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

Page | 1
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

CrPC Criminal Procedure Code

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

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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
CRIMINAL
Sajjal Agarwal & Others v/s The State of A.P
PETITION
Nos.4442 & 5546 of
2009

Tilaknagar Industries Ltd., and Others Vs State of A.P., and SLP(Crl).No. 6917
another OF 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)

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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

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

7. Judicial Pronouncements 11

8. Conclusion 14

9. Bibliography 15

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 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
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

1
Article on Reporting of Crimes by Ignou, The People’s University
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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 Non-
Cognizable 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.

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THE POLICE AND INVESTIGATION OF NON-COGNIZABLE
OFFENCES
Section 2 (c) of the Criminal Procedure Code, 1973 defines Cognizable offences. Cognizable offence/case
means a case in which, a police officer may arrest without warrant, as per the First Schedule of the Criminal
Procedure Code, 1973 or under any other law for the time being in force. Cognizable offenses are usually
offenses which are serious in nature. Like for example:

 Waging or attempting to wage war, or abetting the waging of war against the government of India,
 Murder,
 Rape,
 Dowry Death,
 Kidnapping,
 Theft,
 Criminal Breach of Trust,
 Unnatural Offenses.

Section 154 of the Criminal Procedure Code, 1973 provides that under a cognizable offence the Police Officer
has to receive the First Information Report (FIR) relating to the cognizable offense. A non-cognizable offence
has been defined in Section 2(l) of Criminal Procedure Code 1973.Non-cognizable offence means an offence
for which, and `non-cognizable case’ means a case in which, a police officer without any warrant has no
authority to arrest.

Non-Cognizable offenses are not much serious in nature. Example-

 Assault,
 Cheating,
 Forgery,
 Section 155 of Criminal Procedure Code 19732 provides that in a non-cognizable offense or case, the
police officer cannot receive or record the FIR unless he obtains prior permission from the
Magistrate.

2
The Code of Criminal Procedure, 1973
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In case of Non-Cognizable offence, it is important for the police officer to obtain the permission from the
Magistrate to start the investigation. In such offences for arrest, following steps have to be followed:

1. Filing of complaint/F.I.R.
2. Investigation
3. Charge sheet,
4. Charge sheet to be filed in court
5. Trial
6. Final order of arrest if case has been made out.

Under the scheme 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
aggrieved person can, however, approach jurisdiction judicial Magistrate with a complaint and the latter may
take necessary steps for the enquiry and trial of the offender. Section 155 (1) CrPC has categorically laid down
that if any person furnishes information to an officer- in- charge of a police station of the commission of a non-
cognizable offence, the police officer shall enter or cause to be entered the substance of the information in a
book- Station House Diary/ General Diary- prescribed under the Police Act, 1861, for this purpose. The police
officer shall then refer the informant to the Magistrate. The police officer has no further duty unless he is
ordered by a Magistrate to investigate the case. Powers of the police to investigate a non-cognizable case
depends on the order of a competent Magistrate. As envisaged under Section 155(2) CrPC3 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. In other words, the police can investigate non cognizable offence with the written
order of a competent Magistrate. So also they can arrest a person for the commission of a non-cognizable
offence only with a written warrant from such a Magistrate. 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 an important factor in vitiating the ultimate proceedings and may also be considered as
violation of Article 21 of the Constitution of India.

3
The Code of Criminal Procedure, 1973
Page | 9
Therefore, the police should be very conscious and cautious of their duties and responsibilities and should not
give room for such misadventures and get trapped in the dragnet of law. A curious reader may ask a question
for himself that what shall the police do when they receive a case involving both cognizable and non-
cognizable offences? The answer is, they can register such case and continue with the investigation. Absolutely,
there is no bar under the CrPC for the police to investigate such a case. Section 155(4) provides for it.
According to the section where a case relates to two or more offences of which at least one is cognizable, the
case shall be deemed to be a cognizable, notwithstanding that the other offences are non-cognizable in nature.
Automatically the police will get powers to investigate such cases in combination. In State of Haryana v.
Bhajan Lal4,, the Supreme Court has clearly held that under the newly introduced sub-section (4) to Section
155, where a case relates two offences in which at least one is cognizable, the case shall deemed to be a
cognizable case notwithstanding that the other offences are non-cognizable and, therefore, under such
circumstances the police officer can investigate such offences with the same power as he has while
investigating a cognizable offence. First Schedule of CrPC provides for classification offences as cognizable
and non-cognizable which could be made use of by the police as ready reckoner to find out which offence is
cognizable and which is non-cognizable. 5
Under Section 155 the substance of an information received about the commission of a non-cognizable offence
is recorded in Special Register meant for this purpose. Such a report is not called an ‘FIR’ but it is known as
‘NCR’ (Non-cognizable Offence Report). On receipt of such NCR, the officer-in-charge of the Police Station
directs the informant to report to the Magistrate because the police cannot make an arrest without a warrant
from the Magistrate.

It has been a settled law that any interference by police in civil disputes between parties will be ex-facie illegal
being in blatant violation of the provisions of Section 155 (2) of the Code. The High Court of Andhra Pradesh
in S. Masthan Saheb v. P.S.R. Anjaneyulu6, has observed that, “as a necessary corollary, it must be
concluded that any effort on the part of police ‘to look into’ any complaint by a person which does not contain
allegations of commission of cognizable offences would violate the provision contained in Section 155 (2) of
Cr.P.C. There is no presumption in law that every rift in human relations would lead to a civil dispute and a
civil dispute would likely to result in offences, against human body. Any such effort on the part of police to
look into the complaints regarding civil disputes is not even the part of the code of conduct of the police.”

4
AIR1992 SC 604, 1992 Supp (1) SCC 335 & 614
5
Article on Reporting of Crimes by Ignou, The People’s University
6
2002 (2) ALD Cri 706
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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 non-
cognizable 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.7

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. 8

7
Syed Shabeer v. State of Karnataka, Criminal Petition No. 2630 of 2017, decided on September 8, 2017
8
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 another9 , , 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 Emperor10 , 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
Karnataka11 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 Karnataka 12 as well as the other decisions rendered by this Court in the Case
of Sharath @ Salim V/s The State of Karnataka13 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.

9
SLP(Crl).No. 6917 OF 2011
10
AIR 1949 All 483, Decided on 29th April 1949
11
CRIMINAL PETITION NO.100630/2018, Decided on 25th April 2018
12
(Crl.P.3365/2016 and connected matters disposed on 07.04.2017)
13
Crl.P.No.101833/2015 and connected petitions disposed on 18.12.2015)
14
2014(4) KCCR 3355
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Similarly in Subodh 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 India 16.

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 non-
cognizable. the report of a police officer following an investigation contrary to S. 155(2) could be treated as
complaint under S. 2(d)17 and S. 190(1)(a)18. 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.19

15
1974,Cri LJ 185(Cal)
16
Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure
established by law.
17
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.
18
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;
19
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.

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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.

 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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