IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 30TH MARCH 2011 / 9TH CHAITHRA 1933 Crl.MC.No. 702 of 2011() ------------------------ CMP.5687/2010 of JUDL. MAGISTRATE OF FIRST CLASS, KUNNAMANGALAM .................... PETITIONER/PETITIONER/ACCUSED --------------------------------- MEHABOOB, AGED 43 YEARS, S/O. KOYA MOIDEEN, PARAKKAL HOUSE, CHERUVADY P.O. BY ADV. SRI.NIRMAL. S RESPONDENT/RESPONDENT/COMPLAINANT ------------------------------------- THE STATE, REP. BY THE SUB INSPECTOR OF POLICE, CITY TRAFFIC POLICE STATION., KOZHIKODE PUBLIC PROSECUTOR : ADV SRI. K J MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: 'CR' THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.702 of 2011 --------------------------------------- Dated this 30th day of March, 2011 ORDER Are the offences punishable under Secs.184 and 185 of the Motor Vehicles Act (for short, "the Act”) cognizable or non- cognizable in character?. Could the Magistrate take cognizance of the said offences on a charge sheet submitted by the police following an investigation in violation of Sec.155(2) of the Code of Criminal Procedure (for short, "the Code”). What is the procedure to be followed by the Magistrate when a charge sheet is filed following investigation in violation of Sec.155(2) of the Code?. These questions arise for a decision in this proceeding filed by the petitioner who is the accused in S.T.No.2288 of 2010 of the Court of learned Judicial First Class Magistrate, Kunnamangalam. The Sub Inspector, City Traffic Police, Kozhikode filed charge sheet against petitioner for offences punishable under Secs.184 and 185 of the Act, in Crime No.2720 of 2010. Learned Magistrate took cognizance of the said offences and issued process to the petitioner. Petitioner filed C.M.P.No.5687 of 2010 to stop the proceeding under Crl.M.C.No.702 of 2011 -: 2 :- Sec.258 of the Code contending that investigation conducted by the police in violation of Sec.155(2) of the Code and the cognizance taken are illegal. Learned Magistrate took the view that offences under Secs.184 and 185 of the Act being cognizable in character, permission of the Court is not required for investigation and dismissed the petition. That order is under challenge. 2. A little more facts are necessary for a decisions raised: On July 13, 2010 at about 10.45p.m the city traffic police party found petitioner driving a motor car along the public road in a manner dangerous to the public and on intercepting the car and checking the breath of petitioner with Breath Analyser it was found that he had consumed liquor (30mg of alcohol in 100ml of blood). The Sub Inspector, City Traffic Police arrested petitioner and subjected him to medical examination. Annexure-A4 is the certificate of drunkenness which stated that petitioner had consumed alcohol but at the time of examination (the same day at 11.35p.m) was not under its influence. The police registered Crime No.2720 of 2010, investigated and submitted a charge sheet based on which learned Magistrate took cognizance and issued process to the petitioner. Learned counsel for petitioner Crl.M.C.No.702 of 2011 -: 3 :- contends that notwithstanding the power for arrest given to the police officer in situations stated under Secs.202 and 203 of the Act, offences under Secs.184 and 185 of the Act continue to be non-cognizable in character as seen from category No.3 in part II of the First Schedule of the Code. Learned counsel has invited my attention to Sec.155(2) of the Code which states that no police officer shall investigate a non-cognizable case without the order of Magistrate having power to try such case or commit the case for trial. According to the learned Public Prosecutor, it is within the power of the police to arrest a person who, in the presence of a police officer has committed offences under secs.184 and/or 185 of the Act and hence those offences are cognizable in character. 3. So far as Sec.184 of the Act is concerned the maximum punishment that could be awarded in any circumstance stated therein is imprisonment up to two years or with fine which may extent to `.2,000/- or with both. So far as Sec.185 of the Act is concerned, the maximum punishment in any circumstance referred to therein is imprisonment up to two years or with fine which may extend to `.3000/- or with both. 4. When a statute states that a particular act or omission to do an act is an offence, it should declare whether such offence Crl.M.C.No.702 of 2011 -: 4 :- is cognizable or non-cognizable (See for eg; Sec.41A of the Abkari Act). If the statute does not declare whether the offence mentioned therein is cognizable or non-cognizable, reference has to be made to the provisions of the Code. Sec.2 of the code states that in the said Code, unless the context otherwise requires, “(a) . . . . . (b) . . . . . . . (c) “cognizable offence” means an offence for which, and “cognizable case” means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant.” I stated that the Act is silent whether offences punishable under Secs.184 and 185 are cognizable or non-cognizable. Part II of the First Schedule of the Code deals with classification of offences against other laws and category No.3 states that if the offence is punishable with imprisonment for less than three years or with fine only, such offence is non-cognizable and bailable in character. I stated a little above that the maximum imprisonment that could be awarded under any circumstance mentioned in Secs.184 or 185 of the Act is only up to two years. The Delhi High Court in Narain Singh Vs. The State (1986(1) Crimes Crl.M.C.No.702 of 2011 -: 5 :- 535 at page 537) has said that an offence under any law other than the Indian Penal Code would be non-cognizable in character if it is punishable with imprisonment for less than three years or with fine only. Offences under Secs.184 and 185 of the Act must come under the third category of cases mentioned in Part II of the First Schedule of the Code, ie punishable with imprisonment for less than three years and hence non-cognizable and bailable in character. 5. No doubt, Sec.202 of the Act empowers a police officer in uniform to arrest without warrant any person who in his presence commits an offence punishable under Secs.184, 185 (or Sec.197) of the said Act. The proviso thereto says that any person so arrested in connection with an offence punishable under Sec.185 shall within two hours of his arrest be subjected to a medical examination as referred to in Secs.203 or 204 by a registered medical practitioner, “failing which he shall be released from custody”. Subsec.(2) of Sec.202 empowers a police officer in uniform to arrest without warrant any person who has committed an offence under the Act, “if such person refuses to give his name and address”. Crl.M.C.No.702 of 2011 -: 6 :- Sec.203(3) of the Act also empowers a police officer to arrest such person without a warrant if the breath test indicates the presence of alcohol in his blood unless that person is at a hospital as an indoor patient. 6. But Secs.202 and 203 of the Act do not give uncontrolled power to the police officer to arrest a person who has committed offences punishable under Secs.184, 185 or 197 of the Act. Under Sec.202, the power to arrest without warrant is available only if the offence is committed in the presence of the police officer (and not otherwise). Under the proviso to Sec.202, the person arrested in connection with an offence under Sec.185 of the Act shall, within two hours be subjected to a medical examination referred in Secs.203 and 204 of the Act by a registered medical practitioner “failing which he shall be released from custody”. Under Subsec.(2) of Sec.202 a police officer could arrest without warrant any person who has committed an offence under the Act only “if such person refuses to give his name and address”. Under Sec.203(3) of the Act arrest without warrant is permitted only if the breath test indicates the presence of alcohol in that person's blood and except when such person is at a hospital as an indoor patient. In Public Prosecutor Vs. A.V Ramiah (1958 Crl.M.C.No.702 of 2011 -: 7 :- Crl.L.J.737) a Division Bench of the Madras High Court, dealing with the offence under Sec.12 of the Madras Gaming Act held that the offence is not cognizable in character as the said Act did not confer unrestricted power of arrest without a warrant in a police officer, but only a limited power to arrest if the offence is committed in his view. A similar view was taken by the Calcutta High Court in State of West Bengal Vs. Joginder Mallic (1979 Crl.L.J.539) regarding offence under Sec.33A of Calcutta Suburban Police Act (2 of 1866). The limited power to arrest without warrant a person who in the presence of a police officer in uniform commits an offence under Secs.184, 185 or 197 of the Act or a person who has committed an offence under the Act but refuses to give his name and address or a person who on a breath test is found to have alcohol in his blood is conferred on the police officer since it is ridiculous to think that in such contingencies the police officer should rush to the Magistrate and obtain a warrant for the arrest of such person. But after the exercise of power for such arrest and causing medical examination etc, of the person arrested, he has to proceed as in the case of a non-cognizable offence. The limited power for arrest does not make the offences under Secs.184 and 185 of the Act cognizable in character so far as the Act does not declare so Crl.M.C.No.702 of 2011 -: 8 :- and so far as the maximum imprisonment that could be awarded for the said offences continues to be less than three years as mentioned in category 3 of Part II of the First Schedule of the Code. I stated, referring to Part II of the First Schedule of the Code that offences under Secs.184 and 185 of the Code are bailable. If so, the person arrested under Secs.202 or 203 of the Act without a warrant, after the purpose is over (or, if not released in the circumstance mentioned in the proviso to Sec.202) is to be released as provided under Sec.436(1) of the Code if such person is prepared to give bail. 7. Sec.42 of the Code also empowers a police officer in certain circumstances to arrest a person accused of commission of a non-cognizable offence. Under the said provision, when any person who, in the presence of a police officer, has committed or has been accused of committing a non-cognizable offence refuses, on demand of such officer to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer “in order that his name or residence may be ascertained”. Subsec.(2) of Sec.42 says that when the true name and residence of such person have been ascertained, he shall be released on his executing a bond with or without sureties, to appear before a Crl.M.C.No.702 of 2011 -: 9 :- Magistrate if so required. Sec.42 of the Code also makes it clear that the power to arrest without warrant a person accused of commission of non-cognizable offence is for certain purposes and in certain contingencies. The police officer arresting such person is bound to release him under Sec.436(1) of the Code if he is prepared to give bail. Thus, notwithstanding that Sec.42 of the Code or Secs.202 and 203 of the Act empowers a police officer in the circumstances stated therein to arrest without warrant any person who has committed the offences mentioned therein and in the circumstances stated in Secs.202 and 203 of the Act, such offences continue to be non-cognizable in character. So viewed, offences punishable under Secs.184 and 185 of the Act are to be held as non-cognizable in character. The first question is answered accordingly. 8. The next question is whether the Magistrate could take cognizance of offences punishable under Secs.184 and 185 of the Act on a police report following an investigation conducted in violation of Sec.155(2) of the Code?. Subsec.(1) of Sec.155 of the Code deals with information regarding commission of a non- cognizable offence given to an officer in charge of a police station. Subsec,(2) says that no police officer shall investigate a non-cognizable case without the order of a Magistrate having Crl.M.C.No.702 of 2011 -: 10 :- power to try or commit for trial such case. An investigation conducted in violation of the said provision stamps such investigation with illegality (See Rishdud and Anr. Vs. State of Delhi (AIR 1955 SC 196) and Kunhumuhammed Vs. State of Kerala (1981 KTT 50). In the present case, the police officer notwithstanding that offences under Secs.184 and 185 of the Act are non-cognizable in character has proceeded to register a case as if the said offences are cognizable in character. Recording of first information relating to a cognizable offence is regulated by Sec.154 of the Code. The expression 'First Information Report' must be understood to mean an information recorded under Sec.154 of the Code and the condition which is a sine qua non for recording First Information is that the information received must relate to the commission of a cognizable offence. In the present case the report of the police officer only disclosed a non-cognizable offence and hence a First Information Report could not have been registered under Sec.154 of the Code. Instead, after recording substance of the non-cognizable offence in the book maintained in the police station for the purpose, the police officer should have submitted a report to the Magistrate having power to try the case and obtained an order for investigation of the case. On receiving Crl.M.C.No.702 of 2011 -: 11 :- such order, such police officer could by virtue of subsec.(3) of Sec.155 of the Code exercise the same powers in respect of investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case. Thereon he could register a First Information Report under Sec.154 of the Code and investigate the case as in a case involving cognizable offence and submit a final report under Sec.173(2) of the Code in respect of the non-cognizable offences. Thus, the police officer in this case could have registered a First Information Report and investigated the case relating to the offences punishable under Secs.184 and/or 185 of the Act only with the order of a Magistrate having power to try the case. Since no such order is obtained, registering of the First Information Report, conducting the investigation, filing of charge sheet and taking cognizance by the learned Magistrate (of offences under Secs.184 and 185 of the Act) are illegal. 9. That leads me to the last question what procedure the Magistrate has to follow when a charge sheet is submitted alleging commission of offences punishable under Secs.184 and/or 185 of the Act after an investigation is conducted in violation of Sec.155(2) of the Code. Useful reference can be made to the decision of this Court in Kunhumuhammed Vs. State of Crl.M.C.No.702 of 2011 -: 12 :- Kerala (supra). There, an analysis of the provision of the old Code and new Code as regards investigation into non-cognizable offence without permission of the Magistrate who is empowered to try or commit for trial the case and its consequence is elaborately discussed with reference to various decisions on the point. Learned Judge observed that only minor changes are introduced in the new Code. A report submitted by a police officer under Sec.173(2) of the Code cannot always be treated as a 'complaint' as defined under sec.2(d) of the new Code. The change is that so far as the new Code is concerned an explanation has been added to Sec.2(d) that a report made by a police officer in a case which discloses after investigation commission a of non-cognizable offence shall be deemed to be a 'complaint' and the police officer who submitted such report shall be deemed to be the complainant. Learned Judge held that the explanation (to Sec.2(d) of the Code) takes within its scope only cases where at the beginning of the investigation of which commission of a cognizable offence is alleged or disclosed or, where it is doubtful whether it relates to commission of a cognizable or non-cognizable offence and investigation disclosed commission of only a non-cognizable offence. Then, in view of the explanation to Sec.2(d) of the Code the report of the police Crl.M.C.No.702 of 2011 -: 13 :- officer could be deemed to be a 'complaint' and the police officer who submitted the report could be deemed to be a 'complainant'. But the said explanation has no application to a case where a non-cognizable offence alone is alleged or disclosed even at the commencement of the investigation. This position is further clear from the observation made by the Supreme Court in Keshav Lal Thakur Vs. State of Bihar (1996(11) SCC 557, paragraph 3). When a report of the police officer relating to commission of a non-cognizable offence is brought to the notice of the Magistrate, he has to apply mind and decide whether it is a case where reinvestigation is to be ordered, whether it could be treated as a complaint under Sec.2(d) and Sec.190(1)(a) of the Code and cognizance could be taken or whether on such report cognizance could be taken taking into consideration the attendant circumstances. In such situation the Magistrate has to follow the directions contained in paragraph 16 of the decision in Kunhumuhammed Vs. State of Kerala (supra). If, without referring to the above at the appropriate stage, trial is concluded the trial cannot be said to be vitiated in view of Sec.465 of the Code (See Kunhumuhammed Vs. State of Kerala, paragraph 16). In the present case the police officer has registered the First Information Report and started investigation with the Crl.M.C.No.702 of 2011 -: 14 :- knowledge that only non-cognizable offences are disclosed. Hence the charge sheet submitted by the police, could not be treated as a 'complaint' as defined under Sec.2(d) of the Code. 10. Apart from the police officer in charge of a police station (whether he himself detected the offence or it is reported to him by the police officer who detected the offence) obtaining permission of the Magistrate having power to try the case under Sec.155(2) of the Code, registering the case, investigating and submitting final report the police officer who detects the offences under Secs.184 and 185 of the Act or the police officer in charge of a police station to whom it is reported could also file a complaint on his own, as a public servant acting or purporting to act in the discharge of his official duty as provided under Secs.190(1)(a) and 200 of the Code. On such a complaint being filed, the Magistrate could order an investigation to be made by a police officer or by such other person as the Magistrate thinks fit, as provided under Sec.202 of the Code. On such investigation being ordered, it is within the power of the police officer or such other person directed to investigate, to collect materials and submit a report to the Magistrate based on which the Magistrate could issue process to the accused if there is sufficient ground to proceed. Crl.M.C.No.702 of 2011 -: 15 :- 11. The above discussion leads me to the conclusion that cognizance taken by the learned Magistrate of offences punishable under Secs.184 and 185 of the Code on a charge sheet submitted by the police officer after an investigation in violation of Sec.155(2) of the Code is illegal and for reasons I have stated, the said charge sheet cannot also be deemed to be a complaint as defined under Sec.2(d) of the Code. Cognizance taken being illegal is liable to be quashed. 12. But that cannot be the end of the matter so far as this case is concerned. Learned Magistrate has to return the charge sheet and connected records. The police officer, as indicated in paragraph 10 above may subject to the relevant laws seek permission of the learned Magistrate to conduct investigation under Sec.155(2) of the Code and on receiving such permission register a case, conduct investigation as provided under Subsec. (3) of Sec.155 and submit a final report as provided under Sec.173(2) of the Code or if he is so advised, file a complaint on his own as provided under Sec.190(1)(a) and 200 of the Code in which case it is within the power of the Magistrate to order an investigation and call for a report under Sec.202 of the Code. This would be subject to the provisions of the law relating to limitation, etc. The complaint would proceed as if it is a Crl.M.C.No.702 of 2011 -: 16 :- complaint filed by a public servant acting or purporting to act in the discharge of his official duty. Resultantly this criminal miscellaneous case is allowed and subject to the observation made above, cognizance taken by the learned Magistrate and all further proceedings against petitioner in S.T.No.2288 of 2010 of the Court of learned Judicial First Class Magistrate, Kunnumangalam are quashed. Registry shall give a copy of this order to the learned Public Prosecutor. (THOMAS P JOSEPH, JUDGE) Sbna/-