KARUNAKARAN NAMBIAR Vs. STATE OF KERALA

JUDGEMENT

(1.) This petition was filed by the accused in Crime No. 577/2006 of the Kasaragod Police Station for offence under Section 211 of the Indian Penal Code (IPC) originally seeking an order to quash Annexure D First Information Report. Pending proceedings, police completed the investigation and submitted Annexure E charge-sheet before the Judicial Magistrate of the First Class, Kasaragod, alleging the same offence. Cognizance was taken by the learned Magistrate and the case was filed as C.C. 1227/2006. Thereupon, the petitioner amended this petition seeking an order to quash Annexure E charge-sheet also. The brief facts of the case are that the petitioner filed a private complaint before the Judicial Magistrate of the First Class, Kasaragod as CMP 157/2006 against one Narayanan Nair his son and wife, alleging offences under Sections 447, 427 and 506 r/w Section 34 IPC. The learned Magistrate forwarded the same to the Station House Officer, Kasaragod under Section 156(3) of the Code of Criminal Procedure (Cr.P.C). Upon receipt of the same, the Station House Officer, Kasaragod, registered a case as Crime No. 25/2006 for the above said offence for which Annexure A First Information Report was preferred. After investigation, the Station House Officer arrived at a conclusion that the allegations in the complaint are false. Accordingly, Annexure B Final Refer Report was filed before the Magistrate. Thereupon, it appears that the Station House Officer had obtained some sanction from his superior officers and a case was suo motu registered as Crime No. 577/2006 alleging offence under Section 211 IPC by Annexure D FIR and later Annexure E Final Report was filed. Protesting against Annexure B report referring the case as false, the petitioner filed a protest complaint before the Magistrate, copy of which is produced as Annexure C. The learned Magistrate took cognizance on Annexure C complaint for the earlier mentioned offences and the case was filed as C.C. 1106/2006.

(2.) The plea of the petitioner is bi-fold. One is that since the offence alleged in Annexure D and E are under Section 211 IPC, the learned Magistrate should not have taken cognizance except upon a complaint in writing by a court or by such officers of the court. the second ground is that since the learned Magistrate had taken cognizance on Annexure C protest complaint on the same bet of allegation and the accused therein are facing prosecution, the prosecution to; offence under Section 211 IPC as if the petitioner had caused to institute Annexure A criminal proceedings with intention to cause injury or falsely charged any person is not sustainable because the merit of the allegations is the subject-matter in C.C. 1106/2006.

(3.) Having heard either side and perusing the records, I find merit in both the arguments because admittedly, offence under Section 211 IPC is non cognizable. The Station House Officer, Kasaragod cannot take cognizance for offence under Section 211 IPC without the order of the Magistrate in view of the specific bar under Section 155(2) Cr.P.C. which stipulates that no police officer shall investigate a non cognizable case without the order of the Magistrate having power to try such case or commit the case for trial. Therefore, the registering of Annexure D FIR itself is without authority.