Karnataka High Court
State Of Karnataka vs Kallappa Yallappa Goni on 21 November, 1985
Equivalent citations: ILR1986KAR1225
ORDER Patil, J.
1. This revision by the State is directed against the order dated 27-7 1982 passed by Sri V. G. Charati, J.M.F.C., Bailhongal in C.C. No. 196/82, whereby the Learned Magistrate finding fault with the investigation made without prior permission has proceeded to make the order acquitting the accused.
2. In the first instance, the State filed appeal aginst the said order. Since the Magistrate bad proceeded to acquit the accused without trial, this Court held that inspite of the expression 'acquitted', it only amounts to a discharge of the accused and accordingly directed to register the appeal as revision. Accordingly, the appeal having been registered as revision, it has come up for hearing.
The facts of the case briefly stated are these :-
3. One Basavaraj Maharudrappa Angadi of Bailhongal village, who was working as a Patkari in Irrigation Department at Bailhongal was engaged in opening a sub-canal in the limits of Budihal village in Block No. 1-B, on 1-2-1982. When he was so engaged and was correcting a breach in the channel in S. Nos. 67/1, 2A/1B+1A/2 said to be belonging to accused Kallappa Budihal, the latter went abusing him in filthy words and started assaulting him. He picked up a stone and hurled it. The stone hit on the back of Basavaraj. Basavaraj went away from there and appraised of the same to the Chairman of the Village Panchayat, Budihal, and he later on approached the police and lodged a written complaint in Bailhongal Police Station. The Sub-Inspector of Police, who was in charge of the police station, on the basis of the complaint, registered a case in Cr. No. 13/82 for the commission of offences punishable under Sections 323. 336, 337 and 504 IPC and took up investigation. After investigation of the case, however, he found that only commission of non-cognizable offences punishable under Sections 323 and 504 IPC were disclosed. Accordingly, he made a report to the Magistrate. The Magistrate, after taking cognizance on the said report, issued summons for appearance of the accused and when the accused appeared and objected to the report made by the police on the ground that the investigation made by the police without prior permission of the Magistrate was illegal, the Magistrate, after hearing the Assistant Public Prosecutor and the Counsel for the accused, being of the view that the investigation made by the investigating Officer was illegal and the cognizance taken on such report made by the police was also illegal and the only course open was to acquit the accused, accordingly, made the order under revision.
4. The order made by the Magistrate cannot at all be sustained. There is no doubt, as provided under Sub-section (2) of Section 155 Cr. P.C., no police officer shall investigate a non-cognizable case without an order of a Magistrate having power to try such case or commit the case for trial. But at the same time, where the information given to the police officers in charge of the police station discloses commission of the offences both cognizable and non-cognizable, there is no bar for the police taking cognizance of the offences alleged and proceeding to investigate as provided under Section 156 Cr. P.C. Sub-section (4) of Section 155 specifically provides for such an eventuality and it says that where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case notwithstanding that the other offences are non-cognizable. The P.S.I., in the case on hand, has not only proceeded to register me case for the offences under Sections 323 and 504 IPG, which are non-cognizable, but he has also registered a case for the offences punishable Sections 336 and 337 IPC, which are cognizable by the police and, therefore, for all practical purposes it was a cognizable case and he had cot committed any illegality or irregularity in investigating the offences and making a report. Of course, after completion of the investigation, according to the P.S.I, only non-cognizable offences punishable under Sections 323 and 504 IPC ware disclosed and he had accordingly made a report to the Magistrate. That is no reason to hold that the investigation and the report made was illegal. The Magistrate, it appears, has proceeded on the basis that was a report made by the police under Clause (b) of Sub-section (1) of Section 190 Cr. P.C. May be because the I.O had used the form prescribed for making a report under Section 173(2). Even if the report was made by the P.S.I., in the form prescribed for making a report under Section 173(2) Cr. PC., the report had to be treated as one made under Clause(a) of Sub-section (1) of Section 190 for the simple reason that the complaint, as defined and explained under Sub-section (d) of Section 2 Cr. P.C. includes a report made by a police officer in a case which discloses commission of a non-cognizable offence and the police officer by whom such report, after investigation, is made shall be deemed to be the complainant. Although in such a case the procedure to be followed during inquiry and trial is as one instituted on a complaint, it is not obligatory to record the sworn statement of the police officer making such report. The Magistrate was wholly in error in acquitting the accused. The order under revision therefore deserves to be set aside.
In the result, the revision is allowed. The order under revision is set aside. The matter is remitted back to the Court below with a direction to take the case on its original number and dispose of the same in accordance with law and in the light of the observations made above, as expeditiously as possible.