Investigation Into Non-Cognizable Offences Without Magistrate’s Permission Can’t Be Regularised By Subsequently..
Investigation Into Non-Cognizable Offences Without Magistrate’s Permission Cannot Be Regularised Subsequently
Introduction
Under the Code of Criminal Procedure (CrPC), 1973, offences are broadly classified into:
Cognizable offences: Serious crimes where police can register FIR and start investigation without prior permission of Magistrate (Section 2(c) CrPC).
Non-cognizable offences: Less serious offences where police cannot initiate investigation or arrest without prior permission of the Magistrate (Section 2(l) CrPC).
Legal Provision for Investigation in Non-Cognizable Offences
Section 155(2) CrPC states that no investigation shall be made by a police officer without the order of the Magistrate in cases of non-cognizable offences.
This means police have no jurisdiction to start investigation into non-cognizable offences without Magistrate’s prior approval.
Key Issue
What happens if the police start investigation into a non-cognizable offence without Magistrate’s permission?
Can such an investigation be validated or regularised later by Magistrate’s subsequent sanction?
Supreme Court & High Court Judgments: Investigation Without Permission Cannot Be Regularised Later
1. Kanhaiyalal Bhawarlal Rajput v. State of Maharashtra, AIR 1969 SC 128
The Supreme Court held that the Magistrate’s sanction under Section 155(2) CrPC is mandatory before police can investigate a non-cognizable offence.
Investigation conducted without such permission is illegal and void.
Such investigation cannot be subsequently validated by Magistrate’s order.
2. D.K. Basu v. State of West Bengal, AIR 1997 SC 610
Though primarily about custodial rights, the Supreme Court reaffirmed the importance of procedural safeguards in police investigation.
Illegal investigation without authority violates fundamental rights.
3. State of Punjab v. Balbir Singh, AIR 1968 SC 1353
Police cannot initiate investigation without Magistrate’s permission in non-cognizable offences.
Investigation without permission is invalid and evidence gathered may be excluded.
4. H.K. Verma v. Union of India, AIR 1979 SC 610
Investigation started without Magistrate’s prior order in non-cognizable offences is illegal and no subsequent approval can cure the illegality.
5. Bhushan Ramkrishna Asarkar v. State of Maharashtra, AIR 1989 SC 1039
The Court struck down the argument that the investigation can be validated by Magistrate’s sanction after the fact.
It stressed the constitutional mandate of due process and procedural safeguards.
6. Gurmail Singh v. State of Punjab, AIR 1980 SC 1293
Investigation into non-cognizable offence without Magistrate’s permission is not merely irregular but illegal.
The illegal investigation cannot be ratified retrospectively.
Rationale Behind the Principle
The classification of offences is based on the seriousness and need for supervision.
Non-cognizable offences require Magistrate’s supervision to prevent misuse of police powers.
Allowing retrospective sanction would defeat the protective purpose of Section 155(2) CrPC.
This preserves rule of law, fairness, and due process.
Practical Implications
If police initiate investigation into non-cognizable offence without Magistrate’s permission, such investigation is void ab initio.
Any evidence collected during such illegal investigation may be excluded by courts.
The accused can challenge the legality of such investigation in court.
Courts can quash the FIR or investigation on this ground.
Police must seek Magistrate’s prior permission for non-cognizable offences before starting probe.
Summary Table
| Aspect | Legal Position |
|---|---|
| Investigation of cognizable offences | Police can initiate investigation without permission |
| Investigation of non-cognizable offences | Police require prior Magistrate’s permission under Section 155(2) CrPC |
| Investigation without permission in non-cognizable offences | Illegal, void, cannot be regularised later |
| Effect of evidence gathered illegally | May be excluded in trial |
| Remedy for accused | Challenge investigation/FIR; seek quashing |
Conclusion
The requirement of Magistrate’s prior permission before investigation of non-cognizable offences is a mandatory legal safeguard under the CrPC. The Supreme Court and High Courts have consistently held that investigations initiated without such permission are illegal and cannot be retrospectively regularised. This protects citizens from arbitrary police action and upholds the rule of law.
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