IMPORTANT POINT
Police cannot investigate non-cognizable offences without a Magistrate's order, ensuring judicial oversight in such matters.

ORDER :

A. Badharudeen, J.

This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, to quash Annexure II Final Report and all further proceedings in C.P.No.8/2024 on the files of the Judicial First Class Magistrate Court-I, Alappuzha, arose out of Crime No.1638/2023 of Alapuzha North Police Station. The petitioner herein is the sole accused in the above case.

2. Heard the learned counsel for the petitioner, the learned counsel for the defacto complainant and the learned Public Prosecutor in detail. Perused the prosecution records, including the decisions cited by the learned counsel for the petitioner.

3. The prosecution case is that on 04.11.2023, when the defacto complainant appeared in person at the District Court in Alappuzha to give evidence in a case relating to Ambalapuzha police station, the accused, who introduced himself as the clerk of one Ambika Madam, threatened the defacto complainant that he had the video clips and photos of the defacto complainant and he had seen the same. Therefore, she would lose the case and thereby pressurized her to change her statement which she had given against the accused in the said case. In this matter, FIR was registered by the police, alleging commission of offences punishable under Section 195A and 506 of the Indian Penal Code (hereinafter referred to as ‘IPC’ for short). Thereafter, the matter was investigated and filed final report, incorporating offences punishable under Sections 341, 195A and 506 of IPC.

4. The main contention at the instance of the learned counsel for the petitioner is that the investigation is defective ab initio since police has no right to investigate non-cognizable offence/s without the order of the Magistrate, having power to try such case or commit the case for trial. The learned counsel for the petitioner placed decisions of this Court in Haneefa v. State of Kerala reported in 2022 (6) KLT OnLine 1064, where this Court considered the impact of Section 155(2) of Cr.P.C. wherein this Court held as under:

“8. The statute through S.155(2) Cr.P.C stipulates that when information relates to a case indicative of non-cognizable offences, the police officer is interdicted from commencing the investigation without an order from the Magistrate. The statute also mandates that such orders must be obtained from the Magistrate having the power to try the case or commit such a case for trial. The terms ‘non-cognizable offence’ and ‘non-cognizable case’ are defined in Section 2(l) of Cr.P.C as an offence and as a case in which a police officer has no authority to arrest without a warrant.

9. Section 155(2) of Cr.P.C prohibits not only an investigation but even the commencement of an investigation by the police without orders from the Magistrate concerned in cases where only noncognizable offences are alleged. The legislative intent of categorising offences into cognizable and non-cognizable with a fetter placed on the police officer from commencing an investigation into a noncognizable offence without orders from the Magistrate has a purpose. The emphatic negative language employed in the section indicates that the legislative mandate cannot be disobeyed or ignored.

10. The requirement of an order of the Magistrate to commence an investigation into a non- cognizable offence is a fundamental requirement. It goes to the root of the jurisdiction of the investigating officer to commence the investigation. When there is an inherent lack of jurisdiction, it is not a mere irregularity but is an illegality. The situation would have been different if, amongst various non- cognizable offences, there was atleast one cognizable offence. If one of the offences for which the FIR is registered is a cognizable offence, then in view of section 154(4) Cr.P.C, the police can investigate without an order from the Magistrate.”

5. Another decision of this Court in Suni @ Sunil v. State of Kerala, reported in 2023 (3) KHC 57 also has been pressed into, wher