessarily means that neither the police could investigate into the offence in question nor submit a report on which the question of taking cognizance could have arisen. In the said decision the Apex Court held that when a cognizable offence is registered and a report is submitted by the police, which discloses that non-cognizance offence has been committed, the report submitted by the police can be treated as a complaint of the police officer u/s 2 (d) of the said Code of 1973. In such a case the Magistrate can take cognizance on the basis of the report which can be treated as a complaint u/s 2(d) of the said Code of 1973.

Reliance is placed by the Learned Counsel for the Review Petitioner on the said decision in the case of State of Bihar and Others(2001) 2 SCC 245. The Apex Court has observed that a report of the police who had no power to investigate can be treated as a deemed complaint u/s 2(d) of the said Code of 1973. Paragraph 3 of the said decision it is observed that the investigation was carried out by an officer of Railway Police who had no authority to investigate. The Apex Court has not dealt with a case where though the offence was admittedly non-cognizable, First Information Report was registered by the police and after carrying out investigation of non-cognizable offence without order of the Magistrate u/s 155(2), a charge sheet was submitted. Therefore, the said decision has no application.

If after investigating into an offence, which is a cognizable offence, the police officer comes to the conclusion that what has been committed is a non-cognizable offence, he can always submit his report before the Magistrate disclosing that what has been committed appears to be a non-cognizable offence. In such case, by treating the report of the officer as complaint, the learned Magistrate can act upon the complaint. Only in such a contingency it can be said that investigation carried out by the police officer is not illegal. Because in such a case, the police officer carries out investigation on the basis of the First Information Report registered u/s 154 of the said Code alleging commission of a cognizable offence. On the basis of the said F.I.R, the police officer gets authority to investigate without permission of the learned Magistrate and therefore, the investigation is valid. In the present case, FIR was illegally registered alleging commission of non-cognizable offence and investigation was carried out without permission of the Magistrate permission u/s 155(2) of the said Code. As held by the Apex Court in the case of Keshav Lal Thakur (supra), neither the police could investigate nor submit a Report. In the circumstances, there is no merit in the submissions canvassed by the Learned Counsel appearing for the Review Petitioner. Review Petition is rejected.