Kerala High Court
Raseena Jasmin vs Principal on 28 January, 2011
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 38 of 2011()
1. RASEENA JASMIN, AGED 22 YEARS,
... Petitioner
2. SOUMYA K., AGED 21 YEARS,
3. LIJI.K., AGED 21 YEARS,
Vs
1. PRINCIPAL, E.M.E.A. COLLEGE OF ARTS &
... Respondent
2. SUB INSPECTOR OF POLICE,
3. STATE OF KERALA,
For Petitioner :SRI.P.VENUGOPAL (1086/92)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :28/01/2011
O R D E R
THOMAS P. JOSEPH, J.
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Crl.M.C. Nos.38, 88 and 166 of 2011
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Dated this the 28th day of January, 2011.
ORDER
These petitions are filed by accused Nos.2 to 6 in C.C.No.992 of 2010 of the court of learned Judicial First Class Magistrate-I, Manjeri for offence punishable under Section 4 of the Kerala Prohibition of Ragging Act, 1998 (for short, "the Act"). Prayer is to quash final report in Crime No.67 of 2010 of Karippur Police Station, cognizance taken against petitioners and the proceedings in C.C.No.992 of 2010 of the court of learned Judicial First Class Magistrate-I, Manjeri. Crl.M.C.No.38 of 2011 is filed by accused Nos.2, 3 and 5, Crl.M.C.No.88 of 2011 is filed by accused No.4 and Crl.M.C.No.166 of 2011 is filed by accused No.6. According to the petitioners, registration of the case, investigation and cognizance taken are all illegal being against Section 155 of the Code of Criminal Procedure (for short, "the Code") and Section 6 of the Act. It is contended by learned counsel that the proceedings are illegal. Reliance is placed on the decision in Ahammed Manaf v. Sub Inspector of Police (2010 (4) KLT 837).
2. I have heard learned counsel and the learned Public Prosecutor. Annexure-C in Crl.M.C.No.38 of 2011 is the FIR in Crime No.67 of 2010 referred above where the offence attributed to petitioners is under Section 4 of the Act. It is seen that the case was registered on the basis of Annexure-A, enquiry report Crl.MC Nos.38,88 & 166/2011 2 forwarded to the Police by the Head of the Institution with Annexure-B, covering letter. Following registration of the case the police investigated and submitted Annexure-D (in Crl.M.C.No.38 of 2011) final report before learned Judicial First Class Magistrate alleging offence punishable under Section 4 of the Act. Now the question is whether registration of the case, investigation and cognizance taken are illegal as contended by learned counsel.
3. Going by Section 6 of the Act, the Head of the Institution on receiving a complaint from any of the persons referred to therein has to conduct an enquiry into the matter and if prima facie the complaint is found true, he has to "forward the complaint to the Police Station having jurisdiction over the area in which the educational institution is situate, for further action". In otherwords it is not as if the Head of the Institution is required to make a complaint of his own to the Station House Officer concerned or merely forward the report of enquiry, instead he is to forward the complaint received from any of the persons referred to in Section 6 (1) of the Act after conducting an enquiry and if the complaint is found to be prima facie true. Annexure-B in Crl.M.C.No.38 of 2011 shows that it is only a forwarding letter whereby the Head of the Institution has forwarded a copy of the report of enquiry (Annexure-A) to the Sub Inspector requesting further action in the matter. The complaint, if any received from the persons referred to in Section 6(1) of the Act has not been forwarded to the Police. Squarely it goes against the requirements of Section 6 of the Act. Thus the procedure adopted by the Head of the Institution in forwarding the enquiry report and the Sub Inspector in registering the case are illegal being against the Crl.MC Nos.38,88 & 166/2011 3 mandate of Section 6 of the Act.
4. Then the question is whether registration of the case, investigation and cognizance taken are legal. Offence punishable under Section 4 of the Act is non-cognizable in nature as revealed from Section 6 of the Act. In such a situation when information is received by the Police Officer as to the commission of a non-cognizable offence the procedure to be followed is prescribed under Section 155 of the Code. Sub-section (1) of Section 155 of the Code says that when information is received by the officer-in-charge of a Police Station regarding commission of the non-cognizable offence within the limits of his Station, he shall enter the information in a book to be kept for the said purpose as prescribed and refer the informant to the Magistrate concerned. Sub-Section (2) of Section 155 says that a Police Officer shall not investigate a non-cognizable offence without the order of a Magistrate having power to try such offence or commit the case for trial. It is not disputed before me that the said procedure has not been followed by the Sub Inspector while registering the case and investigating it . Dealing with the above provision of law a learned Judge of this Court in Ahammed Manaf v. Sub Inspector of Police (supra) has held that offence being non-cognizable the Police is not competent to register a case and initiate investigation without the order of the competent Magistrate.
5. It is not a case of irregular exercise of jurisdiction in registering and investigating the case and submitting final report but, a case of lack of Crl.MC Nos.38,88 & 166/2011 4 jurisdiction. That goes to the root of investigation and the result of such investigation. It follows that final report submitted by the Sub Inspector is without authority and hence cognizance taken by the learned Magistrate is also illegal. In such a situation petitioners need not be asked to face the trial as it would only be a farce and waste of time and energy. Petitioners are entitled to the reliefs prayed for.
Resultantly these petitions are allowed. The FIR and final report in Crime No.67 of 2010 of Karippur Police Station, cognizance taken thereon and proceedings in C.C.No.992 of 2010 of the court of learned Judicial First Class Magistrate-I, Manjeri concerning petitioners (accused Nos.2 to 6) are quashed.
THOMAS P.JOSEPH, Judge.
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