H. N. Rishbud, J. - (1.) The only point involved in this revisional application is whether an investigation into a non-cognizable offence by a police officer without being permitted by a Magistrate followed by a submission of a report and taking cognizance of such an offence by a Magistrate is permissible under the law and if so, can the trial proceed in spite of an objection raised by an accused regarding such unauthorised investigation by the police. It appears that on 5.7.74 the Ld. S.D.J.M. of Arambag received a 'police report' under section 290, IRC against the accused petitioner and another. The allegation as made in the said report is whether that on 20.6.74 at about 9.30 p.m. the petitioner and another were apprehended by a Sub-Inspector and his force while they attempted to assault a bus conductor of Bus No. WGA 1772 and thereby caused disturbance of public in general and committed nuisance in a public place. On the basis of such report the Ld.Magistrate as it appears took cognizance and issued warrant of arrest against the accused persons inasmuch as they had failed to appear even though they were directed to do so when released on bail by the police. Subsequently, the accused persons surrendered before the court and were granted bail. On 5.8.75, an objection was taken on behalf of the accused persons that the case was not maintainable inasmuch as the police investigated a non-cognizable offence without any permission from the Magistrate" as required under section 155(2) of the Code of Criminal Procedure 1973. The Ld. Magistrate refused to entertain such a petition on the basis of the decision in the case of On the next day i.e. 12.8.75, a prayer was made for reconsideration of the above view of of the learned Magtstrate but it was truned down. Thereafter, the accused petitioner moved this court and obtained the present Rule.
(2.) Mr. Mukul Gopal Mukherjee, learned Advocate with Mr. Amalendu Kr. Paul appearing for the petitioner contended that the learned Magistrate misread the above decision of the Supreme Court and was clearly in the wrong in proceeding with the trial inspite of the objection raised by the accused persons that the police had investigated a non-cognizable offence and submitted a report thereafter without ever obtaining any permission of the competent Magistrate for making such investigation under section 155 (2) Cr. P. C., 1973.
(3.) Mr. Rafiqul Islam learned Advocate appearing for the State supported the order of the learned Magistrate and submitted that even though the investigation as made by the police was an unauthorised one, it would not bar taking cognizance of the offence by the learned Magistrate and the trial.;