Allahabad High Court: In an application filed under Section 482 of the Code of Criminal Procedure, 1973 (‘CrPC’), praying for a stay on the cognizance and summoning order of the Court of Civil Judge, Shamim Ahmed, J., has quashed the impugned orders and criminal proceedings against all the 28 accused persons, and said that the investigation done by the police in this case is without jurisdiction and based on such invalid investigation report, the cognizance taken by the Magistrate is also illegal.
Background
On 30-05-2021, a First Information Report (‘FIR’) was lodged by the opposite party 2 as an information was received that some people are going to take out a candle march regarding the arrest of the accused in a murder case and block the road in front of Shivpur village. It was alleged that the persons in the candle march were found to violate the COVID-19 guidelines while also chanting anti-police slogans and carrying anti-police posters.
Issues and Analysis:
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Whether the FIR registered, investigation conducted, and submission of charge sheets under Section 188 of the Penal Code, 1860 (‘IPC’) without jurisdiction as per Section 195(1) of the Criminal Procedure, 1974 (‘CrPC’)?
After taking note of Section 195 (1) CrPC, the Court said that the FIR. was registered without jurisdiction, as Section 188 of IPC is described as a non-cognizable offence in the penal code whereas it is specifically mentioned that no Court shall take cognizance of any offence under Sections 172 to 188 IPC except upon a complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. Thus, taking cognizance under Section 188 IPC is without jurisdiction.
After perusing Section 2(d) CrPC., the Court said that the opposite party 2 had no right to lodge the FIR for the said offences rather he had to file the complaint only before the Magistrate concerned.
Thus, the Court said that in the absence of such a complaint in the current case makes the cognizance and summoning order legally unsustainable.
The Court further stated that the offences registered against the accused persons being non-cognizable could only be investigated by the police under Section 155(2) of the CrPC on prior permission of a Magistrate who has the power to try the case. Any investigation conducted in violation of this would be illegal.
The Court additionally underscored that subsequent cognizance by the Magistrate, either upon acceptance of the charge sheet or by permission granted, cannot retroactively validate the illegality, which the Court said is evident from Section 460 CrPC. The initiation of an investigation into a non-cognizable offense, without a prior written order duly issued by a Magistrate empowered under Section 155(2) of the CrPC, is hence illegal and contrary to the law. Therefore, the Court found that the charge sheet filed by the police was demonstrably defective and tainted by procedural irregularity.
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Whether the applicants liable for the offences under Sections 143, 147, 281, 283, and 269 of the IPC along with Section 51(b) of the Disaster Management Act, 2005?
The Court being mindful of the severity of the accusations made against the applicants under Sections 143, 147, 281, 283, and 269 of the IPC along with Section 51(b) of the Disaster Management Act, 2005 said that the ingredients of the offences should first be fulfilled for the offences to be made out against the accused persons The Court said that the Police’s failure to comply with mandatory procedural requirements, even if undertaken in good faith due to the perceived exigency of the offenses, renders the investigation unlawful and compromises the integrity of the judicial system.
The Court also found the allegations against the accused persons under Sections 143, 147, 281, 283, and 269 of the IPC to be lacking evidence for the offences to be made out.
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Can the High Court quash criminal proceedings using its inherent jurisdiction?
After referring to S.W. Palanitkar v. State of Bihar, (2002) 1 SCC 241 , the Court said that quashing criminal proceedings by the High Court is an exception and not the rule. The inherent powers of the High Court provide three situations under which this power can be exercised:
(i) to give effect to an order under the Code,
(ii) to prevent the abuse of the process of the court;
(iii) to secure the ends of justice
Even though this provides a wide ambit for the exercise of the said power, the Court reasoned that this power should only be judiciously invoked in exceptional circumstances.
The Court held that the investigation conducted by the police was without jurisdiction following which the cognizance taken based on such an invalid investigation would also be rendered illegal. Hence, the whole proceeding before the Magistrate was declared to be fundamentally flawed.
[Ashish Kumar Tiwari v. State of U.P., 2024 SCC OnLine All 2798, judgment delivered on 14.06.2024]
Advocates who appeared in this case :
For the Applicant: Advocate Manuvendra Singh
For Opp. Parties: Ashok Kumar Singh, A.G.A.-I
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