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