Police can’t seek Magistrate’s Permission to Register Non-Cognizable Case

Police not to register a non-cognizable case

In a non-cognizable offence, the Police Officer cannot register a case or conduct investigation without a direction from the Magistrate. The officer cannot arrest the accused as well. The police officer does not have authority to approach the Magistrate to seek or obtain his permission in registering a case.

But in a cognizable offence, the police have every authority to register a case, initiate investigation, and arrest the accused without any permission from the Magistrate. This power comes under Section 155(2) of the Criminal Procedure Code (CrPC).

This is what the High court of Kerala says in Dr Biju V G v State of Kerala, delivered on 16 October 2020.

Procedure in a non-cognizable offence

When a person appears before the police officer with a complaint in a non-cognizable offence the officer should record the substance of the case in a register kept at the police station and refer the informant to the Magistrate (CrPC 155(1)).

The complainant should then approach the Magistrate directly in the court with a complaint either to be made orally or in writing under Section 190(1) (a).

When complaint is in writing

The Magistrate, on receipt of the written complaint, can direct the police officer to conduct an investigation into the case (Section 202, CrPC).

The Police can register a case on getting an order from the Magistrate and start investigation. On obtaining the order the police officer in turn can investigate it as if it is a cognizable case. But he cannot arrest the accused without a warrant in such a case.

When complaint is in oral form

Alternatively, if the complaint is in oral form, the Magistrate can conduct an inquiry by examining on oath the complainant and the witnesses who came along with him.

The Magistrate has duty to record the substance of the examination which will have to be signed by the complainant, witnesses and the Magistrate.

In such an inquiry, the Magistrate need not order for a police investigation but can proceed with the case, as usual.

Additional reading

  1. Dr Biju V G v State of Kerala (Crl MC No 3104 of 2020)