2006:BHC-AS:8371

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO.610 OF 2006

Shri Mukesh Laxman Das Talreja

Age 43 years, adult,
Occ: Business, Resident of
222, Venus apartment, Colaba,
Cuffe Parade, Mumbai 400001. ....Petitioner.

V/s

The Inspector of Police

Kasturba Marg Police Station
Borivali (E), Mumbai-66 ....Respondents.
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Mr. M.S. Mohite for the Petitioner.

Ms. S.U. Gajre, APP for the State.
----

CORAM: V.M. KANADE, J.

DATE: 20th April, 2006

ORAL JUDGMENT:

1. Heard the learned Counsel for the petitioner and

the learned PAP for the State.

2. By this Criminal Writ Petition, the petitioner

seeks to quash the charge-sheet which has been filed

by the State in respect of the offence which is

punishable under the provisions of the Maharashtra

(Urban Areas) Preservation of Trees Act, 1975.

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3. The learned Counsel appearing on behalf of the

petitioner is seeking an order from this Court under

Article 227 of the Constitution of India and under

section 482 of the Criminal Procedure Code for

quashing the criminal proceedings which have been

initiated against the petitioner under the said Act.

The learned Counsel for the petitioner has challenged

the said proceedings on merits by submitting, firstly,

that even if the averments which are made in the

complaint are taken at its face value, no case is made

out against the present petitioner and, secondly, it

is submitted by the learned Counsel that the offence

under section 21 read with section 8 of the

Maharashtra (Urban Areas) Preservation of Trees Act,

1975 is a non-cognizable offence and, therefore, no

Police Officer can investigate the said offence unless

permission is obtained by him under section 155(2) of

the Criminal Procedure Code. He submitted that,

admittedly, in the present case, the said permission

had not been obtained. The learned APP appearing on

behalf of the State, after taking instructions from

the Investigating Officer, states that no such

permission was obtained by the Investigating Officer

under the aforesaid provisions of Cr.P.C.

4. The learned Counsel appearing for the petitioner

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has relied upon the two judgments of the Supreme

Court; one in the case of Keshav Lal Thakur Vs.

State of Bihar reported in (1996) 11 SCCC 557 and

another in the case of State of Punjab Vs. Kasturi

Lal and others reported in (2004) 12 SCC 195.

195 He also

relied upon the judgment of Kurdukar, J. (as he then

was) in the case of Avinash Madhukar Mukhedkar Vs.

The State of Maharashtra reported in 1983 Cri. L.J.

1833 and the judgment of the learned Single Judge of

this Court in the case of Shivanand Giridhar Naik Vs.

The Senior Inspector of Police & Anr. reported in

2000 ALL MR (Cri) 1646.

1646

5. I have heard the learned Counsel appearing for the

petitioner and the learned APP for the State at

length. It is an admitted position that the

provisions of section 21 read with section 8 of the

said Act constitutes an offence which is

non-cognizable. It is further admitted that the

permission which is required to be taken under section

155(2) of the Criminal Procedure Code by the

Investigating Officer has not been taken. Section

155(2) of the Criminal Procedure Code reads as under:-

"155.
155. Information as to non-cognizable cases

and investigation of such cases-

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(1)...........................................

(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."

6. A perusal of the said section makes it clear that

the aforesaid provision of obtaining the permission is

a mandatory provision and if there is non-compliance

of the said provision, the investigation which is

carried out by the police officer would be rendered

illegal and void. In my view, since the said

provision has not been followed, the entire

investigation which is carried out by the police

officer will have to be set aside on this ground

alone. I am fortified in my view by the judgment of

the Supreme Court in the case of Keshav Lal Thakur

(supra) and in para 3 of its judgment, the Supreme

Court has held that neither the police could

investigate into the offence which is non-cognizable

nor submit a report on which the question of taking

cognizance could have arisen, when permission under

section 155(2) of the Cr.P.C. has not been obtained.

The Supreme Court has also made similar observations

in the case of State of Punjab (supra) and while

laying down the ratio, has reproduced the categories

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which were enumerated in the case of State of Haryana

V. Bhajan Lal [1992 Supp(1) SCC 335 : 1992 SCC (Cri)

426] and in category Nos. 2 and 4 it has been

observed as under:-

"(2) Where the allegations in the first

information report and other materials, if

any, accompanying the FIR do not disclose a

cognizable offence, justifying an

investigation by police officers under Section

156(1) of the Code except under an order of a

Magistrate within the purview of Section

155(2) of the Code."

"(4) Where the allegations in the FIR do not

constitute a cognizable offence but constitute

any non-cognizable offence, no investigation

is permitted by a police officer without an

order of a Magistrate as contemplated under

Section 155(2) of the Code."

In the cases of Avinash Madhukar Mukhedkar (supra) and

Shivanand Giridhar Naik (supra), the learned Single

Judge of this Court has made similar observations.

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7. In the result, the Criminal Writ Petition is

allowed. Rule is made absolute in terms of prayer

clause (a).

8. Criminal Writ Petition is disposed of in the above

terms.

V.M. KANADE, J.

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