Police Is Not To Investigate Into Non Cognizable

Cases Without The Order Of Competent

Magistrate

Submitted to Submitted by
Dr. Parvesh Kumar Rajput, Hiten Joshi
Assistant Professor, Sem - VII
HNLU, Raipur. Roll no – 79

Sec – C

Code of Criminal Procedure Project

Date of Submission – 17/08/2018

Hidayatullah National Law University

Post Uparwara, Abhanpur, Naya Raipur – 492002
(Chhattisgarh)
Declaration
I, Hiten Joshi, do hereby declare that, the project work titled, “Police Is Not To Investigate into Non
Cognizable Cases Without The Order Of Competent Magistrate” submitted to H.N.L.U., Raipur is a record
of an original work made under the able guidance of Dr. Pavesh Kumar Rajput, Assistant Professor, H.N.L.U.,
Raipur.

Hiten Joshi
Semester – VII
Sec – C
Roll No – 79
Date – 17/08/2018

Acknowledgement
Thanks to the Almighty who gave me the strength to accomplish this project with sheer hard work and
honesty. This research venture has been made possible only due to the generous co-operation of numerous
people and to list them all is not feasible. Even to repay them in words is beyond the domain of my lexicon.
This project wouldn‘t have been possible without the help of our teacher Dr. Parvesh Kumar Rajput,
Assistant Professor, HNLU, who had always been there at my side whenever I needed some help regarding
any segment of this research endeavour. He has been a mentor in the truest sense of the term. The
administration has also been kind enough to let me use their facilities for this research work. I express
gratitude to them with all my heart and sincerity.

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List Of Abbreviations

AIR All India Reporter

All Allahabad

Bom LR Bombay Law Review

Cal. Calcutta
Criminal Procedure
CrPC
Code

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 Cri. Criminal

Cri LJ Criminal Law Journal

DB Delhi Bench

HC High Court

IEA Indian Evidence Act

IPC Indian Penal Code

M.P. Madhya Pradesh

SC Supreme Court

SCC Supreme Court Cases

Supp. Supplementary

u/s Under Section

v. Versus

List of Cases

Case Name Citation

State of Haryana v. Bhajan Lal AIR 1992 SC 604

S. Masthan Saheb v. P.S.R. Anjaneyulu 2002 (2) ALD Cri 706

Syed Shabeer v. State of Karnataka Criminal Petition No.

2630 of 2017,
decided on
September 8, 2017
Sajjal Agarwal & Others v/s The State of A.P CRIMINAL
PETITION
Nos.4442 & 5546 of
2009

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 Tilaknagar Industries Ltd., and Others Vs State of A.P., and SLP(Crl).No. 6917 OF
another 2011
Shyam Lal Sharma Vs King Emperor AIR 1949 All 483

Lakkappa S/O Siddappa Walad vs The State Of Karnataka CRIMINAL

PETITION
NO.100630/2018
Nabisab S/o Shek Imamsab V/s State of Karnataka Crl.P.3365/2016
disposed on
07.04.2017
Sharath @ Salim V/s The State of Karnataka Crl.P.No.101833/201
5 disposed on
18.12.2015
Moin Basha Kurnooli Vs. The State of Karnataka 2014(4) KCCR 3355

Subodh Singh Vs State 1974,Cri LJ

185(Cal)
P Kunhumuhammed v. State of Kerala 1981 Cri LJ 356(Ker)

Contents

_Page
1. Declaration 01

2. Acknowledgement 02

3. List of Abbreviations 03

4. List of Cases 04

5. Introduction 06
a. Aims & Objectives 07
b. Scope & Research Methodology

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6. The Police & Investigation of Non-Cognizable Offences 08

7. Judicial Pronouncements 11
8. Conclusion 14
9. Bibliography 15

Introduction
The menace of crimes and criminal activities is of ancient in origin. people commit crimes for various reasons.
Generally, they indulge in criminal activities to satisfy their physical or psychological needs. Love, lust, hate,
anger, jealous, and anxiety are some of the important motivating factors for crimes. Continuous rise in crimes
and criminal activities both in number and nature is a great threat to peace and security of the society and the
State. In India alone, more than 60 lakhs crimes of different kind are being reported every year. More than 90
lakh criminal cases are awaiting adjudication. This has compelled the State to create by statutes strong agencies
such as the police, the prosecution and the judiciary respectively to investigate, prosecute and punish criminals
and ensure its citizens peace and security in their daily lives. These functionaries are collectively known as
‘Criminal Justice machinery.’ Investigation of crime refers to systematic and procedural way of collection,
collation and comprehension of facts relating to a crime by the police or any other authorized authority. The
paramount duty of the police is to investigate crimes and render necessary assistance to the prosecution and the

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judiciary to prosecute and punish criminals under law. However, the task of investigation is tuff and tiresome
process involving various phases and facets. It generally commences with reporting or registration of crimes
and passes through the stages of arrest of accused; search and seizure; examination of witnesses; collection of
evidence; bail and remand process and preparation and filing of charge sheet/final report to courts. The Code of
Criminal procedure (hereinafter referred to as CrPC) provides for procedures to be followed by the
investigating police in efficient and effective investigation. Thus, the investigating police must acquaint
themselves with various procedures, rules and orders laid down under the Code of Criminal Procedure, the
Evidence Act, the Penal Code, Special and Local Laws and the Police Manuals. They should also keep abreast
of day-to-day judgments of the Supreme Court and High courts.1

Aims and Objectives

• To understand the different types of Offences defined under The Code of Criminal Procedure,1973
• To deal with the powers of the Police under Section 155 The Code of Criminal Procedure, 1973  To also
elaborate on the limitations of the Police to investigate under the Code.
• To analyze numerous judicial pronouncements regarding the power of the Police to investigate
NonCognizable offences.

Scope and Research Methodology

The type of research methodology used in the project is doctrinal i.e. the report is based on analytical and
descriptive Research Methodology. Secondary and Electronic resources have been largely used to gather
information and data about the topic. Books and other reference articles as guided by faculty have been
primarily helpful in giving this project a firm structure. Websites, dictionaries and articles have also been
widely referred. The scope of the project pertains to dealing with the limitations of the powers of the police
in regards to the investigation under section 155(2) of the Code of Criminal Procedure.

1 Article on Reporting of Crimes by Ignou, The People’s University

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Judicial Pronouncements
While deciding a criminal petition filed under Section 482 of CrPC, a Single Judge Bench of Aravind Kumar, J.
held that Section 155(2) CrPC clearly discloses that a Police Officer is not entitled to investigate a
noncognizable offence without the order of a Magistrate having power to try such an offence.

Petitioners were arrayed as accused in a criminal case for offences punishable under various sections of the
Karnataka Police Act, 1963. The petitioners were seeking to quash the said proceedings against them
contending, inter alia, that the same was in violation of Section 155(1) and (2) CrPC.

Learned counsel for the petitioners contended that if the information relates to a non-cognizable offence than
the Investigating Officer has to take permission of the jurisdictional Magistrate before proceeding to investigate
the matter; and on account of such defect being large in the instant case, the prosecution launched against the
petitioners was liable to be quashed.

The Court perused Section 155 CrPC and held that Section 155(2) CrPC clearly discloses that a Police Officer
is not entitled to investigate a non-cognizable offence without the order of a Magistrate having power to try
such an offence. However, the Court perused the approval granted by the jurisdictional Magistrate which
disclosed that an application under Section 155(2) CrPC was made by the IO concerned seeking permission into
the offence alleged against the petitioners. Accordingly, the petition was dismissed holding it to be sans merit.2

Further, under Section 155 (2) Cr.P.C., it is always open to the Magistrate either to grant permission or refuse to
grant permission. When such a discretion is vested in the Magistrate, it is desirable that the Magistrate shall
give reasons while empowering the police officer to investigate into a non-cognizable offence, so that the
aggrieved person will be in a position to know the reason for acceptance or rejection of his application,
otherwise there is every possibility of misuse of Section 155 (2) Cr.P.C. In case such a power is given to a
police officer, he may misuse his official position and harass the accused person.3

2 Syed Shabeer v. State of Karnataka, Criminal Petition No. 2630 of 2017, decided on September 8, 2017
3 Sajjal Agarwal & Others v/s The State of A.P, CRIMINAL PETITION Nos.4442 & 5546 of 2009
Decided On, 23 September 2010

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In Tilaknagar Industries Ltd., and Others Vs State of A.P., and another 4 , , the Apex Court held that the
statutory safeguard given under Section 155 (2) Cr.P.C., of the Code must be strictly followed, since they are
conceived in public interest and as a guarantee against frivolous and vexacious investigation.

A Full bench of Allahabad High Court in Shyam Lal Sharma Vs King Emperor5 , held as under :

Section 155 Cr.P.C., occurs in Chapter XIV of the Code, which deals with investigation of the offence. It makes
a marked distinction between cognizable and non-cognizable offences. It authorizes police officer in charge of a
police station to investigate the cognizable offence without the order of a Magistrate, but forbids the police
officer from investigating a non-cognizable case unless, ordered by a Magistrate to do so.

Recently, the Hon’ble Bench of Karnataka High Court in Lakkappa S/O Siddappa Walad vs The State Of
Karnataka6 reiterated the same as was contended by the petitioners and held that The principal offence charged
against the petitioners is a non-cognizable offence. By virtue of Section 155(2) of Cr.P.C., no Police Officer is
empowered to investigate such cases without prior order of the learned Magistrate having power to try such
cases. In all these cases, the Police Inspectors who lodged the complaints have registered the cases and
commenced investigation without authorization by the competent Magistrate as required under Section 155(2)
of Cr.P.C. and therefore, the initiation of the proceedings are illegal and contrary to the mandatory provisions
contained under Section 155(2) of Cr.P.C. On this sole ground, these proceedings are liable to be quashed. In
Support of this contention, the learned counsel has referred to the decisions of this Court in the case of Nabisab
S/o Shek Imamsab V/s State of Karnataka7 as well as the other decisions rendered by this Court in the Case
of Sharath @ Salim V/s The State of Karnataka 8 wherein this Court has held that non-compliance of the
mandatory requirements under Section 155(2) of Cr.P.C. would render the proceedings illegal and invalid. The
Court also followed the decision in Moin Basha Kurnooli Vs. The State of Karnataka14 wherein on analysing
the relevant provisions of the Code of Criminal Procedure and the Karnataka Police Act, 1963, it is held that the
offence under Section 78(3) of the KP Act is a non-cognizable offence, the investigation whereof by a Police
Officer is prohibited without prior order of the concerned Magistrate. Further this Court has laid down that the
provisions of Section 155(2) of Cr.P.C. is mandatory in nature and failure to comply with the said mandatory
requirement is an incurable defect amounting to illegality vitiating the entire proceedings.

4 SLP(Crl).No. 6917 OF 2011

5 AIR 1949 All 483, Decided on 29th April 1949
6 CRIMINAL PETITION NO.100630/2018, Decided on 25th April 2018
7 (Crl.P.3365/2016 and connected matters disposed on 07.04.2017)
8 Crl.P.No.101833/2015 and connected petitions disposed on 18.12.2015) 14
2014(4) KCCR 3355

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Similarly in 9Subodh Singh Vs State15 the Hon’ble Court has held that if a police officer investigates a non
cognizable case without the order of a Magistrate such a non conformance to the mandatory provisions laid
down in Section 155(2) may be a material one vitiating the ultimate proceedings and may also be considered as
violative of Article 21 of the Constitution of India10.

Ordinarily a private citizen intending to initiate criminal proceedings in respect of an offence has two courses
open to him. He may lodge an FIR before the police if the offence is cognizable one; or he may lodge a
complaint before a competent judicial magistrate irrespective of whether the offence is cognizable or
noncognizable. the report of a police officer following an investigation contrary to S. 155(2) could be treated as
complaint under S. 2(d)11 and S. 190(1)(a)12. It is necessary that at the commencement of the investigation the
police officer is led to believe that the case involved the commission of a cognizable offence or has a doubt
about the same and investigation establishes only commission of a non- cognizable offence.13

9 ,Cri LJ 185(Cal)
10 Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure
established by law.
11 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.
12 any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub- section (2),
may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
13 P Kunhumuhammed v. State of Kerala, 1981 Cri LJ 356(Ker)

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Conclusion
Thus, it can be concluded from the above Project Topic titled “Police Is Not To Investigate Into Non
Cognizable Cases Without The Order Of Competent Magistrate” that the Powers of the police under the
provisions of The Code of Criminal Procedure,1973 in regards to the investigation of Non Cognizable Cases
are limited in the sense that the Police Officer is not empowered to make an arrest of a person in cases of
grievous offences, offences affecting the Human Body, Assault, Cheating, etc without the order of a Magistrate
who is competent enough to handle and trial such cases. This provision is very specifically provided under
Section 155(2) of CrPc. the police are not vested with powers to investigate non-cognizable offences on their
own volition as non-cognizable offences are considered to be petty- private criminal wrongs which may be
committed in the society in normal course and do not deserve to be investigated and punished severely. Such
offences may be investigated by the police, provided, a competent Magistrate orders so in writing. The
intention of making such a provision in the code was very clear by the makers i.e. they did not intended to give
unlimited powers to the police to arrest any person in high profile cases. If they had given unfettered powers to
the police then such a discretion would be exercised by the Police Offficers in arbitrary and unreasonable
manner which would not be conducive to society at large.

Bibliography
BOOKS

• Gaur, K. D. , Criminal Law: Cases and Materials, 3rd Edition 1999.

• Ratanlal and Dhirajlal, The Code of Criminal Procedure, 19th Edition 2010, Lexis Nexis,
Butterworhts, Wadhwa Nagpur.
• Gour, Hari Singh, Penal Law of India, Vol. 1, 11th Edition.

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 • Kelkar, R.V., Criminal Procedure, 6th Edition, Eastern Book Company

Reports and Articles

 Article on Reporting of Crimes by Ignou, The People’s University.

 Article on “Difference between Cognizable and Non Cognizable Offences” by Law News and Network.
 Explanation of Sec.155 Crrpc, 1973 from www.shareyouressay

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