SHO Can Seek Magistrate's Permission U/S 155(2) CrPC To Investigate Non-Cognizable Offence: Karnataka High Court

The Karnataka High Court has made it clear that it is not necessary for only the complainant to approach the Magistrate court under Section 155(2) CrPC seeking permission to investigate a non-cognizable offence, and even a Police Officer to whom the complaint is presented can do so.

A single judge bench of Justice M Nagaprasanna said,

“Permission can either be sought by the complainant or by the Station House Officer. Wherefore, it is not necessary for the informant alone to knock at the doors of the learned Magistrate with a requisition seeking permission for registration of FIR, it could be either the informant or the Station House officer.”

The court made the observation while deciding on a petition filed by one Vijesh Pillai questioning the FIR registered against him under Section 506 of the Indian Penal Code, on the complaint made Swapna Suresh, an accused in the Kerala Gold Smuggling case.

Upon Suresh's complaint at the K.R.Puram Police Station, the SHO sought permission of the Magistrate Court at Bengaluru to register a crime under Section 506 of the IPC, in the light of the fact that Section 506 of the IPC is a non-cognizable offence and permission of the Magistrate would be imperative under Section 155 of the CrPC.

The Magistrate on receipt of requisition permitted the crime to be registered.

Pillai argued that permission granted on a requisition made by the Station House Officer is erroneous as it is the informant who has to go before the Magistrate and seek permission. Further, it was argued that Section 155(2) CrPC permits the Magistrate to grant permission upon 'application of mind'.

At the outset, the High Court took note of judgments passed by the High Courts of Allahabad, Andhra Pradesh and Kerala which held that it can either be the first informant or the police officer who can approach the Magistrate seeking permission to register an FIR on a non-cognizable offence.

On a coalesce of all the judgments, Court held, “It is open to a Police Officer or any complainant to approach the Magistrate under sub-section (2) of Section 155 of the Cr.P.C., to investigate a non-cognizable offence. There is nothing in the section to indicate that the informant alone should seek permission from the Magistrate to commence investigation.”

Referring to the order of the Magistrate court the bench said “I deem it appropriate to quash the order granting such permission and resultant registration of crime and direct the learned Magistrate to pass order afresh upon the requisition made bearing in mind the observations made in the course of the order.”

Case Title: Vijesh Pillai And State of Karnataka & ANR

Case N0: WRIT PETITION No.11186 OF 2023

Citation: 2023 LiveLaw (Kar) 229

Date of Order: 16-06-2023

Appearance: Advocate Satyanarayana Chalke S, for petitioner.

HCGP Mahesh Shetty for R1.

Click Here To Read/Download Order