Allahabad HC Quashes Criminal Case Against SP Leader Accused Of Canvassing For Father Sans Permission During 2022 UP Polls

A Bench of Justice Shamim Ahmed found faults with the registration of the FIR against Verma and others under Sections 171H and 188 IPC. It observed that the police investigation, in this case, was without jurisdiction, and based on such an invalid investigation report, the cognizance taken by the Magistrate was also illegal.

The case in brief

Verma moved the Court seeking quashing of the impugned charge sheet, summoning order, and entire case proceedings pending before the court of Additional Chief Judicial Magistrate/FTC Barabanki.

It was the contention of the counsel appearing for Verma that the impugned FIR was lodged without jurisdiction as Section 171 H of IPC is described as a non-cognizable offence in the penal code and Section 195(1) CrPC specifically provides that no court shall take cognizance of any offence under Sections 172 to 188 except upon a complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate.

Thus, it was contended that taking cognizance under Section 188 IPC is also without jurisdiction.

High Court's observations

At the outset, the Court noted that the offence registered against the applicant under Section 171H of IPC is non-cognizable in nature. Hence, the investigation of such a non-cognizable offence by the police without prior permission of the competent Magistrate was illegal as per Section 155(2) CrPC.

“This Court further finds that the above said two offences are noncognizable offences. Therefore, as per Section 155(2) of Cr.P.C., the police have no right or jurisdiction to investigate the matter, without prior permission of the Magistrate, who has got jurisdiction to try those offences. Therefore, the entire charge sheet filed by the police is vitiated by serious incurable defects and procedural irregularities,” the Court observed.

“The provision in sub Section (2) of Section 155 of Cr.P.C., for asking permission of the Court to investigate a non-cognizable offence is mandatory in nature. Therefore, the investigation of non-cognizable offence by the police without prior permission of the competent Magistrate is illegal. Even mere accepting the charge sheet by the Magistrate and taking the cognizance of the offence does not validate the proceeding. Even subsequent permission by the Magistrate also cannot cure the illegality. As could be seen from Section 460 of Cr.P.C. these defects of non- taking permission before investigating a noncognizable offence is also not curable. Though the charge sheet is filed after due investigation without prior permission of the Court and that the Magistrate has accepted the charge sheet and taken the cognizance, it does not mean to show permission is granted by the Magistrate to investigate such non- cognizable offence. Therefore, investigation into the non-cognizable offence without written order of the Magistrate is strictly contrary to the provision of this Section,” the Court added.

Accordingly, the impugned charge sheet, along with the impugned summoning order, as well as the entire criminal proceedings in pursuance thereof, were quashed.

Case title – Shreya Verma And 4 Others vs. State Of U.P. Thru. Prin. Secy. Home U.P. Lko. And 2 Others 2024 LiveLaw (AB) 246

Case Citation: 2024 LiveLaw (AB) 246

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