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1976 DIGILAW 22 (CAL)

Tapan Kumar Ghosal v. State of West Bengal

1976-01-21

AMAR NATH BANERJEE

body1976
JUDGMENT The judgment of the Court was as follows : 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, IPC 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 (1) H. N. Rishbud. v. The State of Delhi, reported in AIR 1955 SC 196 . On the next day i.e. 12.8.75, a prayer was made for reconsideration of the above view of the learned Magistrate 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. v. The State of Delhi, reported in AIR 1955 SC 196 . On the next day i.e. 12.8.75, a prayer was made for reconsideration of the above view of the learned Magistrate 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 thy 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 noncognizable, 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. 4. Sub-section 2 of Section 155 of the. Code of Criminal Procedure 1973 prescribes as was prescribed in the Old Code, 1898 that no police officer shall investigate a Don-cognizable case without the order of a Magistrate of the First or Second Class having power to try such case or, commit the same for trial. Under subs-section (3), any police officer receiving such order may exercise the same power in respect of the investigation (except the power of arrest without warrant) as an Officer-in-Charge of a Police Station may exercise in a cognizable case. If an information is given to an O. C. of a Police Station of the commission within the limits of his jurisdiction of a non-cognizable offence he shall enter in a book to be kept a substance of such information and refer the informant to the Magistrate under, sub-section (1) of Section 155 of the Code. Therefore, the very language of Section 155 of the Code makes, it abundantly clear that a police officer has no power to investigate a non-cognizable offence without the order of a Magistrate. Therefore, the very language of Section 155 of the Code makes, it abundantly clear that a police officer has no power to investigate a non-cognizable offence without the order of a Magistrate. It is only when he gets such an order he may exercise the same power in respect of the, investigation (except the power of arrest without warrant) as an D.I C. of, a Police Station may exercise in a cognizable case. That being the position, it cannot but be said that if a police officer investigates a non-cognizable offence without the order of a Magistrate his investigation is not in accordance with the procedure established by law and as such is not only unauthorised but also illegal. If thereafter, he submits a report for the purpose of initiation of a proceeding the learned Magistrate cannot treat it as a 'police report' and take cognizance of the offence under, section 190 (1) (b), of the Code of Criminal Procedure 1973 by the definitions of a 'complaint' and a 'police report' as in section 2(d) and 2(r) respectively, of the Code. The 'complaint'• means any allegation made, orally or in writing to a Magistrate with a view to his taking action under this Code that some persons whether known or unknown as committed an offence but it does not include a 'police report'. The explanation 2 to section 2 (d) of the Code runs as follows : "A report made by a police officer in a case which disclosed after investigation the commission of a non-cognizable offence shall be deemed to be a 'complaint' and the police officer by whom such report is made shall be deemed to be the complainant. " The explanation makes it clear that the report made by the police on an unauthorised investigation of a non-cognizable case is a complaint. Under the Criminal Procedure Code of 1898, there were some differences of the judicial opinion on the question whether the 'police report' is a non-cognizable case would come under section 190 (1) (b) of the said Code. In the case of (2) Prabin Kumar v. The State of Andhra Pradesh, reported in AIR 1965 SC 1185 . Under the Criminal Procedure Code of 1898, there were some differences of the judicial opinion on the question whether the 'police report' is a non-cognizable case would come under section 190 (1) (b) of the said Code. In the case of (2) Prabin Kumar v. The State of Andhra Pradesh, reported in AIR 1965 SC 1185 . the Supreme Court made the position clear by laying down the law that where the information to the police disclosed both cognizable and non-cognizable offence the police may investigate both without any specific order under section 155(2) relating to the non-cognizable offence and submitted a joint report to the Magistrate and that in such a case the Magistrate who takes cognizance under section 190 (1) (b) can proceed according to the section 251(A) of the Old Code but the explanation given to the definition of 'complaint' under section 2(d) of the New Code makes it clear that a report made by the police as to the commission of a non-cognizable offence will be treated as a 'complaint' and as such would come within the purview of section 190 (1) (a) of the New Code and not as a 'police report' under section 190(1) (b). There has been also a change in the wording of section 190(1) (b) of the new Code but it merely refers to 'police report'. The 'police report' as defined in section 2(r) of the new Code means a report forwarded by a police officer to a Magistrate under sub-section (2) of section 173. This definition which is a new one indicates that the expression 'police report' through -out the new Code would refer to the report under section 173(2) both in respect of cognizable cases and non-cognizable cases where the investigation is undertaken under the order of a Magistrate under section 155(2) of the Code. Having regard to such definition of the 'complaint' and then to proceed in accordance with the provision of law. Once it is treated as a 'complaint' as it should be the Magistrate is further required to determine whether the examination of the complainant section 200 of the new Code is necessary or not. In any event he could not have brushed aside the valid objection raised by the accused petitioner regarding the legality and validity of the investigation followed by a report in this case. In any event he could not have brushed aside the valid objection raised by the accused petitioner regarding the legality and validity of the investigation followed by a report in this case. It is true that in the case of H. N. Rishbud as referred to above the Supreme Court observed that a defect or illegality in investigation, however serious had no direct bearing on the competence or the procedure relating to cognizance or trial. It bas also observed that it cannot be maintained that a valid and legal police report was the foundation of the jurisdiction of the Court to take cognizance. At the same time the Supreme Court pointed out in that case at page 204 of the report as follows :- '...... While no doubt, in one sense Clauses (a), (b) and (c) of Section 190(1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under Clause (a) or (b) of Section 190 (1), (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial. To such a situation Section 537, Cr. P. C. which is in the following terms is attracted...... "The Supreme Court, thereafter proceeded to observe that if cognizance was in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there could be no doubt that the result of the trial which followed it could not be set aside unless the illegality in the investigation could be shown to have brought about a miscarriage of justice. Again the Supreme Court observes" It is relevant in this context to observe that even if the trial had proceeded to conclusion and tile accused had to make out that there was in fact a failure of justice as the result of such an error, explanation to section 537 Cr. P. C. indicates that the fact of the objection having been raised at an early stage of the proceeding is a pertinent factor. P. C. indicates that the fact of the objection having been raised at an early stage of the proceeding is a pertinent factor. To ignore the breach in such a situation when brought to the notice of the Court would be virtually to make a dead letter of the peremptory provision which has been enacted on grounds of public policy for the benefit of such an accused "In that case the Supreme Court was concerned with the question whether an investigation made by an officer below the rank of a Deputy Superintendent of Police without the order of a Magistrate of First Class as is required under section 5(4) of the Prevention of Corruption Act 1947 was in violation of a mandatory provision of law and as such illegal. The Supreme Court laid down that such provisions were mandatory and not directory and that the investigation conducted in violation thereof bears the stamp of illegality. In fact the Supreme Court sent down two of the cases to trial court for the purpose of passing appropriate orders after reconsideration in the light of the judgment. In doing so the Supreme Court observed in the judgment that when a breach of such mandatory provisions was brought to the knowledge of the court at a sufficiently early stage of the trial the Court, while not declining cognizance, will have to take necessary steps to get the illegality cured and the defect rectified, by ordering such reinvestigation as the circumstances of an individual case may call for. Section 202 of the Code of Criminal Procedure was thought of by the Supreme Court which can provide for a cure of such an illegality. The present case as has already been pointed out is under the New Code which has in my view changed the law to some extent. In the case of H.N., Rishbud the Supreme Court did not consider whether, such an invalid police report would fall under Clause (a) or (b) of Section 190(1) of the Old Code. Now the position is clear as from the definitions of 'complaint' and 'police report, as discussed above. 5. Mr. Mukul Gopal Mukherjee, learned Advocate referred to a Single Bench Decision of this Court in the case of (3) Subodh Singh Modak. 1974 Cr. Now the position is clear as from the definitions of 'complaint' and 'police report, as discussed above. 5. Mr. Mukul Gopal Mukherjee, learned Advocate referred to a Single Bench Decision of this Court in the case of (3) Subodh Singh Modak. 1974 Cr. L. J. 185 wherein Talukdar J. held that the provisions of section 155(2) are 'mandatory and the illegality is a material one not curable under section 537 Cr.P.C. 6. That decision was under the old Code and it must be subjected to the principle of law as enunciated by the Supreme Court in H. N. Rishbud's case. In so far as the present case is concerned the fact remains that the police investigated into a non-cognizable offence without obtaining any order of the Magistrate as required under section 155(2) of the new Code and submitted a report thereafter. In view of the definition of the 'complaint' along with the explanation thereto as given in section 2(d) of the new Code and the definition of the 'police report' as in section 2(1), the, report as submitted by the police should be treated as a 'complaint' and, the learned Magistrate will thereafter proceed according to the provision of law. 7. In the result, the case is sent back to the learned Magistrate with a direction to proceed in accordance with the provisions of law and in the light of the observations made above from the stage it reached with submission of the 'police report' in section 290 IPC on 5.7.74. The impugned orders and other orders are set aside and the Rule is disposed of accordingly.