IMPORTANT POINT
The mandate under Section 155(2) Cr.P.C., (ii) when non-cognizable offences alone are alleged before commencing investigation or registration of crime, the compliance of the requirement under Section 155 Cr.P.C. cannot be avoided, (iii) when both cognizable and non- cognizable offences are alleged, it would fall under Section 155(4) Cr.P.C., wherein the compliance of mandate under Section 155(2)Cr.P.C. is not required, (iv) the mandate under Section 155(2) Cr.P.C. cannot be exercised at the instance of an officer in charge of a police station or the investigating officer.

ORDER :

Crime No.341/2020 of Munnar Police Station was registered against the petitioner for the offence punishable under Section 120(o) of the Kerala Police Act, 2011. He was the admin of the whatsapp group called “Pulikkal” in which he had posted a defamatory statement/messages against the Chief Minister of Kerala and the Minister of Electricity and thereby circulated an undesirable statement among the members of whatsapp group causing nuisance. The FIR so registered is sought to be quashed under Section 482 Cr.P.C. on the ground that there is no compliance of the requirement under Section 155 Cr.P.C..

2. There is no dispute that the offence under Section 120(o) of the Kerala Police Act, 2011 is a non-cognizable offence, hence requires compliance of mandate under Section 155 Cr.P.C. The learned Magistrate has granted sanction invoking the power under Section 155(2)Cr.P.C. at the instance of the investigating officer. The sanction so granted without having an enquiry is also put under challenge.

3. An interesting question came up as to whether it is permissible for the investigating officer to apply and obtain sanction under Section 155(2) Cr.P.C. and what would be the legal position, if it is granted at the instance of the investigating officer.

4. Section 155 Cr.P.C. is extracted below :

“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.

(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.” (emphasis supplied)

5. When an information is given to an officer in charge of a police station regarding commission of a non-cognizable offence within the limits of such police station, the procedure to be adopted is to enter the substance of the information in the general diary kept in the station or in any such book prescribed by the State Government in this behalf. It is not permissible for the police officer to register any crime based on the information regarding commission of a non- cognizable offence, unless coupled with commission of a cognizable offence. Instead of registering a crime with respect to commission of non-cognizable offence, the police officer has to refer the “informant” to the Magistrate in compliance with the mandate under Section 155(1) Cr.P.C.. It is then upto the informant to decide whether he should appear before the Magistrate and submit a written complaint regarding the commission of non-cognizable offence so as to get sanction under Section 155(2) Cr.P.C., in which, the police officer has no role to play. The statutory requirement vested with the police officer is only to refer the “informant” to the Magistrate so as to enable him to apply under Section 155(2) Cr.P.C. to get the crime registered through police. A conjoint reading of sub section (1) and (2) of Section 155 Cr.P.C. would make the legal position clear that it is not permissible to register crime only against non-cognizable offences, without the order of Magistrate having power to try such case or commit the case for trial. It is also not permissible to the police officer to apply for getting sanction under Section 155(2) Cr.P.C. It is the d