C.A. Rahim, J. - (1.) A complaint was lodged at Police station Cantonment, Allahabad against the applicants on 22-3-1992 concerning non-cognizable offences under Section 323/504 I.P.C. The S.O. of the Police station tiled an application before the court of the learned Chief Judicial Magistrate, Allahabad for permission to investigate the case on the same day and as such permission was granted. After investigation the police filed report and the learned Magistrate issued summons to the applicants. On 27-3-1993 none was present and the case was adjourned to 11-6-1993 for service of summons. Learned counsel has made two fold submissions. Firstly, the application for permission was to be filed by the complainant and not by the S.O. of police station. So the permission granted by the learned Magistrate was not according to law. Learned A.G.A. has submitted that it was according to Section 155 (2) Cr. P.C. and was proper.
(2.) Section 155-A Cr. P.C., envisages that no police officer shall investigate a non-cognizable offence without an order of the learned Magistrate. It has to be provided that it should be granted at the instance of the complainant. Plain interpretation would be that the permission is granted to a person who applies for it. It cannot be interpreted that the application could have to be filed by the complainant and the learned Magistrate would grant permission to the police officer. The material difference in between the cognizable and non-cognizable offence is that in the former case the police starts investigation without any order of a magistrate but in non-cognizable case the police can start investigation only after an order of the magistrate is passed allowing him to do the investigation. So the responsibility lies with the police to obtain an order and not on the complainant. There is no allegation in the instant case that the police started investigation without having any order of the learned Magistrate concerned.
(3.) Secondly, learned counsel has submitted that when the police officer who was the complainant under Section 2 (d) Cr. P.C. was absent on 27-3-1993 the magistrate should have acquitted the accused under Section 256(1) Cr. P.C. He has referred the case of C.M. Augustin v. State of Kerala and another, 1984 Cr.L.J. 1987 ' in which it has been held that if the police officer was the complainant and he was absent on the date fixed for evidence and several adjournments were granted by the court on earlier occasions and if the accused was acquitted under Section 256 (1) Cr. P.C. the acquittal was proper.;