Magistrate Is Empowered To Take Cognizance For Non-Cognizable Offences Revealed In Police Report During Investigation: Kerala HC
The Kerala High Court observed where a complaint is received by a Magistrate that involves both cognizable and non-cognizable offences and is subsequently referred to the police, which reveals that a non-cognizable offence was committed, the Magistrate is empowered to take cognizance of the offence and proceed with the trial.
The Bench of Justice A. Badharudeen held, “Since the law is settled in the facts of the given case, though the Magistrate forwarded a complaint involving offences cognizable and non-cognizable in nature to the police and the police files a report finding that non-cognizable offence was committed, the Magistrate is legally empowered to proceed with the trial”.
Advocate C.K. Suresh appeared for the Petitioner and Public Prosecutor P. Anto Thomas appeared for the Respondents.
A Criminal Miscellaneous Petition was filed challenging the charge sheet under Sections 376 and 493 of the Indian Penal Code (IPC). However, the Investigating Officer found that the offence under Section 493 of IPC was committed. The Petitioner contended that the Court could not take cognizance of the offence under Section 493 of IPC as per the bar under Section 198 of the Criminal Procedure Code (CrPC) and sought to set it aside. The Public Prosecutor disagreed with the Petitioner's contentions and argued that there is no such bar. Therefore, the petition was not maintainable.
The Court was determining the legal effect of a Final Report submitted by the police after concluding an investigation, that involved both allegations of cognizable and non-cognizable offences. “In view of the rival arguments, the question arises is; what is the legal effect of a Final Report filed by the police finding commission of non-cognizable offence/offences on completing investigation involving allegation of commission of cognizable and noncognizable offences?”, the Court asserted.
The Court placed reliance on Supreme Court Judgement in the case of the State of Orissa v. Sharat Chandra Sahu and Another [(1996) 6 SCC 435] and noted that if the information reported to the police includes both cognizable and non-cognizable offences, the police could investigate both types of offences as the law considers non-cognizable cases as cognizable in such situations. As per the settled law, if a complaint forwarded by a Magistrate involves both cognizable and non-cognizable offences and the police report confirms the commission of a non-cognizable offence, the Magistrate is empowered to proceed with the trial, the Court asserted.
The Court emphasised, “Applying the ratio of Sharat Chandra Sahu's case (supra) if the facts reported to the police disclose both cognizable and non-cognizable offences, the police would be acting within the scope of its authority in investigating both the offences as the legal fiction enacted in sub-section (4) provides that even a non-cognizable case shall, in that situation, be treated as cognizable”.
Accordingly, the Court dismissed the Petition
Cause Title: Sumesh v State of Kerala [Neutral Citation No.: 2023: KER: 41084]
