Kerala High Court
Sridevi Padmanabhan vs The Sub-Inspector Of Police on 24 February, 2020
Equivalent citations: AIRONLINE 2020 KER 1300
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
"C.R."
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 24TH DAY OF FEBRUARY 2020 / 5TH PHALGUNA, 1941
Crl.MC.No.5030 OF 2019(G)
IN CC 458/2018 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-XI,
THIRUVANANTHAPURAM
CRIME NO.1917/2017 OF VALIYATHURA POLICE STATION ,
THIRUVANANTHAPURAM
PETITIONER/ACCUSED:
SRIDEVI PADMANABHAN,AGED ABOUT 53 YEARS
D/O. SHRI. PADMANABHAN,
A24, 2ND AVENUE, W BLOCK,
C SECTOR, JAYANTHA SNEHAM APARTMENTS,
3RD FLOOR, ANNA NAGAR EAST,
CHENNAI 600 101
BY ADVS.
SRI.GILBERT GEORGE CORREYA
SRI.NISHIL.P.S.
SRI.A.VELAPPAN NAIR
SRI.GEORGIE JOHNY
RESPONDENTS/STATE & COMPLAINANT:
1 THE SUB-INSPECTOR OF POLICE,
VALIATHURA POLICE STATION,
VALIATHURA POLICE STATION,
THIRUVANNATHAPURAM
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM 682 031
2 THE AIRPORT MANAGER,
AIR INDIA LIMITED,
INTERNATIONAL AIRPORT,
THIRUVANANTHAPURAM, VALIATHURA,
THIRUVANANTHAPURAM 695 008
BY SMT.PUSHPALATHA.M.K., PP
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
24.02.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No.5030 OF 2019(G)
2
"C.R."
ORDER
Dated this the 24th day of February 2020 Petitioner is the sole accused in CC No.458/2018 on the file of the Judicial First Class Magistrate Court XI, Thiruvananthapuram. The above case is registered based on Annexure IV Final Report. The Sub Inspector of Police, Valiathura Police Station filed Annexure IV Final Report alleging offence punishable under Section 11A of the Air Craft Act, 1934.
2. The prosecution case in brief is that, the petitioner is a Cabin Crew Member of Air India. On 17.08.2017, the petitioner was on duty in Air India Flight No.A1968 from Sharjah to Chennai via Thiruvananthapuram. As part of routine check on arrival at Thiruvananthapuram International Air Port, the petitioner was subjected to Breath Analyser Test. In the Breath Analyser Test conducted on the petitioner, the reading was 0.07. Subsequently, a trial test was conducted by the Doctor. The alleged second test was conducted by the Duty Doctor, wherein the reading was 0%. Thereafter, the petitioner was again subjected to confirmatory test, Crl.MC.No.5030 OF 2019(G) 3 wherein the reading was shown to have increased to 0.17%. Annexure 1 is the Test Report. Based on Annexure 1, Annexure II letter dated 27.10.2017 was sent by the Air Port Manager to the Sub Inspector of Police, Valiathura Police Station, that is after two months of the alleged incident. Based on Annexure II letter, Annexure III FIR was registered by the Valiathura Police as Crime No.1917/2017 alleging offence under Section 11A of the Air Craft Act, 1934. After investigation, the police submitted Annexure IV Final report on 25.11.2017. Now, the petitioner filed this Criminal Miscellaneous Case under Section 482 of the Criminal Procedure Code to quash the entire proceedings, raising several contentions.
3. Even though several contentions are raised, the learned counsel for the petitioner confined to his argument on a single point. According to the counsel, Section 11A of the Air Craft Act, 1934 is a non-cognizable offence and hence, the police has no authority to investigate the same without prior permission of the Magistrate under Section 155(2) Cr.P.C. Learned counsel for the petitioner relied on the judgment of the Apex Court in Keshav Lal Thakur v. State of Bihar [(1996) 11 Supreme Court Cases 557] Crl.MC.No.5030 OF 2019(G) 4 and the judgment of this Court in Savithri v. State of Kerala [2016 (2) KLT 322].
4. Heard the learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel for the second respondent. The learned counsel for the second respondent and the prosecutor argued vehemently that the charge-sheet will stand and the offence is made out.
5. Annexure IV Final Report is filed against the petitioner alleging Section 11A of the Air Craft Act, 1934. Section 11A of the Air Craft Act, 1934 is extracted hereunder:-
"11A. Penalty for failure to comply with directions issued under section 5A.- If any person wilfully fails to comply with any direction issued under Section 5A, he shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to ten lakh rupees, or with both."
6. A reading of the above section, it is clear that the maximum punishment that can be imposed by a court is two years or with fine which may extend to ten lakhs. In the Air Craft Act, it is not stated that, the offence is cognizable. Category 3 of Schedule II of Cr.P.C says that, offences punishable with Crl.MC.No.5030 OF 2019(G) 5 imprisonment for less than three years or with fine are non- cognizable offence. There is nothing in the Air Craft Act, 1934 to show that Section 11A is a cognizable offence. It is true that, a mere absence of declaration in a statute that an offence under it is cognizable is not a reason to hold that the offence is non- cognizable. This point was considered by this Court in Noufal v. State of Kerala [2017 (3) KLT 660]. Relevant portion is extracted hereunder:-
"26. To recapitulate, mere absence of declaration in a statute that an offence under it is cognizable is no reason to hold that that offence is non cognizable. The phrase 'or under any law for the time being in force' used in S.2(c) Cr.P.C refers to offences which are punishable with imprisonment for less than three years, but for which police have been empowered to arrest without warrant because all offences punishable with imprisonment for three years and above are cognizable offences as specified in list 2 in Schedule I Cr.PC. Even if only a class of police officers has been empowered to arrest without warrant for an offence under an Act, which is punishable with imprisonment for less than three years, it is cognizable offence. The offence under S.12(1)(b) of the Passports Act, or for that matter any offence under S.12, is a cognizable offence because S.13 of the Act empowers police officers of and above the rank of Sub Inspectors to arrest without warrant. For the purpose of S.15 of the Act institution of prosecution takes place only when Crl.MC.No.5030 OF 2019(G) 6 cognizance is taken by the court having jurisdiction. Sanction of the Central Government contemplated by the Section is necessary only at the time cognizance is taken. For registration of case or investigation sanction is not required. "
That was a case in which the offence was under the Passports Act, 1967. The offence under Section 12(1)(b) of the Passports Act is treated as cognizable offence by this Court mainly for the reason that Section 13 of the said Act empowers police officers of and above the rank of Sub Inspectors to arrest without warrant. In such circumstances, this Court held that mere absence of declaration in a statute that offence is cognizable, it is a reason to hold that offence is non-cognizable.
7. But, in the present case there is no provision like Section 13 of the Passports Act. Therefore, the said decision is not applicable in the facts and circumstances of this case.
8. The Apex Court in Keshav Lal Thakur's case (supra) clearly stated that a non-cognizable offence cannot be investigated by the police without prior permission of the competent Magistrate under Section 155(2) Cr.P.C. The relevant portion of the judgment is extracted hereunder:-
Crl.MC.No.5030 OF 2019(G) 7 "3. We need not go into the question whether in the facts of the instant case the above view of the High Court is proper or not for the impugned proceeding has got to be quashed as neither the police was entitled to investigate into the offence in question nor the Chief Judicial Magistrate to take cognizable upon the report submitted on completion of such investigation. On the own showing of the police, the offence under Section 31 of the Act is non-cognizable and therefore the police could not have registered a case for such an offence under Section 154 Cr.P.C. Of course, the police is entitled to investigate into a non-cognizable offence pursuant to an order of a competent Magistrate under Section 155(2) Cr.P.C but, admittedly, no such order was passed in the instant case. That necessarily means, that neither the police could investigate into the offence in question nor submit a report on which the question of taking cognizance could have arisen.
While on this point, it may be mentioned that in view of the Explanation to Section 2(d) Cr.P.C, which defines 'complaint', the police is entitled to submit, after investigation, a report relating to a non-cognizable offence in which case such a report is to be treated as a 'complaint' of the police officer concerned, but that explanation will not be available to the prosecution here as that relates to a case where the police initiates investigation into a cognizable offence - unlike the present one - but ultimately finds that only a non-cognizable offence has been made out."
9. Similarly, this Court in Savithri's case (supra) also considered the same point. The relevant portion of the judgment in Savithri's case is extracted hereunder:-
Crl.MC.No.5030 OF 2019(G) 8 "7. As per S.155 of the Cr.P.C., when an information about non-cognizable offence is reported to the officer in charge of the police station, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf and refer the informant to the Magistrate. S.155(2) expressly prohibits a Police Officer from investigating a non-
cognizable case without the order of a Magistrate having power to try such case. When such an order is issued by a Magistrate and which was obtained by a Police Officer by virtue of S.155(3), he can exercise such powers in respect of the officer in-charge of a Police Station. But he has no power to arrest without a warrant. Here, no such order was obtained by the Sub Inspector when he got report about a non-cognizable case.
8. In Vasudev v. State (1984 (2) Crimes 599) it was held that "4. I find force in each of these contentions. The investigation in the present case by the police was wholly incompetent and the law did not permit the S.H.O to proceed with the same unless he had specifically obtained permission from the Magistrate having power to try such case, or commit the case for trial. S.155 Cr.P.C in this regard is quite explicit. In fact, sub-section (2) prohibits the police officer to investigate a non-cognizable case without the permission of the Magistrate concerned. When this is the position of law, the investigation and the filing of the challan in the present case must be struck down." In State v. Prabhu Daya (AIR 1953 Hyd.273) it was held that, the police officer can take up the investigation of a non- cognizable case upon order of the Magistrate, the investigation which he holds becomes an investigation under Chapter 14 Crl.MC.No.5030 OF 2019(G) 9 Cr.P.C, Therefore, it is the settled law that where the allegation in the F.I.R do not constitute a cognizable offence but constitute a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code and such investigations, if carried out, would not be validated oven by an order of the Magistrate obtained subsequently."
10. Another learned single Judge of this Court also considered this point in Sanal E. Issac v. State of Kerala [2015(4) KHC 376]. Relevant portion of the judgment is extracted hereunder:-
"4. Since the offences under the Motor Vehicles Act are created by a special enactment, Schedule to Table No.2 (Classification of offences against other law) under First Schedule (Classification of offence) provided in the Code of Criminal Procedure has to be examined to determine whether such an offence is cognizable or non-cognizable. The last item of Table No.2 (Classification of offences against other laws) under Schedule I CrPC provides that if the offence created by the other laws is punishable with imprisonment for less that three years or with fine, then the offence is non-cognizable and is bailable and is triable by any Magistrate. Since the maximum imprisonment that can be imposed for the offence under S.3(1) read with S.1981 of the Motor Vehicles Act can only extend upto three months, the said offence under the Motor Vehicles Act is a non - cognizable offence. Since the offence involved in MMDR in the impugned crime is not prosecutable on the basis of the Police Report, the criminal proceedings in that regard are Crl.MC.No.5030 OF 2019(G) 10 liable to be interdicted. However, since the other remaining offences in the impugned Annexure-2 final report/charge-sheet are only the aforestated offences under the Motor Vehicles Act, which are non-cognizable, the impugned Annexure-2 final report/charge-sheet to the extent it includes even the offences under the Motor Vehicles Act is not maintainable as the latter offences being non-cognizable offences cannot be independently prosecuted. Otherwise it will amount to violation of the mandate of S.155(2) of the CrPC and the respondents have no case that they have obtained the prior permission of the Magistrate as mandated in S.155(2) of the CrPC for investigating those non-cognizable offences. Accordingly, the impugned Anx.2 final report/charge-sheet filed in the impugned Annexure-1 Crime No.542/2013 of the Chingavanam Police Station and all further proceedings arising thereform pending against the petitioner are quashed."
In the light of the above authoritative judgments of the Apex Court and this Court, it is clear that, no police officer can investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. Section 11A of Air Craft Act, 1934 is a non-cognizable offence. It is not stated in the Air Craft Act, 1934 that the same is a cognizable offence. Moreover, the maximum punishment that can be imposed under Section 11A of the Air Craft Act, 1934 is for a term which may extend to two years or with fine which may extend to ten lakh Crl.MC.No.5030 OF 2019(G) 11 rupees. Category 3 of Schedule II of Cr.P.C clearly says that, if an offence punishable with imprisonment for less that three years or with fine only are non-cognizable offence. In such circumstances, there is no doubt that Section 11A is a non-cognizable offence. In the light of the decisions of this Court and the Apex Court, the learned Magistrate erred in taking cognizance based on Annexure IV Final Report in which the offence alleged is under Section 11A of the Air Craft Act, 1934, which is a non-cognizable offence. Since it is non-cognizable offence, the police ought not have registered Annexure III FIR also.
11. Therefore, all further proceedings in Annexure IV and Annexure III (CC No.458/2018 pending before the Judicial First Class Magistrate Court-XI, Thiruvananthapuram in Crime No.1917/2017 of Valiathura Police Station) are hereby quashed.
With these observations, the Crl.M C is allowed.
Sd/-
P.V.KUNHIKRISHNAN
dlk/25.02.2020 JUDGE
Crl.MC.No.5030 OF 2019(G)
12
APPENDIX
PETITIONER'S EXHIBITS:
ANNEXURE 1 TRUE COPY OF THE PRINT OUT OF THE TEST
REPORT DATED 17-08-2017
ANNEXURE II TRUE COPY OF THE LETTER NO.
319/DPIN/VIPS/17 OF THE 2ND RESPONDENT
DATED 27-10-2017
ANNEXURE III TRUE COPY OF THE FIR DATED 27-10-2017 IN
CRIME NO. 1917/2017 OF VALIATHURA POLICE
STATION, THIRUVANANTHAPURAM
ANNEXURE IV TRUE COPY OF THE FINAL REPORT UNDER
SECTION 173 OF CR PC DATED 25-11-2017