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(2) Whether for getting, the order to investigate the non-cognizable case, the first informant has any right to move an application, before the magistrate concerned under Section 155(2) Cr.P.C. or it can only be moved by a police 2006 (55) ACC 864 officer of a police station concerned.

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8. Now I deal with issue No. 2. According to the provision of Section 155 Cr.P.C. only officer in charge or any police officer of a police station concerned can move an application to obtain the order for investigation from the magistrate concerned of a non cognizable case and there is no legal bar for moving such application by the first informant, Section 155(2) Cr.P.C. also envisages that no police officer shall investigate a non cognizable case without the 'order' of magistrate, here the word 'order' as mentioned above, it is relevant to deal with issue No. 2, in the wording of the provision of Section 155(2) the word 'without order' is used. Therefore, the order may be passed by the magistrate concerned on the application of a police officer concerned or on the application of the first informant also. According to the provisions of Section 154 Cr.P.C. also the case is registered on the information given to the officer in-charge of a police station, relating to the commission of a cognizable offence. In default, the first informant may move an application under Section 156(3) for passing the 'order' for doing investigation, it provides a right to the first informant to move an application on this analogy the first informant is also a competent person to move an application under Section 155(2) Cr.P.C."

8. In this view of the matter, when we look at Section 155(2) Cr.P.C. we find that there is nothing in the aforesaid Section as to disentitle the complainant to approach the Court with the prayer seeking his direction to direct the police to make an investigation of his N.C.R. Section 155(2) Cr.P.C. does not provide that but for the Police Officer no other person can approach the Magistrate for seeking his direction under the aforesaid Section.
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) Code of Criminal Procedure 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) Code of Criminal Procedure for investigating a non-cognizable case, has no legal basis. Sub-section (2) of Section 155 Code of Criminal Procedure 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 Criminal Petition No.4442/2009 exception to Sub-section (1) of Section 155. Not only a police officer or a complainant can approach the Magistrate under Section 155(2) Code of Criminal Procedure 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) Code of Criminal Procedure 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) Code of Criminal Procedure, 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) Code of Criminal Procedure 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) Code of Criminal Procedure in case such power is given to any unscrupulous police officer misusing his official position and harassing the named accused persons........"