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2010 Supreme(AP) 903
2011 (1) ALT (Crl.) 59 (A.P.)
IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD
SAMUDRALA GOVINDARAJULU, J.
Sajjal Agarwal and another – Appellants
Versus
State of A.P. – Respondents
Criminal Petition Nos.4442 and 5546 of 2009
Decided on : 23-09-2010.
Mr.M.V.S.Suresh Kumar, Counsel for the Petitioner.
Additional Pubilc Prosecutor, for Respondent No.1.
Mr. T.Pradyumna Kumar Reddy, Advocate for Respondent No.2.
Headnote:A) CRIMINAL PROCEDURE CODE, 1973, Sections 482 and 155 - Penal Code, 1860, Sections 506 and 507 – Where the offence alleged is under Section 507, it is not maintainable if the caller is none other than the brother-in-law of the complainant and there is marital dispute between pending between the 2nd respondent and the complaint because in an offence under Section 507, the identity of the person making threat is not revealed. In the present case there is already a complaint pending under Section 50. Hence the complaint under Section 507 cannot be registered against the same offence. . (Paras 3 and 4)
B) CRIMINAL PROCEDURE CODE, 1973, Sections 482 and 155 - Penal Code, 1860, Section 507 – Where the SHO records receipt of information of commission of a non-cognizable offence and passes on the information to the Magistrate, the Magistrate had to examine the complaint on oath under Section 200 and 204 and issue a process against the accused if satisfied of the offence. Until then no FIR is registered and when crime not registered against them court cannot entertain a petition for quashing the same u/s. 482 Cr.P.C. for quashing FIR. (Paras 3 and 4)
C) CRIMINAL PROCEDURE CODE, 1973, Section 155 –A police officer can not investigate a non-cognizable offence without the permission of a competent magaistrate. There is an exception provided under Section 155 (2), where not only the police officer or the complainant is debarred from seeking an order from the Magistrate to investigate a non-cognizable offence, but the Magistrate cannot also proceed suo mto in the matter. (Para 9)
D) CRIMINAL PROCEDURE CODE, 1973, Section 155 Where the Lower court generously issued NBW against accused/petitioner in Crl.P.No. 4442/2003 without even exhausting other methods of issue of process by way of issue of summons and issue of bailable warrant, it was held that the giving NBW straight away against accused always deprecated and that it is not proper for Court resorted to in a summons case and particularly involving non-cognizable offences. In the present case the SHO after recording the information of a threatening call through a mobile registered in Gaziabad, U.P. to a landline in Hyderabad, resorted the extreme step of seeking arrest warrant of the accused without doing any preparatory steps like obtaining the call details from service provider, under an order of Magistrate. The action of the Magistrate straight away issuing NBW is deprecated. (Para 10)
E) PENAL CODE, 1860, Section 95 – Where the offence alleged is abusing the complainat in filth language through a cell phoneand the accused is none other than the brother of the wife of accused and matrimonial dispute is pending between the wife and complainant, the alleged abuse in no way constitue a cognizable offence. (Paras 11 to 13)
These two criminal petitions raise common question of law though facts as well as stages of the criminal cases are different. The 2nd respondent is the defacto-complainant in both the cases. The petitioner in Crl.P.No.4442 of 2009 is brother-in-law of the 2nd respondent. The petitioners 1 and 2 in Crl.P.No.5546 of 2009 are brother- in-law and father-in-law of the 2nd 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, whereasCrimeNo.384/ 2008 of Mahankali Police Station is pending investigation.
2. The 2nd 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 2nd respondent have separated from each other and Swetha took shelter with her father Mahesh Agarwal at Ghaziabad. There is marital litigation between the 2nd 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 2nd 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 2nd 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 2nd 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 2nd 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 2nd 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 2nd 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 2nd 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 2nd respondent received call on his mobile phone and when the caller asked the 2nd respondent to call him back, the 2nd 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 call
