The case in question was from Agra where a youth was booked for rape, assault and criminal intimidation in December 2020. (File)The Allahabad High Court has quashed proceedings and the chargesheet in a rape case, saying the police didn’t get the mandatory nod from a magistrate for converting a non-cognizable offence into an FIR as laid down under Section 155(2) of the CrPC.
“In the instant case, undisputedly, there is no such permission having been obtained by the police from the concerned magistrate as required under Section 155(2) CrPC on receiving credible evidence with regard to the applicant having committed a non-cognizable offence, therefore, such proceedings would suffer from illegality. Compliance of Section 155 (2) CrPC is mandatory and not directory and therefore, investigation and report filed by the police in such case would not be legally sustainable,” Justice Manju Rani Chauhan said in an order on August 11.
Section 155 (2) of the CrPC reads, “No police officer shall investigate a non-cognizable case without the order of a magistrate having the power to try such case or commit the case for trial.”
The case in question was from Agra where a youth was booked for rape, assault and criminal intimidation in December 2020.
It was alleged that the accused assaulted her female classmate in her residential colony. Initially, police lodged a non-cognizable report (NCR) and subsequently lodged an FIR at the local police station on December 31, 2020.
On January 1, 2021, the statements of the accused and the woman were recorded by the Investigating Officer, and then on January 6, the statement of the woman was recorded again.
The counsel for the youth told the high court “that no investigation can be conducted against the accused in an offence that is non-cognizable without the express permission of the learned Magistrate”.
“Therefore, as the procedure provided under Section 155(2) CrPC has not been followed in the present case prior to the lodging of the FIR, which is a mandatory requirement, hence, all consequential proceedings pursuant to the initiation of an illegal action would not be justified in the eyes of law,” the lawyer submitted.
The lawyer also told the court that the woman levelled the allegation of rape for the first time in her statement under CrPC section 164 which “appears to be an afterthought as the applicant and victim were students, who happened to be friends”.
The counsel also told the court the statement of the woman where she alleged rape was “nearly after one month of the incident, which appears to be tutored one as the allegation with respect to rape were not in any statements, which were recorded earlier”.
The additional advocate general, representing the state, could not dispute the facts with respect to the mandatory requirement of taking permission from the magistrate concerned prior to initiating investigation as required under Section 155(2) of the CrPC.
While quashing the FIR and chargesheet, the court said, “When a non-cognizable offence is reported to the police, they are not empowered to investigate the matter and register an FIR, without compliance of Section 155(2) of the CrPC without obtaining prior permission of the magistrate concerned.”
“…while touching the merits of the case, there is no consistency in the version of the informant as well as the victim starting from the lodging of the NCR till the submission of chargesheet,” the court added.
“The case of the applicant is also to be seen keeping in mind his career as he is a student and false allegations against him will cause equal distress, humiliation and damage,” the court observed.