,THE HON'BLE Dr. JUSTICE G. RADHA RANI
CRIMINAL PETITION No.6503 of 2013
ORDER:
This petition is filed by the petitioner/respondent under Section 482 Cr.P.C. to quash the proceedings in STC No.52 of 2012 on the file of Judicial First Class Magistrate, Mahaboobnagar against him.
2. The case of the petitioner was that the respondent No.2, who was working as Project Officer for the Public Health Nursing Office, D.M., and H.O, Office, Mahabubnagar lodged a complaint against him on 05.10.2012 at about 08.30 PM alleging that at about 12.45 hours while she was on duty at Durgabai Desh Mukh Mahila Pranganam and conducting training programme for Asha volunteers, the office attender Mohd. Babar asked her for stamp pad and then she asked him to get it from the office. In the meanwhile, the Senior Assistant (petitioner-accused) entered into the office and asked for the stamp pad in a rude manner and when she instructed the attender to give the same from the almyrah, on receiving the stamp pad from the attender, the petitioner abused her in filthy language, caught her neck and threatened her with dire consequences. Basing on the said report, as the said facts would constitute the offences under Section 504, 506 and 323 IPC, which were non cognizable, the police made an entry in the General Diary and forwarded to the Court on 12.10.2012 for obtaining permission to investigate into the case. The police filed a petty case charge sheet and the same was taken cognizance by the Judicial Magistrate of First Class, Mahboobnagar on 11.12.2012 and numbered as STC No.52 of 2012.
Dr.GRR,J 2
3. Heard the learned counsel for the petitioner and the learned Public Prosecutor. There is no representation on behalf of the 2nd respondent.
4. The learned counsel for the petitioner submitted that the 1st respondent would have power to investigate into the matter only after taking permission for investigation from the concerned Judicial Magistrate of First Class, Mahaboobnagar under Section 155(2) of Cr.P.C., but in the present case, no such permission was granted by the Judicial Magistrate of First Class. As such the investigation was not in accordance with law, taking cognizance by the Court below on such report of the 1st respondent was liable to be quashed. The 2nd respondent maliciously instituted the case with an ulterior motive for seeking vengeance on him with a view to spite him due to private and personal grudge. She also stated in the complaint and in the statement recorded under Section 161 Cr.P.C. that he was not regularly sending monthly salary bills of her for the last six months, which was the reason for her lodging the report. There was no mention of the date as to when Section 161 Cr.P.C. statement of the witnesses were recorded by the 1st respondent, which would show the illegal manner of conducting the investigation by the 1st respondent. The 2nd respondent by levelling similar allegations in the complaint got ensued departmental proceedings against him and managed to send him on deputation to other station. The Enquiry Officer found those allegations as false and baseless and also found that the 2nd respondent was irregular to her duties and she had not maintained the head quarters as per the attendance register and she had not participated in the Government Programmes and she was irregular Dr.GRR,J 3 and negligent to her duties, which would clearly show the mala fide of the 2nd respondent in giving the complaint and prayed to quash the proceedings against him in STC No.52 of 2012.
5. The learned Public Prosecutor reported to decide the petition on merits.
6. Perused the record. The complaint given by the 2nd respondent would disclose non cognizable offences. As such, the police rightly made an entry in the General Diary and sought permission of the Court to investigate the case. But the record would not disclose that any permission was given by the Magistrate. Without mentioning the details of any such permission given by the Court, the police conducted investigation and filed charge sheet. The Court below also took cognizance of the same and allotted STC number on 11.12.2012. The same was challenged by the petitioner in this petition.
7. The learned counsel for the petitioner relied upon the judgment of the Hon'ble Apex Court in Tilaknagar Industrics limited and others v State of A.P.1 on the aspect that statutory safeguard provided under Section 155(2) Cr.P.C. must be strictly followed. Power under Section 156(3) Cr.P.C. can be exercised by Magistrate even before he takes cognizance provided the complaint discloses the commission of cognizable offence, investigation cannot be sustained in law and liable to be quashed.
8. The Hon'ble Apex Court while extracting the sub- paragraphs in the case of State of Haryana v Bhajanlal2 in para 11 held that:
We set out from Bhajan Lal those sub paragraphs herein below:1 2012(1) ALD (Crl.) 814 (SC) 2 AIR 1992 SC 604 Dr.GRR,J 4 102. xxx xxx xxx (1) xxx xxx xxx
(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 within the purview of Section 155(2) of the Code.
(3) xxx xxx xxx (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2)of the Code.
(5) xxx xxx xxx
(6) xxx xxx xxx
(7) Where a criminal proceeding is
manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge".
and also held in para 14 that:
After considering the rival submissions, we are of the view that the contentions of Mr. Luthra are correct in view of Section 155(2) of the Code as explained in Bhajan Lal. We are of the opinion that the statutory safeguard which is given under Section 155 (2) of the Code must be strictly followed, since they are conceived in public interest and as a guarantee against frivolous and vexatious investigation. The order of the Magistrate dated 21.06.2010 does not disclose that he has taken cognizance. However power under Section 156(3) can be exercised by the Magistrate even before he takes cognizance provided the complaint discloses the commission of cognizable offence. Since in the instant case the complaint does not do so, the order of Magistrate stated above cannot be sustained in law and is accordingly quashed.
9. As the record would not disclose that permission was given by the Court for investigating the case, which would disclose non cognizable offences, filing of charge sheet by them and taking cognizance by the Court, is considered as violation of the statutory safeguard provided under Section 155(2) Cr.P.C. and the Dr.GRR,J 5 continuation of the prosecution is considered as an abuse of process of law and hence, the same is liable to be quashed.
10. In the result, the Criminal Petition is allowed, quashing the proceedings in STC No.52 of 2012 on the file of Judicial First Class Magistrate, Mahaboobnagar against the petitioner.
Miscellaneous petitions pending, if any, shall stand closed.
________________________ Dr. G. RADHA RANI, J Dated:10.12.2021.
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