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P. Kunhumuhammed Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1981CriLJ356
AppellantP. Kunhumuhammed
RespondentState of Kerala
Cases ReferredCode. In Public Prosecutor v. A.V. Ramiah
Excerpt:
.....law. (6) if these aspects are not brought to the notice of or adverted to by the magistrate at that stage and trial is concluded, the trial cannot be said to be vitiated on account of the defect as the defect in the investigation precedent to trial could be cured by section 465 of the new code, unless failure of justice has been occasioned thereby......three contentions before me, namely, (1) that the offence alleged being a non-cognizable one, the police officer had no authority to investigate the case and lay a charge-sheet and hence the entire proceedings are null and void, (2) that the allegations do not disclose an offence under section 51-a of the kerala police act and, (3) that the records do not show that identity of the offender has been properly established.4. all the decisions cited before me in regard to the first contention arise under the provisions of the code of criminal procedure, 1898, (for short the old code). hence i shall first refer to the revisions of the old code.5. section 4(h) of the old code defined complaint as an allegation made orally or in writing to a magistrate, with a view to his taking action, under.....
Judgment:
ORDER

U.L. Bhat, J.

1. This is a petition filed under Section 482 of the Code of Criminal Procedure to quash the order passed by the Sessions Judge, Tellicherry, in Crl. R.P. No. 14 of 1978 in confirmation of the order passed by the Judicial Magistrate of the II Class Cannanore in Crl. M.P. No. 1978 of 1977 in C.C. No. 1327 of 1977.

2. On 14-8-1977 Susheela, an at tender working in the Government Hospital, Cannanore, presented a petition before the Superintendent of the Hospital alleging that a person who came to the gate threatened and intimidated her and behaved in a disorderly and indecent manner and entered the Hospital etc. The Superintendent held an enquiry and forwarded the petition to the Superintendent of Police who sent it to the concerned police station where a Sub-Inspector of Police registered a case. The Head-Constable investigated the case and ultimately a charge was laid under Section 51-A of the Kerala Police Act against the petitioner. Thereupon petitioner filed Crl. M.P. No. 1970 of 1977 praying for an order of discharge on several grounds. The petition was dismissed by a considered order and the dismissal was affirmed by the Sessions Judge. Intervention is now sought under Section 482 of the Code of Criminal Procedure (for short the Code).

3. Learned counsel for the petitioner urged three contentions before me, namely, (1) that the offence alleged being a non-cognizable one, the Police Officer had no authority to investigate the case and lay a charge-sheet and hence the entire proceedings are null and void, (2) that the allegations do not disclose an offence under Section 51-A of the Kerala Police Act and, (3) that the records do not show that identity of the offender has been properly established.

4. All the decisions cited before me in regard to the first contention arise under the provisions of the Code of Criminal Procedure, 1898, (for short the old Code). Hence I shall first refer to the Revisions of the old Code.

5. Section 4(h) of the old Code defined complaint as an 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 it does not include the report of a police officer. The old Code did not contain definition of a 'police report' or 'report of a police officer'. Section 154 provided for information in cognizable cases, which when received shall be entered in a book maintained in the police station. Section 155, Clause (1) stated that when information is given to a station house officer regarding a non-cognizable offence, he shall enter it in the prescribed book and refer the informant to the Magistrate. Clause (2) stated that no police officer shall investigate a non-cognizable offence without the order of the Magistrate of the I Class or II Class having power to try such case or commit the same for trial, or of a Presidency Magistrate. Clause (3) stated that any police officer receiving such order might exercise the same powers in respect of the investigation as an officer in charge of a police station may exercise in a cognizable case, except the power to arrest without warrant. Section 156(1) provided for investigation into cognizable cases by a station house officer in pursuance of information received under Section 154 of the Code. The third clause of the section empowered any Magistrate empowered under Section 190 to order investigation. Section 173(1) and (2) laid down that every investigation under that Chapter (Chap. XIV) shall be completed without unnecessary delay and on completion, the station house officer shall forward to the concerned Magistrate a report in the prescribed form setting forth the various details contemplated therein. Clause (4) directed the station house officer to furnish the accused the relevant documents mentioned therein. Section 190 of the Code laid down that a competent Magistrate may take cognizance of any offence in three contingencies, namely, (a) upon receiving a complaint of facts constituting an offence, (b) upon a report in writing of such facts made by any police officer and (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed. In this connection, I may also refer to Section 37 of the Kerala Police Act which states that any police officer may lay any information before a Magistrate, and apply for a summons, warrant, search warrant or such other legal process as may by law issue against any person committing an offence.

6. The effect of a police officer investigating a case and laying a report without authority or the jurisdiction to do so, came up for consideration in H. N. Rishbud v. State of Delhi : 1955CriLJ526 . In that case, one of the offences alleged was under Section 5 of the Prevention of Corruption Act. Section 5(4) of the Act lays down that in certain cases a police officer below the rank of a Deputy Superintendent of Police shall not investigate the offence without orders of the I Class Magistrate, In that case, an officer below the required rank investigated the offence without orders of the concerned Magistrate. But the charge-sheet was laid after the order was obtained. This distinction need not detain us since practically the entire investigation was conducted without authority. On the question whether the above injunction was only directory or mandatory, the Supreme Court held as follows:

Having regard therefore to the peremptory language of Sub-section (4) of Section 5 of the Act as well as to the policy apparently underlying it, it is reasonably clear that the said provision must be taken to be mandatory.

Dealing with the effect of contravention of this mandatory provision of law, the Court held as follows:.the investigation conducted in violation thereof bears the stamp of illegality.

Thereupon the Court considered Section 190 of the Code and observed as follows:

No doubt a police report which results from an investigation is provided in Section 190, Cr. P.C. as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190, Cr. P.C. is one out of a group of sections under the heading 'Conditions requisite for initiation of proceedings'. The language of this section is in marked contrast with that of the other sections of the group under the same heading, i.e. Sections 193 and 195 to 199..While no doubt, in one sense, Clauses (a), (b) and (c) of Section 190(1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity, Such an invalid report may still fall either under Clause (a) or (b) of Section 190(1), (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial. To such a situation Section 537, Cr. P.C... is attracted.

If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the court for trial is well settled as appears from the cases in -'Parbhu v. Emperor' AIR 1944 PC 73 : 46 Cri LJ 119 and 'Lumhardar Zutshi v. The King' AIR 1950 PC 26 : 51 Cri LJ 644..We are, therefore, clearly, also, of the opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby.

(emphasis mine)

In dealing with the question as to what should be done when the invalidity in the investigation is brought to the notice of the court sufficiently early, the Court observed as follows:

It does not follow, however, that the invalidity of the investigation is to be completely ignored by the Court during trial. When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such re-investigation as the circumstances of an individual case may call for. Such a course is not altogether outside the contemplation of the scheme of the Code as appears from Section 202 under which a Magistrate taking cognizance on a complaint can order investigation by the police... When the attention of the Court is called to such an illegality at a very early stage it would not be fair to the accused not to obviate the prejudice that may have been caused thereby, by appropriate orders, at that stage but to leave him to the ultimate remedy of waiting till the conclusion of the trial and of discharging the somewhat difficult burden under Section 537, Cr. P.C. of making out that such an error has in fact occasioned a failure of justice.

In our opinion, therefore, when such a breach is brought to the notice of the Court at an early stage of the trial the Court will have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly, and by such officer as it considers appropriate with reference to the requirements of Section 5 of the Act....

(emphasis mine)

7. Even though the above decision was rendered in the context of Section 5(4) of the Prevention of Corruption Act, it appears to me that the conclusions would fully apply to a situation such as the one occurring in this case.

8. The decision in State of Kerala v. Devassy : AIR1958Ker194 relates to a case of a conviction by the first court which was reversed by the appellate court and the matter came up in suo motu revision before the High Court. In that case, there was an investigation by the police officer without an order of the Magistrate and in violation of Section 155(2) of the old Code. The Magistrate took cognizance on the police report. A Division Bench of this Court followed the decision in Rishbud's case : 1955CriLJ526 and held that there was miscarriage of justice and confirmed the acquittal. This decision proceeded on the basis that the illegality pointed out did not per se vitiate the trial.

9. In the case reported in Podan v. State of Kerala 1961 Ker LT 698 : 1962 (1) Cri LJ 339 there was a conviction under Sections 160 and 323, I.P.C., both being non-cognizable offences. The conviction was quashed in revision on the ground that the offences were not made out. The station house officer after recording a complaint conducted regular investigation in violation of Section 155(2) of the old Code without securing an order of the concerned Magistrate. Dealing with this aspect of the case this Court observed as follows:

Section 155(2) expressly prohibits the investigation by the police suo motu of non-cognizable offences. The order of a Magistrate is a condition precedent for investigation into a non-cognizable offence by a police officer. The Sub-Inspector's attempt to explain the situation by saying that he was only enquiring into the offence cannot be accepted.... I can understand police officers of their own accord filing complaints in non-cognizable offences committed in their view on the strength of the enabling provision in the Police Act, but a deliberate disregard of the prohibition under Section 155(2) has only to be deprecated. The provisions of the Criminal Procedure Code are meant to be obeyed and police officers are not allowed deliberately to contravene those provisions, in the hope that the irregularities they commit will be cured under Section 537 of the Code. In this case it cannot be said that the irregularity has not resulted in the failure of justice....

10. In State of Kerala v. Ali Meerankutty : AIR1965Ker59 a Division Bench of this Court had to deal with a case where a station house officer investigated into a non-cognizable offence without securing an order of the concerned Magistrate and laid a final report or charge-sheet. In his absence on the date fixed for trial, the Court dismissed the 'complaint' under Section 247 of the Code, for the non-appearance of the 'complainant'. The Court followed the rationale in Rishbud's case : 1955CriLJ526 and held that the investigation was illegal. It was argued before the Division Bench that the police report in the case could be treated as a complaint under Section 190(1)(a) of the old Code. But it was contended that a police officer in his official capacity cannot file such a complaint. Dealing with this aspect of the case, the Division Bench observed as follows:

We must say, with respect that we cannot persuade ourselves to the view that the Criminal Procedure Code does not envisage a police officer, ever making a complaint in his official capacity. Section 195 and Section 200(a) of the Criminal Procedure Code do contemplate the filing of a complaint by a public servant, which term would include a police officer, acting in his official capacity. Moreover there could be occasions when a police officer may have to file complaints under certain special laws....

(12) For these reasons it appears to us that a report of a police officer on a non-cognizable offence which he was not authorised by a competent Magistrate to investigate, would amount to a complaint under Section 190(1)(a). The provisions in Section 247, Criminal Procedure Code are therefore applicable to such a case....

11. Learned counsel for the petitioner has referred to certain decisions in favor of the position taken by him that the court is wholly incompetent to take cognizance on the basis of a report of a police officer in a non-cognizable case where he had not taken an order under Section 155(2) of the Code. Abdul Halim v. State of West Bengal : AIR1961Cal257 , a decision of a single Judge, did not take into consideration the decision of the Supreme Court in Rishbud's case : 1955CriLJ526 and with due respect, cannot be treated as enunciating good law. In Subodh Singh v. State 1974 Cri LJ 185 a single Judge of the Calcutta High Court held that if an objection regarding illegality is raised sufficiently early, it cannot be treated as a curable irregularity under Section 537 of the old Code and the complaint had to be thrown out on account of non-conformity with procedure established by law. This decision also does not refer to the decision of the Supreme Court in Rishbud's case : 1955CriLJ526 . With due respect, I am unable to follow this line of thinking also. In Shyama Prasanna v. State 1976 Cri LJ 1517, a Division Bench of the Calcutta High Court held that where a police officer investigates a complaint in a non-cognizable case without the order of the Magistrate and submits a complaint to the Magistrate, he does not do so in his capacity as a police officer but only as a private person and therefore his examination under Section 200 was mandatory. This decision also, with due respect, does not appear to be correct in view of the dictum in Rishbud's case : 1955CriLJ526 and in view of the dictum laid down by the Division Benches of this Court in the cases already referred to above.

12. The decision in Mallikharjuna Prasadarao v. Emperor 1933 Mad WN 876 held that the report of a police officer after investigation into a non-cognizable case without the order of a Magistrate can only be treated as a complaint under Section 190(1)(a) of the old Code and is not to be equated to a police report excluded from the definition of complaint under Section 4(1)(h) of the Code. In Public Prosecutor v. A.V. Ramiah AIR 1958 Andh Pra 392 : 1958 Cri LJ 737 a Division Bench of the High Court including Subba Rao, C.J. as he then was, held that a charge-sheet laid in a non-cognizable case after due investigation without the order of a Magistrate is to be treated only as a complaint. With due respect, these decisions appear to be in conformity with the dictum laid down by the Supreme Court in Rishbud's case : 1955CriLJ526 .

13. Section 190 of the old Code contemplated cognizance being taken in three contingencies, namely, on receiving a complaint, upon a report of the police officer and upon information received from any person other than a police officer or upon the knowledge or suspicion of himself. In addition, one could also refer to Section 37 of the Kerala Police Act which contemplates a police officer laying information before a Magistrate. Section 190 Clause (1)(b) could only refer to report of a police officer under Section 173 of the old Code. The report under Section 173 of the Code could follow either investigation by a competent police officer into a cognizable offence or investigation by a competent police officer into a non-cognizable offence made under orders of the Magistrate as contemplated by Section 155(2) of the old Code. Such a report is taken out of the category of a complaint under Section 4(1)(h) of the old Code. But a report of the police officer followed by investigation into a non-cognizable offence made without the order of a Magistrate cannot be treated as a valid report of a police officer for the purposes of Section 173 or Section 190(1)(b) of the old Code. However, it can be treated as a complaint for the purposes of Section 190(1)(a) of the old Code. Though it can be treated as a complaint, it does not mean that it is a complaint by a private individual. It must be treated as a complaint by a public servant for the purposes of Section 200 Clause (aa) of the old Code. Treating it as a complaint, it is open to a Magistrate to take cognizance under Section 190(1)(a) of the old Code. At the same time, as pointed out in Rishbud's case : 1955CriLJ526 , it is open to the Magistrate to order fresh investigation under Section 202 of the old Code, to obviate any prejudice to the accused. Depending on the facts and circumstances of a particular case, it is also open to the Magistrate to decline to take cognizance, Thus, under the old Code, in a case where a station house officer without orders of a competent Magistrate conducts investigation into a non-cognizable offence and submits a report or charge-sheet, it is open to the Magistrate to follow one of the three following courses:(1) treating the report of the police officer as a complaint and take cognizance under Section 190(1)(a) of the old Code, (2) to rectify the defect and obviate prejudice to the accused by ordering investigation under Section 202 of the Code or, (3) decline to take cognizance of the offence. Where, however, without objection, the case is allowed to proceed to trial and ends in a conviction, the illegality in investigation in view of Section 537 of the old Code cannot per se vitiate the trial. In such a case, the accused could be acquitted only if prejudice or miscarriage of justice has been established.

14. Have these propositions been in any way changed under the new Code? I may mention that Sections 154, 155, 156, 173 and 190 of the new Code are practically the same as the corresponding provisions of the old Code, except that Section 190(1)(b) refers to a 'police report' and not o 'report of a police officer'. While the old Code did not define a 'police report' or a 'report of a police officer', Section 2(r) of the new Code defines a police report as a report forwarded by a police officer to a Magistrate under Sub-section (2) of Section 173. Section 2(d) of the new Code defines a 'complaint' in the same manner as in the old Code except that it excludes a 'police report' instead of excluding a 'report (if a police officer' as in the old Code. In addition, an Explanation has been added to the definition of 'complaint' which states that a report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable 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. It appears to me that this Explanation has been very carefully worded taking into consideration the judicial precedents under the old Code.

15. It is made clear under the new Code that the police report, that is a report under Section 173(2) of the new Code cannot be treated as a complaint. The decisions referred to above arising under the old Code, made it clear that the report of a police officer in a non-cognizable offence following any investigation made without an order of the Magistrate can be treated as a complaint for the purposes of Section 190(1)(a) and Section 4(1)(h) of the old Code. This position can no longer continue to the same extent and in the same manner under the new Code. That is because of the restricted scope of the Explanation to Section 2(d) of the new Code. If the Legislature wanted to follow the judicial precedents under the old Code, the Explanation could merely have stated that the report made by a police officer in a case relating to commission of a non-cognizable offence shall be deemed to be a complaint. Instead, the Explanation states that the report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint. In other words, it is clear that a case where commission of a non-cognizable offence alone (is alleged or disclosed) at the commencement of the investigation cannot and does not fall within the scope of the Explanation. The Explanation takes within its scope only a case at the beginning of the investigation of which commission of a cognizable offence is alleged or disclosed or where it is doubtful if it relates to commission of a cognizable offence or a non-cognizable offence and investigation discloses only the commission of a non-cognizable offence. Other categories are excluded from the purview of the Explanation.

16. It is therefore clear that there is only minor change introduced by the provisions of the new Code. A consideration of the judicial precedents referred to above in the light of the changes made in the new Code, would suggest the following propositions as being applicable under the new Code. (1) Section 155(2) of the new Code prohibits investigation by a police officer into a non-cognizable offence without the order of a Magistrate. A violation of this provision would stamp the investigation with illegality. (2) This defect in the investigation can be obviated and prejudice to the accused avoided by the Magistrate ordering investigation under Section 202 of the Code. (3) The report of a police officer following an investigation contrary to Section 155(2) could be treated as a complaint under Section 2(d) and Section 190(1)(a) of the Code if at the commencement of the investigation the police officer is led to believe that the case involved commission of a cognizable offence or if there is doubt about it and investigation establishes only commission of a non-cognizable offence. (4) If at the commencement of the investigation it is apparent that the case involved only commission of a non-cognizable offence, the report followed by investigation cannot be treated as a complaint under Section 2(h) or Section 190(1)(a) of the Code. (5) Whenever a report of a police officer relating to a non-cognizable offence is brought to the notice of a Magistrate he has to look into the matter and apply his judicial mind and find out whether, (a) it is a case where reinvestigation has to be ordered under Section 202 of the Code, or (b) whether it could be treated as a complaint under Section 2(h) and Section 190(1)(a) of the Code and ii so cognizance could be taken, (c) or whether it is a case where the report cannot be treated as a complaint under Section 2(h) and Section 190(1)(a) of the Code or, (d) it is a fit case for taking cognizance taking into consideration all the attendant circumstances. (6) If these aspects are not brought to the notice of or adverted to by the Magistrate at that stage and trial is concluded, the trial cannot be said to be vitiated on account of the defect as the defect in the investigation precedent to trial could be cured by Section 465 of the new Code, unless failure of justice has been occasioned thereby.

17. In the present case, at the stage of taking cognizance, the learned Magistrate did not apply his judicial mind to these questions involved in this case and now discussed by me. He has taken cognizance without considering any of these questions and when this matter was brought to his notice later, he rejected the contentions and this order has been approved by the learned Sessions Judge. Both the courts have seriously erred in proceeding as they did. The orders passed by them and the cognizance taken by the Magistrate are hereby quashed.

18. On receipt of a copy of the order in this case the learned Magistrate will proceed to apply his judicial mind to the matter and take an appropriate decision choosing one of the alternatives indicated above. I am not very much impressed by the two other contentions raised at the Bar by the learned Counsel for the petitioner that the report of the police officer does not disclose an offences as what is attributed by the revision petitioner is only uttering of words and that there is doubt regarding identity of the offender. These are matters which have to be considered by the Magistrate and not by this Court which is called upon to exercise its discretion under Section 482 of the Code of Criminal Procedure, In the result, the proceedings in C.C. No. 1327 of 1977 on the file of the Judicial II Class Magistrate, Carnivore, are quashed, subject to the directions given above.


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