While leaving no scope for any ambiguity of any kind, the Jammu and Kashmir and Ladakh High Court in a most learned, laudable, landmark and latest judgment titled Nikunj Sharma Vs State of J&K and another in CRMC No. 181/2018 (O&M) and cited in 2023 LiveLaw (JKL) 70 that was reserved on February 22, 2023 and then finally pronounced on March 2, 2023 has ruled clearly that once an FIR is registered for non-cognizable offences, the inclusion of a cognizable offence at a later stage of the investigation could not be used to circumvent the law. It must be mentioned that the observations were made by a Single Judge Bench of Hon’ble Mr Justice Sanjay Dhar while hearing a plea in terms of which the petitioner had called into question an FIR for offences under Sections 316 (Causing Miscarriage Without Women’s Consent), 323 (Punishment For Voluntarily Causing Hurt), 109 (Abetment of An Offence) Ranbir Penal Code registered with the Police Station, Rajouri. The key point of this noteworthy judgment is that investigation into non-cognizable offences without Magistrate’s permission can’t be regularized by subsequently adding cognizable offence.

At the very outset, this pertinent, progressive and pragmatic judgment authored by a Single Judge Bench of Hon’ble Mr Justice Sanjay Dhar of Jammu and Kashmir and Ladakh High Court at Jammu sets the ball in motion by first and foremost putting forth in para 1 that:
In the instant petition, the petitioner has called into question FIR No. 152/2018 for offences under Sections 316/323/109 RPC registered with the Police Station, Rajouri.

To put things in perspective, the Bench envisages in para 2 that:
It appears that respondent No. 2/complainant lodged a written report with the SHO, Police Station, Rajouri on 29.03.2018. In the said report, it was alleged that the petitioner happens to be her husband with whom she has entered into wedlock on 05.03.2016. According to the complainant, after about three months of the marriage, the petitioner and his relatives including his parents, brother and sister started harassing and beating her. It was further alleged that the complainant became pregnant and in the month of January 2017, when she was pregnant, the petitioner and his aforesaid relatives conspired with each other and brother of the petitioner, Anuj Sharma pushed her down the stairs, as a result of which she fell down and experienced pain in her belly. It is further alleged that the petitioner, husband of the complainant, arranged her treatment and she was administered some medicines as a consequence whereof, miscarriage took place. The complainant has further alleged that she was thrown out of her matrimonial home and she started living with her parents.

As it turned out, the Bench then states in para 3 that:
On the basis of the aforesaid report, the Police registered impugned FIR for offences under Sections 316/323/109 RPC and started investigation of the case. Vide order dated 17.04.2018 passed by this Court in the instant petition, investigation to the extent of offence under Section 316 RPC was stayed, but it appears that the investigation of the case continued in respect of the other offences.

Be it noted, the Bench notes in para 10 that:
Before determining the merits of the rival contentions of the parties, it would be apt to mention here that although offences under Sections 313 and 316 IPC have been categorized as cognizable offences under the Code of Criminal Procedure, 1973, yet corresponding offences under the Ranbir Penal Code i.e. Section 313 and Section 316 of RPC, as per the Jammu and Kashmir Code of Criminal Procedure Svt. 1989, are non-cognizable in nature. The offence under Section 323 RPC is also non-cognizable in nature. Thus, there is no dispute with regard to the legal position that offences under Sections 316 and 323 RPC as also offence under Section 313 RPC are non-cognizable in nature.

Needless to say, the Bench mentions in para 11 that:
Since the offences alleged to have been committed relate to a period when the Jammu and Kashmir Code of Criminal Procedure was in force, therefore, in the matter of registration of information and undertaking of investigation, the instant case is to be governed by the provisions contained in Chapter XIV of the Jammu and Kashmir Code of Criminal Procedure.

Do note, the Bench notes in para 21 that:
In the instant case, legality and validity of the impugned FIR has been immediately challenged by the petitioner by filing this petition in the year 2018 itself. In fact, the FIR was registered on 29.03.2018 and the instant petition has been filed on 17.04.2018 i.e. within one month of lodging of the FIR. In such a situation, the illegality committed by the Investigating Agency in registering and undertaking the investigation cannot be brushed aside and if the same is quashed, no prejudice would be caused to respondent No. 2/complainant, who has the option of filing a private complaint under Section 200 of Cr.P.C. against the petitioner and co-accused. The ratio laid down by the Supreme Court in N. H. Rishbud and Inder Singh (supra) is, therefore, not applicable to the instant case.

Of course, it is rightly pointed out in para 22 that:
So far as the judgment of Andhra Pradesh High Court in Vadlamudi Kutumba Rao (supra) is concerned, the same is also not applicable to the facts of the instant case, inasmuch as in the said case the FIR was registered.

Frankly speaking, the Bench then propounds in para 23 stating that:
It is a settled law that if during the investigation of the cognizable offence, certain non-cognizable offences are also made out, the Investigating Agency is not required to seek permission of the Magistrate for undertaking investigation in respect of those offences. In fact, in the Code of Criminal Procedure,1973 there is specific provision in the shape of Section 155(4) CrPC, which provides that where a case relates to two or more offences of which, at least one is cognizable, the case should be deemed a cognizable case notwithstanding that other offences are non-cognizable. Even in the context of Jammu and Kashmir Cr. P.C. where there is no akin to Section 155(4) of Central Cr.P.C. the Supreme Court in the case of State of J&K vs. Dr. Saleem ur Rehman, 2021 SCC Online SC 1014, has made it clear that while investigating cognizable offences, the investigating agency is well within its jurisdiction to investigate the offences of non-cognizable nature together with the cognizable offences.

Most significantly, what constitutes the cornerstone of this notable judgment is then encapsulated in para 24 wherein it is postulated that:
In the instant case, the basic FIR has been registered in respect of non-cognizable offences and as per the Investigation Agency, now cognizable offence under Section 498-A Cr.P.C. has also been found established against the petitioner. Such a situation is not contemplated by law. The basic foundation of the investigation which is registration of impugned FIR, is itself without sanction of law. Therefore, any investigation undertaken on its strength is bound to crumble. The same cannot be legalized once its very basis is illegal.

I am supported in my aforesaid view with the judgment of High Court of Kerala in Haneefa vs. State of Kerala, 2022 LiveLaw (Ker) 638. In the said case, Kerala High Court while relying upon the judgment of Supreme Court in Keshav Lal Thakur vs. State of Bihar, (1996) 11 SCC 557 held that when only non-cognizable offences are alleged initially, investigation cannot be commenced without orders from the Magistrate. It has been further held that incorporation of a cognizable offence at the time of filing a final report cannot be utilized as a method or as a device to circumvent the mandate of Section 155(2) Cr.P.C. by the officer incharge of the police station or any investigating officer.

As a corollary, the Bench then mandates in para 26 that:
For all what has been analyzed herein above, the impugned FIR deserves to be quashed as this case is squarely covered by illustration No. (2), laid down by the Supreme Court in Bajan Lal’s case, (supra), which reads as under:

2. Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate with the purview of Section 155(2) of the Code.

Furthermore, the Bench then lays down in para 27 that:
For the foregoing discussions, the petition is allowed and the impugned FIR is quashed. However, respondent No. 2 is at liberty to take resort to appropriate remedy as may be available to her under law.

Finally, the Bench then concludes by holding in para 28 that:
Case diary be returned to the learned counsel appearing for the State.

In sum, we thus see that the Jammu and Kashmir and Ladakh High Court has made it absolutely clear that the investigation into a non-cognizable offences without Magistrate’s permission can’t be regularized by subsequently adding cognizable offences. It thus merits no reiteration that all the police men and women in uniform must always pay heed to what is laid down so very explicitly, elegantly, eloquently and effectively in this leading case and act accordingly. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh