This article is written by Harman Juneja, from Dr. B.R. Ambedkar National Law University, Rai, Sonepat. This article talks about the police raid and how it is not a part of an investigation in light of Gopal Krishna and Ors vs. the State of Karnataka.
The High Court of Karnataka in, Gopal Krishna and Ors v. State of Karnataka, (2021) held that a raid does not constitute an investigation, and the police are not required to wait for the approval of the Magistrate in the case of a raid. For a better understanding of the topic, some basic concepts need to be clarified. Offences can be categorised under any of the following headings depending on the nature and degree of the offence. One such head is cognizable and non-cognizable offences.
A cognizable offence is one in which a police officer, under the first schedule of the Code Of Criminal Procedure, 1973 or any other legislation in effect at the moment, can arrest a suspect without a warrant and begin an investigation without the consent of the court. Murder, rape, kidnapping, theft, dowry death, and other horrific or serious crimes are examples of cognizable offences. Only cognizable offences generate a first information report (FIR).
A non-cognizable offence is one that is included in the Indian Penal Code (1860)’s first schedule and is not bailable. In the case of a non-cognizable offence, the police cannot arrest the suspect without a warrant, nor can they begin an inquiry without the court’s consent. Forgery, cheating, slander, public disturbances, and other non-cognizable crimes fall into this category. A criminal complaint is filed with the metropolitan magistrate, who is meant to direct the investigating police station to begin an inquiry. The police officer must file a charge sheet with the court, which will be followed by a trial. If the accused is found guilty after the trial, the court issues an order for an arrest warrant to be issued.
The term “raid” is not used in legal parlance; instead, the laws that allow police the authority to conduct a raid frequently begin with “power to search” and/or “power to seize.” In a criminal prosecution, an accused individual is unwilling to bring incriminating evidence, thus the police are given these powers largely to obtain evidence that is concealed or held in different places such as a house, an office, etc. There are various provisions for conducting a raid and these are-
- Section 93 of the Code of Criminal Procedure authorizes a court to grant a search warrant for the search of any place, including specific goods or documents.
- Courts can also issue search warrants in order to locate individuals who have been wrongfully detained. Certain magistrates can issue search warrants to free those who have been unfairly imprisoned under Section 97 of the Code of Criminal Procedure. This provision also authorises police to raid any location for the purpose of searching for a person, however only with a magistrate’s permission.
- Sections 165 and Section 166 of the Code of Criminal Procedure allow certain police officers to search or cause a search in a location where there is a realistic likelihood of finding evidence useful for an investigation without the consent of a magistrate. This gives the police the essential search power in an emergency.
- Searches, seizures, and arrests are also covered in depth in Chapter XIII of the Customs Act, 1962, which is divided into Sections 100 to 110A.
Finally, Section 153 of the Code of Criminal Procedure gives the police the authority to search any location for the purpose of evaluating suspected forged weights, measures, and other weighing instruments. The magistrate’s permission is not required to use the search power afforded by this article.
Gopalkrishna vs. the State Of Karnataka
After receiving information that several people were gambling illegally, police went to the location and conducted a search warrant, seizing Rs. 12,550. They then obtained the authorization of the Magistrate and filed a complaint against the petitioners. The petitioners filed a motion to quash proceedings against them under Section 482 of the Criminal Procedure Code of 1973.
The contention of the parties
The petitioners contended that before performing the raid and inquiry, the police should obtain prior approval from the Magistrate as required by Section 155(2) of the Criminal Procedure Code. The petition was filed on behalf of nine defendants charged with illicit gaming at the Senior Citizens Service Centre in February 2020. As a result, the very fact that the petitioners are being prosecuted for an offence punishable under Section 80 of the Karnataka Police Act, 1963, vitiates the case. As a result, the court’s intervention is required.
The government pleader argued that the entry was made in the Station House Diary at 18.30 hours, and that the raid was performed after getting permission from the Deputy Superintendent of Police, and that a non-cognizable complaint was filed as a result. The investigation was only started with the Magistrate’s authorization, hence there could be no quashing of the proceedings.
Findings of the court
After hearing both skilled counsels for the petitioners and the learned government pleader for the State, and after reviewing the records, the court found this:
- It states that at around 18.30 hours, credible information was obtained that people were engaged in illicit gaming in Andar-Bahar at the Senior Citizens Service Centre, which was recorded in the Station House Diary in accordance with Section 155(1) of the Cr.P.C. There was no disagreement about whether Section 155(1) of the Cr.P.C. was being followed. The fundamental point raised by the learned counsel for the petitioners before the Court was that Section 155(2) of the Cr.P.C. had not been followed.
- After reading Section 155(2) of the Criminal Procedure Code, the co6urt found that it was evident that no police officer may investigate a non-cognizable offence without the permission of a Magistrate with the authority to try the case or commit it for trial.
- The police had not only executed the raid in this case, but they had also drawn mahazar, which is equivalent to an investigation. As a result, there was a violation of Section 155(2) of the Criminal Procedure Code, it’s worth noting that Section 155(1) of the Criminal Procedure Code states that after receiving credible information, the same must be put in the Station House Diary. Upon entering, the cops proceeded to ask for permission to perform the search and, the search warrant from the Deputy Superintendent of police was obtained as well.
- The question before the court was whether the police must obtain authorization from the learned magistrate prior to performing the raid. The court held that police are not expected to seek permission from the Magistrate before conducting the raid.
- The petitioners’ argument that conducting a raid was equivalent to conducting an investigation cannot be accepted for the reason that when credible information was received about a person who had engaged in andar-bahar, the police were not expected to wait until they acquired permission from the learned Magistrate, and the authorization was only required for the case to be registered.
After considering the facts and opposing arguments, the court concluded that because the accused cannot establish that he was prejudiced as a result of the police investigation, the trial and conviction cannot be overturned.
Articles referred to in the case
- Section 155 of Cr.P.C.- Information relating to non-cognizable cases and investigations of such instances are discussed under Section 155 of the CrPC.
- Section 155(1) of Cr.P.C states that When an officer in charge of a police station receives information about a non-cognizable offence committed within the station’s boundaries, he must enter or cause the substance of the information to be entered in a book kept by the officer in the form prescribed by the State Government in this regard, and refer the informant to the Magistrate.
- Section 155(2) pf Cr.P.C. reads that a police officer shall not investigate a non-cognizable case without the permission of a Magistrate with the authority to try the matter or commit it for trial.
- The inherent power granted by Section 482 of the Code Of Criminal Procedure, 1973 is broad and unrestricted. It protects the High Court’s fundamental powers to prevent abuse of any court’s process or to accomplish the goals of justice, and as a result, the High Court must take into account the nature and gravity of the offences.
- Section 80 of the Karnataka Police Act, 1963 states that on conviction, anyone discovered gaming or present for the purpose of gaming at a common gambling house faces a year in prison and a fine.
The public’s protection is based on the efficient work of the police force of the country, and that’s why the police have to act as soon as possible to get criminals to justice. Already the work of the police force is suffering from extreme delays due to the bureaucracy and permission required. Even after getting strong leads for offences being conducted, the police have to act as soon as possible instead of waiting for permission to conduct a raid. This is also observed by the court in the judgment already mentioned in the article, which is a good step in increasing the efficiency of the police.
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