Introduction
When an offence classified as a cognizable offence as mentioned under Schedule I of the Code of Criminal Procedure, 1973 (hereinafter referred as ‘the Code’), is committed, it is absolutely necessary for the police to register FIR as provided under § 154 of the Code, investigate the same and submit a final report under §173 of the Code. Based on the said report, the concerned Magistrate takes cognizance of the offence and proceed with the trial. The said procedure is adopted by the Police when an offence is falling under a statute which does not prescribe procedure different from the Code.
Difficulty arises in a situation where an act constitutes offences under different enactments and the procedure for registering a case and taking cognizance of the offence subsequently, is different from the Code. It is nevertheless manifestly clear that when a special act provides for a procedure different from the Code, the special act shall override the Code and the Court is bound to adopt the procedure contained under it in case the offence is cognizable both under the Special Act and the Code.
In order to settle the conundrum created in the minds of sub-ordinates Court in the Country as to, whether an FIR can be registered and a case be investigated by the Police as per chapter XII of the Code, with respect to distinct offences punishable under special acts and are also cognizable as mentioned under Schedule I of the Code. Secondly, whether a magistrate is empowered to take cognizance as per §190 of the Code and proceed with the trial in respect of those distinct offences punishable under special acts. The Supreme Court in a catena of judgments has dealt with both issues at length.
At this juncture, it is pivotal to understand the difference between the terms cognizable and cognizance.
Cognizance and Cognizable
Classification of an offence as “cognizable” is for the purpose of the Police either to register a case under Section 154 of the Code or to seek permission to register a case under § 155 of the Code and the power of a Magistrate under § 156 (3) Cr.P.C to refer a complaint to the Police for investigation. If the offence is cognizable, the police can arrest the accused without a warrant. The classification of offences as cognizable and non-cognizable plays only a limited role to this extent alone. The term “cognizance”, though not defined anywhere, connotes the power of a magistrate to apply his judicial mind and proceed with the case. Any offence, irrespective of the classification, is to be taken cognizance of by the Magistrate under § 190 of the Code and by the Court of Sessions under § 193 of the Code, on the case being committed to it. As stated above, the purpose of investigation is to file police report before a competent Court to enable the Court to take cognizance of offences.
Analysis of the Supreme Court Judgments
In Jeevant Kumar Raut v. CBI, a question arose as to whether police can register an FIR and investigate an offence under §18 and §19 of the Transplantation of Human Organs and Tissues Act, 1994 (TOHO), simply because they are cognizable, notwithstanding §22 of TOHO, which provides that a court can take cognizance of an offence under this act only on a complaint made by the appropriate authority. Offences mentioned §18 and §19 of TOHO are cognizable and non-bailable as per the classification made in Part II of the I Schedule of the Code. The Supreme Court held that the investigation in terms of §13(3)(iv) of TOHO, thus, must be conducted by an authorized officer. The officer in-charge of a police station cannot register an FIR and he had no other option but to hand over the investigation to the appropriate authority. It was further held that §22 of TOHO prohibits the Court from taking of cognizance of an offence under the said Act, except on a complaint made by an appropriate authority or the person who had made a complaint earlier to it as laid down therein. The police officer, although, has all the powers of an investigating agency, it has been statutorily prohibited from filing a police report.
Further, in Institute of Charted Accountants of India v. Vimal Kumar Surana, a case was registered by the police and chargesheet was also filed against the accused for offences under IPC and §24 and 26 of the Chartered Accountants Act, 1949. In this case, the Supreme Court has fallen in line with the view taken in Jeewan Kumar Raut’s case and held that §28 of the Charted Accountant Act, 1949, provides a blanket prohibition on a Court from taking cognizance of any offence under the said Act except on a complaint made by or under the order of the Council or of the Central Government. Therefore, the Police cannot register a case, investigate the same and file final report under §173 of the Code for the offence committed under §24 and 26 of the Chartered Accountants Act, 1949.
Furthermore, in State (NCT of Delhi) v. Sanjay, the Supreme Court has taken note of numerous conflicting views taken across various High Court on the questions as to whether the Police can register a case in respect of offences under the Mines and Minerals (Development and Regulation) Act, 1957, (MMDR Act), because the offences are cognizable, and whether the Court can take cognizance on a police report dehors Section 22 of the MMDR Act. §22 of the MMDR Act states that no court shall take cognizance of an offence except upon complaint in writing. Indubitably, many of the offences under the MMDR Act have been classified as cognizable under the Code as well. The accused was sought to be prosecuted both under MMDR Act and IPC. The Supreme Court held that §22 of the MMDR Act is unfettered from the procedure prescribed under the Code. The Police officer can very well register a case, investigate the same and submit a final report under §173 of the Code. Based upon the said police report, the concerned Magistrate can only take cognizance of an offence committed under the IPC alone. The Magistrate cannot act upon the final report and take cognizance for the offence committed under the MMDR Act because of the bar contained under §22 of the MMDR Act which provides for taking cognizance by the Court upon a complaint and not otherwise.
Also, in Kanwar Pal Singh v. The State of U.P. &Anr., an issue arose before the Supreme Court pertaining to validity of a cognizance taken by a Magistrate based upon a police report for the offence committed under § 21(2) of the MMDR Act, § 379 of the IPC and §3 and §4 of the Prevention of Damage to Public Property Act. The Court observed that the offences under §21 read with §4 of the MMDR Act and §379 of the IPC are exclusive of each other. Based upon the said finding, it was further observed that the prosecution and cognizance under §21 read with §4 of the MMDR Act was not justified in the absence of compliant filed by a person duly authorized under the MMDR Act. Although the prosecution and cognizance of the offence under Section 379 of the IPC and Sections 3 and 4 of the Prevention of Damage to Public Property Act was in accordance with law.
Recently, in Union of India v. Ashok Kumar Sharma & Ors., the Supreme Court vide judgment and order dated 28.08.2020, has held that with respect to offences mentioned under Chapter IV of the Drugs and Cosmetics Act, the Police cannot arrest the accused, register FIR, investigate the same and file chargesheet under Section 173 of the Code because of the bar contained under Section 32 of the said Act. Only the competent person/authority mentioned under Section 32 of the Act, can file a complaint based upon which cognizance of the offences mentioned under Chapter IV of the Act can be taken by the concerned Magistrate.
Conclusion and Critical Analysis
In respect of the distinct offences falling under various special acts and are also cognizable offence as mentioned under Schedule I of the Code, a police officer is not empowered to register a case either under §154 or §155 of the Code, conduct investigation and file a final report under §173 of the Code, provided there is a provision which specifically precludes from following the said procedure. Therefore, if a Magistrate takes cognizance of an offence based on final report submitted by police, despite there being a bar contained under some special act, it would be illegal and the case against an accused is liable to be quashed with respect to that particular offence and not otherwise. In other words, if the information to the Station House Officer of a Police Station discloses any cognizable offence falling under a special act which is also cognizable as mentioned under Schedule I of the Code, the Police can register a case under § 154 of the Code, investigate the same. But in culmination of the investigation, the Police can file final report only in respect of the distinct offences, if any, other than the offences falling under special act. No court shall take cognizance with respect to those offence(s). If an FIR is registered by the Police, in respect of any offence/offences falling under special act which prohibits the police from doing so, the said FIR is illegal and can be quashed by the High Court under §482 of the Code.
The issue with the said legal position needs to be addressed at this juncture. As per the judgment of the Supreme Court in Lalita Kumari v. Govt. of U.P., the Police is bound to register FIR when a cognizable offence is committed. The Police, despite possessing powers to register a case, investigates the same and filing of final report, is per se excluded from doing so only by reason of bar contained under the special statutes. The existence of such bar is generally not within the knowledge of a Police Officer and as a normal course, upon receiving a complaint disclosing commission of a cognizable offence, the Police register an FIR and start investigating the same. Under such circumstances, when an accused approaches the High Court seeking quashing of the said FIR, the High Court has to, without an iota of doubt, quash the same.
Even in the recent judgment of Ashok Kumar (supra), the Supreme Court invoked its inherent power under Article 142 of the Constitution of India considering that there are many cases where FIRs have been registered with regard to cognizable offences falling under Chapter IV of the Drugs and Cosmetics Act, and directed the Police officer to made over all such cases to the Drugs Inspectors, if not already made over, and it is for the Drugs Inspector to take action on the same in accordance with the law.
The Parliament while levying a bar on not adopting procedures engrafted under the Code for a cognizable offence, has actually tied the hands of the Khaki Donning Officers. To address the current rigmarole, the Parliament needs to enact a provision enabling the police to hand over investigation to a competent authority mentioned under the special statute providing different procedure from the Code, in the cases where the police has already registered FIR for a cognizable offence and started investigating. Otherwise, due to lack of procedural flaw, the accused shall be entitled for the benefits arising out of the same.
About the Author: Mr Gautam is a practicing Advocate in the Supreme Court of India.
Criminal Law Research & Review 