Y.MURALINADHA REDDY Vs. STATE

JUDGEMENT

(1.) C.C. No. 480 of 2008 on the file of the V Additional Judicial First Class Magistrate, Nellore is sought to be quashed by the accused, through this Criminal Petition. The petitioner allegedly committed the offences under Sections 355, 323 and 506 of the Indian Penal Code (IPC, for short) in Crime No. 170 of 2008 on the file of the IV Town Police Station (Law & Order), Nellore. The petitioner and the second respondent, who is the de facto complainant, are brothers. It would appear that there are misunderstandings between them in respect of the properties of one Hymavathamma who is their paternal aunt. On 06.07.2008 while the second respondent was in a Restaurant, the petitioner went there, hurled abuses and slapped on the face of the second respondent with his chappel. The second respondent, consequently, lodged a complaint. Police registered the same and issued FIR. Subsequently, charge sheet was laid.

(2.) It is the contention of Sri V. Roopesh Kumar Reddy, learned counsel for the petitioner/accused that police has no right to investigate a non-cognizable offence without directions from the concerned Magistrate and that the very investigation is bad, as the offences alleged against the petitioner are non-cognizable offences; but, there is no order from the concerned Magistrate to investigate the case.

(3.) The learned counsel for the second respondent on the other hand contended that the failure of police to obtain prior permission of the Magistrate is a curable defect and that the same cannot be a ground to quash the proceedings. He placed reliance upon In re Pakkirisami,1970 1 MLJR 488The Madras High Court held in that case that a mere defect or illegality in investigation will not per se affect the competence or jurisdiction of the Court to try the offence and that in appropriate cases, the defect can be rectified by ordering reinvestigation. In H.N. Rishbud v. State of Delhi, 1955 AIR(SC) 196with reference to an offence u/s. 5-A of the Prevention of Corruption Act, 1947, the Supreme Court observed that a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance. It may be noticed that the decision is in respect of an offence u/s. 5-A of the Prevention of Corruption Act and not in respect of the general powers of investigation of a police officer. Further, the decision was under the old Code of Criminal Procedure.