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TMI Blog1985 (12) TMI 369X X X X Extracts X X X X X X X X Extracts X X X X ..... and were released on bail on furnishing a personal bond of Rs. 500.00 each. A report termed by the police as kalendra under Section 93/97 was also filed by the police on the same date. They were directed to present themselves again in Court on 20th August 1983. The case was then adjourned from time to time on one or the other ground and proceedings could not be commenced until 10th February 1984 when the case was again adjourned to 30th April 1984. Thereupon the petitioner challenged the institution of the criminal proceedings against him in revision but the same was dismissed by an Additional Sessions Judge vide order dated 3rd May 1984 on the short ground that he had not filed the certified copies of the various orders which had been called in question, within time. Hence, this petition under Section 482. (3) The chief contention of the learned counsel for the petitioner is that the so called kalendra filed by the police against him and other accused which strangely enough comprise both the rival parties is neither a police report within the meaning of Section 173(2) nor a complaint as defined in Section 2(d) of the Code and as such the Magistrate was not competent to take c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 34; (d) (e) (f) commits in his presence in any street or public place any non-cognizable offence punishable under this Act or any rule or regulation made there under if such person (i) after being warned by the police officer persists in committing such offence; or (ii) refuses to accompany the police officer to a police station on -being required so to do. (6) A bare reading of this Section would show that a police officer cannot arrest any person under clause (c) of Sub-section (1) without a warrant issued by a Metropolitan Magistrate unless such person commits an offence mentioned in clauses (c) and (f) of Sub-section {2) in the presence of such police officer. An offence punishable under Section 97 is also covered toy clause (c) of Sub-section (2). Hence, it is manifest that if an offence punishable under Section 97 is committed in the presence of a police officer he can arrest the offender without -a warrant issued by a Metropolitan Magistrate. (7) Clause (c) of Section 2 Which is the definition Section in the Code defines cognizable offence as an offence for which, and cognizable case as a case in which, a police officer may, in accordance with the first Sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nizable in certain other circumstances. The logical consequence of accepting this argument would be that the nature of offence would change according to the particular situation envisaged in Section 5 of the Act. In Public Prosecutor v. A.V. Ramiah, 57 a Division Bench of Andhra Pradesh High Court held that an offence under Section 12 of the Madras Gaming Act was not a cognizable offence within the meaning of Section 4(1)(f), Code of Criminal Procedure, 1898, inasmuch as Section 13 of the said Act did not confer an unrestricted power of arrest on a police officer but gave him only a limited power, in that he could arrest without a warrant only if the offence was committed in his view but not otherwise. Their Lordship's observed that it was not for all offences under Section 12 but only for some that a police officer might arrest without warrant. It, Therefore, followed that an offence under Section 12 of the said Act was not a cognizable offence. (9) Likewise a learned Single Judge of Calcutta High Court in 'State of West Bengal v. Joginder Mallick. which was a case under Section 33A of the Calcutta Sub-urban Police Act, expressed the view that: NOTWITHSTANDING t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e without prior permission of the concerned Magistrate. Section 155(1) provides that when an information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate. Sub-section (2) thereof lays down that no police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. It is thus obvious that after entering information with regard to a non-cognizable offence in the diary maintained at the police station the police officer should refer the informant to the Magistrate. He may, of course, also report the case to the Magistrate for orders under Sub-section (2). However, it is manifest that it is only under the orders of a Magistrate that the police can investigate into a non-cognizable offence. Further the provision in the Section requiring an order of the Magistrate, for investigation is amendatory provision and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers appropriate with reference to the requirement of law. Reference in this context be also made to Dr.M.C.Sulkunte v. The State of Mysore, 1971CriLJ519 , in which too investigation including laying the trap had been carried out by a police officer below the rank of Deputy Superintendent of Police. The offence under Section 5(2) of the Prevention of Corruption Act is a cognizable offence. However, the principle of the aforesaid decisions of the Supreme Court, viz. that the invalidity of the investigation has no relation with the competence of the Court to take cognizance would apply with equal force to non-cognizable offences also. As observed by their Lordships in H N. Rishbud (supra.) even an invalid report may fall either in Clause (a) or Clause (b) of Section 190(1) of the Code. On the strength of these observations it was held by various High Courts that a report by a police officer in non-cognizable offence investigated without authorisation by a Magistrate would be treated as a complaint of facts which constitute an offence even if it does not amount to a report of a police officer as contemplated in Section 173 of the Code. See in this connection A. Kanniah and others v. St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case. It will obviously imply that once permission to investigate a non-cognizable offence has been accorded by the concerned Magistrate, his power of investigation will be at par with that in a cognizable case. In other words, the report submitted by the police officer in such a case on the conclusion of the investigation would fall within the ambit of Section 173(2). If that be so, there was hardly any necessity for addition of the Explanation to the definition of the expression complaint because after an order from the concerned Magistrate the police officer investigating a non-cognizable case would be competent to present a report under Section 173 on the basis of which cognizance can be taken under Section 190(1)(b) of the Code. It is, Therefore, obvious that it was to cover a case of unauthorised investigation of a non-cognizable offence by a police officer that the Explanation to the definition of complaint has been added. In this view of the matter, Therefore, the so-called kalendra filed by the police in the instan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued summons to the petitioner. The order of summoning was challenged under Section 482 of the Code. Observed the learned Judge of the Kerala High Court that : THE Station House Officer in this case did not do any act of investigation as contemplated under the Criminal Procedure Code. The report of the police officer proceeded on the basis that the offence was committed in his presence. Under these circumstances, the report submitted by him which is called petty case charge-sheet cannot be treated as a police report defined under Section 2(r) and coming within the scope of Section 190(1)(b) of the Code. On the other hand, it has to be treated as a complaint under Section 2(d) and coming within the scope of Section 190(1)(a) of the Code. (15) The learned Judge further observed that : WHERE a report submitted by a Station House Officer cannot be treated as a police report under Section 173 of the Code, under certain circumstances, it could be treated as a complaint as defined in Section 2(d) of the Code and coming within the scope of Section 190(1)(a) of the Code. In such a case the Station House Officer submits the complaint or the report not in his private capac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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