By Bhavani Kumar, SLS Pune
Editor’s Note: All crimes under the Indian Penal Code are categorized as either cognizable offences or non-cognizable offences. Cognizable offences are those offences that the police may take cognizance of or commence investigation on without there being a First Information Report filed or without the permission of a magistrate, the latter provisions is governed by sections 156 of the Code of Civil Procedure. Section 154 mandates that the police are obliged to register and take cognizance of all reports of cognizable offences. This paper provides a case analysis of the judgment: Vadlamudi Kutumba Rao v. State of Andhra Pradesh. The case establishes that Section 155 prohibits investigation with approval from magistrate into purely non-cognizable cases and if the main objective is a cognizable case no such permission is needed.
A case which sought to clarify some of the ambiguity surrounding the provisions of the Cr.P.C in relation to the investigation of cases that had elements of both cognizable and non cognizable offences is that of Vadlamudi Kutumba Rao v. State of Andhra Pradesh. The facts in this particular case are that the Petitioner in this case, V K Rao, The president of a marketing Co operative Society was charged by the Deputy Registrar of Co-operative Societies for criminal breach of trust, punishable under Section 409 of the Indian Penal Code.
Charges were later filed against the Petitioner and seventeen other accused for various charges under the I.P.C, namely sections 120B, 409, 467, 468, 471 and 193. Once the case was in progress before the court of the judicial magistrate second class and the chief examination of the first witness was under way the petitioner filed a petition contested that the investigation was not conducted in keeping with the rule of law and the magistrate should either order a reinvestigation, commence an enquiry under Section 208 or split the case in two by transferring the cognizable offence to a magistrate competent to try it i.e. judicial magistrate first class. This petition was dismissed by the magistrate on the grounds that this was merely an attempt to delay the case. An appeal was allowed on this decision and the case came before the High Court.
The two central issues before the court are whether the decision of the lower court was justifiable and if the procedure followed during investigation was in compliance with the rule of law. The central issues of the case can be divided into two rough heads, the first being if the case as a whole must be investigated under the provisions provided for to investigate cognizable offences or non cognizable offences and the second if Section 409 I.P.C is the only element of a cognizable offence in the case.
Section 155(2) of the Cr.P.C mandates that all non cognizable offences shall require the permission of a magistrate competent to try the case prior to commencement of the investigation, no such permission was obtained in the present case.[i] The question thus arises if they were required to obtain such a warrant as the investigation was primarily of the crime under Section 409 and 120(B) I.P.C and all other charges arose out of acts carried out in furtherance of the primary objective of criminal breach of trust which is a cognizable offence under section 409 I.P.C read with schedule I of the Cr.P.C.
This also gives rise to the further sub issue of whether 120(B) in this case is a cognizable or non cognizable case. The section of the I.P.C provided that the in the case of a conspiracy the offence becomes cognizable if the penalty provided for the main objective of the conspiracy warrants a penalty of imprisonment of more than seven years or life.
The High Court had to decide on the merits of the petition alleging that the decision was improper and either uphold or overrule the decision of the lower court.
To first establish which of the charges framed against the petitioner are cognizable and which are not, attention must be paid to section 409 of the I.P.C which in the Ist Schedule of the Cr.P.C classifies the offence of criminal breach of trust as Cognizable, non bail able and may be tried by judicial magistrate first class. The other charge that may be classified as cognizable is Section 120 of the I.P.C, the entry in Schedule 1 of Cr.P.C against this section states that the cognizance of the crime depends on the nature of the object of the conspiracy. Section 120(B) provided a clarification and provides that if the object is any offence that carries a sanction of death, life imprisonment or rigorous imprisonment for a term of two years or more shall be treated as abettors of that offence, which is cognizable.
The other offences in the charge sheet pertaining to crimes such as forging document, listed under sections 467(using a forgery for the purpose of making money) , 468 (Forgery for the purpose of cheating), 471(using a forged document as genuine when known to be fake), and 193 (giving fake evidence) I.P.C are all listed a non cognizable offence under Schedule 1.
This now leads to the question of whether the crime as a whole must be treated a congnizable in its totality as the non cognizable offences were committed in furtherance of the crime under 409 for the petitioner and 120 for all other accused in the case which are both cognizable offences. The key provision in this regard is section 155(2) of the Cr.P.C which provides
“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”
The key work in the interpretation of this section is the use of non-cognizable case in place of non cognizable offence. This suggests that the framers of the code intended for the case to be treated as a whole and not parts of it tried separately and that all elements of the case must be looked into to treat the case in its totality as cognizable or non cognizable. In the case of Ram Krishna v. State[ii] the Punjab High Court has observed that:
“A Police Officer who is empowered to investigate: a cognizable offence must be deemed to be authorised to investigate and mention in his report any incidental offences which arise out) of the facts relating to the main Offence, even where such offences are non-cognizable and would fall under Section 155 if reported separately”
This strengthens the view that in the present case as well the non-cognizable offences mentioned are incidental to the primary crime and can hence be investigated by the police without the sanction of a magistrate.
The judgment first clarifies that the justification given by the lower court for the rejection of the petition was insufficient, the petition was not filed in a very advanced stage of the case seeing that only the examination in chief of the first prosecution witness had taken place and there were several other witnesses to bring forth. From this the judgement moves into looking into the petition on its merits. The judgment then moves on into first establishing that 120 I.P.C, in this was to also be treated as a cognizable offence as the object of the conspiracy was a crime that carried a maximum penalty of life imprisonment and is hence to be considered a cognizable offence. This can be established by Section 120(B) and the entry against Section 120(B) in Schedule I, Cr.P.C.
The court then moves into the interpretation of section 155 Cr.P.C and holds that the intention of the law makers was not to grant immunity to the wrongdoer and that the case as a whole is a cognizable case as it formed the primary objective and all other offences were incidental to the primary objective. The court held that “Sections 155(2) Cr.P.C. prohibits police officer from investigating only ‘non-cognizable case” and not ‘non-cognizable offence’ without the order of a Magistrate”[iii] The judgement provides for a example, stating that if a person assaults someone with the objective of murdering another person, the case as a whole cannot be held as a non-cognizable case, simply because assault is a non cognizable case under the I.P.C. To hold as such would amount to providing immunity to the accused. To split the case in two would also serve to increase the time taken to commence investigation and runs the risk of miscarriage of justice, there by defeating the purpose of having a bar only on immediate investigation of non cognizable offences.
The case referred to in the judgement Ram Krishna v. State[iv] is a perfect example for the present case as this case also involved a crime under 409 I.P.C. applying the decision in this case to the present case is entirely justifiable. The public prosecutor also pointed out that the legislative intent must have been for section 155(2) to apply to purely non cognizable cases. The Court concurred, pointing out that it is not possible for a case to be partly cognizable or non cognizable and so the case must either be cognizable or non cognizable depending on the nature of the offence that was the primary objective of the crime.
The court then went on to reject the case of Public Prosecutor v. A.V. Ramiah[v] which was put forth by the petitioner pointing out that the case in question involved only non cognizable offences where as the present case involves both cognizable as well as non cognizable offences. The court also pointed out that margin notes cannot be relied upon by the petitioner for the interpretation of Section 155, and the wording in the section as ‘case’ as opposed to ‘offence’ shall be interpreted accordingly.
The court finally goes on to establish what exactly is meant by object of conspiracy by relaying on the case of Durga Das Tulsiram v. State[vi] and Kannan, in Re 1949[vii]. Both cases establish that the objective is the deed that all other actions are directed towards. Thus in this case 409 is the primary objective and the case as a whole will be treated as a cognizable case and no permission is required wither under section 155(2) or 196-A is required.
The High Court up held the order of the lower court to dismiss the petition but went on to provide substantial reasons for the same. The decision of the court to hold that a case must be treated as a whole unit with the objective of the crime deciding the nature of the case and not as multiple separate cases, holds merit as the legislative intent, as the court points out, cannot possibly have been to provide immunity to the wrongdoer. The example provided in the judgement of how investigation will be hindered if the police are forced to delay their investigation in a cognizable offence merely because it had an element of a non cognizable offence in it also holds merit.
The decision of the court to hold that a case cannot be partly cognizable or non cognizable also holds merit, to interpret the law in such a manner so as to cause more uncertainty in the mind of investigators will only hamper the process of justice.
Thus this case establishes that Section 155 prohibits investigation with approval from magistrate into purely non cognizable cases and if the main objective is a cognizable case no such permission is needed.
Edited by Hariharan Kumar
[i] S. 155(2), Code of Criminal Procedure, 1973
[ii] MANU/PH/0047/1958 at 173
[iii] Head note
[iv] MANU/PH/0047/1958 at 173
[vii] M LJ 52 (Crl. M. P. No. 2686 of 1949)