Magistrate Can Proceed With Trial If Final Report Finds Only Non-Cognizable Offence After Investigation: Kerala High Court

The Kerala High Court recently held that if a Magistrate forwards a complaint involving both cognizable and non-cognizable offences to the police, and the police investigation reveals only a non-cognizable offence, the Magistrate is legally authorised to proceed with the trial for that offence.

Justice A. Badharudeen reiterated that if a case involves both cognizable and non-cognizable offences, the police can investigate and file a charge sheet for all the offences as per Section 155(4) of CrPC.

"...if the facts reported to the police disclose both cognizable and non-cognizable offences, the police would be acting within the scope of its authority in investigating both the offences as the legal fiction enacted in sub-section (4) [of Section 155] provides that even a noncognizable case shall, in that situation, be treated as cognizable." 

"Since the law is settled in the facts of the given case, though the Magistrate forwarded a complaint involving offences cognizable and non-cognizable in nature to the police and the police files a report finding that non-cognizable offence was committed, the Magistrate is legally empowered to proceed with the trial."

The de facto complainant had lodged a complaint against the petitioner alleging offences under Sections 376 (rape) and 493 (cohabitation deceitfully inducing a belief of lawful marriage) of IPC before the Magistrate. The Magistrate forwarded the complaint to the police for investigation, and the Investigating Officer found that only the offence under Section 493 was made out and that there were no materials to hold the accused liable under Section 376. 

It was argued that the Court cannot take cognizance of the offence punishable under Section 493 of IPC acting on the police report. The petitioner thus approached the High Court seeking to quash the proceedings pending before the Judicial First Class Magistrate Court, Perumbavoor. 

Advocates C.K Suresh and Mansoor B.H for the petitioner argued that since the charge sheet only alleges an offence under Section 493, the Court cannot take cognizance of this offence based on the police report due to the bar under Section 198 IPC. On that ground, it was argued that cognizance was bad in law and as such was liable to be set aside.

On the other hand, Public Prosecutor Sanal P Raj argued that there is no such bar when both cognizable and non-cognizable offences are investigated. Advocates P. Anto Thomas, Babu Cherukara and Jeemon John appeared for the de facto complainant in the matter. 

The Court was thus tasked with determining the legal effect of a final report filed by the police, finding a non-cognizable offence after investigating a case involving both cognizable and non-cognizable offences.

The Judge recalled that Section 198 of CrPC provides that no court shall take cognizance of an offence punishable under Chapter XX of IPC except upon a complaint made by some persons. In this case, the complainant rightly lodged a complaint before the proper court, which forwarded it to the police for investigation, since the complainant alleged the commission of both cognizable and non-cognizable offences.

Further, Section 2(d) clarifies that a report made by a police officer disclosing the commission of a non-cognizable offence after investigation shall be deemed to be a complaint, and the police officer making the report shall be deemed the complainant.

The Court also relied on the Supreme Court decision in State of Orissa v. Sharat Chandra Sahu, which clarifies that if a case involves two or more offences, with at least one being cognizable, the entire case is deemed to be cognizable, even if some offences are non-cognizable as given in Section 155(4). 

Applying the principle to this case, the Court ruled that if the facts reported to the police disclose both cognizable and non-cognizable offences, the police are authorized to investigate and submit a charge sheet for both types of offences.

In the present case, the Magistrate forwarded a complaint involving both types of offences to the police, and the police filed a report finding that a non-cognizable offence was committed. Therefore, the Magistrate was found to be legally empowered to proceed with the trial. 

The petition was accordingly dismissed.

Case Title: Sumesh v. State of Kerala & Anr

Citation: 2023 LiveLaw (Ker) 349

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