Police Can Seek Permission To Probe Non-Cognizable Offences Without First Referring Informant To Magistrate: Karnataka High Court

The Karnataka High Court has held that a permission under Section 155 (2) CrPC to investigate non-cognizable offences can be sought by a Station House Officer, and an investigation initiated pursuant to such permission is valid in law.

“Permission under Section 155(2) of the Cr.P.C. may be sought either by the informant or by the Station House Officer. Therefore, it is not necessary that the informant alone must approach the jurisdictional Magistrate seeking permission for investigation, it can either be informant or the Station House Officer to seek such permission,” Justice H.P. Sandesh said, while dismissing a criminal petition filed by accused persons seeking to set aside a trial court's order and quash criminal proceedings against them.

The petitioners contended that the trial court erred in issuing the investigation order. They submitted that the probe permission was sought by a police officer and not an informant, which was contrary to Section 155.

Section 155 of CrPC (corresponding to Section 174 of BNSS) provides for information and investigation of non-cognisable cases. It says when a police officer receives information of such a case, he will refer the informant to the Magistrate. It further says that no probe shall be conducted in such cases without the Magistrate's order.

Examining the scheme of Section 155 of the Code, the High Court observed that the provision remains silent on who shall obtain the Magistrate's permission to initiate investigation.

“The power to permit investigation is given to the Magistrate to investigate the non-cognizable offence, and such investigation can be undertaken by the police only after obtaining the requisite permission. However, there is nothing in Section 155(2) of the Cr.P.C. to show that the permission must be sought only by the informant. But in Section 155(1) of the Cr.P.C. provides for referring the informant to the Magistrate and there is no bar that the Investigating Officer should not approach the Magistrate for permission to investigate the matter. This Court further observed that, while sub-section (1) mandates the police to refer the informant to the Magistrate, sub-section (2) remains silent as who has to obtain permission,” the Court said, while referring to Prakash Raj @ Prakash Rai vs State of Karnataka (2020) ruling.

The Court further said that the Prakash Raj judgement found permission sought by the Investigating Officer instead of an informant under Section 155(2) of the CrPC as “procedural irregularity” and held that it cannot be a ground to invoke High Court's jurisdiction under Section 482 of the Code.

Justice Sandesh also placed reliance on State of Gujarat vs Girish Radhakrishnan Varde (2013), wherein the Apex Court has held that in a non-cognisable offence case, a police officer may either direct the informant to the Magistrate or obtain permission directly from the Magistrate to investigate.

Noting the facts of the case, the Court said, “In the present case, when the complaint was lodged, an NCR was registered on the previous day. On the next date of hearing, the Investigating Officer sent a request to the learned Magistrate seeking permission to investigate the matter. Thereafter, the learned Magistrate granted permission to the Investigating Officer to investigate the matter. The Investigating Officer proceeded with the investigation and filed the charge sheet.”

The High Court, accordingly, dismissed the appeal seeking to quash the criminal proceedings. It further directed the Law Commission of Karnataka to act towards framing rules under BNSS on the matter.