Investigating Agency Cannot Include Cognizable Offence In FIR To Bypass Sanction U/S 155(2) Of CrPC: Kerala HC

The Kerala High Court observed that an investigating agency cannot incorporate a cognizable offence in the FIR without any materials before it to bypass Section 155(2) Cr.P.C.As per Section 155(2) of Code of Criminal Procedure, the police can investigate into a non-cognizable offence only after getting an order from the Magistrate concerned.It was alleged that the petitioner in this case verbally abused the complainant over phone using filthy language. A Final Report was filed against the petitioner alleging offences under Section 294(b) of IPC (obscene acts and songs) and 120 (o) of Kerala Police Act (causing nuisance through any means of communication). The petitioner approached the Court to quash the proceedings against him. He contended that even if the entire accusations are accepted, it would not constitute the offences alleged in the Final Report.Justice G. Girish observed that Section 294(b) of IPC would not attract in a case where the abuses were made through a private phone call. To attract Section 294(b), the person should have sung, recited or uttered any obscene, song, ballad or words in or nearby public place.The Court noted that the offence under Section 120(o) is non – cognizable and the police could not have investigated into the offence without getting a permission of the Magistrate under Section 155(2) of Cr.PC. The Court remarked that the investigating officer is aware that a conversation through a private phone call could not attract the offence under Section 294(b) of IPC and it has been incorporated in the FIR and Final Report just to bypass Section 155(2) of Cr.P.C.“As already stated above, this is a case where the facts do not constitute the offence under Section 294(b) IPC. The Investigating Officer is well aware of the fact that a mere private telephone call between two parties and the utterance of abusive words in such a call, will not attract the requirements of Section 294(b) IPC. Still, the aforesaid offence has been incorporated in the First Information Report and Final Report. The requirement of obtaining sanction under Section 155(2) CrPC for the investigation of a non-cognizable offence, cannot be bypassed by such shortcut methods of incorporating a cognizable offence in the FIR, even though there are apparently no materials before the investigating agency to register a case in connection with such an offence.”The Court concluded that there was no material before the investigating agency to proceed with the investigation of the case without a sanction from the Magistrate. On this ground, the Court concluded that the prosecution was without a legal basis.Accordingly, the proceedings in the case were quashed.Counsel for the Petitioner: Adv. Legith T. KottakkalCounsel for the Respondents: Adv. Seetha S. (Sr. PP)Case No: Crl.MC 2107 of 2019Case Title: P. T. Jahangeer v State of Kerala and AnotherCitation: 2025 LiveLaw (Ker) 225Click Here To Read/ Download Order

Investigating Agency Cannot Include Cognizable Offence In FIR To Bypass Sanction U/S 155(2) Of CrPC: Kerala HC

Manju Elsa Isac

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