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High Court of Karnataka (Circuit Bench At Gulbarga)
THE HONOURABLE MR. JUSTICE SUBHASH B. ADI
Lingaraj
Versus
The State of Karnataka, By M.B. Nagar Police Station, Gulbarga
CRL.P No. 9087 of 2009 A/W Misc. Crl. No. 20326 of 2009
Decided on : 04-11-2009
CODE OF CIVIL PROCEDURE, 1908 - Section 190: [Subhash B. Adi, J] Non-cognizable offence - Police investigation without prior permission of Magistrate under Section 155 of Code and filing charge sheet - Held, Section 2(d) of the Code excludes report of Police and is not complaint within the meaning of Section 2(2) of Code. The Magistrate cannot take cognizance or in exercise of his powers under Section 190 of Criminal Procedure Code and thereafter invoke Section 202 of Criminal Procedure Code and direct Police officer for investigation.
CODE OF CIVIL PROCEDURE, 1908 - Section 482: [Subhash B. Adi, J] Quashing of Proceedings - Offence punishable under Section 127A of Representation of Peoples Act, 1951 - Petitioner was found in possession of election material pertaining to Smajwadi or licence - Police filed charge sheet - Held, Section 2(1)of Cr.P.C. defines "Non-cognizable case", definition is already extracted above. In case non-cognizable offence, the police officer will not have an authority to arrest without warrant and "Warrant-case" is defined under Section 2(x), which means ’an offence punishable with the death, imprisonment for life or imprisonment for a term exceeding two years’, that means, the police office is punishable with imprisonment for more than two years. Admittedly, in this case, the offence alleged against the petitioner is punishable under Section 127-A of the Representation of the People Act, 1950 and it is punishable with simple imprisonment for a term extending upto six months or fine or both. It cannot come within the purview of cognizable offence or a warrant-case - The police report once submitted, the Magistrate either report does not makes out any case for the offence alleged, he may refuse to take cognizance and may order for further investigation - Barring this, there is no other provisions, which confers power on the Magistrate to direct the police officer to re-investigation already made, such a provision being not contemplated under the Code of Criminal Procedure. There is no power vested with the Magistrate to direct re-investigation. Further the Magistrate treating the report of the police in case of non-cognizable offence as complaint is also impermissible in law. As the complaint defined under Section 2(d) excludes the report of the police. However, if the police file report, the learned jurisdictional Magistrate may take cognizance or in exercise of its power under Section 190 of Cr.P.C. The definition of complaint having excluded the police report, it can be said that the Magistrate can treat the police report in case of non-cognizable offence as complaint and thereafter invoke the provisions of Section 202 of Cr.P.C. and direct the Police Officer for investigation, is contrary to the procedure - Hence, if complaint is filed before the Police Officer in respect of non-cognizable offence only option open to the police officer is to seek permission of the Magistrate (jurisdictional) to investigate the matter. It the investigation is done without the permission of the Magistrate under Section 155(2) of Cr.P.C., then the entire investigation made by the Police Officer would be one without jurisdiction and the report cannot be treated as a Complaint nor the Magistrate can invoke the provisions of Section 202 of Cr.P.C., and direct for fresh investigation - In view of the above discussion the filing of the charge sheet by the police against the petitioner being one without jurisdiction is liable to be quashed.
REPRESENTATION OF THE PEOPLE ACT, 1951 - Section 127-A: [Subhash B. Adi, J] Offence under - Allegation that petitioner was found in possession of election material pertaining to Samajwadi Party in two gunny bags - Police investigating and filing charge sheet - Held, Magistrate has no power to direct reinvestigation. Magistrate treating the report of the police in case of non-cognizable offence as complaint is also impermissible in law. As the complaint defined under Section 2(d) excludes the report of the police. However, if the police file report, the jurisdictional Magistrate may take cognizance or in exercise of its power under Section 190 of Cr.P.C. The definition of complaint having excluded the police report, it can be said that the Magistrate can treat the police report in case of non-cognizable offence as complaint and thereafter invoke the provisions of Section 202 of Cr.P.C., and the Police Officer for investigation, is contrary to the procedure.
1. Though this matter is listed for admission today, with consent of the learned counsel for petitioner and the learned HCGP., the same is heard finally and disposed of.
2. Petitioner has sought for quashing the proceedings in crime No,42/2008 registered for the offence punishable U/S. 127(A) of the Representation of the People Act, 1951 (hereinafter referred to as 'the Act’for short) by M.B. Nagar Police which is now pending in C.C. No.2264/2008 on the file of the III Additional Civil Judge (Junior Division) and JMFC, Gulbarga.
3. The PSL, M.B. Nagar Police station, Gulbarga, based on the complaint of one Anil Kumar Garudakar registered as case against the petitioner for the offence punishable U/S. 127 (A) of the Act, wherein the Complainant has alleged that, the petitioner herein was found in possession of election material pertaining to Samawajawadi party in two gunny bags and same was without permission or license. After completion of investigation, the respondent-police has filed charge sheet No.32/2008 against the petitioner, which is now pending for adjudication before the court below in C.C.No.2264/2008.
4. Learned counsel appearing for the petitioner submitted that the offence alleged is U/S. 127 (A) of the Act is a non-cognizable offence, the maximum punishment prescribed for the said offence is imprisonment for a term of six months or fine of Rs.2000/-or both. Section 2(c) of the Code of Criminal Procedure defines, the 'cognizable case' means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant. The 'Non-cognizable case' as defined under Section 2(1) of Cr.P.C, means a case in which, a police officer has no authority to arrest without warrant. Warrant case is defined U/S. 2(x) which means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years.
5. Referring to the above definition, learned Counsel submitted that, the maximum punishment that can be imposed for the offence punishable U/S. 127-A of the Act being simple imprisonment for a term of six months or fine or both, in view of the same the offence being non cognizable offence, the investigation officer is not empowered to investigate the case without the order of a Magistrate as defined U/S. 155(2) of Cr.P.C, as the said provision prohibits the investigation officer from investigating the case of 'non-cognizable case’ without the order of a Magistrate having power to try such case or commit the case for trial. Therefore, there is a blanket bar on the power of the police officer to investigate the case relating to the ‘non-cognizable' offences. In the case on hand, the respondent-police, without seeking the order/permission of a Magistrate having power to try such a case, has investigated and has filed the charge sheet against the petitioner. Therefore, the investigation made by the police officer and subsequent charge sheet filed by him is one without jurisdiction and illegal for not obtaining prior permission from the jurisdictional Magistrate. The learned magistrate, without considering this important aspect of the matter has taken the cognizance of the offence and has issued summons to the petitioner and therefore, the same is liable to be quashed.
6. Per contra, Smt. Anuradha M. Desai, learned Addl., SPP., submitted that in case the police officer has investigated the matter in respect of 'non-cognizable case', the final report submitted by him could be treated as the complaint before the learned Magistrate and the learned Magistrate, if prima facie finds that there is sufficient material to proceed with, can either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit and postpone the issuance of process, in terms of Section 202 of Cr.P.C. She further submitted that, there is no need to quash the proceedings an
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