Kerala High Court
Ahammed Manaf.E vs Sub Inspector Of Police on 12 November, 2010
Author: M.Sasidharan Nambiar
Bench: M.Sasidharan Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 4222 of 2010()
1. AHAMMED MANAF.E., S/O.VEERANKUTTY,
... Petitioner
2. RAJESH P., S/O.GANGADHARAN K.P.,
3. SABID MOHAMMED, S/O.SAIDALIKUTTY,
4. MOHAMMED MUHSIN, S/O.ABOOBACKER,
5. SHAN P.D., S/O.HASSAN P.D.,
6. MUHAMMED SHAMEEL C.P.,
Vs
1. SUB INSPECTOR OF POLICE,
... Respondent
2. PRINCIPAL, AWH ENGINEERING COLLEGE,
3. JAYAKRISHNAN, S/O.VIJAYAN PILLAI,
4. STATE REP; BY PUBLIC PROSECUTOR,
For Petitioner :SRI.T.G.RAJENDRAN
For Respondent :SRI.CIBI THOMAS
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :12/11/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
===========================
CRL.M.C.No. 4222 OF 2010
===========================
Dated this the day of November,2010
ORDER
Petitioners are the accused in Crime No.668/2010 of Medical College Police Station, Kozhikode. They are students of AWH Engineering College, Kuttikkattoor, Kozhikode. Crime 668/2010 was registered based on Annexure I complaint sent to Sub Inspector of Police, Medical College Police Station, by the Principal of the College, based on an enquiry conducted on receipt of a complaint forwarded an email by helpline @antiragging.net on 1.9.2010. The committee reported that petitioners were involved in asking the junior students to button up shirts, asking irrelevant questions, asking to tuck shirts inside and asking them to march on the road, after getting down from the bus. Petitioners were suspended Crl.M.C.4222/2010 2 as provided under section 6 of the Kerala Prohibition of Ragging Act, 1998 and the Principal forwarded Annxure 1 complaint to the police Station as provided in the section.
2. Section 4 of the Kerala Prohibition of Ragging Act (hereinafter referred to as the Act) is the penal provision. It reads:-
"4. Penalty for ragging
-whoever commits, participates in, abets or propagates ragging within, or without, any educational institution shall, on conviction, be punished with imprisonment for a term which may extend to two years and shall also be liable to a fine which may extend to ten thousand rupees."
The maximum sentence provided for the offence is imprisonment for a term which may extend to two years and shall also be liable to a fine which may extend to ten thousand rupees. The Act does not Crl.M.C.4222/2010 3 show whether the offence under section 4 is cognizable or non cognizable. In the absence of a specific provision in the Act, the question can be answered only as provided under the Code of Criminal Procedure.
3. Clause (c) of Section 2 of Code of Criminal Procedure defines a cognizable offence as means an offence for which and cognizable case means a case in a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant. The only penal provision in the Act, viz section 4 does not provide that it is a cognizable offence. Part II of Schedule 1 of Code of Criminal Procedure provides classification of offences against other laws. Part I provides classification of offence under Indian Penal Code. Part II provides three cateogories of offences. In the first category are offence punishable with death, imprisonment for life or imprisonment for more than seven years. The second category of offences are those punishable with imprisonment for three years Crl.M.C.4222/2010 4 and upwards but not more than seven years. Both these categories are cognizable offence. Third cateogory are offences punishable with imprisonment for less than three years or with fine only. These category of offences are non cognizable.
4. Therefore when the offence under section 4 is punishable for imprisonment of less than three years, it is only a non cognizable offence. If so a Sub Inspector of Police is not competent to register a case on receipt of a complaint. As provided under section 154 of Code of Criminal Procedure, the officer in charge of a police station to record the information only in respect of a cognizable offence.
5. Section 155 of Code of Criminal Procedure provides the procedure to be followed in a case where information of a non-cognizable offence was received by an officer in charge of the police station and for its investigation. Under sub section (1), when information is given to an officer in charge of a police station, of the commission within the limits of such station, of a Crl.M.C.4222/2010 5 non-cognizable offence, 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 and refer, the informant to the Magistrate. Sub section (2) mandates that no police officer shall investigate a non-cognizable case, without the order of a Magistrate having power to try such case or commit the case for trial. As an offence under section 4 of Kerala Prohibition of Ragging Act is only a non cognizable offence, on receipt of a complaint of the commission of an offence under Section 4 of the Act, the officer in charge of the police station is not competent to register the case. He cannot investigate the case without the order of a competent Magistrate.
6. Section 6 of the Act reads:-
(1)Whenever any student or, as the case may be, the parents or guardian, or a teacher of an educational institution complains, in writing, of Crl.M.C.4222/2010 6 ragging to the head of the educational institution, the head of that educational institution shall, without prejudice to the foregoing provisions, within seven days of the receipt of the complaint, enquire into the matter mentioned in the complaint and, if, prima facie, it is found true, suspend the student who is accused of the offence, and shall immediately, forward the complaint to the police station having jurisdiction over the area in which the educational institution is situate, for further action. (2) Where, on enquiry by the head of the educational institution, it is proved Crl.M.C.4222/2010 7 that there is no substance prima facie in the complaint received under sub section (1), he shall intimate the fact, in writing to the complaint."
Therefore even though Section 6 of the Act provides that the head of the educational institution shall within seven days of receipt of a complaint in writing by a student, parents or guardian or teacher of ragging, the head of the educational institution shall enquire into the matter mentioned in the complaint and prima facie it was found true shall immediately forward the complaint to the police station, having jurisdiction over the area in which the educational institution is situate, for further action, on receipt of such complaint, the police officer can only proceed as provided under sub section (1) of Section 155 of Code of Criminal Procedure as it is only a non cognizable offence. The officer in charge of the police station can only record the Crl.M.C.4222/2010 8 substance of the information, in the book kept by such officer in such form, and refer the informant to the Magistrate. Moreover the complaint to be forwarded to the police station as provided under section 6 of the Act is not a complaint by the head of the educational institution, but the complaint received by the head of the educational institution from a student or parents or guardians or teacher of ragging, which was enquired and prima facie found to be true. The complaint received by the Sub Inspector and based on which the F.I.R was prepared and case was registered is not the complaint received by the Principal but the complaint in writing made by the Principal based on his enquiry on the complaint received. If that be so, registration of crime 668/2010 for the offence under section 4 of the Act alone by the Sub Inspector of Police, is bad in law. So also the Sub Inspector of Police could not have investigated the case, without the orders of the Magistrate. Though in this case, based on the investigation, offences under section 341 and Crl.M.C.4222/2010 9 506(i) of Indian Penal Code, out of which one alone is a cognizable offence, were subsequently incorporated and case is being investigated for the said offences also, when the Sub Inspector of Police could not have investigated the case registered for the offence under section 4 of the Act alone, in law the investigation of the case registered for the offence under section 4 of the Act alone, incorporating the offences under Indian Penal Code in a case registered for a non cognizable offence is also bad. By such incorporation of an offence under the Indian Penal Code, the registration of the case or investigation of such offence cannot be validated. Moreover, even if it is taken that the Sub Inspector of Police on getting information of commission of a cognizable offence could register a case and investigate, the offence under section 341 of Indian Penal Code being a cognizable offence both the offences under section 341 and 506(i) of Indian Penal Code are compoundable offences and even leave of the court is not required to Crl.M.C.4222/2010 10 compound these offences, as provided under section sub section (1) of Section 320 of Code of Criminal Procedure.
7. Respondents 3 to 6 who are the injured and the persons who were intimidated, appeared through a counsel and filed a joint petition with the petitioners stating that they have settled all the disputes and the offences are compounded. As the offence under section 506(i) and 341 of Indian Penal Code are compoundable and leave of the court is not necessary to compound the offences and the offences were compounded, as is clear from the joint petition filed, it is not in the interest of justice to continue the prosecution of the case further. As the offences under section 341 and 506
(i) of Indian Penal Code are compounded and the registration of crime 668/2010 of Medical College Police Station for the offence under section 4 of Kerala Prohibition of Ragging Act itself was bad in law, the further proceedings can only be quashed.
8. Before parting with the case it is Crl.M.C.4222/2010 11 necessary to caution Government on the deficiency of Kerala Prohibition of Ragging Act 1998 enacted for a laudable purpose. The Act was enacted to prohibit ragging in Educational institutions in the State of Kerala as it has become a menace to the civilized society. Though under section 4 of the Act,a penal provision is enacted, providing imprisonment for a term which may extend to two yeas and also fine which may be extend to ten thousand rupees, the offence is not made cognizable. Though under section 6, a direction is issued to the head of the Educational institution, to suspend the student immediately and to forward the complaint to the police station, having jurisdiction over the area in which the educational institution is situated, for further action, it will serve no purpose when the offence is not made a cognizable offence. The Station House Officer on receipt of such a complaint can only refer the informant to the concerned Magistrate as provided under section (1) of Section 155 of the Code of Criminal Procedure. The police cannot even Crl.M.C.4222/2010 12 investigate such a non -cognizable offence, without the orders of the Magistrate. In such circumstances, the Act would serve no purpose. Public Prosecutor is directed to bring it to the notice of the Government, to take appropriate amendment to the Act making the offence under section 4, a cognizable offence.
Petition is allowed. Crime 668/2010 of Medical College Police Station against the petitioners is quashed.
M.SASIDHARAN NAMBIAR JUDGE tpl/-
M.SASIDHARAN NAMBIAR, J.
---------------------
W.P.(C).NO. /06
---------------------
JUDGMENT SEPTEMBER,2006