Investigation Into Non-Cognizable Offences Without Magistrate's Permission Can't Be Regularised By Subsequently Adding Cognizable Offences: J&K High Court

The Jammu and Kashmir and Ladakh High Court has recently ruled that once an FIR is registered for non-cognizable offences, the inclusion of a cognizable offence at a later stage of the investigation could not be used to circumvent the law.

The observations were made by a bench of Justice Sanjay Dhar while hearing a plea in terms of which the petitioner had called into question an FIR for offences under Sections 316(Causing Miscarriage Without Woman's consent), 323(Punishment For Voluntarily Causing Hurt), 109 (Abetment of An Offence) Ranbir Penal Code registered with the Police Station, Rajouri.

The petitioner had challenged the FIR primarily on the ground that all the offences alleged in the impugned FIR are non-cognizable in nature and hence it was not open to the police to register the FIR and undertake the investigation of the case without permission of the Magistrate.

Contesting the plea the respondent-State submitted that after the registration of the impugned FIR, the statements of the witnesses under Section 161 Cr. P.C. was recorded and on the basis of which, offences under Section 498-A RPC (cognizable offence) was added and offence under Section 316 RPC was dropped.

After the considering the rival contents, the bench noted that Section 313, 316 and 323 of RPC, as per the Jammu and Kashmir Code of Criminal Procedure Svt. 1989, are non-cognizable in nature and since the offences alleged to have been committed relate to a period when the J&K CrPC was in force, therefore, in the matter of registration of information and undertaking of investigation, the instant case is to be governed by the provisions contained in Chapter XIV of the J&K CrPC.

Pointing out to the fact that the FIR was indeed registered for non-cognizable offences and that a cognizable offence under Section 498-A of RPC was later included in the investigation, the court said that the same was not contemplated by law and since the basic foundation of the investigation was without the sanction of law, and any investigation undertaken on the strength of the illegal FIR was bound to crumble.

Highlighting the fact that the statements of the witnesses recorded under Section 161 of CrPC during the investigation did not disclose commission of offence under Section 498-A of RPC the court observed that the witnesses examined by the Investigating Agency had only corroborated what had been stated in the impugned FIR and did not disclose commission of offence under Section 498-A RPC.

“In these circumstances, I fail to understand on what basis the Investigating Agency has in its status report concluded that offence under section 498-A RPC is also made out against the accused”, Justice Dhar said.

Deliberating on the course that has to be adopted when illegality with regard to an investigation is pointed out at the threshold the bench said that if the illegality in undertaking the investigation is pointed out at the earliest when the investigation is at its inception, the same cannot be brushed aside as the Investigating Agency as well as the complainant would be free to take appropriate steps for proceeding in accordance with law.

“The FIR was registered on 29.03.2018 and the instant petition has been filed on 17.04.2018 i.e. within one month of lodging of the FIR. In such a situation, the illegality committed by the Investigating Agency in registering and undertaking the investigation cannot be brushed aside and if the same is quashed, no prejudice would be caused to respondent No. 2/complainant, who has the option of filing a private complaint under Section 200 of Cr.P.C. against the petitioner and co-accused”, Justice Dhar reasoned.

In its bid to clarify the law applicable to the instant matter the bench took recourse to a judgment of Kerala High Court in Haneefa vs. State of Kerala, 2022 LiveLaw (Ker) 638 wherein it was held that when only non-cognizable offences are alleged initially, investigation cannot be commenced without orders from the Magistrate and that the incorporation of a cognizable offence at the time of filing a final report could not be utilized as a method or as a device to circumvent the mandate of Section 155(2) of the CrPC by the officer incharge of the police station or any investigating officer.

“For the foregoing discussions, the petition is allowed and the impugned FIR is quashed. However, respondent No. 2 is at liberty to take resort to appropriate remedy as may be available to her under law”, the bench concluded.

Case Title: Nikunj Sharma Vs State of J&K and another

Citation: 2023 LiveLaw(JKL) 70

Petitioner Through Counse:Mr. Abhinav Sharma, Sr. Advocate with Mr. Abhirash Sharma, Advocate

Respondent Through Counsel: Mr. Bhanu Jasrogia, GA, Mr. Aseem Sawhney, Advocate &Mr. Arshad Hussain, Advocate.

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