IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1779 OF 2008 Sadanand Sudarsan Nayak .. Applicant Vs. State of Maharashtra .. Respondent Mr.Sanjay Bhatia for the Applicant. Mr.Y.S.Shinde, A.P.P for the Respondent. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE : 15th July 2008. P.C.: . The submissions of the learned counsel appearing for the parties were heard on the last date. The applicant is an accused against whom an offence under section 33(w) of Bombay Police Act, 1951 has been registered. The allegation against the applicant is that he was conducting a guest house without possessing a requisite licence. A chargesheet was filed alleging commission of offence under section 33(w) of the said Act of 1951. An application was made for discharge by the applicant on the ground that as per the second part of the first Schedule of the Code of Criminal Procedure, 1973, the offence was a non-cognizable offence and the police have committed violation of sub-section 2 of section 155 of the said Code. The said application has been rejected. 2. The learned counsel appearing for the applicant : 2 : submitted that the offence alleged against the applicant was not a cognizable offence and therefore, the proceedings against the applicant are vitiated on account of non compliance with sub-section 2 of section 155 of the said Code which lays down that no police officer shall investigate a non cognizable case without obtaining an order of the Magistrate having power to try such a case. The learned A.P.P appearing for the respondent could not dispute that the offence complained of is not a cognizable offence. The learned A.P.P could not point out any order passed by learned Magistrate under sub-section (2) of section 155 of the said Code. 3. In the present case, not only that investigation has been carried out in violation of sub-section 2 of section 155 of the said Code, even a chargesheet has been filed. Admittedly, the offence complained of is a non-cognizable offence. In view of the law laid down by this Court in the case of Avinash Madhukar Mukhedkar Vs. The State of Maharashtra (1983 Cri.L.J. 1833), the investigation carried out without following procedure under sub-section 2 of section 155 of the said Code is itself illegal. Hence, a case is made out for quashing proceedings against the applicant. Accordingly, Rule is made absolute in terms of prayer clause (a). : 3 : (A.S.Oka,J)