N.C. Talukdar, J. - (1.) This Rule is at the instance of the three accused Petitioners, Nirmal Bose alias Malay Bose, Biswanath Chattopadhya and Dwarka Prosad Maheswari, directed against order, being order No. 13 dated January 4, 1974, passed by the learned Chief Presidency Magistrate, Calcutta, issuing summons against the accused Nos. 1, 2 and 3 and order dated May 16, 1974, passed by Shri A.K. Dasgupta, Metropolitan Magistrate, Thirteenth Court, Calcutta, framing charge under Sec. 420, Indian Penal Code, against the accused Petitioners in case No. G.R. 32 of 1974.
(2.) For the purpose of a consideration of the point involved in the present Rule the facts need not be set down in details. An F.I.A. was lodged on November 24, 1972, at the Park Street P.S. by one Santi Goenka against four named accused persons including the present three accused Petitioners as well as three other unnamed accused alleging, inter alia, that following an advertisement in the Statesman for selling one hydraulic press machine, he was approached for being the machine by a person introducing himself as a representative of National Commercial Corporation, Calcutta and following some old gambling on November 23, 1972, the informant was forced to pay Rs. 11,500 and the accused persons took him in writing that Rs. 8,500 was due and he was asked to pay the same on November 24, 1972. On the basis of the said F.I.R. the three accused persons were arrested but they were discharged by the learned Chief Presidency Magistrate, Calcutta, on September 28, 1973, as the Police did not submit any charge -sheet. On January 4, 1974, a challan was submitted against the three accused persons under Sec. 384, Indian Penal Code and the learned Chief Presidency Magistrate by his order of the same date issued summons against them. The matter thereafter proceeded and ultimately on May 16, 1974, on a consideration of the materials, the learned Metropolitan Magistrate, Thirteenth Court, Calcutta, to whom the matter was transferred, framed a charge under Sec. 420, Indian Penal Code, against them. The order dated January 4, 1974, summoning the accused persons by the learned Chief Presidency Magistrate, Calcutta, as well as the order dated May 16, 1974, framing a charge under Sec. 420, Indian Penal Code, against the accused Petitioners had been impugned and the present Rule was obtained. 2. Mr. Samarendra Kumar Dutta, Advocate (with Mr. Pramatha Nath Palit and Aloke Nath Ghosh, Advocates) appearing in support of the Rule, made a two -fold submission, vastly, that the investigation made by the Police into a non -cognizable offence without the requisite order of the learned Magistrate, having power to try such cases, has been bad and repugnant (sic) ultimate challan under Sec. 384, Indian Penal Code and the cognizance taken thereupon. The second dimension of Mr. Dutta's contention is that the charge framed under Sec. 420, Indian Penal Code, is also bad because no hearing was given by the learned Magistrate before framing the charge in violation of Sec. 251A(3), Code of Criminal Procedure. Mr. Md. Refiqul Ismail, Advocate, appearing on behalf of the State joined issue. Mr. Ismail contended in the first instance that the offence alleged being under Ss. 120B/420, Indian Penal Code, there has been no non -conformance to Sec. 155(2) of the Code of Criminal Procedure and that the ultimate cognizance has also not caused any prejudice in the facts and circumstances of the case. Mr. Ismail next contended that the objection relating to the denial of any hearing -is more technical than real inasmuch as the charge was read over and explained to the accused persons who appeared to have understood the same and pleaded not guilty.
(3.) Having heard the learned Advocates appearing on behalf of the respective parties and on going through the materials on record, we hold that there is a considerable force behind both the submissions made by Mr. Dutta. In the first place, the offences alleged substantially make out a case of extortion and thereby the case concerned is a non -cognizable one. Under Sec. 155(2) of the Code of Criminal Procedure no Police officer can investigate a non -cognizable case without the requisite order of the Court. Mr. Ismail at one stage contended that in the beginning the case was not non -cognizable and therefore, the investigation as made had not been bad. Apart from the clear allegations of a non -cognizable offence, when the material crystalised into an offence under Sec. 384 of the Penal Code it was the duty of the Investigating officer to apply for the requisite order under Sec. 155(2), Code of Criminal Procedure. It should not be overlooked that the backdrop of the present case is under the old Code and not the new Code whereunder an offence under Sec. 384, Indian Penal Code has been made cognizable. It has also to be taken into consideration that the cognizance taken on such a challan is bad. A reference in this context was made by Mr. Dutta to the case of Abdul Halim and Anr. v/s. State of West Bengal : 64 C.W.N. 1026. J.P. Mitter J. observed therein that in the absence of a valid order under Sec. A 155(2) Code of Criminal Procedure the investigation by the Police of a non -cognizable offence is illegal. The Police report of such an investigation cannot form the basis for taking cognizance under Sec. 190(1) of the Code. We respectfully agree with and applying the said principles to the facts of the present case, we hold that the procedure adopted has been bad and there is a non -conformance to the relevant provisions of the statute. The first dimension of Mr. Dutta's contention, accordingly, succeeds.;