- (1.) THIS is a reference by the learned Additional Sessions Judge, Sikar and arises under the following circumstances.
(2.) SOME members of Digamber Jain community living at Fatehpur made a report at the police station against the accused that he was moving about naked in the town with the intention of hurting the religious feelings of their sect. The Station House Officer registered a case against the accused and after investigation submitted a charge sheet under sec. 294 and 295 A of the Indian Penal Code. The learned Magistrate took proceedings under sec. 207-A of the Code of Criminal Procedure and committed the accused to the court of session for the said offences. After the prosecution and the accused had concluded their evidence, it was brought to the notice of the learned Additional Sessions Judge that the order of commitment was bad because the learned Magistrate adopted the procedure under sec. 207-A of the Code of Criminal Procedure although the offence under sec. 295-A of the Indian Penal Code was a non-cognisable one which could not have been investi-gated by a police officer without the order of a Magistrate as provided in sec. 155 (2) of the Criminal Procedure Code. The learned Public Prosecutor also admitted that the order of commitment was bad. The learned Additional Sessions Judge agreeing with the contention raised before him, has made this recommendation for setting aside the order of commitment. It is clear that sec. 207 A-of the Code applies to cases which are instituted on a police report and in all other cases instituted otherwise than on a police report, provisions of secs. 208-213 apply. A police officer is required to make a report of every investigation made by him under Chapter XIV of the Criminal Procedure Code. He can make investigation into cognisable as well as non-cognisable offences. In non-cognisable offences investigation can be made with the permission of a Magistrate having power to try that case which is not necessary in cognisable cases. (Secs. 155 (2) and 156 ). Provisions of sec. 155 (2) are undoubtedly mandatory and any report submitted by a police officer without obtaining permission from a Magistrate to investigate a non-cognisable offence will not be a report falling under sec. 173 of the Criminal Procedure Code. But where a report relates to both cognizable and non-cognisable offences or where the same facts constitute both cognisable and non-cognisable offences sec. 155 (2) would not be applicable. In such cases it would be the statutory right of a police officer to make investigation under sec. 156 of the Code of Criminal Procedure and a report submitted by him would be one under sec. 173 of the Code of Criminal Procedure even though it might also relate to a non-cognisable offence. Any case instituted after investigation in such cases would be on a police report to which the procedure prescribed under sec. 207-A would be applicable. In the present case the report made at the police station disclosed facts which in the opinion of the Station House Officer constituted both cognisable and non-cognisable offences. He, therefore, registered a case against the accused and made investigations without obtaining permission from a Magistrate because sec. 294 of the Indian Penal Code was a cognisable offence and submitted a report under sec. 173 of the Code with regard to offences punishable under sec. 294 and 295-A of the Indian Penal Code. This report in my view would be one falling under sec. 173 of the Code of Criminal Procedure and the procedure adopted by the Magistrate under sec. 207-A was not wrong. The case of Ram Krishan Dalmia Vs. State (l), referred to by the learned Additional Sessions Judge aptly applies to this case. There the learned Chief Justice held that - "the provisions of sec. 155 (1) Criminal Procedure Code, must be regarded as applicable only in those cases where the information given to the Police relates solely to a non-cognisable offence. Where information is given to the Police of a cognisable offence and the case is registered regarding that offence, the investigating officer, while investigating the cognisable offence cannot possibly be debarred from investigating any subsidiary and non-cognisable offence which may arise out of the facts and can also include these latter cases in his main report under sec. 173. Hence in such a case it cannot be said that since the part of the case which relates to the non-cognisable offence cannot be readily separated from the case as a whole, the case should be treated as instituted otherwise than on a police report and the proceedings should follow the course laid down in sec. 208, Criminal Procedure Code, and not in sec. 207-A" As pointed out by the learned Chief Justice hundred and thousands cases occur where the act of the accused constitute cognisable as well as non-cognisable offences and the police makes investigations in regard to circumstances because of their power to do so in regard to cognisable offences. All such reports come within the purview of sec. 173 of the Code of Criminal Procedure. I respectfully agree with the view taken in this case. The case of the Calcutta High Court in Tarapada Sarkar Vs. The State (2), is distinguishable. In that case, the police while investigating a cognisable case under the Arms Act became aware of a non-cognisable offence punishable under sec. 506 of the Indian Penal Code. The police investigated into that offence also without having obtained any order of the Magistrate for its investigation. After investigation, a charge sheet was submitted in the cognisable case and a report styled as complaint for the prosecution of the accused in respect of the non-cognisable offence namely, criminal intimidation punishable under sec. 506 of the Indian Penal Code. Therefore, there were two reports before the Magistrate. The learned Magistrate took cognisance of the offence under sec. 506 of the Indian Penal Code and adopted the procedure prescribed by sec. 251 of the Code. The High Court took the view that the report of the police with regard to the offence under sec. 506 of the Indian Penal Code was not a report within the scope of sec. 173 of the Code and directed that the trial should take place as prescribed by sec. 252 of the Code. It would, therefore, appear that in this case there was a separate report exclusively with regard to a non-cognisable offence and that is why it was not regarded as a police report but was treated as a complaint. Besides the trial in the case has almost concluded. The accused has also examined his witnesses in defence and it is not shown whether any prejudice has been caused to him on account of the order of commitment having been made under sec. 207-A of the Code. That being so the order of commitment need not be quashed and the proceedings taken at the trial do not suffer from any illegality. There is no force in this reference and it is hereby rejected and the learned Additional Sessions Judge is directed to proceed with the trial according to law. . ;