Mandatory Magistrate approval for non-cognizable investigation renders unauthorised inquiry unlawful and vitiates proceedings

Investigation into a non-cognizable offence without a Magistrate's order under section 155(2) of the Code was held to be unlawful because the provision is mandatory. The Court stated that non-compliance with this requirement is not a curable defect and that, where a mandatory provision is breached, the question of prejudice to the accused does not arise. On that basis, the investigation was treated as vitiated and the proceedings were liable to be quashed.

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Issues: Whether investigation into a non-cognizable case without an order of a Magistrate under section 155(2) of the Code of Criminal Procedure, 1973 vitiates the proceedings and requires quashing.

Analysis: The proceedings arose from non-cognizable offences. The Court held that section 155(2) of the Code is mandatory, and once such a mandatory requirement is not complied with, the defect cannot be treated as curable. The Court further held that in the case of breach of a mandatory provision, the question of prejudice to the accused does not arise. The absence of a Magistrate's order for investigation in a non-cognizable case therefore rendered the investigation unlawful.

Conclusion: The proceedings were vitiated and were liable to be quashed in favour of the petitioner.

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