SUDARSHAN MANCHANDA v. STATE OF KARNATAKA — 1979 DIGILAW 168 (KAR)

( 1 ) IN this petition the petitioners have prayed for quashing the proceejdings in Crime No, 409 of 1979 registered by Kalasipalayam Police, station against them for the alleged violation of S. 13 of the, Karnataka fire Force Act, 1964, the rules and Notification issued thereunder. ( 2 ) THE first petitioner is the Executive Director of M/s. Prakash roadlines (P) Ltd. , and the second petitioner is the Management of the said M/s. Prakash Roadlines (P) Ltd. , which is carrying on, its business of transporting goods at Kalasipalayam New Extension, Bangalore. The business of the Management of M/s. Prakash Roadlines (P) Ltd. , is to receive goods for transhipment to other places from Bangalore and thet goods transported to Bangalore from other places for being delivered the same. The Management has to store the goads so received in their godowns in the said premises and, thereafter, to transport the same to different destinations through their lorries or to deliver the goods to the consignees. ( 3 ) IT is the case of the prosecution that by so storing the goods in question the Petitioners had violated S. 13 of the Karnataka Fire Farce act, 1964, and the Notification issued thereunder and, as such, they have committed the offences, ( 4 ) THE incident is said to have taken place between 26th and 27th april 1979. The sub Officer North Fire Station, Mysore Road, Bangalore, mad" a complaint to the Sub Inspector of Police, Kalasipalayam Police station, Bangalore, on 27. 4. 1979 to the effect that there was a fire call and the same was attended to by the Karnataka Fire Force at Prakash roadlines (P) Limited, Delivery Gcdown in Kalasipalayam New extension and, while attending to the said call, it was found that the management had stored the commodities and materials like cloth bundles, g. P. 203/79 paper bundles, chemicals, Rubber goods Medicines, Polyster suitings (Roll), Indian yarn, toilet goods, grease drums, gas cylinders, oil cans blankets, copper and brass rretal materials, cycle, plastic, electrical equipment, fertilisers, nylon yams, in the godown and the godownt was also used as commercial office and stored the things without providing the minimum requirements of the Fitst Aid Fire fighting equipments as required by Rule 9 and the Notification Lsued on 20. 9. 9. 1971 in S. O. No 1717 under Section 13 of the Karnataka Fire Force Act, 1964, and on the aforesaid allegations it was further stated that the Executive Director and the Management of M/s. Prakash Roadlines (P) Limited, have completely neglected the Fire Precautionary measures recommended in the said government Notification S. O. No. 1717 and, therefore, the Sub officer, north Fire Station, Mysore Rqad, Bangalore, requested the Sub Inspector of Police, Kalasipalayam Police Station, Bangalore, to register a case against the Management for having not observed the precautionary measures which resulted in causing damages to public properties due to the fire accident. This information was received by the Sub Inspector of police, Kalasipalayam Police Station, on 27. 4. 1979 at 3. 30 P. M. and, thereafter, the said Sub Inspector of Police registered a case in Crime 'no. 409 of 1979 for the aforesaid offences under Section 13 of the Karnataka fire Force Act, 1964, read with Rules 9, 21, 27, 32, 33, 36 and, 37 and the notification referred to above and sent the First Information Report to the Metropolitan Magistrate, III Court, Bangalore City, within whose jurisdiction the alleged offences took place, on 28-4. 1979. ( 5 ) IT is alleged that on 28. 4. 1979 the Police is said to have obtained an order of the jurisdictional Magistrate to investigate into a non cognizable offence as the offence under Section 13 of the Karnataka Fire, Force Act is said to be a non cognizable one. The Magistrate is said to have accorded permission to the Police to investigate into the alleged non-cognizable offence on 28. 4. 1979. In the meanwhile, it is stated that on 27 4. 1979 itself immediately after the receipt of the mespagej from the Sub Officer, north Fire Stn. Bangalore, thei S. 1. Off Police is said to have proceeded to the spot and, after extinguishing the fire, drew up a mahazar on 27. 4. 1979 itself in respect of the place of incident and in the preamble to the mahazar itself it is mentioned that he has given. Crime No,. 409 of 79 which indicates that the Sub Inspector of Police registered a cape and proceeded to investigate into the alleged offence which is a non- cognizable offence. 4. 1979 itself in respect of the place of incident and in the preamble to the mahazar itself it is mentioned that he has given. Crime No,. 409 of 79 which indicates that the Sub Inspector of Police registered a cape and proceeded to investigate into the alleged offence which is a non- cognizable offence. ( 6 ) THE petitioners in this petition have questioned the very jurisdiction of the Police to investigate into a non cognizable offence without the necessary permission or order obtained in that behalf from the jurisdictional Magistrate as contemplated under Sqction 155 (1) and (2) of the Code of Criminal Procedure, 1973. ( 7 ) SRI B. T. Chhabria, learned Counsel for the petitioners, raised, only one point for consideration which, according to, him, goes to the root of the investigation instituted by the Police into an offence under S. 13 of the karnataka Fire Force Act, 1964, which is a non cognizable offence in which case the Police could not have proceeded to investigate into the said offence without necessary sanction or permission of the jurisdictiopal magistrate as contemplated under S. 155 of the Code of Criminal procedure 1973, and, therefore, he submitted that the entire investigation and the proceedings instituted in Crime NO. 409 of 1979 has to be quashed, ( 8 ) SRI M. V. Devaral, the learned State Public Prosecutor, contended that on 28. 4. 1979 the learned Magistrate has accorded permission to the police to investigate into the said non cognizable offence and, as such, he submitted that the permission contemplate under S. 155 Cr. P. C has been obtained though not at the initial stage, but during the course of investigation and therefore, it would not vitiate the entire proceedings. ( 9 ) IT is to be noted at the outset that the petitioners filed a copy application before the learned Magistrate on 19. 5. 1979 praying for grant of certified copies of the application for permission, to investigate into the case and the order passed thereon by the learned Magistrate. It is however seen that the learned Magistrate, after having heard the learned counsel for the petitioners on 24. 5. 1979, passed an order as fqllows:- "24. 5. 1979. Heard Sri B. T. C. The certified copy of the application (sic) cannot be granted as documents from part of the record of the, case. It is however seen that the learned Magistrate, after having heard the learned counsel for the petitioners on 24. 5. 1979, passed an order as fqllows:- "24. 5. 1979. Heard Sri B. T. C. The certified copy of the application (sic) cannot be granted as documents from part of the record of the, case. Item No. 3 i. e. , Application for permission to investigate the case is not available in record, Issue certified copy of qther documents prayed for. Id/- R. K. B. 24. 5. 1979 M. M. 111 Court, Bangalore City. Connected records have been called for and the learned State Public prosecutor, after verifying the records, has submitted that the orginal application said to have been filed by the Sub Inspector of Police for permission to investigate into the said non cognizable offence is not found in the records. But, however, he produced befqre, this Court the original application on which the learned Magistrate has passed the order permitting the Sub Inspector of Police to investigate into the said offence which was found in the Police records and the said permission is said to have been granted on 28. 4. 1979 So, for a,ll practical purposes this Court could take that the learned Magistrate did pass an order permitting the sub Inspector of Police to investigate into a non cognizable offence only on 28. 4. 1979. Therefore, the fact remains whether the permission, so granted by the learned Magistrate on 28. 4. 1979 enures to the investigating agency and relates back to the time at which the Police started the investigation. In other words, whether such permission would be one failing under Section 155 (2) of the Cade, of Criminal Procedure. ( 10 ) BEFORE adverting to this aspect of the, matter, it would be relevant to point out that the First Information Report in the said case was sent by the Police to the jurisdictional Magistrate on 28. 4. 1979 describing that the alleged offence as "cognizable offence". Therefore, it is clear from the police records that the Sub Inspector of Police, after the receipt of the report from the Sub Officer, North Fire Station, Bangalore, went to the spot apd started investigation, presumably on the basis that the, said offence is a cognizable, offence. 4. 1979 describing that the alleged offence as "cognizable offence". Therefore, it is clear from the police records that the Sub Inspector of Police, after the receipt of the report from the Sub Officer, North Fire Station, Bangalore, went to the spot apd started investigation, presumably on the basis that the, said offence is a cognizable, offence. ( 11 ) THE question whether violation of Section 13 of the Karnataka fire Force Act, 1964, would amount to a non cognizable offence is to be considered. Section 13 of the said Act reads thus:"13. Preventive measures.- (1) The State Government may by notification in the official Gazette, require owners or occupiers of premises in any area or any class premises used for purposes which in its opinion are likely to cause a risk of fire to take such precautions as may be, specified in such notification. (2) Where a notification has been issued under sub section (1), it shall be lawful for the Director or any officer of the Force authorised by the State Government in this behalf to direct the removal of objects or goods likely to cause a risk of fire, to a place of safety; and on failure of the owner or occupier to dq sq, the Director or such officer may, after giving the owner or occupier a reasonable opportunity of making representation, seize,, detain or remove such objects or goods. "the penal provision for failure to take precautions reads thus: - "25. Failure to take precautions.-Whoever fails without reasonable cause to comply with any of the requirements specified in a notification issued under sub section (1) of Section 13 or of a direction issued under sub section (2) of that section shall be punishable with fine which may extend to five hundred rupees. " part II of the First Schedule of the, Code of Criminal Procedure, 1973, contemplates that, if an offence is punishable with imprisonment for less than 3 years or with fine only, it shall be a non cognizable offence. There fore, it is dear that violation of 3. 13 of the Karnataka Fire Force Act, 1964, would amount to non cognizable offence. ( 12 ) SECTION 155 of the Code of Criminal Procedure, 1973, reads thus:"155. There fore, it is dear that violation of 3. 13 of the Karnataka Fire Force Act, 1964, would amount to non cognizable offence. ( 12 ) SECTION 155 of the Code of Criminal Procedure, 1973, reads thus:"155. Information as to non cognisable cases and investigation of such cases.- (1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non cognizable offence, he shall e,nter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate. (2) No police officer shall investigate a non cognizable case without the order of a Magistrate having power to try such case or commit the case for trial". (sub clauses (3) and (4)are omitted as unnecessary) Therefore, when an information is given to an, officer of the Police Station with regard to the commission of a non cognizable offence, it is his duty to, enter the substance of the information in a book kept for the said purpose and thereafter refer the informant to the Magistrate. Further, duty is also cast on the police officer not to investigate into the non cognizable offence without the order of a Magistrate haying power to try such case or commit the case for trial. It is significant to note that the word 'shall indicates that any police officer should not take up the investigation into a non cognizable offence without the requisite order of the Magistrate in that behalf in which case it could safely be concluded that any investigation by a police officer into a non cognizable offence without the requisite permission or order of the Magistrate would be one without jurisdiction. In the instant case, as already stated, the accident is said to have occurred in the night intervening 26th and, 27th April, 1979, and the Sub Officer, -North Fire Station, intimated] the Sub Inspector of Police, Kajasipalayam police Station, on 27. 4. 1979 at 3. 30 P. M. in respect of the alleged violation, of 8. 13 of the, Karnataka Fire Force Act, 1964, the rules and the notification issued thereunder. 4. 1979 at 3. 30 P. M. in respect of the alleged violation, of 8. 13 of the, Karnataka Fire Force Act, 1964, the rules and the notification issued thereunder. Immediately after the receipt of the mlormation, the Sub Inspector of Police proceeded to the spot and, after extinguishing the fire, drew up a panchanama; of the scene of the accident as evidenced by the copy of the panehanania filed along with the petition which is marked as Exhibit 'd'. In the panchanama, though the time is not mentioned the date on which it was drawn is mentioned as 27. 4. 1979. This is admittedly before the First Information Report is sent to jurisdictional Magistrate on 28. 4. 1979 and the necessary application was made by the Police before the learned Magistrate seeking permission to investigate into the non cognizable offen,ce as contemplated under S. 155 (2) of the Code of Criminal Procedure. The fact that the) Sub Inspector of Police did proceed to, the spot on 27. 4. 1979 itself with the intention of collecting necessary information with regard to the nature of the Accident, etc. , and dewing up of a panchanama thereafter clearly indicate that the police started investigation on the basis of the Repqrt sent to him by the Sub Officer North Fire Station, Bangalore. It is significant to note that after drawing up of the panchanama, he has also given a number as Crime No. 409/79. All these, have happened before the requisite sanction is obtained by the Police from the jurisdictional Magistrate. ( 13 ) IN H. N. Rishbad v. State of Delhi, AIR 1955 SC 196 . It is significant to note that after drawing up of the panchanama, he has also given a number as Crime No. 409/79. All these, have happened before the requisite sanction is obtained by the Police from the jurisdictional Magistrate. ( 13 ) IN H. N. Rishbad v. State of Delhi, AIR 1955 SC 196 . it has been laid down on the meaning and the scheme of Code with regard to 'investigation' thus: "under the Code 'investigation' consists generally of the following steps: (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the, officer thinks fit (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial and (5) formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge sheet under Section 173. The scheme of the Code also shows that while it is permissible for an officer in change of a police station to depute some subordinate officer to conduct some of these steps in, the investigation, the responsibility for every one of these steps is that of the person in the situation of the officer in change of the police station, it having been clearly provided in S. 168 that when a subordinate officer makes an investigation he should report the result to the officer in, charge of the police station. It is also clear that the final step in the investigation, viz. , the formation of the opinion, as to whether or not there is a case to place the accused on trial is to be that of the officer in charge of the police station. There is no provision permitting delegation there of but only a provision entitling superior officers to supervise or participate under S. 551. " therefore, applying the aforesaid test to the facts of this case, it is clear that the Sub Inspectqr of Police on, 27. 4. There is no provision permitting delegation there of but only a provision entitling superior officers to supervise or participate under S. 551. " therefore, applying the aforesaid test to the facts of this case, it is clear that the Sub Inspectqr of Police on, 27. 4. 79 itself proceeded to the spot and began to ascertain the facts and circumstances of the case under which the accident happened and drew up the mahazar, etc. , It is, therefore, clear that the, police even before obtaining the necessary permission from the jurisdictional Magistirate, had started the investigation, into an offence which is a non cognizable one. ( 14 ) THE next point for consideration is whether the permission obtained, by the police from the Magistrate on 28. 4. 1979 would validate the entire proceedings. As could be seen from the police papers, the necessary permission obtained by the police from the Magistral was on, 28. 4. 79; but, the investigation had already started on 21. 4-1979. In this regard, it could be noted that there is a prohibition for starting investigation as could be seen from the wording of S. 155 (2) of the code of Criminal Procedure. The words "no police, officer shall investigate. . . " amply make it clear that any permission obtained after the investigation has been staited would not validate the illegal, investigation already started. In Jugal Kishore v. State, 1972 Crl. L. J. 371. while adverting to this aspect of the matter, the learned Judge has held thus: "an offence under S. 504 I. P. C. being a non cognizable offence a police officer has no power to investigate it unless he has received the information, about the commission of the offence and has obtained an order from a Magistrate in terms of S. 155 (2 ). The offence should stand committed before, the information is received in terms of S. 155 (1 ). Where the report of the C. I. D. on the basis of which the; district Magistrate ordered iraneticm to investigate under Section 155 (2) he nowhere mentioned that the posters in question had provoked any pejson, no offence is committed within the meaning of S. 504 I. P. C. and the sanction to investigate is unauthorised. Where the report of the C. I. D. on the basis of which the; district Magistrate ordered iraneticm to investigate under Section 155 (2) he nowhere mentioned that the posters in question had provoked any pejson, no offence is committed within the meaning of S. 504 I. P. C. and the sanction to investigate is unauthorised. If the investigation, at its source was unauthorised by s. 155 of the Code, the nature of the evidence collected, from certain persons or, the nature of the information, which may have, been given to the police, would be of no relevance and the charge framed under S. 504 I. P. C on the basis ot such investigation is liable to be quashed under S. 439 Criminal P. C. " applying the above said obfervaltions to the facts of this case, it can be said that the investigation which started without requisite sanction or order ot the jurisdictional'magistrate, as contemplated under S, 155 (2) of the Code of Criminal Procedure, would not be validated by an order of the Magistrate, obtained subsequently. So, the irresistible, conclusion is that the entire investigation is not in, accordance with S. 155 (2) of the code of Criminal Procedure in which case the same, has to be struck down as being made without jurisdiction. ( 15 ) IN the result, this petition is allowed and the proceedings in Crime no. 409 of 1979 of Kalasipalayam Police Station are hereby quashed. --- *** --- .