Quashed

Divin Devassy, v. State of Kerala

Kerala HC27 May 2019Crl.MC/966/2019

Case brief

AI extract

What is this about?

The High Court quashed an FIR registered for non-cognizable offences under Section 506 IPC and Section 120(o) of Kerala Police Act, 2011 due to violation of Section 155 Cr.P.C. Mandatory referral to the Magistrate and investigation order were absent, rendering registration illegal. The court held that adding a cognizable offence later did not cure the illegality.

What did the court decide?

The impugned FIR is quashed; all further steps in the proceedings are quashed.

Divin Devassy, Vs State of Kerala — Constitutional and Fundamental Rights | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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MONDAY, THE 27TH DAY OF MAY 2019 / 6TH JYAISHTA, 1941

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Crl.MC.No. 966 of 2019

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CRIME NO. 102/2019 OF Erumeli Police Station , Kottayam

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PETITIONER/ACCUSED:

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DIVIN DEVASSY, AGED 18 YEARS S/O V.P. DEVASSY, VADAKKUMCHERY HOUSE, MOOKANNUR P.O, ERNAKULAM-683577.

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BY ADV. SRI.A.RAJASIMHAN

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RESPONDENT/STATE AND ANOTHER:

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1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.

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2 STATION HOUSED OFFICER, ERUMELI POLICE STATION, KOTTAYAM-686509.

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3 SEBASTIAN JOSEPH, S/O V.C. JOSEPH, VADAKKETHAKADIYEL, PAZHAYIDAM P.O., CHENAPPADI, KOTTAYAM-686520.

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OTHER PRESENT:

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SMT.PRIYA SHANAVAS, PUBLIC PROSECUTOR

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27.05.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 966 of 2019

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ALEXANDER THOMAS, J.

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===========================

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Crl.M.C.No. 966 of 2019 ===========================

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Dated this the 27^th day of May, 2019

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ORDER

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Petitioner has been arrayed as accused in the impugned Annexure-A1 FIR in Crime No. 102/2019 of Erumeli Police Station, which has been registered for offences punishable under Sections 506(1) of the IPC and Section 120 (o) of Kerala Police Act, 2011.

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The brief of the allegation raised against the petitioner in the said crime can be seen from column No.12 of the Annexure A1 FIR which reads as follows :

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“dÉÄßAí ¦ÕÜÞÄßAÞøæa ÎµZ 15 ÕÏTáU æùÎßX æØÌÞØíxcæÈ çÎÞÖÎÞÏß ºßdÄàµøßAÃæÎKá¢ ØÎâÙJßW ¥ÉÎÞÈßAÃæÎKá¢ ©U ©çÆÖçJÞ¿áµâ¿ß ¿ßÏÞ{áæ¿ çËÞçGÞ ÈÕÎÞÇcÎÎÞÏ Face book Üâæ¿Ïá¢ Îxá¢ çÉÞØíxíæºÏñá¢ Äá¿VKí dÉÄß 2018 ÈÕOV ÎÞØ¢ ¦ÕÜÞÄßAÞøæa çºÈMÞ¿ßÏßæÜ ÕàGßæÜJß ÕàGáµÞæø Íà×ÃßæM¿áJáµÏá¢ Îxá¢ æºÏñí ¦ÕÜÞÄßAÞøæa Îµæ{ çÎÞÖÎÞÏß ºßdÄàµøßAÞÈá¢ ØÎâÙJßW ¥ÉÎÞÈßAÞÈá¢ dÖÎßºîá ®KáUÄí.”

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It is beyond any dispute that both the offences alleged in the impugned Annexure A1 crime are non-cognizable offences. Section 155 of Cr.P.C., 1973 deals with information as to non-cognizable cases and investigation of such cases provides as follows :

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Crl.MC.No. 966 of 2019

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“ 155 . Information as to non-cognizable cases and investigation of such

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cases.- (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 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 in this behalf, and refer the informant to the Magistrate.

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(2) 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.

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(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.

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(4) 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.”

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It is clearly provided in Sub-section (1) of Section 155 that bare information is given to a Police Station of the commission of any non-cognizable offences, then the police officer concerned is obliged to 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 that behalf, and refer the informant to the Jurisdictional Magistrate court concerned. Further, it is mandatory in Section 155(2) 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 etc. In the instant case,

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the prosecution does not have any case that the informant has been referred to the Jurisdictional Magistrate court concerned as mandatory in

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Crl.MC.No. 966 of 2019

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Section 155(1) or that the order of the learned Magistrate granting permission to the Police to investigate the non-cognizable case as envisaged in Section 155(2) has to be obtained in the instant case. Therefore, it is only to be held that the very registration of the crime as per Annexure-A1 is illegal, ultravires and beyond the competence of the police authorities concerned. It is now pointed out that after the registration of the instant crime and after the filing of the instant Crl.M.C. in this case, the Police has added a new offence as per Section 67 of the Information Technology Act, 2000. It is not known under what circumstances such action has been so taken. However, it is to be noted that the very registration of Annexure-A1 crime is vitiated by lack of jurisdiction, as it is violation of the mandatory provisions contained in Section 155 (1) of Cr.P.C.1973. If that be so, since the FIR has no legs to stand, the subsequent addition of another offence even if it is cognizable will not salvage the FIR, if otherwise ultravires.

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In that view of the matter, it is ordered that the impugned Annexure-A1 FIR will stand quashed and all further steps taken in the proceedings thereof will stand quashed. However, it is ordered that if the Police has any objective materials to proceed with any other offence including that for Section 67 of the Information Technology Act, 2000, it is for the Police authorities concerned to proceed strictly in accordance with law.

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With these observations and directions, the above Crl.M.C. will

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Crl.MC.No. 966 of 2019

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stand finally disposed of.

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sd/-

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ALEXANDER THOMAS JUDGE

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SKS

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Crl.MC.No. 966 of 2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A1 TRUE COPY OF FIR IN CRIME NO.102/2019 OF ERUMELI POLICE STATION

Divin Devassy, v. State of Kerala

Case brief

What is this about?

What did the court decide?

Divin Devassy, v. State of Kerala

Case brief

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