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Madhya Pradesh High Court · body

2001 DIGILAW 388 (MP)

P. N. Ramakrishnan v. State of M. P.

2001-05-02

DEEPAK VERMA, N.K.JAIN

body2001
Judgment ( 1. ) THIS case has been placed before us by the Order of Honble Chief Justice, on a reference made by one of us (Jain, J), as the correctness of the preposition laid down by a Single Bench of this Court in Bajji ( 1981 MPLJ 657 ), was doubted. ( 2. ) THE question referred for our decision is this:- "whether in a case where at the very commencement it was apparent that the offence was non-cognizable, the report made by a police officer after investigation contrary to Section 155 (2) i. e. , without the order of the Magistrate, could be treated as complaint under Section 2 (d) of the Code of Criminal Procedure ?" ( 3. ) RESPONDENT No. 2-P. P. S. Sidhu, the Inspector General of Police, C. R. P. F. , New Delhi, on 8-3-2000, made a written report to the Commissioner of Police, Delhi, alleging, inter-alia, that accused petitioners who are members of C. R. P. F. , have formed an Association in violation of the provisions of the Police Forces (Restriction of Rights) Act, 1966, (for short, the Act) and thus committed offence under Section 4 of the Act. The said report was forwarded to the Superintendent of Police, Neemuch (M. P.) and ultimately a Crime No. 248/2000, under Section 4 of the Act, was registered at P. S. Neemuch Cantt. The police after some investigation submitted a report in final form in the Court of Chief Judicial Magistrate, Neemuch, praying for discharge of the accused persons on the ground that the offence was a non-cognizable one. On that report the CJM, Neemuch, took cognizance of the offence under Section 4 of the Act and proceeded to try the accused applicants for the said offence as in his view, a prima facie case was made out against the applicants and that the said report by the Police could be treated as complaint as provided in the proviso to Section 2 (d) of Cr. P. C. which defines "complaint". ( 4. ) WE have heard Mr. H. S. Uberoi, learned Sr. counsel appearing with Mr, P. Prasad, Advocate for applicants and Mr. G. Desai, Dy. AG for respondents. ( 5. ) IN Bajji (supra) this Court after referring to the recommendations made by the Law Commission in its 41st report, held : ". . . . . . . ( 4. ) WE have heard Mr. H. S. Uberoi, learned Sr. counsel appearing with Mr, P. Prasad, Advocate for applicants and Mr. G. Desai, Dy. AG for respondents. ( 5. ) IN Bajji (supra) this Court after referring to the recommendations made by the Law Commission in its 41st report, held : ". . . . . . . that the report made by the police on an unauthorised investigation, of a non-cognizable offence was a complaint under Section 190 (]) (a) and not a police Report under Section 190 (1) (b) of Criminal Procedure Code in view of the provision of the Explanation to Section 2 (d) of the Code, the offence under Section 211 being a non-cognizable one. " ( 6. ) HOWEVER, different view is taken by Calcutta High Court in Illies Ali (1997 Cr. LJ 803) and it was held : "the provision of Section 155 (2) Cr. PC in my opinion cannot be bypassed with the help of the explanation to Section 2 (d) Cr. PC by allowing a police officer to investigate an offence suo motu knowing fully well that the offence in question is a non-cognizable one. In other words, he cannot be allowed to start investigation in a non-cognizable offence without obtaining prior permission of the Magistrate concerned and in such an eventuality the report submitted by him disclosing a non-cognizable offence cannot in my opinion come within the purview of the explanation of Section 2 (d) Cr. P. C. " Similar view is taken by Delhi High Court and Kerala High Court in Inder Sain (1981 Cr. LJ 1116) and P. Kunhu Muhammed (1981 Cr. LJ 356 ). ( 7. ) ONE of us (Jain, J) in the order of reference has referred to the aforesaid decisions and after considering the definition of complaint, as given in clause (d) of Section 2, was of the view that in a case where it was apparent at the very commencement that the offence was non-cognizable, the report made by a Police Officer after investigation which was contrary to Section 155 (2), i. e. , without the order of the Magistrate, cannot be treated as complaint under Section 2 (d ). ( 8. ( 8. ) THE point projected in this reference stands concluded by a Supreme Court decision in Keshav Lal, 1996 (4) Crimes 121 (SC) - (This decision was not brought to the notice of the Court when the order of reference was passed) wherein their Lordships of the Apex Court, dealing with the similar fact situation obtaining in the instant case, have held : "we need not go into the question whether in the facts of the instant case the above view of the High Court is proper or not for the impugned proceeding has got to be quashed as neither the police was entitled to investigate into the offence in question nor the Chief Judicial Magistrate to take cognizance upon the report submitted on completion of such investigation. On the own showing of the police, the offence under Section 31 of the Act is non-cognizable and therefore, the police could not have registered a case for such an offence under Section 154 Cr. PC. Of course, the police is entitled to investigate into a non-cognizable offence pursuant to an order of a competent Magistrate under Section 155 (2) Cr. PC but, admittedly, no such order was passed in the instant case. That necessarily means, that neither the police could investigate into the offence in question nor submit a report on which the question or taking cognizance could have arisen. While on this point, it may be mentioned that in view of the proviso to Section 2 (d), Cr. PC, which defines complaint, the police is entitled to submit, after investigation, a report relating to a non-cognizable offence in which case such a report is to be treated as a complaint of the police officer concerned, but that explanation will not be available to the prosecution here as that relates to a case where the police initiates investigation into a cognizable offence - unlike the present one - but ultimately finds that only a non-cognizable offence has been made out. " ( 9. ) IN the aforesaid case, the Apex Court was dealing with the offence under Section 31 of the Representation of Peoples Act, 1950, which is non-cognizable. In the case before us also the offence under Section 4 of the Act is non-cognizable and admittedly no sanction for investigation was obtained from the Magistrate under Section 155 (2) of Cr. PC. ) IN the aforesaid case, the Apex Court was dealing with the offence under Section 31 of the Representation of Peoples Act, 1950, which is non-cognizable. In the case before us also the offence under Section 4 of the Act is non-cognizable and admittedly no sanction for investigation was obtained from the Magistrate under Section 155 (2) of Cr. PC. As held by the Apex Court in Keshav Lal (supra), the Explanation to Section 2 (d) of Cr. PC will not be available to the prosecution here as it relates to a case where the police initiated the investigation into a non-cognizable offence. It is not a case where the police initiated the investigation into a cognizable offence but ultimately found that only a non-cognizable offence has been made out. This reference therefore, deserves to be answered in negative and the view expressed by this Court in Bajji deserves to be overruled. Accordingly, it is held that in a case where at the very commencement if was apparent that the offence was non-cognizable, the report made by a police officer after investigation contrary to Section 155 (2) i. e. , without the order of the Magistrate, cannot be treated as complaint with the aid of the Explanation to Section 2 (d) of the Code of Criminal Procedure. ( 10. ) THIS matter be now placed before the learned Single Judge for disposal of the case.