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2024 DIGILAW 1133 (KER)

Prasanth K. S. S/o Soman v. State of Kerala

2024-09-05

A.BADHARUDEEN

body2024
ORDER : 1. This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, to quash Annexure II Final Report and all further proceedings in C.P.No.8/2024 on the files of the Judicial First Class Magistrate Court-I, Alappuzha, arose out of Crime No.1638/2023 of Alapuzha North Police Station. The petitioner herein is the sole accused in the above case. 2. Heard the learned counsel for the petitioner, the learned counsel for the defacto complainant and the learned Public Prosecutor in detail. Perused the prosecution records, including the decisions cited by the learned counsel for the petitioner. 3. The prosecution case is that on 04.11.2023, when the defacto complainant appeared in person at the District Court in Alappuzha to give evidence in a case relating to Ambalapuzha police station, the accused, who introduced himself as the clerk of one Ambika Madam, threatened the defacto complainant that he had the video clips and photos of the defacto complainant and he had seen the same. Therefore, she would lose the case and thereby pressurized her to change her statement which she had given against the accused in the said case. In this matter, FIR was registered by the police, alleging commission of offences punishable under Section 195A and 506 of the Indian Penal Code (hereinafter referred to as ‘IPC’ for short). Thereafter, the matter was investigated and filed final report, incorporating offences punishable under Sections 341, 195A and 506 of IPC. 4. The main contention at the instance of the learned counsel for the petitioner is that the investigation is defective ab initio since police has no right to investigate non-cognizable offence/s without the order of the Magistrate, having power to try such case or commit the case for trial. The learned counsel for the petitioner placed decisions of this Court in Haneefa v. State of Kerala, 2022 (6) KLT OnLine 1064, where this Court considered the impact of Section 155(2) of Cr.P.C. wherein this Court held as under: “8. The statute through S.155(2) Cr.P.C stipulates that when information relates to a case indicative of non-cognizable offences, the police officer is interdicted from commencing the investigation without an order from the Magistrate. The statute also mandates that such orders must be obtained from the Magistrate having the power to try the case or commit such a case for trial. The statute through S.155(2) Cr.P.C stipulates that when information relates to a case indicative of non-cognizable offences, the police officer is interdicted from commencing the investigation without an order from the Magistrate. The statute also mandates that such orders must be obtained from the Magistrate having the power to try the case or commit such a case for trial. The terms ‘non-cognizable offence’ and ‘non-cognizable case’ are defined in Section 2(l) of Cr.P.C as an offence and as a case in which a police officer has no authority to arrest without a warrant. 9. Section 155(2) of Cr.P.C prohibits not only an investigation but even the commencement of an investigation by the police without orders from the Magistrate concerned in cases where only noncognizable offences are alleged. The legislative intent of categorising offences into cognizable and non-cognizable with a fetter placed on the police officer from commencing an investigation into a noncognizable offence without orders from the Magistrate has a purpose. The emphatic negative language employed in the section indicates that the legislative mandate cannot be disobeyed or ignored. 10. The requirement of an order of the Magistrate to commence an investigation into a non- cognizable offence is a fundamental requirement. It goes to the root of the jurisdiction of the investigating officer to commence the investigation. When there is an inherent lack of jurisdiction, it is not a mere irregularity but is an illegality. The situation would have been different if, amongst various non- cognizable offences, there was atleast one cognizable offence. If one of the offences for which the FIR is registered is a cognizable offence, then in view of section 154(4) Cr.P.C, the police can investigate without an order from the Magistrate.” 5. Another decision of this Court in Suni @ Sunil v. State of Kerala, 2023 (3) KHC 57 also has been pressed into, where this court considered cognizance taken by the Magistrate for offence under Sections 195A of IPC, for which an order of the Magistrate was not obtained. In paragraph No. 27, this Court held as under: “27. The conundrum as regards to the competence of the police to register a crime when offence under Section 195A of IPC is alleged sprang up for consideration only on the ground that the offence is classified as 'cognizable'. In paragraph No. 27, this Court held as under: “27. The conundrum as regards to the competence of the police to register a crime when offence under Section 195A of IPC is alleged sprang up for consideration only on the ground that the offence is classified as 'cognizable'. It is relevant to note that, as I have already pointed out, Section 195 A of IPC was introduced with effect from 16.04.2006 in between Section 195 and Section 196. It is pertinent to note further that all other offences dealt under Section 195 of Cr.P.C. are 'non-cognizable'. It is to be noted further that when the threat dealt in Section 195 of IPC is giving false evidence, that is a matter to be considered by the court and in view of the matter, it has to be held that a police officer cannot register a crime in relation to an offence under Section 195 A of IPC and for which procedure under Section 195 read with 340 of Cr.P.C. should have been followed. Therefore, the cognizance of the offence under Section 195 A of IPC by the police is held to be bad in law. However, the police registered crime under Section 120(O) of the Kerala Police Act also and therefore, investigation in this regard can go on.” 6. The learned Public Prosecutor also conceded the legal position that the police cannot investigate non-cognizable offences without an order of Magistrate. At the same time, he pointed out that in the final report a cognizable offence also is incorporated. 7. As far as the legal position regarding the power of the police officer to investigate a non-cognizable offence is concerned, the law is well settled and 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. 8. Section 155 (4) of Cr.P.C., however, makes it clear that where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable. 8. Section 155 (4) of Cr.P.C., however, makes it clear that where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable. Thus the law emerges is that police officer has no power to start investigation by registering an FIR involving non-cognizable offence without the order of a Magistrate, though the police officer is empowered to investigate a crime involving non-cognizable offences/offence also, if at least one offence is cognizable. 9. In this context, it is relevant to extract Section 155(2) and (4) of Cr.P.C. and the same is as under: “ 155. Information as to non-cognizable cases and investigation of such cases. — (1) xxxx (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. (3) xxxx (4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.” 10. Section 174 of Bharatiya Nagarik Suraksha Sanhita, 2023, (hereinafter referred to as ‘BNSS’ for short) is pari materia to section 155 of Cr.P.C. and the same reads as under: “174. Information as to non-cognizable 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 enter 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: (i) refer the informant to the Magistrate; (ii) forward the daily diary report of all such cases fortnightly 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. (3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case. (3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case. (4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.” 11. Thus as per Section 174(2) of BNSS also, 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. Section 174(4) of BNSS is also pari materia with Section 155(4) of Cr.P.C. 12. It is the well settled law that without an order of the Magistrate, the police could not investigate a non- cognizable offence alone. Here, the police registered FIR, alleging commission of offences punishable under Section 195A as well as 506 of IPC. Both are non-cognizable offences. So, the very authority of the police to register the FIR, that means to take cognizance of offences, was prohibited without the order of the magistrate, and such registration of crime without the order of the Magistrate itself is bad in law. So, after starting investigation by registering FIR, incorporating non-cognizable offences under Sections 195A and 506 of IPC and filing of final report including one cognizable offence under Section 341 of IPC would not save the inherent lack of power of the police to investigate non-cognizable offence. 13. In this connection, it is relevant to refer definition of ‘complaint’ as provided under Section 2(d) of Cr.P.C.. “Complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation to Section 2(d), it has been provided that a report made by a police officer in a case which discloses, 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. Explanation to Section 2(d), it has been provided that a report made by a police officer in a case which discloses, 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. Section 2(e) of Bharatiya Nagarik Suraksha Sanhita, 2023, is corresponding to Section 2(d) of Cr.P.C. If so, the report of the police officer herein, which led to taking cognizance for the offences under Section 195A, 341 and 506 of IPC, to be read as a complaint. Therefore, the learned Magistrate is at liberty to proceed with the complaint as per law after securing the presence of the defacto complainant by issuing notice under Sections 200 and 202 of Cr.P.C. 14. In view of the above finding, the order issuing summons, after taking cognizance for the offences under Sections 195A, 341 and 506 of IPC, impugned herein, stands quashed, with direction to the learned Magistrate to proceed further in this matter, deeming the report of the police officer as a complaint as per explanation to Section2(d) of Cr.P.C. as discussed herein above. In view of the matter, the entire proceedings after filing the report akin to complaint found to be illegal and the same stand set aside. It is specifically made clear that the quashment of proceedings ordered above will not stand in the way of the complainant to proceed with the above complaint if she is aggrieved, in accordance with law. In the result, this Criminal Miscellaneous Case stands allowed.