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2023 Supreme(Online)(KER) 10283
HIGH COURT OF KERALA
BECHU KURIAN THOMAS, J
ANITHA P GEORGE – Appellant
Versus
STATE POLICE CHIEF – Respondent
WP(Crl.) 94 2023
V.PHILIP MATHEWS, ABIYA MARIYAM MATHEW, GIBI.C.GEORGE, ASHISH MATHEW, JOHN JOHNSON, K.KURIEN
Non-cognizable offences require proper reporting to magistrates as mandated by Section 155(2) Cr.P.C., highlighting due process in law enforcement.
Headnote:
Mandamus - Non-Cognizable Offences - Cr.P.C. Section 155(2) - The court elaborated on the procedural requirement for police to inform the magistrate upon receiving information of a non-cognizable offence and emphasized the necessity for corrective actions regarding defect in reporting.
Fact of the Case:
The petitioner sought to direct the police to report a non-cognizable offence related to anonymous accusation. The petitioner contended that the police failed to follow the appropriate legal procedure under Section 155 of the Criminal Procedure Code.
Finding of the Court:
The court found that although the police had entered information in the General Diary, the report lacked necessary details as per the magistrate's instruction. Consequently, the court held that the officer in charge must resubmit the report.
Issues: Whether the police complied with the statutory requirement under Section 155(2) of the Cr.P.C. regarding the report of a non-cognizable offence.
Ratio Decidendi: The court reiterated that orders for investigation can originate from either the complainant or the police officer. A failure to provide complete details must be rectified for due process.
Final Decision: The petition was disposed of directing resubmission of the report by the police.
JUDGMENT
This writ petition seeks for the following reliefs:
I) issue a writ of mandamus or other appropriate writ or order directing the 5th respondent to report the information gathered from the petitioner, which is recorded in the General Diary of Elavaumthitta Police Station as GD No.20- 13-07-2022 in respect of a non-cognizable offence, to the concerned jurisdictional Magistrate under Section 155 (2)
of Cr.P.C.
ii) Pass such other orders which this Hon’ble Court deems just and necessary and that may be prayed for by the petitioner while hearing the W.P.(Crl.).
2. In view of the nature of order that I propose to issue, notice to the 7th respondent is dispensed with.
3. Petitioner was married to one Sri.Wilson, who died allegedly due to coronary heart disease. After the death of her husband, anonymous e-mails were allegedly sent to the Police alleging that petitioner had murdered her husband. According to the petitioner, the e-mail was sent with an intention to tarnish her image and that of her family, in front of the public and that the same amounts to a non-cognizable offence.
4. Sri.V.Philip Mathew and Sri.Gibi C.George, learned Counsel for the petitioner contended that as per Section 155 Cr.P.C, once an information regarding a non-cognizable offence is given to an ofÏcer in charge of a Police Station, he must inform the Magistrate after entering the information in a book and thereafter, proceed to investigate, based upon the order of the Magistrate. It was also submitted that, such a course of action has not been adopted by the Police and therefore, a direction ought to be issued to act in accordance with Cr.P.C.
5. Sri.K.A.Noushad, learned Public Prosecutor, referring to the statement filed on behalf of the respondent submitted that the substance of the information received by the Police was entered in the General Diary, as is evident from Annexure R4(1) and the petitioner was referred to the learned Magistrate and therefore, the Police has acted in accordance with law and nothing further remains to be done in the said case.
6. On a perusal of the documents produced by the respondents, it is noticed that a report was given by the Police to the Judicial First Class Magistrate Court-II, Pathanamthitta about the information received regarding the commission of a non-cognizable offence. The said report filed on 29.06.2022, was however returned on 04.07.2022 by the learned Magistrate to the Sub Inspector of Police, stating that the offence made out from the statement of the witnesses is not seen mentioned.
7. In the decision inAnto Joseph Vs. State of Kerala and others [ 2016 (3) KLT 309 ], this Court had held that the orders for investigation can be obtained from the Magistrate under Section 155 Cr.P.C. either on the motion of the complainant himself or at the instance of the OfÏcer in Charge of a Police Station and that there is no stipulation that the complainant himself must appear before the Magistrate. Relying upon the aforesaid decision, it was contended that since the Sub Inspector of Police has already approached the learned Magistrate seeking an order of investigation, and the same was returned with an endorsement that the provision of the offence allegedly committed had not been stated, it is only essential in the interest of justice that the S.H.O himself resubmits the report, after curing the defects pointed out.
8. On an appreciation of the circumstances of the case, I find force in the submission of the learned Counsel for the petitioner. As observed by this Court in Anto Joseph’s Case (supra) orders for investigation can be obtained either on the motion of the complainant or at the instance of the ofÏcer in charge of the Police Station. In such circumstances, when the ofÏcer in charge of a Police Station himself had approached the learned magistrate with a report regarding the non-cognizable offence, and when the same is returned noticing a defect, it is only appropriate that the OfÏcer himself resubmits the sam
