IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.29942 of 1999 KUMAR VIJAY Versus STATE OF BIHAR ----------- 5/ 18.8.2010 Heard learned counsel for the parties. The petition challenges the order taking cognizance of an offence under section 427 of the IPC by the Chief Judicial Magistrate, Patna in Case No. 163(2) of 1998. It appears that a written report was filed before the Officer Incharge of Kankarbagh reporting that the boundary wall of Shri Justice Ram Nandan Prasad, an ex-Judge of this Court had been defaced and damaged by sticking posters of particular schools and institutions which were described in the written report. It appears further that the allegations were inquired into by the Probationary Sub Inspector of Police, Kankarbagh and he submitted a reporte dated 25.1.1998 before the C.J.M. who took cognizance of the offence under section 427 of the IPC. The grievance of the petitioner is that the procedure which is set down by the Code of Criminal Procedure in a case which discloses commission of non-cognizable offence, was never followed either by the police or by the magistrate and the order of cognizance was passed without application of mind in the light of provisions of the Cr. P.C. Section 155 of the Cr. P.C. is the provision which deals with the investigation of case of the like nature. The provision reads 2 as under : “155. Information as to non-cognizable cases and investigation of such cases.--- (1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer, the informant to the Magistrate. (2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. (3) Any police officer receiving such order may exercise the same power in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case. (4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.” As may appear from the above provision, no police officer could investigate into any information disclosing the commission of non-cognizable offence without the permission or the direction of the magistrate in that behalf. On receipt of the information in the above behalf, what the police has to do is to make a station diary entry and direct the informant to approach the magistrate. Sub section (2) of the above section may further indicate that a case of the nature which discloses commission of non-cognizable offence or offences, could be inquired into by any police officer only when the magistrate has duly directed him to hold an investigation into it and on such direction being made, the police shall act as if it had all the powers except that of arresting the accused as is exercised by it in cases of investigation of other offences, like a cognizable offence. As appears from the records, the written report was 3 directly addressed by Shri Justice R.N. Prasad to the Officer Incharge of Kankarbagh. There is nothing before this court to show that the Officer Incharge had any direction of the magistrate on account of Shri Justice Prasad approaching the magistrate with an appropriate petition requesting him to order the investigation to be made by the police. The police appears investigating into the matter of its own without receiving prior permission or order in that behalf from the magistrate. The report, Annexure 2, does indicate that the police had entered a station diary entry dated 13.1.1998 but it does not indicate that it had received any direction or permission from any magistrate to investigate into the allegations which were contained in the written report of Shri Justice Prasad. In view of the above facts, it appears that the whole proceeding was initiated without complying with the provision of section 155 of the Code of Criminal Procedure and whole proceeding, as such, is vitiated on account of non-compliance to the provision of that particular section. In the result, the petition succeeds. The proceedings initiated in Case no. 163 (2) of 1998 are quashed. Anil/ ( Dharnidhar Jha, J.)