'Commencement Of Probe Into Non-Cognizable Offences Without Magistrate's Order Renders Entire Investigation Faulty': Kerala High Court

The Kerala High Court on Wednesday quashed trial court proceedings in a criminal case accusing two men and a woman of creating a "parallel telephone exchange", after ruling that the police could not have initiated a probe in the case, alleging commission of non-cognizable offences, without obtaining an order from the Magistrate."Incorporation of a cognizable offence at the time of filing of the final report cannot be utilized as a method or as a device to circumvent the mandate of S.155(2) Cr.P.C. by the officer in charge of the police station or any investigating officer." said the court.Justice Bechu Kurian Thomas said 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 non-cognizable offences are alleged.The petitioners in the matter had argued that the case was registered initially only for non-cognizable offences and the police could not have commenced the probe without the order of the magistrate for non-cognizable offences. The petitioners were booked under Section 4 and Section 20 of the Indian Telegraph Act, 1885 and Section 3 and Section 6 of the Indian Wireless Telegraphy Act, 1933. When the final report was filed, Section 420 CrPC was added to the case."The investigation being illegal from the inception, the final report and the cognizance taken by the Magistrate were all without authority of law," the counsel representing the petitioners argued.The court framed three questions for consideration in the case:Question 1 - Whether an investigation into non-cognizable offences can be commenced without an order of a Magistrate?The Court after pursuing Section 155 of the CrPC observed that S.155(2) CrPC stipulates that when the 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".Observing that 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 non-cognizable offences are alleged, the court said:"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 non-cognizable 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."The Court further said 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."However, the court said if one of the offences for which the FIR is registered is a cognizable offence, then in view of Section 154(4) CrPC, the police can investigate without an order from the Magistrate.Delving upon Section 190 CrPC, the court said a Magistrate is entitled to take cognizance of an offence in three situations; (a) upon receiving a complaint of facts constituting an offence, (b) upon a police report of such facts or (c) upon information received from any person other than a police officer or upon his own knowledge"Section 2(d) defines the term 'complaint' as an allegation made orally or in writing to a Magistrate enabling him to take action under the Cr.P.C that some person has committed an offence. Though the definition specifically excludes a police report, the explanation to the definition states 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 shall be deemed to be the complainant"The court also considered the question whether the final report filed pursuant to an investigation conducted into a non-cognizable case without an order of the Magistrate can be treated as a complaint as defined in CrPC.Relying on previous Apex Court and Kerala High Court decisions in this regard, wherein the courts have held that if at the commencement of the investigation, it is apparent that the case involved only the commission of a non-cognizable offence, then the final report cannot be treated as a complaint under...

'Commencement Of Probe Into Non-Cognizable Offences Without Magistrate's Order Renders Entire Investigation Faulty': Kerala High Court

Athira Prasad

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