'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 S.2(h), or S.190(1)(a) of the Cr.P.C, Justice Thomas said:

"It is clear that when only non-cognizable offences are alleged initially, investigation cannot be commenced without orders from the Magistrate."

Question 2 - Can cognizance be taken when the final report pursuant to an investigation into a non-cognizable offence commenced without orders from the Magistrate reveals a cognizable offence also?

The bench said that in Biju V.G. (Dr.) v. State of Kerala and Another, it has been held that courts must be cautious about the attempts to use the device of incorporating a cognizable offence at the final stage to circumvent the mandate of section 155(2) Cr.P.C., especially when non-cognizable offences alone are alleged before commencing the investigation or registration of the crime.

"In the instant case, the final report revealed the existence of a cognizable offence. The realization that a cognizable offence was committed came to the knowledge only after the FIR for noncognizable offences was registered, and investigation commenced thereon. Such an FIR could not have been registered at all in the first instance. The investigating officer can commence investigation without an order from the Magistrate only if the offences for which the crime has been registered reveal a cognizable offence also," the court said.

The court said if the addition of the cognizable offence was a device to overcome the statutory interdiction, cognisance cannot be taken

Question 3 - Is the final report in the present case liable to be quashed?

The Court observed that the Magistrate had not verified whether the inclusion of a cognizable offence under section 420 was to overcome the restriction under section 155(2) CrPC. The FIR was registered without obtaining orders from the Magistrate and included only non-cognizable offences, it added.

"Therefore the learned Magistrate could not have taken cognizance," said the court.

The Court further, after perusing the final report, said ingredients of section 420 are not at all made out and no material has been adduced during the investigation to justify the incorporation of the said provision.

"In fact, in the statement given by the Divisional Engineer of BSNL, it is stated that there is nothing to show that the accused had cheated either the Reliance Company or the telecom department. No other material has been pointed out as adduced to justify the inclusion of section 420 IPC."

The court said the offence under section 420 IPC was incorporated at the time of filing the final report, only to overcome the interdiction in section 155(2) of CrPC. It further observed that the commencement of investigation without an order of the Magistrate, that too for the offences which are only non-cognizable, has rendered the entire investigation faulty. 

"Further, the ingredients of the offence under section 420 IPC are also not seen made out from the final report. The final report based upon such a faulty investigation is, therefore, an abuse of the process of court," the court said while quashing the proceedings.

Case Title: Haneefa and Ors. v. State of Kerala and Anr.

Citation: 2022 LiveLaw (Ker) 638

Click Here To Read/Download The Order