IMPORTANT POINT
A Magistrate can authorize police investigation into non-cognizable offences upon the application of a police officer, and false communication about a person's death can constitute a nuisance under the Kerala Police Act.

ORDER :

A. Badharudeen, J.

This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure ('Cr.P.C’ for short) by the sole accused in C.C.No.393/2020 on the files of Judicial First Class Magistrate Court-II, Kanjirappally, arising out of Crime No.753/2020 of Manimala Police Station, Kottayam, with the following prayers:

“a) to allow the Criminal Miscellaneous petition and to quash the final report in C.C.No.393/2020 on the files of the Judicial Magistrate First Class Court-II, Kanjirappilly, in F.I.R Number 753/2020 of Manimala Police Station, Kottayam District.

b) Issue any other order as this Honurable Court shall deem fit and proper in the interest of justice and also prayed for during the pendency of the case.”

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the prosecution records and relevant decisions placed by the learned counsel for the petitioner.

3. The precise allegation of the prosecution is that the accused, with intention to defame the defacto complainant, published a false news on 13.06.2020 through “Ente Gramam Manimala”, WhatsApp group, to the effect that the defacto complainant died. The message published in the WhatsApp group is as under:

“evare ariyumo karikatoor government schoolile teacher maranapetu”.

This is the base on which the prosecution alleges commission of offence punishable under Section 120(o) of the Kerala Police Act. While impeaching the final report, the learned counsel for the petitioner raised two grounds. The first ground raised is that since offence under Section 120(o) of the Police Act is a non cognizable, the police cannot take cognizance without the order of a Magistrate. According to the learned counsel for the petitioner, going by Section 155(2) of the Code of Criminal Procedure ('Cr.P.C’ for short hereafter), no police officer shall investigate a non cognizable offence without the order of a Magistrate having power to try such case or commit the case for trial. He has placed decisions of this Court reported in [2020(6) KLT 184], Biju v. State of Kerala and also [2016 (1) KHC 442 : 2016 (1) KLD 246 : 2016 (1) KLT 538 : 2016 (1) KLJ 454 : ILR 2016 (1) Ker. 914 : 2016 CriLJ 1404 : 2016(1) KHC 442], Abhishek Singh (IAS) v. Amit Meena (IAS) & anr.

4. Whereas the learned Public Prosecutor strongly opposed the quashment sought for on the ground that in this case the investigation was carried out as per the order of the Judicial Magistrate and he has relied on order No.1934/2020 dated 16.07.2020 issued by the learned Judicial First Class Magistrate-II, Kanjirappally in this regard.

5. Now the legal questions arise for consideration are:

(i) Is it permissible to sanction order authorising a police officer to investigate a crime involving non-cognizable offence/s by the Judicial Magistrate on the application of a police officer?

(ii) Whether it is mandatory that such order of sanction to be issued by the Magistrate only, on the application of the aggrieved person or the complainant?

(iii) Is it legally correct to hold that the entire investigation and subsequent events thereof are non-est, when investigation was the outcome of an order issued by the Judicial Magistrate under Section 155(2) on the application of a police officer?

6. In this regard, it is apposite to refer a decision of this Court reported in [2016 (3) KLT 309], Anto Joseph v. State of Kerala, and in the said case this Court considered a complaint alleging commission of offence punishable under Section 506 Part I of IPC when the matter was reported to Mangalam Dam Police Station. On receipt of the complaint, the Sub Inspector of Police sought permission of the learned Magistrate and after getting order to investigate, he had registered a crime. In the said case, this Court after referring Section 155 of Cr.P.C observed in paragraph 19 as under:

“19. A reading of sub-section (2) will reveal that upon information given of the commission of a n