Police investigation of non-cognizable offences requires a Magistrate’s prior order under BNSS Section 174(2).

The petitioners, accused Nos. 1 and 2, were charged under Section 78(3) of the Karnataka Police Act after a police raid allegedly found petitioner No. 1 engaging in Matka activity; police also alleged that he supplied Matka lists to petitioner No. 2.

The police registered an initial non-cognizable case and later registered an FIR, stating that Magistrate permission had been obtained.

After the charge sheet was filed and cognizance was taken, the petitioners sought to quash the proceedings under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), arguing that the offence was non-cognizable and there was no material showing prior Magistrate permission to investigate.

Whether the police could investigate the alleged non-cognizable offence under Section 78(3) of the Karnataka Police Act without an order of a Magistrate under Section 174(2) of the BNSS.

Whether the cognizance and criminal proceedings should be quashed where the record contained no material showing that the Magistrate had granted the required permission.

Section 174(2) of the BNSS provides that a police officer may not investigate a non-cognizable case without an order from a Magistrate empowered to try the case or commit it for trial.

The Court treated the alleged offence under Section 78(3) of the Karnataka Police Act as non-cognizable and applied Section 528 of the BNSS to quash proceedings where the statutory requirement for prior Magistrate permission had not been shown to have been met.

The Court also relied on a coordinate Bench decision dated 10 December 2019 in Criminal Petition No. 101997/2019, which had quashed proceedings in a similar case.

Although the FIR recorded that permission had been received from the Magistrate, the Court found no application or requisition seeking permission and no Magistrate’s order authorising investigation in the materials before it.

Because the alleged offence was non-cognizable, Section 174(2) required such an order before investigation could proceed. In the absence of proof of that statutory prerequisite, the Court held that taking cognizance and continuing the proceedings amounted to an abuse of process; its conclusion was also consistent with the coordinate Bench’s decision in a similar matter.

Any pending interim application was disposed of as not surviving for consideration.