:

These two criminal petitions raise common question of law though facts as well as stages of the criminal cases are different. The 2^nd respondent is the defacto-complainant in both the cases. The petitioner in Crl.P.No.4442 of 2009 is brother-in-law of the 2^nd respondent. The petitioners 1 and 2 in Crl.P.No.5546 of 2009 are brother-in-law and father-in-law of the 2^nd respondent. In the former petition, the petitioner is questioning proceedings in C.C. No.1039 of 2009 on the file of III Additional Chief Metropolitan Magistrate, Hyderabad relating to Sections 507 and 506 I.P.C, arising out of Crime No.1331 of 2008 of Banjara Hills Police Station. In the latter petition, the petitioners are seeking quashing of F.I.R in Crime No.384 of 2008 of Mahankali Police Station, Secunderabad relating to offence punishable under Section 507 I.P.C. Originally both the crimes were registered for two offences punishable under Section 507 I.P.C alone. After the respective Station House Officers filed petition before the respective Magistrates and obtained orders permitting them to investigate into the said offences under Section 155(2) Cr.P.C. After investigation of Crime No.1331/2008, the Banjara Hills police filed charge sheet in C.C.No.1039 of 2009, whereas Crime No.384/2008 of Mahankali Police Station is pending investigation.

2) The 2^nd respondent married one Swetha of Ghaziabad of Uttar Pradesh on 01.07.1997. They have two daughters. Since about two years prior to registration of the cases, Swetha and the 2^nd respondent have separated from each other and Swetha took shelter with her father Mahesh Agarwal at Ghaziabad. There is marital litigation between the 2^nd respondent and his wife. It is stated that the said litigation is now pending in the Supreme Court of India by way of a transfer petition. Mahesh Agarwal gave report against the 2^nd respondent in Women Protection Cell, C.I.D, Hyderabad alleging offence punishable under Section 498-A I.P.C and it was pending and the 2^nd respondent was attending to counselling at C.I.D police station, Hyderabad. Even though an incident which is stated to have taken place at Delhi on 23.10.2008 when the 2^nd respondent along with his brothers are stated to have attended a meeting for amicable settlement between him and his wife, the said incident of 23.10.2008 at Delhi is not subject matter of both the cases herein. With this background of differences between the parties and pending litigation, these two crimes have to be scrutinised.

3) In crime No.1331 of 2008 resulting in C.C. No.1039 of 2009 it is alleged by the 2^nd respondent that on 30.09.2008 at 12.01 P.M when he was at his house he received a call from cell phone No.09873718184 on his mobile phone No.9849690599 and that when he attended that call, the caller asked him to call back immediately as the matter was urgent and that the 2^nd respondent called back that number and the person who received that call started abusing him in filthy language and also threatened him to liquidate if he did not settle all the issues with his mother-in-law. It is further stated by the 2^nd respondent in his statement to the police that as per his knowledge, the voice was that of his elder brother-in-law Sajjal Agarwal as per his enquiries and the above mobile phone number was registered in the name of Sajjal Agarwal. Thus, not only the caller but also ownership of the cell phone number was identified by the 2^nd respondent. In order to constitute offence punishable under Section 507 I.P.C, there must be an anonymous communication or there must have been precaution to conceal name or abode of the person from whom the threat came. When the 2^nd respondent received call on his mobile phone and when the caller asked the 2^nd respondent to call him back, the 2^nd respondent followed the said instructions and called back the received caller. There was absolutely no anonymous communication muchless the caller taking any precaution to conceal his name or his abode. The caller is no other than the 2^nd respondent’s brother-in-law. Therefore, F.I.R in Crime No.1331 of 2008 could not have been registered for offence punishable under Section 507 I.P.C.

4) The 2^nd respondent in Crime No.384 of 2008 alleged that when he was at his office at Secunderabad, on 28.10.2008 at about 5.34 P.M, he received a phone call from 0120-4155330 to his mobile phone and that the caller threatened that he would liquidate him if he did not settle all the issues with his in-laws and also threatened that local Gundas at Hyderabad who are known to his father-in-law would take care of him. The said report was registered by the Mahankali police against un-known person. It was not registered as against Sumit Agarwal or Mahesh Agarwal who are the petitioners in Crl.P.No.5546 of 2009. When the crime is not registered against them or any one of them, this Court cannot entertain the said criminal petition under Section 482 Cr.P.C for quashing F.I.R in Crime No.384 of 2008 of Mahankali Police Station.

5) It is contended by the petitioners’ counsel that the respective Magistrates should not have granted permission to the respective Station House Officers for investigation of a non-cognizable offence punishable under Section 507 I.P.C, on the respective applications of the police officers. It is further contended that the police did not follow Section 155(1) Cr.P.C in letter and in spirit. Section 155(1) and (2) Cr.P.C. reads as follows:

"(1) When information is given to an officer in-charge of a police-station of the commission within the limits of such station of a non-cognizable offence, he shall enter in book to be kept as aforesaid the substance of such information and refer the informant to the Magistrate."

"(2) Investigation into non-cognizable cases-No police-officer shall investigate a non-cognizable case without the order of a Magistrate of the first or second class having power to try such case or commit the same for trial, or of a Presidency Magistrate."

It is contended by the petitioners’ counsel that when information is given to a Station House Officer of a non-cognizable offence, then the Station House Officer has to enter substance of the information in general diary of the police station and shall “refer the informant to the Magistrate”. It is contended that having regard to the above mandatory language employed in Sub-Section(1) of Section 155, the police officer cannot by himself approach the Magistrate seeking permission for investigation under Sub-section (2) of Section 155 Cr.P.C and that it is for the informant to approach the Magistrate and take appropriate proceedings before the Magistrate according to law. It appears to be the contention of the petitioners’ counsel that it is for the informant to approach the Magistrate and to obtain permission if any as contemplated under Sub-section (2) of Section 155 Cr.P.C.

6) The petitioners’ counsel placed reliance on State of Maharashtra V. Nanded Parbhani Z.L.B.M.V. Operator Sangh 2000 AIR (SC) 725, Raghunath Rai Bareja V. Punjab National Bank 2006(13) SCALE 511and Cable Corporation of India Limited V. Additional Commissioner of Labour 2008(9) SCALE 305of the Supreme Court and contended that in construing a statutory provision, the first and foremost rule of construction is the literary construction and that where the words of a statute are absolutely clear and unambiguous, recourse cannot be had to the principles of interpretation other than the literal rule.

7) On the other hand, the 2^nd respondent’s counsel did not agree with the interpretation sought to be placed by the petitioners’ counsel on Section 155(1) and (2) Cr.P.C; and placing reliance on Paramjit Singh V. State of Punjab (2007)13 Supreme Court Cases 530of the Supreme Court it is contended that even if there is any procedural irregularity or defect in investigation, it has no bearing for proceeding with trial of the case. Relevant observations of the Supreme Court in Paramjit Singh are as follows:

"This avoidable controversy need not detain us any further since it is well settled that even a defect, if any, found in investigation, however, serious has no direct bearing on the competence or the procedure relating to the cognizance or the trial. A defect or procedural irregularity, if any, in investigation itself cannot vitiate and nullify the trial based on such erroneous investigation."

8) In my opinion, there is no illegality or contravention of Section 155(1) Cr.P.C by any of the two Station House Officers in these cases. In case a Station House Officer receives a report containing information of commission of non-cognizable offence, then, he is bound to refer the informant/complainant to the Magistrate after entering substance of the information in general diary maintained in the police station. In such an event, the Magistrate will follow the procedure prescribed under Sections 200 to 204 Cr.P.C. After recording statement of the complainant and the witnesses present if any, on oath, it would be open for the magistrate either to dismiss the complaint under Section 203 Cr.P.C if the Magistrate is of the opinion that there is no sufficient ground for proceeding, or otherwise to issue process under Section 204 Cr.P.C to the accused.

9) The police officer is barred from investigating a non-cognizable case without order of a Magistrate who has power to try such case or commit such case for trial, in view of Section 155(2) Cr.P.C. Argument of the petitioners’ counsel that the Station House Officer is not entitled to approach the Magistrate with a petition for permission under Section 155(2) Cr.P.C for investigating a non-cognizable case, has no legal basis. Sub Section(2) of Section 155 Cr.P.C which provides for investigation of a non-cognizable case by a police officer, is silent as who is competent to invoke the said provision before the Magistrate. It is open either to a police officer or to any complainant to approach the Magistrate under Sub Section (2) of Section 155 and seek permission of the Magistrate empowering a police officer to investigate a non-cognizable case. In my opinion, Sub-section (2) is an exception to Sub-section(1) of Section 155. Not only a police officer or a complainant can approach the Magistrate under Section 155(2) Cr.P.C but also the Magistrate suo motu can order a police officer to investigate a non-cognizable case.

10) It is contended by the petitioners’ counsel that the Courts below in these two cases granted permission under Section 155(2) Cr.P.C without giving any reasons for grant of such permission. In case a police officer or a complainant approaches the Magistrate for permission under Section 155(2) Cr.P.C, it is not incumbent on the Magistrate to grant the permission invariably. It is open to the Magistrate either to grant permission or refuse to grant permission. When there is such discretion vested in the Magistrate, it is desirable that the Magistrate should give reasons for empowering a police officer to investigate a non-cognizable case, so that an aggrieved party will be in a position to question the same in higher Courts and will be in a position to know for what reasons his application was considered or not considered. This Court is of the opinion that the Magistrate should not be casual in granting permission under Section 155(2) Cr.P.C. simply because a police officer requested for such permission. The Magistrate has to consider entire gamut of the case and take into account whether a police officer will be in a position to collect better material during investigation than the complainant himself furnishing material in support of his case. Otherwise there is every possibility of misuse of Section 155(2) Cr.P.C in case such power is given to any unscrupulous police officer misusing his official position and harassing the named accused persons. In the cases on hand, this Court is of the opinion that the Magistrates are justified in granting permissions to the police officers under Section 155(2) Cr.P.C as the crimes involved persons belonging to two states and because of offence is stated to have been committed at Ghaziabad of Uttar Pradesh and the defacto-complainant received the calls at Hyderabad/Secunderabad of Andhra Pradesh. Further, collection of incoming and outgoing call details of service providers of two cell phones and one land line is required. But, in C.C. No.1039 of 2009, the Sub-Inspector of Police, Banjara Hills Police Station without making any such investigation on the above lines and without even obtaining call details from service providers, filed charge sheet in the lower Court by sitting in his police station and after examining the 2^nd respondent and his brother and without collecting any material in support of the defacto-complainant’s version and without verifying the said version with the accused therein. When the Sub-Inspector of Police, Banjara Hills Police Station sought for non-bailable warrant against the accused therein in the charge sheet, the lower Court generously issued non-bailable warrant against the accused/petitioner in Crl.P.No.4442 of 2003 without even exhausting other methods of issue of process by way of issue of summons and issue of bailable warrant. Giving non-bailable warrant straight away against the accused after taking cognizance is always deprecated unless it is a case relating to underground accused or dreaded accused who have no respect for law. It cannot be resorted to in a summons case and particularly involving non-cognizable offences.

11) Placing reliance on Section 95 I.P.C, it is contended by the petitioners’ counsel that allegations made by the 2^nd respondent against the petitioners even if true, are trivial in nature and that no person of ordinary sense and temper would complain of such slight harm. In C.C. No.1039 of 2009, the only allegation against the accused is that the accused abused the 2^nd respondent/defacto-complainant on cell phone in filthy language and threatened him. The accused is no other than wife’s brother of the 2^nd respondent. Having regard to close relationship between the parties and marital disputes between the 2^nd respondent and his wife, making such a mobile call, even if true, will not in any way harm the 2^nd respondent/defacto-complainant except technical and trivial harm. In my opinion, in view of Section 95 I.P.C, facts in C.C. No.1039 of 2009 do not constitute an offence at all.

12) Crl.P.No.4442 of 2009: In the result, the petition is allowed quashing proceedings in C.C. No.1039 of 2009 on the file of II Additional Chief Metropolitan Magistrate, Hyderabad.

13) Crl.P.No.5546 of 2009: In the result, the petition is dismissed.