Point of Law: S.155(2) Cr.P.C stipulates that when information relates to a case indicative of non-cognizable offences, police officer is interdicted from commencing investigation without an order from Magistrate.

ORDER :

Petitioners are alleged to have conducted a parallel telephone exchange, and on getting information, Crime No.340 of 2005 of Ponnani Police Station was registered against them. After investigation, a final report was filed, which was taken cognizance as C.C. No.9 of 2012 on the files of the Judicial First Class Magistrate's Court, Ponnani.

2. The bone of contention raised by the petitioners in this proceeding under section 482 of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C') is that the offences for which the crime was registered initially were all non-cognizable offences and by virtue of section 154(2) of Cr.P.C, the police could not have commenced the investigation, without an order of the Magistrate. The investigation being illegal from the inception, the final report and the cognizance taken by the Magistrate were all without authority of law.

3. Though the detailed facts of the case are not relevant for disposing of this petition, a reference to the basic allegations are appropriate and are as follows:

On 24.08.2005, an FIR was registered alleging that the accused had, after obtaining a Reliance telephone connection, shifted the telephone to another place along with seven other telephone connections taken in the name of different persons at different places, and conducted a parallel telephone exchange, thereby causing loss to the telephone department. The petitioners were thus alleged to have committed the offences punishable under section 4 and section 20 of the Indian Telegraph Act, 1885 and section 3 and section 6 of the Indian Wireless Telegraphy Act, 1933.

4. Both offences alleged in the FIR are non-cognizable offences. However, without getting any orders from the Magistrate, the police registered the F.I.R. and commenced an investigation. Thereafter, a final report was filed on 31.07.2009, including the offence under section 420 of the Indian Penal Code, 1860 (‘IPC’ for short) also, along with the earlier referred offences. Thus when the final report was filed, apart from the non-cognizable offences, a cognizable offence was also added.

5. On the basis of the contentions raised by the learned counsel for the petitioners, the following issues arise for consideration.

(i) Whether an investigation into non-cognizable offences can be commenced without an order of a Magistrate?

(ii) Can cognizance be taken when the final report pursuant to an investigation into a non-cognizable offence commenced without orders from the Magistrate reveals a cognizable offence also?

(iii) Is the final report in the present case liable to be quashed?

6. I have heard Sri.K.B.Arunkumar, learned counsel for the petitioners and Smt.M.K.Pushpalatha, learned Public Prosecutor for the first respondent.

Issue No.(i) Whether an investigation into non-cognizable offences can be commenced without an order of a Magistrate?

7. Section 155 of the Cr.P.C, which falls under Chapter XII dealing with information to the police and their powers to investigate, reads as follows:

“S.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 th