The mandatory requirements under Section 155(2) Cr.P.C. cannot be circumvented by using the Explanation to Section 2(d) Cr.P.C.

JUDGMENT :

Prayer: This Criminal Original Petition filed under Section 482 Cr.P.C. to call for the records quash the FIR in Crime No.200 of 2019 on the file of the 1st respondent police.

1. This petition has been filed challenging the FIR registered by the respondent police in Crime No.200 of 2019 under Section 102 The Code of Criminal Procedure,1973 (hereinafter referred as ‘Cr.P.C.’).

2. The case of the prosecution is that the petitioner was in possession of a sum of Rs.4,00,500/- and this was seized by the election squad during a routine check. The further case of the prosecution is that the petitioner was not able to give any explanation on the source of the money recovered from him. This seizure was made during the surprise check conducted during elections. Based on the complaint given by the 2nd respondent, an FIR came to be registered under Section 102 Cr.P.C.

3. The learned counsel for the petitioner submitted that the petitioner had explained the concerned officer belonging to the squad that he had borrowed money from one Mr. Murugan for the purpose of construction of a house. The learned counsel further submitted that the petitioner also gave it in writing in a stamp paper. In spite of the same, the respondent police proceeded to register an FIR and the entire money was seized.

4. The learned Additional Public Prosecutor appearing on behalf of the respondent police submitted that since the petitioner was not able to give a convincing answer as to the source of the huge amount of money and the purpose for which he was in possession of the same, the squad which was conducting surprise checks during election had seized the money and a complaint was given by the 2nd respondent, following which an FIR was registered under Section 102 Cr.P.C. The learned Additional Public Prosecutor further submitted that a report was forthwith submitted under Section 102(3) Cr.P.C to the learned Judicial Magistrate-II, Walajapet.

5. The learned Additional Public Prosecutor further submitted that the investigation has been completed and during the course of which, it was found that this money was sought to be used to bribe the voters and therefore a final report has been filed before the learned Judicial Magistrate-II, Walajapet against the petitioner, for an offence under Section 171-E The Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’). The learned Additional Public Prosecutor submitted that the final report was filed on 18.01.2021 in FR.No.49 of 2021 and the same is yet to be taken cognizance by the Court below.

6. When this Court posed a question to the learned Additional Public Prosecutor as to how an investigation for non-cognizable offence was initiated without the permission of the learned Magistrate under Section 155(2) Cr.P.C., and how a final report came to be filed without such permission, the learned Additional Public Prosecutor brought to the notice of this Court the Explanation to Section 2(d) Cr.P.C.

7. For proper appreciation, Section 2(d) Cr.P.C., is extracted hereunder:

2. Definitions

(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report

Explanation—

A report made by a police officer in a case which discloses, after investigation, the commission of a noncognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;

8. The learned Additional Public Prosecutor submitted that if after the completion of the investigation, the materials collected discloses the commission of a non-cognizable offence, the report submitted by the Investigation Officer will be treated as complaint under Section 2(d) Cr.P.C. and the Investigation Officer shall be deemed to be a complainant in that case. The learned Additional Public Prosecutor further submitted that once the Court takes co