Case Note & Summary
The litigation arose from a criminal case registered against the appellant, Keshav Lal Thakur, under Section 31 of the Representation of the People Act, 1950 at Thakur Gangti Police Station on a report lodged by Jnanerdra Parchchya, Anu Mandal Padadhikari, Godda. The police investigated the matter and submitted a final report seeking discharge of the appellant on the ground that the offence was non-cognizable. Despite this report, the Chief Judicial Magistrate, Godda took cognizance of the offence, holding that a prima facie case was made out against the appellant. Aggrieved by the cognizance, the appellant filed a petition under Section 482 of the Code of Criminal Procedure, 1973 before the Patna High Court, contending that the cognizance was barred by limitation under Section 468 Cr.P.C. The High Court dismissed the petition, holding that under Section 473 Cr.P.C. cognizance could be taken beyond the period of limitation. The appellant then approached the Supreme Court by special leave. Before the Supreme Court, the appellant contended that the police had no jurisdiction to investigate a non-cognizable offence without an order from a Magistrate under Section 155(2) Cr.P.C., and that the Chief Judicial Magistrate could not take cognizance on the basis of a police report submitted after such unauthorized investigation. The State/Prosecution did not produce any order under Section 155(2) Cr.P.C. and sought to justify the cognizance on the basis of the police report, possibly relying on the proviso to Section 2(d) Cr.P.C. The Supreme Court did not decide the question of limitation, as the High Court had, because it found that the entire proceeding was vitiated by lack of jurisdiction in the investigation and cognizance. The Court noted that the offence under Section 31 of the Representation of the People Act, 1950 is non-cognizable. Therefore, the police could not have registered a case for such an offence under Section 154 Cr.P.C. Although the police is entitled to investigate a non-cognizable offence pursuant to an order of a competent Magistrate under Section 155(2) Cr.P.C., no such order was passed in the instant case. Consequently, the police could neither investigate the offence nor submit a report on which the question of taking cognizance could have arisen. The Court further observed that while the proviso to Section 2(d) Cr.P.C. permits a police officer to submit, after investigation, a report relating to a non-cognizable offence which is to be treated as a complaint, that explanation was not available to the prosecution in this case. That proviso applies only where the police initiates investigation into a cognizable offence and ultimately finds that only a non-cognizable offence has been made out, unlike the present case where the investigation was initiated for a non-cognizable offence from the outset. Accordingly, the Supreme Court allowed the appeal and quashed the impugned proceedings, holding that neither the police was entitled to investigate into the offence in question nor the Chief Judicial Magistrate to take cognizance upon the report submitted on completion of such investigation.
Headnote
A) Criminal Procedure - Investigation of Non-Cognizable Offences - Police Power and Jurisdiction - Code of Criminal Procedure, 1973, Sections 154, 155(2), 2(d) - An offence under Section 31 of Representation of the People Act, 1950 is non-cognizable; police cannot register an FIR under Section 154 Cr.P.C. nor investigate without an order of Magistrate under Section 155(2) Cr.P.C. In the present case the police admittedly did not obtain such order, yet submitted a final report. The proviso to Section 2(d) Cr.P.C. did not apply because the investigation was not initiated for a cognizable offence. The Supreme Court held that the Magistrate could not take cognizance upon such an invalid police report and quashed the proceedings. (Paras 1-2) B) Criminal Procedure - Cognizance and Limitation - Effect of Invalid Investigation on Cognizance - Code of Criminal Procedure, 1973, Sections 468, 473, 482 - The High Court had addressed limitation under Sections 468 and 473 Cr.P.C. but the Supreme Court did not decide that issue; instead it found the entire proceeding invalid due to lack of jurisdiction of police to investigate and of Magistrate to take cognizance, making limitation immaterial. The impugned proceeding was quashed under Section 482 Cr.P.C. as an abuse of process. (Paras 1-2)
Issue of Consideration
Whether police could register and investigate a non-cognizable offence under Section 31 of Representation of the People Act, 1950 without an order under Section 155(2) Cr.P.C.; Whether the Chief Judicial Magistrate could take cognizance on the police report submitted after such unauthorized investigation; Whether the proviso to Section 2(d) Cr.P.C. applies to treat the police report as a complaint in the facts of the case.
Final Decision
Appeal allowed; impugned proceedings quashed; held that neither police was entitled to investigate into the non-cognizable offence nor Chief Judicial Magistrate to take cognizance upon the report submitted on completion of such investigation.
Law Points
- Police cannot register FIR under Section 154 Cr.P.C. for non-cognizable offence
- police cannot investigate non-cognizable offence without order under Section 155(2) Cr.P.C.
- report after unauthorized investigation cannot be basis for cognizance
- proviso to Section 2(d) Cr.P.C. applies only when investigation initially for cognizable offence
- non-cognizable offence under Section 31 of Representation of People Act
- 1950
