Telangana High Court
Pujari Prem Chander vs P. Dharmender on 28 July, 2022
Author: D. Nagarjun
Bench: D. Nagarjun
THE HONOURABLE DR. JUSTICE D. NAGARJUN
CRIMINAL PETITION No.2011 OF 2019
ORDER:
This petition is filed by the petitioners/A1 to A4 seeking quashment of charge sheet in C.C.No.365 of 2018 on the file of the XVII Additional Chief Metropolitan Magistrate, Hyderabad.
2. The facts in brief are that the de-facto complainant has made a complaint to the police on 11.03.2018 that when he has visited his property bearing door No.1-9-193 at Ramnagar, he found that the said property was demolished without his notice by petitioner No.1, who is also joint owner of the property, then on enquiry, the petitioners abused the de-facto complainant in filthy language and hit on his head, face and chest multiple times with his hands.
3. On the said complaint, the police made a G.D. entry and sent a requisition to the learned Magistrate for permission to investigate the complaint of the de-facto complainant, as the offence under Sections 323 and 506 IPC, are non-cognizable in nature.
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4. The learned Magistrate has granted permission to register a case on which the police have registered a case in Crime No.108 of 2018 for the offence under Sections 323 and 506 IPC and examined the complainant and two eye witnesses, send the de-facto complainant to the hospital, received medical certificate that the injuries received are simple in nature and filed charge sheet holding that the petitioners have committed offence punishable under Section 323 and 506 IPC. Aggrieved by the same, the present petition is filed.
5. Heard both sides and perused the record.
6. Now, the point for consideration is whether the proceedings against the petitioners in C.C.No.365 of 2018 can be quashed?
7. Learned counsel for the petitioners submitted that there is no substance in the contention of the de-facto complainant and that grant of permission to the police by the learned Magistrate under Section 155(2) Cr.P.c., is wholly illegal and contrary to Section 155 Cr.P.C. It is submitted further that the 3 Court while giving permission indicated that the informant has to file a private complaint, which is procedurally incorrect.
8. The submissions of the learned counsel for the petitioners are on two fold. Firstly, on facts it is submitted that even if the contents of the complaint are to be accepted, no offence is made out against the petitioners. It is the claim of the de-facto complainant that he and petitioner No.1 jointly own the house property bearing door No.1-9-193, which the petitioners were demolishing without his consent, when he enquired about the same, the petitioners have abused him in filthy language and beat him with hands on all over the body. The petitioners have denied the same. The questions are therefore whether petitioners have beat the de-facto complainant and whether the petitioners have abused the de-facto complainant.
9. As per the charge sheet, the statements of witnesses were recorded, wherein LWs.2 and 3 are shown as eye witnesses. Both the eye witnesses have stated to the police that petitioner No.1 has abused and beat the de-facto complainant with hands. Therefore, unless the witnesses are examined, unless the veracity of the evidence of the de-facto complainant and the 4 two witnesses is tested before the trial Court during the course of trial, the truth or otherwise of the contentions of the de-facto complainant cannot be decided. Since the facts, which are put- forth by the de-facto complainant, are denied by the petitioners herein, the issue between them has to be resolved only by way of full-fledged trial. Therefore, on this ground, this petition cannot be allowed.
10. The other important aspect raised by the learned counsel for the petitioners is that the procedure contemplated under Section 155(2) Cr.P.C., has not been followed. There is no dispute that both the offences under which the petitioners were charged are Sections 323 and 504 IPC are non-cognizable offences. On receipt of the complaint from the de-facto complainant, the police have rightly made an entry in GD and sent a requisition to the learned Magistrate to grant permission for investigation. Accordingly, the learned Magistrate has granted permission. However, the learned Magistrate has directed "register a case under Sections 497 and 506 IPC and investigate under Section 155(2) Cr.P.C. subject to condition under Section 155(3) Cr.P.C.". According to the petitioners, the 5 statement of the learned Magistrate giving permission to the police subject to condition under Section 155(3) Cr.P.C., amounts to asking the informant to file a private complaint, which is not contemplated in the procedure.
11. Under Section 155(2) Cr.P.C., the learned Magistrate can give permission to the police for investigating the non- cognizable offence. The learned Magistrate can also decline the permission. Therefore, the role of the Magistrate is either to give permission or to refuse the permission, but he is not expected to give permission stating that the permission given is subject to condition under Section 155(3) Cr.P.C. The petitioners have not filed the copy of the orders given to the police under Section 155(2) Cr.P.C. Unless the actual order passed by the learned Magistrate is filed before the Court, this Court cannot appreciate whether the order of the learned Magistrate is conditional one and if at all any such condition is there, whether such condition in any way affects the case of the petitioners prejudicially and that whether such condition has been complied with, the same can be considered. 6
12. As per the record, even though the learned Magistrate has given permission under Section 155(2) Cr.P.C., stating that the said permission is subject to condition under Section 155(3) Cr.P.C., still the record speaks that on receipt of such permission, the police have registered a case directly and proceeded with the investigation and charge sheet is filed. Therefore, though the permission is allegedly conditional one, the police have ignored such condition and proceeded with the investigation, thereby no prejudice is caused to the petitioners.
13. On account of giving of such conditional permission, the rights of the petitioners are not affected. Therefore, it cannot be a ground to quash the petition.
14. This is a case where the police have properly followed the procedure of obtaining permission of the Court for initiating investigation for the offence under Sections 323 and 504 IPC and completed the investigation. Even otherwise, if permission given by the learned Magistrate suffers from any irregularity, the petitioners should have challenged such permission as the police have already completed investigation and filed charge sheet.
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15. This Court is of the opinion that no irregularity is committed by the trial Court in providing permission for investigation thereby, on that count also the case against the petitioners in C.C.No.365 of 2018 cannot be quashed.
16. Considering the facts and circumstances placed before the Court, this Court is of the opinion that the petitioners have failed to make out a case that continuation of proceedings before the trial Court against the petitioners amounts to abuse of process of law and therefore, the same are liable to be quashed.
17. In the result, the criminal petition is dismissed.
Miscellaneous petitions, if any, shall stand closed.
_____________________ Dr. D. NAGARJUN, J Date: 28.07.2022 ES