While explaining its grave concern at Magistrates casually permitting police investigation into non-cognizable offences, the Karnataka High Court at Bengaluru has in a most learned, laudable, landmark and latest judgment titled Sri Vijesh Pillai vs State of Karnataka & Anr in Writ Petition No. 11186 of 2023 and cited in 2023 LiveLaw (Kar) 229 that was heard and reserved for orders on 05.06.2023 and then finally pronounced on June 16, 2023 has issued guidelines for the Judicial Magistrates to be followed strictly while issuing orders granting permission to the police to investigate non-cognizable cases on requisition made to it either by the police or the complainant. It ought to be noted that the Karnataka High Court has issued a warning to the Magistrate Courts that the Magistrates are contributing to the huge pendency of cases by their callous action of passing inappropriate orders and would be viewed seriously. It must be noted that a Single Judge Bench comprising of Hon’ble Mr Justice M Nagaprasanna said explicitly that, “This Court in a plethora of cases has been emphasizing the fact that Magistrates should not permit registration of FIR by usage of words “permitted”, perused permitted” or even “permitted registration of FIR”. All these illustrations of granting permission on the face of it suffers from the want of application of mind.” The Court also said that permitting registration of a FIR cannot be a “frolicsome act” on the part of the Magistrate. It also mandated that, “The Magistrate exercises power under sub-section(2) of Section 155 of the CrPC. In doing so, it cannot be said that he could pass orders which do not bear a semblance of application of mind.”
At the very outset, this remarkable, refreshing, rational and recent judgment authored by a Single Judge Bench comprising of Hon’ble Mr Justice M Nagaprasanna of Karnataka High Court at Bengaluru sets the ball in motion by first and foremost putting forth in para 1 that, “The petitioner is before this Court calling in question registration of a crime in Crime No.116 of 2023 by the K.R.Puram Police Station for offence punishable under Section 506 of the IPC.”
To put things in perspective, the Bench while elaborating on the facts of the case envisages in para 2 that, “Facts adumbrated are as follows:-
The 2nd respondent is the complainant and petitioner is the accused. The 2nd respondent seeks to register a complaint on 11-03-2023 against the petitioner alleging that the petitioner has threatened and intimidated the complainant. The complaint is brought before the K.R.Puram Police Station upon which the Station House Officer seeks permission of the X Additional Chief Metropolitan Magistrate at Bengaluru to register a crime under Section 506 of the IPC for criminal intimidation in the light of the fact that Section 506 of the IPC is a non-cognizable offence and for a non-cognizable offence permission of the Magistrate would be imperative under Section 155 of the Cr.P.C., The learned Magistrate on receipt of requisition permits the crime to be registered on perusal of requisition. On the crime being registered, the petitioner has knocked at the doors of this Court in the subject petition not on the issue of merit of the matter but on non-application of mind on the part of the learned Magistrate granting permission.”
Briefly stated, the Bench then most significantly observes in para 7 that, “A complaint comes to be registered before the K.R. Puram Police Station alleging intimidation or threatening the life of the complainant. The complainant when approached K.R. Puram Police Station, a non-cognizable report is made and a requisition is taken to the learned Magistrate to register a crime on such non-cognizable report as the facts would lead to an offence under Section 506 of the IPC. Section 506 deals with criminal intimidation. The ingredients of criminal intimidation are found in Section 503 of the IPC. Whoever threatens another with any injury to his person, reputation or property with intent to cause alarm to that person is said to have criminally intimated the victim. Therefore, the complaint did make out certain ingredients of Section 503. Since Section 506 is an offence that is non-cognizable, permission of the Magistrate would be required under Section 155 of the Cr.P.C., to register a crime. Section 155 has four parts to it. Sub-section (1) directs that when information is given to an officer in charge of a police station of the commission of a non-cognizable offence, he should enter the substance of the information and refer the informant to the Magistrate. Therefore, what could be gathered from the said provision is that on a non-cognizable offence the informant has to be referred to the learned Magistrate. Sub-section (2) directs that no investigation on a non-cognizable offence can take place without the written order of the Magistrate. Sub-section (4) relates to amalgam of a cognizable and a non-cognizable offence and if it is an amalgam the rigour of Section 155(1) and (2) would lose its significance. The entire issue now revolves around the aforesaid provisions of law. In the case at hand upon receipt of the afore-quoted complaint, the Station House Officer records a non-cognizable report and sends a requisition to the learned Magistrate seeking to register a crime. The learned Magistrate passes the following order:
“Perused the requisition seeking permission to register FIR in non-cognizable case. Permitted to register and investigate in accordance with law.” (Emphasis added)
Therefore, the order is perused and permitted. Except saying perused, the requisition and permitted investigation or registration of FIR, there is no indication of any application of mind on the part of the learned Magistrate. This Court in plethora of cases has been emphasizing the fact that Magistrates should not permit registration of FIR by usage of words “permitted”, “perused permitted” or even “permitted registration of FIR”. All these illustrations of granting permission on the face of it suffers from want of application of mind. Permitting registration of a FIR cannot be a frolicsome act on the part of the Magistrate. The Magistrate exercises power under sub-section (2) of Section 155 of the Cr.P.C., In doing so, it cannot be that he could pass orders which do not bear a semblance of application of mind. This Court in VAGGEPPA GURULINGA JANGALIGI v. STATE OF KARNATAKA ILR 2020 KAR 630 following all the earlier judgments rendered on the issue has held as follows:
“3. The petitioner has stated that the complaint is misconceived, and the alleged offence is non-cognizable as per the Code of Criminal Procedure, 1973. Therefore, the Police have no authority to investigate the crime. It is further submitted that the Police have not complied with mandatory requirement of Section 155 of Cr. P.C. When the officer-in-charge of the Police Station received information regarding commission of non-cognizable offence, he shall enter the same in a book to be maintained by the said officer and refer the informant to he Magistrate. Further, sub-Section (2) of Section 155 of Cr. P.C., mandates that no Police Officer shall investigate a non-cognizable case without order of a Magistrate having power to try such case or commit such case for trial. The petitioner has further stated that there is no iota of evidence that the above said mandatory requirement are complied with. There is no speaking order by the jurisdictional Magistrate permitting the Police to take up investigation. Therefore, the proceedings initiated against the petitioner who is arrayed as accused No. 4 in the charge sheet are liable to be quashed.
5. The Learned Counsel for the petitioner submitted that the offence punishable under Section 87 of the K.P. Act is non-cognizable one and therefore, as per Section 155(1) of Cr. P.C., the informant PSI ought to have been referred to the jurisdictional Magistrate and the jurisdictional Magistrate ought to have passed the order, permitting the concerned Police to take up investigation of the case and these are the mandatory requirements of the provisions under Section 155(1) and 155(2) of Cr. P.C. which are not followed in the present case. Therefore, the proceedings initiated against the petitioner are vitiated and are liable to be quashed.
This has been the law right from 2016 as followed in the afore-quoted judgment. But, the Magistrates have not changed their attitude of passing callous orders of granting permission which sometimes is only a one word order “permitted”. Therefore, the learned Magistrates by their callous action of passing of such orders have generated huge litigation before this Court as petitions are being filed under Section 482 of the Cr.P.C., seeking quashing of such orders which grant permission bearing no application of mind. Therefore, the learned Magistrates who pass such orders have contributed/ contributing to the docket explosion before this Court. It is rather unfortunate that the learned Magistrates are contributing to the pendency of such cases in the judiciary itself. It is high time now, that the learned Magistrates should mend their ways and apply their mind to the requisitions received and then pass appropriate orders. Since no orders are being passed despite repeated orders of this Court of the kind that this Court has directed. Therefore, I deem it appropriate to invoke the power under Section 483 of the Cr.P.C., and direct correction of errors by the learned Magistrates.
The Apex Court directs the High Court that apart from exercising its supervisory jurisdiction under Articles 227 and 235 of the Constitution of India it has a duty to exercise continuous superintendence over judicial Magistrates in terms of Section 483 of the Cr.P.C. In the light of the provision and its interpretation by the Apex Court, I deem it appropriate to invoke the said power to direct the learned Magistrates to pass appropriate orders which should contain the following:
“(i) The learned Magistrates shall record as to who has submitted the requisition whether it is the informant or the Station House Officer and make an endorsement of receipt of requisition in a separate order sheet.
(ii) The learned Magistrates shall not pass any order if the complaint is not enclosed to the requisition.
Please read concluding on
link4din.com/guardians-numeric-wisdom