Section 155 Cr.P.C.; Anto Joseph Vs. State [Kerala High Court, 21-06-2016]

Criminal P.C. 1973 – S. 155 & 482 – Information as to non-cognizable cases and investigation of such cases – What is only barred is the investigation in respect of a non- cognizable offence without the order of a Magistrate having power to try the case or commit the case for trial. As and when such order is received by the said officer, he can exercise the same 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. Once a police officer takes up investigation of a non-cognizable case, after getting due orders, the investigation which he holds becomes an investigation under Chapter XII, and he becomes vested with all the powers bestowed on him under that Chapter including the power to file a final report. A private person may also move the learned Magistrate and secure order but the investigation can only be carried out by the officer-in-charge of the police station within whose limits the non-cognizable offence was committed.

# Magistrate

Penal Code, 1860 – S. 506 Part 1 – Criminal Intimidation – Ingredients of – In order to attract the offence, the threat must be with intent (i) to cause alarm to that person or (ii) to cause that person to do any act which he is not legally bound to do as the means of avoiding the execution of such threat or (iii) to cause that person to omit to do any act which that person is legally entitled to do as the means of avoiding the execution of such threat. In other words, the gist of the offence is the effect which the threat is intended to have upon the mind of the person threatened, and it is clear that before it can have any effect upon his mind, it must be either made to him by the person threatening or communicated to him in some way.


IN THE HIGH COURT OF KERALA AT ERNAKULAM

RAJA VIJAYARAGHAVAN, V., J.

Crl.M.C. No.5525 OF 2014

Dated this the 21st day of June, 2016

ST.NO.5265/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, ALATHUR. CRIME NO. 697/2013 OF MANGALAM DAM POLICE STATION, PALAKKAD DISTRICT

PETITIONER/ACCUSED

ANTO JOSEPH

BY ADVS.SRI.K.ABDUL JAWAD, SRI.MATHEW A KUZHALANADAN, SMT.VINEETHA V.KUMAR, SRI.U.MUHAMMED MUSTHAFA.

RESPONDENTS/STATE & COMPLAINANTS

1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.

2. THE SUB INSPECTOR OF POLICE, MANGALAM DAM POLICE STATION, PALAKKAD DISTRICT-678 001.

3. BABY

R1 & R2 BY PUBLIC PROSECUTOR SRI.V.S. SREEJITH. R3 BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL).

O R D E R

1. The petitioner is the sole accused in S.T.No.5265 of 2013 on the file of the Judicial Magistrate of First Class, Alathur. The said case has arisen from Crime No.697 of 2013 of Mangalam Dam Police Station registered for the offence under Section 506 part 1 of the IPC.

2. Prosecution alleges that on 9.9.2013, while the de facto complainant was waiting for a bus, the petitioner had come in a jeep and threatened the de facto complainant and exhorted that if he were ever to set his foot at a place called Odamthodu, he would end up in one of the five coffins, kept ready for him by the accused. It is further alleged that on quite number of previous instances, the petitioner used to threaten him in a similar manner.

3. The 3rd respondent rushed to the Mangalam Dam Police Station and submitted Annexure-B complaint requesting that necessary action be taken against the petitioner.

4. On receipt of the complaint, having regard to the provisions under

# Section 155 of the Code of Criminal Procedure

(hereinafter referred to as ‘the Code’), the Sub Inspector of the Police, sought for permission before the learned Magistrate, and after securing orders in terms of the provisions, registered Crime No.697 of 13 under Section 506 (1) of the IPC.

5. Thereafter witnesses were questioned and investigation was conducted and on its conclusion laid Annexure-E final report before Court.

6. The sustainability of Annexure-E is challenged by the petitioner on two grounds. The learned Counsel submits that he has no quarrel with the fact that the crime was registered after securing orders from the learned Magistrate. It is his contention that in view of Section 155 (1) of the Code, the Station Officer, after entering the substance of information in the book kept by the officer in such form as prescribed by the State Government, has to refer the informant to the learned Magistrate. According to the learned Counsel, in the case on hand, Annexure-A does not reveal that the complainant was referred to the learned Magistrate, but only reveals that the complaint was submitted before the learned Magistrate and orders were secured under Section 155 of the Code to register the Crime. This according to the petitioner, is a clear violation of the provisions of Section 155(1) of the Code and the proceedings initiated will have to be quashed. The learned counsel places reliance on a judgment of the Karnataka High Court in Somasekhar J., S/o. Jayaraj v. State of Karnataka (Criminal Petition 4264 of 2009) to buttress his contentions.

7. It is also submitted that even if the allegations raised against the petitioner are accepted as true, the offence under Section 506 of the IPC will not be attracted in the facts and circumstances. The learned counsel urges that in order to attract the penal provision, it is essential to prima facie show that the accused had threatened the other person and that such threat was with intent to cause alarm or to cause such other things as referred to under section 503 of the IPC.

8. The learned counsel for the respondents would refute the contentions of the petitioner and would submit that the interpretation of Section 155 of the Code by the petitioner’s counsel cannot be accepted. Referring to Section 155(2) and (3) of the Code, it is submitted that a conjoint and meaningful reading of Section 155 of the Code will go to show that there is no such embargo as contended by the petitioner. What is only barred is the investigation in respect of a non- cognizable offence without the order of a Magistrate having power to try the case or commit the case for trial. As and when such order is received by the said officer, he can exercise the same 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. In so far as the contention of the petitioner that the offence under Section 506 of the IPC is not attracted, it is submitted that, at this stage, this Court will not be justified in sifting and weighing the materials as it is the duty of the trial court at the stage of trial. According to the learned Counsel, the ingredients of the offence is made out and no interference is warranted under Section 482 of the Code. The learned counsel also refers to a judgment of the Allahabad High Court in

# Brij Lal Bhar V State of U.P., 2006 CrLJ 3334

to substantiate his contentions.

9. I have considered the rival submissions. I have also gone through the precedents cited at the bar. Section 155(1) and (2) of the Code reads as follows:

# 155. Information as to non-cognizable cases and investigation of such cases

(1)When 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.

(2) 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.

(3) Any police officer receiving such order may exercise the same 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.

(4) Where a case relates to two or more offence of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the order offences are non – cognizable.

10. This Section comprises of four sub-sections. Sub-section(1) simply empowers the officer-in-charge of a police station to record the information and enjoins that the informant shall be referred to the Magistrate. Sub-section (2) expressly prohibits the police officer from investigating a non-cognizable case without the order of a Magistrate. Sub-section (3) then lays down how the police officer should proceed in case he gets the order from the Magistrate. This sub-section is the only provision by virtue of which an investigation in non-cognizable cases shall come under Chapter XII and is limited in its application to a police officer receiving such order of a Magistrate. Sub-section (4) provides that if one of the offences reported is cognizable, and the report relates to two or more offences, then the case must be treated as a cognizable case.

11. The contention of the learned counsel is that the object of the legislature being to allow aggrieved parties direct access to justice without the intervention of the Police, the Magistrate ought not have ordered investigation unless the complainant himself appeared before him and secured the orders from the Magistrate who is having the power to try the case or to commit the case for trial.

12. In Somasekar (supra) referred to by the learned Counsel it was held after interpreting sub-section (1) & (2) of Section 155 of the Code, the informant is required to move the jurisdictional Magistrate for necessary orders and the officer-in-charge of the police station is not entitled under law to make a report to the jurisdictional Magistrate, seeking permission to investigate the matter.

13. At this juncture, it would be profitable to bear in mind the assertion of the respondent that he had also gone along with the officer concerned and was present before the learned Magistrate at the time of passing the order under Section 155 (2) of the Code.

14. In Brij Lal Brar (Supra) a single Judge of the Allahabad High Court had occasion to hold that an order under Section 155 of the Code can be passed by the learned Magistrate either on the motion of the complainant or the officer in charge of the Police Station.

15. In

# Kunwar Singh V State of U.P. And Others, 2007 CrLJ 1364

a Single Judge of the Allahabad High Court relying on the Judgment in Brij Lal Bhar (Supra) has held that as follows :-

From a perusal of the statutory provision it is absolutely clear, without any ambiguity, that no non-cognizable offence can be investigated by the police without an order passed by a Magistrate. It is nowhere is it provided under the said section as to who will apply for making an investigation under S.155(2), Cr. P. C. of a non cognizable offence. The Court cannot add or subtract anything in the statutory section. The court is empowered only to interpret the statute as is enacted by the legislature. The power to amend any statutory provision is the province of the legislature and not of the Courts.

16. It was held that there was nothing in Section 155 of the Code which dis-entitles the complainant to approach the Court with the prayer seeking his direction to direct the police to make an investigation of his complaint. It was further held that S.155(2) of the Code does not provide that but for the Police Officer no other person can approach the Magistrate for seeking his direction under the aforesaid Section.

17. It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme. It is of course true that under sub-section (1) of Section 155 of the Code mandates that when the information relates to a non-cognizable offence, the police has to refer the informant to the Magistrate after recording the substance of the information. However the section does not say that the order to investigate should be secured by the informant. The principle of the maxim “A Verbis Legis Non Est Recedendum” meaning that there can be no departure from the express words of law is apposite in this context. The statute requires to be interpreted without doing any violence to the language used therein. The Court cannot re-write, recast or reframe the legislation for the reason that it has no power to legislate.

18. The Apex Court in

# Rohitash Kumar and Others v. Om Prakash Sharma and Others [AIR 2013 SC 30]

after placing reliance on various earlier judgments of the Court had held as follows:-

“The Court has to keep in mind the fact that, while interpreting the provisions of a Statute, it can neither add, nor subtract even a single word… A section is to be interpreted by reading all of its parts together, and it is not permissible, to omit any part thereof. The Court cannot proceed with the assumption that the Legislature, while enacting the Statute has committed a mistake; it must proceed on the footing that the Legislature intended what it has said; even if there is some defect in the phraseology used by it in framing the statute, and it is not open to the Court to add and amend, or by construction, make up for the deficiencies, which have been left in the Act……The Statute is not to be construed in light of certain notions that the Legislature might have had in mind, or what the Legislature is expected to have said, or what the Legislature might have done, or what the duty of the Legislature to have said or done was. The Courts have to administer the law as they find it, and it is not permissible for the Court to twist the clear language of the enactment, in order to avoid any real, or imaginary hardship which such literal interpretation may cause…….under the garb of interpreting the provision, the Court does not have the power to add or subtract even a single word, as it would not amount to interpretation, but legislation.”

19. A reading of sub section (2) will reveal that upon information given of the commission of a non-cognizable offence, a police officer can, instead of merely referring the informant to the Magistrate under Section 155(1), report the case to the Magistrate under Section 155(2), who can, under such circumstances, order such investigation, without first taking cognizance of the offence under Section 190 of the Code. Once a police officer takes up investigation of a non-cognizable case, after getting due orders, the investigation which he holds becomes an investigation under Chapter XII, and he becomes vested with all the powers bestowed on him under that Chapter including the power to file a final report. Of course, a private person may also move the learned Magistrate and secure order but the investigation can only be carried out by the officer-in-charge of the police station within whose limits the non-cognizable offence was committed. In view of the above, the contention vociferously urged by the learned Counsel cannot be sustained. It is held that no such embargo can be placed and the orders can be passed by the learned Magistrate on the motion of the complainant himself or at the instance of the Officer-in-Charge of the Police Station.

20. However, the learned Magistrate before whom such information is placed seeking orders under Section 155(2) of the Code will have to make sure that the the police officer is not indiscriminately abusing his powers to commence an investigation in a non -cognizable case. The learned Magistrate is bound to form his own conclusion on the basis of the materials placed before him.

21. The next contention raised by the learned counsel is that the allegation in the final report, even if they are admitted to be true, will not make out an offence under Section 506 part 1 of the IPC. The learned counsel in order to advance the said contention relies on a judgment of this Court in

# Prasad and another v. State of Kerala, 2013 (1) KLD 714

In the said case, the accused had held a weapon in his hand and stood in front of the victim and asked him to keep an article in his possession. On facts it was held that the accused had no intention to cause alarm by making a statement with injury to the person, reputation or property of the victim.

22. In order to attract the offence, the threat must be with intent (i) to cause alarm to that person or (ii) to cause that person to do any act which he is not legally bound to do as the means of avoiding the execution of such threat or (iii) to cause that person to omit to do any act which that person is legally entitled to do as the means of avoiding the execution of such threat. In other words, the gist of the offence is the effect which the threat is intended to have upon the mind of the person threatened, and it is clear that before it can have any effect upon his mind, it must be either made to him by the person threatening or communicated to him in some way.

23. After having gone through the materials on record and looking into the facts of the case, at this stage, it cannot be said that no offence is made out. It is well settled that this Court while exercising powers under Section 482 of the Code should refrain from analyzing the materials which are yet to be adduced and seen in their true perspective. The inherent jurisdiction of this Court should not be exercised to stifle a legitimate prosecution. The said power, though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do substantial justice. Having regard to the facts and circumstances, I am not impressed with the contention raised and the petition shall stand dismissed. None of these observations shall prejudice the case of the petitioner at the stage of trial and the learned Magistrate shall consider the matter untrammeled by any of the observations in this order.

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