Madras High Court
Arumugam vs State Represented By on 13 June, 2023
Crl OP No.6609/2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.06.2023
CORAM :
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
Criminal Original Petition No.6609 of 2021
and
Crl. M.P. Nos. 4381 and 4382 of 2021
Arumugam ... Petitioner
Versus
1.State Represented by,
The Inspector of Police,
Kalapet Police Station,
Puducherry District.
(Crime No.48/2018)
2.Rani ... Respondents
PRAYER : Criminal Original Petition filed under Section 482 of the
Criminal Procedure Code seeking to call for the records in S.T.C.No.844
of 2019 pending on the file of the learned Judicial Magistrate No.II,
Puducherry District and quash the same.
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1/10
Crl OP No.6609/2021
For Petitioner : M/s. Swami Subramanian
For Respondent : Mr. K.S.Mohan Das
Public Prosecutor (Puducherry)
for R1.
Mr. S.Xavier Felix for R2
ORDER
The petition is to quash the proceedings in STC.No.811 of 2010
initiated for the alleged offence under Section 320 IPC.
2. Mr. Swami Subramanian, the learned counsel for the petitioner,
submitted that the first respondent has no jurisdiction to investigate and
file a final report in respect of the offence alleged in the final report as it is
a non-cognizable offence; that the procedure prescribed for investigating
non-cognizable offences has not been followed in the instant case; that
the first respondent ought to have referred the informant to the learned
Magistrate and thereafter, can investigate the said offence on the orders of
the learned Magistrate; that however, in the instant case, the first
respondent, on receipt of the complaint, sought permission from the
learned Magistrate to investigate this offence and such a procedure is not
contemplated under the Criminal Procedure Code. He relied upon the
Judgements of this Court in A. Balakrishna vs. The Inspector of Police
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Crl OP No.6609/2021
in Crl.O.P.No.8662 of 2020 dated 28.09.2020 and Karnataka High
Court in (i) Sri Lokesh T R @ Loki vs. State of Karnataka and
(ii) Charan Kumar vs. The State of Karnataka in support of his
submission that Section 155 (1) (2) Cr.P.C., mandates that the
officer-in-charge of the Police Station has to refer the informant and not
the information alone to the learned Magistrate, and hence, he prayed for
quashing of the proceedings against the petitioner.
3. Mr.K.S.Mohan Das, the learned Public Prosecutor (Puducherry)
for the first respondent and Mr.S.Xavier Felix, the learned counsel for
defacto complainant/second respondent, submitted that since the first
respondent has obtained permission from the learned Magistrate, there is
no illegality in the first respondent filing the final report for the
non-cognizable offence. Hence, they prayed for the dismissal of the quash
petition.
4. This Court finds that the impugned final report has been filed
for the offence under Section 323 IPC. The said offence is a
non-cognizable offence. In the instant case, on receipt of the complaint,
it appears that the first respondent had sought permission from the
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Crl OP No.6609/2021
learned Magistrate to register an FIR and investigate. However, this Court
finds that Section 155 Cr.P.C provides for a different procedure which
has not been followed. Section 155 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.
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Crl OP No.6609/2021
(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.''
5. Section 155 (1) of Cr.P.C makes it very clear that where
information is received by an officer-in-charge of a Police station
regarding the commission of a non-cognizable offence, he/she shall refer
the informant to the learned Magistrate. There is a difference between
referring the informant to the learned Magistrate and seeking permission
from the learned Magistrate directly by the Investigating Officer.
The Legislative mandate has to be followed scrupulously. This Court in
similar circumstances, had held in A. Balarkrishnan vs. The Inspector
of Police dated 28.09.2020 that officer-in-charge of Police Station has to
refer the informant to the learned Magistrate and not just the information.
The relevant portion is extracted herein for better understanding:
“9. In the above judgment the Section 155(i) and
(ii) of Cr.P.C., clearly mandates that the Officer-in-
Charge of the police station has to refer the informant
and not the information alone to the Magistrate
concerned. In the case on hand, neither the information
regarding the commission of non-cognizable offence
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Crl OP No.6609/2021
recorded in the register as mandated by the above said
provision nor informant was referred to the concerned
Magistrate. It is clear violation of the provision of
Section 155 (i) and (ii) of Cr.P.C. Therefore, the FIR
impugned in this petition cannot be sustained and it is
liable to be quashed.”
6. The reading of Section 155(1) of Cr.P.C., would make it very
clear that the Court mandates the Police Officer to refer the informant to
the learned Magistrate. The reason is not far to seek.
The learned Magistrate may, on such reference, either take the complaint
on file or pass an order directing the Police to investigate the case.
The Police officer cannot seek permission or an order from the learned
Magistrate without referring the informant to the learned Magistrate.
Therefore, the procedure adopted by the Police in seeking
permission/order from the learned Magistrate to investigate
non-cognizable offences without referring the informant and the orders
passed by the learned Magistrate on such requests are against the
provisions of the code. The procedure can be summarised as follows:
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Crl OP No.6609/2021
(a) If the Police officer-in-charge of Police Station receives a
complaint relating to non-cognizable offences, he/she shall refer the
informant to the Magistrate. It is needless to say that the learned
Magistrate can either take the complaint on file or direct an investigation
by the Police.
(b) Section 155(2) Cr.P.C., provides that an order has to be passed
by the learned Magistrate directing the Police to investigate and not mere
permission. Hence, the learned Magistrate has to pass an order
supported by reasons for allowing the Police to investigate.
Cryptic orders such as ''permitted'' would not satisfy the provisions of the
code.
(c) The learned Magistrate shall not pass an order on an
application by the Police for investigating non-cognizable offences
without the informant being referred to him/her.
7. Any investigation conducted in respect of the non-cognizable
offences without following the aforesaid procedure would render the final
report illegal. The final report would be illegal even if ultimately the
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Crl OP No.6609/2021
Police unearthed a cognizable offence during the course of the
investigation as the registration of the FIR and initial investigation would
be contrary to the procedure. (This view is also has been taken by the
Kerala High Court in Haneefa Vs. State of Kerala reported in 2022
LiveLaw (Ker) 638.
8. Therefore, this Court is of the view that admittedly since the first
respondent has violated the said procedure, the impugned final report is
liable to be quashed. Hence, the Criminal Original Petition is allowed.
Consequently, the connected Miscellaneous Petitions are closed.
13.06.2023
dk
Index: Yes/No
Speaking Order / Non-Speaking Order
Neutral Citation: Yes / No
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Crl OP No.6609/2021
To
1. The Judicial Magistrate No.II,
Puducherry District
2.The The Inspector of Police,
Kalapet Police Station,
Puducherry District.
3.The Public Prosecutor,
High Court of Madras,
Chennai.
SUNDER MOHAN, J
https://www.mhc.tn.gov.in/judis
Crl OP No.6609/2021
dk
Criminal Original Petition No.6609 of 2021
and
Crl.M.P. Nos.4381 and 4382 of 2021
Dated: 13.06.2023
https://www.mhc.tn.gov.in/judis
