IMPORTANT POINT
Investigation into non-cognizable offences requires a Magistrate's order; if a case involves cognizable offences, it is treated as cognizable under Section 155 of Cr.P.C.

ORDER :

1. This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973 [hereinafter referred as ‘Cr.P.C.’ for short] challenging Annexure.A7 order dated 30.11.2022 in C.M.P. No. 1713/2021 in C.C. No. 326/2016 on the files of the Judicial First Class Magistrate Court, Piravom, whereby petition under Section 258 of Cr.P.C. was dismissed by the learned Magistrate. The petitioner herein is the accused in the above case.

2. Heard the learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel appearing for the defacto complainant. Perused the relevant materials available.

3. In this matter, initially the FIR was registered alleging commission of offences punishable under Sections 447, 427, 294(b) and 506(i) of IPC by the accused. On investigation, Final Report filed alleging the said offences. Then, the petitioner approached this Court to quash the entire proceedings and as per Annexure.A6 order in Crl. M.C. No. 2308/2017, this Court partly allowed the Crl. M.C. and quashed offences under Sections 447 and 294(b) of IPC, since the same were not made out. At the same time, it is also held that, the petitioner is liable to be proceeded for the offences punishable under Sections 427 and 506(i) of IPC. Thereafter, the petitioner filed C.M.P. No. 1713/2021 in C.C. No. 326/2016 under Section 258 of Cr.P.C. seeking discharge and the same was dismissed by the learned Magistrate relaying on the decision of the Apex Court reported in Keshav Lal Thakur v. State of Bihar, (1996) 11 SCC 557 and also in terms of Section 155 of Cr.P.C.

4. While assailing the impugned order, the learned counsel for the petitioner vehemently argued that, in this matter, as per Annexure.A6 order of this Court in Crl. M.C. No. 2308/2017, this Court quashed cognizable offences and remaining are only non-cognizable offences, for which the trial court could not take cognizance, acting on the Police report, in view of the bar under Section 155(2) of Cr.P.C. Therefore, the petitioner is entitled to get discharge as prayed for, under Section 258 of Cr.P.C. Accordingly, he pressed for interference in the impugned order.

5. The learned counsel for the petitioner placed decision of this Court reported in James Jose v. State of Kerala, 2019 (3) KHC 531 : 2019 (3) KHC 531 : 2019 (3) KLT 415 in support of his contention. In the said decision, this Court considered a case, where non-cognizable offences under Sections 506(1) and 120(o) of the Kerala Police Act were alleged, while registering the FIR, without an order of a Magistrate as provided under Section 155(2) of Cr.P.C. Then, Final Report was filed incorporating offences under Sections 506(1) and 294(b) of IPC as well as under Section 120(o) of the Kerala Police Act. In the said case, this Court held that the investigation of the crime, without permission of the Magistrate was hit under Section 155(2) of Cr.P.C. In fact, on the facts of the said case, the ratio of the above decision is absolutely correct.

6. The learned counsel for the petitioner also placed decision of this Court reported in Haneefa and Others v. State of Kerala and Others, 2022 (7) KHC 584 : 2023 (1) KLJ 118, with reference to paragraph Nos.15, 19 and 20 of the decision. Paragraph Nos. 15, 19 and 20 are as under:

15. Relying upon the above decisions, this Court, in Mehaboob's case (supra), held that in non-cognizable offences, registering an FIR, conducting the investigation, filing a final report, and taking cognizance without obtaining an order from the Magistrate are all illegal. In view of the principles laid down in Keshav Lal Thakur's case (supra) and Mehaboob's case (supra), it is clear that when only non-cognizable offences are alleged initially, investigation cannot be commenced without orders from the Magistrate.

Issue No. (ii) Can cognizance be taken when the final report pursuant to an investigation into a non-cognizable offence commenced without orders from the Magistrate revea