1. Are the offences punishable under Secs.184 and 185 of the Motor Vehicles Act (for short, "the Act") cognizable or non-cognizable in character?. Could the Magistrate take cognizance of the said offences on a charge sheet submitted by the police following an investigation in violation of Sec.155(2) of the Code of Criminal Procedure (for short, "the Code"). What is the procedure to be followed by the Magistrate when a charge sheet is filed following investigation in violation of Sec.155(2) of the Code?. These questions arise for a decision in this proceeding filed by the petitioner who is the accused in S.T.No.2288 of 2010 of the Court of learned Judicial First Class Magistrate, Kunnamangalam. The Sub Inspector, City Traffic Police, Kozhikode filed charge sheet against petitioner for offences punishable under Secs.184 and 185 of the Act, in Crime No.2720 of 2010. Learned Magistrate took cognizance of the said offences and issued process to the petitioner. Petitioner filed C.M.P.No.5687 of 2010 to stop the proceeding under Sec.258 of the Code contending that investigation conducted by the police in violation of Sec.155(2) of the Code and the cognizance taken are illegal. Learned Magistrate took the view that offences under Secs.184 and 185 of the Act being cognizable in character, permission of the Court is not required for investigation and dismissed the petition. That order is under challenge.

2. A little more facts are necessary for a decisions raised:

On July 13, 2010 at about 10.45p.m the city traffic police party found petitioner driving a motor car along the public road in a manner dangerous to the public and on intercepting the car and checking the breath of petitioner with Breath Analyser it was found that he had consumed liquor (30mg of alcohol in 100ml of blood). The Sub Inspector, City Traffic Police arrested petitioner and subjected him to medical examination. Annexure-A4 is the certificate of drunkenness which stated that petitioner had consumed alcohol but at the time of examination (the same day at 11.35p.m) was not under its influence. The police registered Crime No.2720 of 2010, investigated and submitted a charge sheet based on which learned Magistrate took cognizance and issued process to the petitioner. Learned counsel for petitioner contends that notwithstanding the power for arrest given to the police officer in situations stated under Secs.202 and 203 of the Act, offences under Secs.184 and 185 of the Act continue to be non-cognizable in character as seen from category No.3 in part II of the First Schedule of the Code. Learned counsel has invited my attention to Sec.155(2) of the Code which states that no police officer shall investigate a non-cognizable case without the order of Magistrate having power to try such case or commit the case for trial. According to the learned Public Prosecutor, it is within the power of the police to arrest a person who, in the presence of a police officer has committed offences under secs.184 and/or 185 of the Act and hence those offences are cognizable in character.

3. So far as Sec.184 of the Act is concerned the maximum punishment that could be awarded in any circumstance stated therein is imprisonment up to two years or with fine which may extent to Rs.2,000/- or with both. So far as Sec.185 of the Act is concerned, the maximum punishment in any circumstance referred to therein is imprisonment up to two years or with fine which may extend to Rs.3000/- or with both.

4. When a statute states that a particular act or omission to do an act is an offence, it should declare whether such offence is cognizable or non-cognizable (See for eg; Sec.41A of the Abkari Act). If the statute does not declare whether the offence mentioned therein is cognizable or non-cognizable, reference has to be made to the provisions of the Code. Sec.2 of the code states that in the said Code, unless the context otherwise requires,

"(a) . . . . .

(b) . . . . . . .

(c) "cognizable offe