Ravi Kumar vs State of Karnataka

K.N. Phaneendra, J.—The present petition is filed seeking to quash the entire proceedings in Crime No. 100 of 2011 later registered in CC No. 9 of 2012 on the file of the Civil Judge and JMFC, Bilagi, against the petition., for the offence punishable under Sections 504 and 506 of Indian Penal Code, 1860. A Technical point raised before this Court by the learned Counsel for the petition, is that both the offences i.e., Sections 504 and 506 of IPC are non-cognizable in nature and the Police Officer gets absolutely no jurisdiction to investigate the matter and to submit any report pertaining to non-cognizable offences. Therefore, the entire proceedings are required to be quashed.

In order to appreciate this legal aspect, it is just and necessary for this Court to look in to the FIR lodged and the nature of allegations made and how the Police have investigated the matt., and what report has been submitted by the Police before the learned Magistrate and what the learned Magistrate has done thereafter.

The FIR submitted by one Sri S.S. Masuthi, PSI, Bilagi Police Station reads that:

"On 23.4.2011 the first informant was in his house at Bilagi, at about 11.30 a.m., he was about to leave the house to go to his official duties. At that time, he received a call to his mobile by someone introducing himself as Ravi Kumar Kase, Press reporter, abused him with reference to some case and threatened with dire consequences of killing him".

On these allegations FIR came to be registered in Crime No. 100 of 2011 for the offence punishable under Sections 504 and 506 of IPC The investigation has been done and the police have filed the charge-sheet under Sections 504 and 506 of IPC. The learned Magistrate vide order dated 20.1.2012 has passed the order in the following manner:

"PSI, Bilagi Police Station has submitted charge-sheet against the accused for the offence punishable under Sections 504 and 506 of IPC

FIR and original complaint are merged in this charge-sheet. Accused is on bail. Perused the charge-sheet. Cognizance under Section 190(1)(b) of Criminal Procedure Code, 1973, taken against the accused for the offence punishable under Sections 504 and 506 of IPC.

Register the Criminal case in Reg. No. 3 and issue NBW to accused returnable by 21.2.2012."

The proceedings went on and on 27.2.2013, the case is set down for recording of the plea of the accused. It appears, at that juncture, the present petition is filed.

It is seen from the provisions under Indian Penal Code, 1860, that Section 504 of IPC is punishable with imprisonment of either description for a term which may extend to two years or with fine or with both. Section 506 of IPC if it falls under Para-I, it is punishable with imprisonment for two years, or fine or with both. If it falls under Para-II, it is punishable with imprisonment for seven years, or fine or with both. The schedule appended to the Cr.P.C., describes that Section 504 of IPC is non-cognizable, bailable and triable by any Magistrate, Section 506 of IPC though punishable with seven years of imprisonment, but it is made as non-cognizable, bailable and triable by any Magistrate of I Class. Therefore, it is clear from -the above said provisions that the offences punishable under Sections 504 and 506 of IPC are non-cognizable, bailable offences and they are triable by any Magistrate of I Class.

Now, coming to Section 155(2) of Cr.P.C., which mandates as to how an investigation has to be conducted insofar as non-cognizable offences are concerned. Section 155 of Cr.P.C. reads as follows:

"155. 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, and refer the informant 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.

(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."

Section 155(2), is a mandatory provision which imposes responsibility on the Police Officer to take permission or order of the learned Magistrate having power to try such offences or commit the case for trial for the purpose of investigating a non-cognizable case. The word ''shall'' used in the said provision is mandatory in nature and there cannot be any escape to the Police Officer from deviating this provision for the purpose of investigating ''non-cognizable'' case.

The provision under sub-section (2) of Section 155 of Cr.P.C. for asking the permission of the Court to investigate non-cognizable offence are mandatory in nature. The investigation of a non-cognizable offence by the Police without the permission of the Competent Magistrate, in my opinion, is totally illegal and even the learned Magistrate cannot give subsequent permission in order to cure this illegality.

Even if the charge-sheet is filed by the police after due investigation, for a non-cognizable offence it will not cure the defect. The Police Officer cannot put the horse behind the cart, therefore such defect is not curable. When illegality finds on the face of the record, then the question of curing the defect does not arise at all. Once a provision of law is held to be strictly mandatory in nature, the question of the same curable does not arise. Therefore, looking to the above said provision of law, the learned Magistrate cannot take cognizance of non-cognizable offence when the investigation is done by the Police Officer without the permission of the Jurisdictional Magistrate.

The learned Additional State Public Prosecutor drawn my attention to sub-section (2) of Section 155 of Cr.P.C. and submit that even after investigation if the Police Officer files a charge-sheet comprising of only non-cognizable offence, such charge-sheet can be treated as a complaint under Section 2(d) either the Magistrate can refer the matter to the police under Section 202 of Cr.P.C. for inquiry or for further investigation or on treating the said charge-sheet as a complaint, he can take cognizance and issue process against the accused persons. In this background, now let me understand the provision of Section 2(d) of Cr.P.C., which reads as follows:

"2(d) "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--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".

(emphasis supplied)

A specific reference has been made by the learned Additional State Public Prosecutor to the explanation appended to this particular provision. Of course, if the provision is read meaningfully, it discloses that under Section 2(d), a complaint can be made to the Magistrate comprising of the allegations which constitute an offence either a cognizable offence or a non-cognizable offence. But it does not include a Police report. Therefore, Police report is totally excluded from the definition of this particular aspect. But Police report is included in the explanation appended to the said provision. So, if an FIR is lodged comprising of the allegations constituting an offence whether it is cognizable or non-cognizable offence, Magistrate can take the said complaint under Section 2(d) and pass appropriate orders either by means of taking cognizance under Section 190(1)(b) of Cr.P.C. by himself or by referring the matter to the police for investigation under Section 156(3) of Cr.P.C.

The explanation appended to Section 2(d) if it is read meticulously and meaningfully, it gives the meaning that the police report which was excluded under Section 2(d) can be taken into consideration by the Magistrate under the Explanation. Which says that the Police Officer after investigation if he conies to the conclusion that only non-cognizable offence has been committed, then he files a report to the Court. Notwithstanding anything contained in Section 2(d), the Magistrate can take cognizance of such offence or even he can treat that as a complaint under Section 2(d). But the wordings used in this particular provision discloses that the Police Officer must come to the conclusion, that they have come to know the commission of non-cognizable offence only after investigation. The wordings "after investigation" used very intelligently in this particular provision, which imposes responsibility on the Police Officer that he cannot proceed with the investigation if he at the initial stages itself knew that he is investigating only a non-cognizable offence/Perhaps, the wordings after investigation used in the particular explanation for the reason that at the initial stages if the Police Officer is under confusion whether he is investigating the matter comprising of both cognizable and non-cognizable offence as per Section 155(4) of Cr.P.C. and proceeds to investigate the matter and after investigation, if he comes to the conclusion that it is only a non-cognizable offence committed. Then this particular explanation empowers him to file a report, then the Magistrate should not refuse to take cognizance on the ground that the investigation has not been done with the permission of the Magistrate but he can treat that charge-sheet or report of the police as a complaint under Section 2(d). But the same situation is not applicable that the Police Officer even before starting of the investigation of the case on the FIR or in any other information gathered by him discloses that only non-cognizable offence has been committed and he proceeds to investigate into the matter he is debarred from filing any report to the Court and the Magistrate is also debarred from taking any cognizance on the basis of such report nor he has got any justification to refer the matter to the police for investigation under Section 202 of Cr.P.C. Therefore, it is crystal clear from the interpretation of Section 2(d) of Cr.P.C. and explanation appended to it, that the said explanation is only applicable when the Police Officer started the investigation of both cognizable and non-cognizable offences and after the investigation, he found only non-cognizable offences are committed.

If the above said analogy is applied to the present case, FIR lodged before the police discloses that an offence under Sections 504 and 506 appears to have been committed. The registration of the FIR by the jurisdictional police also discloses that they have registered a case under Sections 504 and 506 of IPC. It clearly establishes that Investigating Officer has knowledge that the FIR disclose only non-cognizable offence and it is not the case that he proceeded to investigate the matter on some doubt that some cognizable offence might also have been committed. Such doubt or assumption of the police should be borne out from the record itself. The entire record shows that the Police Officer proceeded to investigate a non-cognizable offence without taking permission of the learned Magistrate as mandated under Section 155(2) of Cr.P.C. Therefore, in my opinion, the entire proceedings i.e., to say the filing of the charge-sheet by the police, taking cognizance by the learned Magistrate, issuing process against the accused, the whole proceedings are vitiated by serious illegality, which is an incurable defect. Therefore, such proceedings are liable to be quashed.

The learned Counsel for the petitioner filed a memo not pressing the petition against respondent. In view of the above said discussions, the following order is passed:

The petition is allowed. Consequently, the entire proceedings in CC No. 9 of 2012 (Crime No. 100 of 2011), pending on the file of the Civil Judge and JMFC, Bilagi are hereby quashed.