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2023 DIGILAW 2030 (BOM)

Asif Khan Pathan v. State of Goa

2023-10-16

B.P.DESHPANDE, M.S.SONAK

body2023
JUDGMENT/ORDER BHARAT P.DESHPANDE, J. - Rule. Rule is made returnable forthwith. 2. Heard the matter finally at the stage of admission itself with consent of the parties. 3. The Petitioner who is an Accused in FIR No.41/2023 registered at Old Goa Police Station on 20/3/2023 at the instance of Respondent No.3, for the offences punishable under Sec. 323, 506(II), 354, 509, 427 of IPC is challenging it under Sec. 482 of Cr.P.C. basically on the ground that such FIR is a counterblast and secondly, the police failed to follow the procedure as laid down in Sec. 155(2) of Cr.P.C. by obtaining the permission of the learned Magistrate since already a non-cognizable case was registered with regard to the same incident by the wife of Respondent No.3 on 19/3/2023. 4. Heard learned Counsel Mr Arun de Sa appearing with Mr Anoop Gaonkar for the Petitioner, Mr Pravin Faldessai Additional Public Prosecutor for the State and Mr Chaitanya Padgaonkar appearing with Ms V. Mahato for Respondent No.3. 5. Mr de Sa, appearing for the Petitioner, submits that the Petitioner and Respondent No.3 are the members/flat owners of a complex known as Nine Jewel Apartments at Carambolim. There are in all nine flats, out of which Petitioner is occupying Flat No.202, whereas Respondent No.3 is occupying another flat. He submits that though there is no registered society, the flat owners formed an association for the purpose of maintenance of the said apartments. The meetings of the said association are conducted on a regular basis. Initially, when the Petitioner purchased the flat, the owner of the said scheme orally permitted the Petitioner to use the parking space for his vehicle. However, subsequently, Respondent No.3 and other flat owners started quarrelling with the Petitioner with regard to the parking space. The differences between the flat owners started frequently due to some garbage and illegal construction in the said apartments. The Petitioner filed complaints against Respondent No.3 and his wife, but the same were considered non-cognizable complaints. Recently, the owner of the flat existing on the ground floor carried out some illegal construction on the balcony, for which Petitioner complained to Village Panchayat. An inspection was carried out by the Village Panchayat, during which it was found that some illegal construction in the balcony was carried out. 6. Recently, the owner of the flat existing on the ground floor carried out some illegal construction on the balcony, for which Petitioner complained to Village Panchayat. An inspection was carried out by the Village Panchayat, during which it was found that some illegal construction in the balcony was carried out. 6. Mr de Sa would then submit that the annual meeting of the flat owners was scheduled for 9/3/2023 at 11:00 a.m. However, on the previous day, there were some verbal abuses to the Petitioner and his wife by some of the flat owners, including Respondent No.3. 7. Mr de Sa then submitted that during the annual meeting on 19/3/2023, all the flat owners gathered on the premises in order to discuss the agenda. However, without any reason, Respondent No.3 and a few others started fighting with the Petitioner and his wife and questioned them as to why a false complaint was lodged with Old Goa Police Station in connection with the throwing of garbage, parking, maintenance issues, etc. Respondent No.3 and his wife even came to assault the Petitioner and his wife. 8. Mr de Sa would then submit that after the said incident, the Petitioner went to Old Goa Police Station to lodge his complaint. However, the wife of Respondent No.3, Ms Jisha, lodged a complaint against the Petitioner and his wife, which was registered as an NC complaint and Ms Jisha was directed to approach the concerned Magistrate. However, when the Petitioner was in the Police Station, Old Goa Police arrested the Petitioner under Sec. 151 of Cr.P.C., and thereafter, he was produced before the Deputy Collector. The Deputy Collector released the Petitioner on a personal bond of ?5, 000/-. 9. Mr de Sa would then submit that on the next day, i.e. on 20/3/2023, Respondent No.3 went to Old Goa Police Station and lodged the FIR against the Petitioner in connection with the same incident for which Old Goa Police Station registered an NC complaint. Mr de Sa would submit that the registration of FIR No.41/2023 by Old Goa Police Station, based on the same facts but with some embellishments, on which the wife of Respondent No.3 had earlier lodged an NC complaint, is clearly an abuse of process of law. He submits that Old Goa Police had no authority or power to register FIR No.41/2023 by adding cognisable offences without obtaining permission from the Magistrate. He submits that Old Goa Police had no authority or power to register FIR No.41/2023 by adding cognisable offences without obtaining permission from the Magistrate. 10. Mr de Sa would submit that such exercise on the part of Old Goa Police is clearly illegal, arbitrary, and contrary to the settled propositions of law. He would submit that the Petitioner immediately applied for bail in anticipation of arrest in FIR No.41/2023, and even the learned Additional Sessions Judge observed that the complaint on which FIR is registered relates to the same incident wherein NC complaint was registered. 11. Mr de Sa placed reliance on the observations of the Supreme Court in State of Haryana vs. Bhajan Lal; 1992 Supp (1) SCC 335. 12. Mr Faldessai the learned Additional Public Prosecutor claimed that even though NC complaint was registered on 19/3/2023, the police have every power to register FIR on receipt of information regarding a cognizable case as provided under Sec. 154 of Cr.P.C. He submits that though NC was registered on the information given by the wife of Respondent No.3, Respondent No.3 appeared at the Police Station on the next day and made allegations which clearly disclosed commission of cognizable offences and accordingly, a crime was registered by Old Goa Police. He would submit that there was no need for the Investigating Officer to approach the Magistrate under Sec. 155(2) of Cr.P.C. as the Investigating Officer was not proposing to investigate into the NC case but by registering the FIR, the Investigating Officer was justified in investigating the cognisable offences. Mr Faldessai relied upon the case of Mansingh S/o Dhondibhau Shitole vs. State of Maharashtra and Ors.; Criminal Application No.175/2017 with Criminal Application No.987/2017 decided by the Division Bench at Aurangabad on 14/6/2017. 13. Learned Counsel Mr Padgaonkar appearing for Respondent No.3 strongly contended that the wife of Respondent No.3 though appeared before the Police Station on 19/3/2023, her entire version was not properly recorded by the police. Even otherwise, wife of Respondent No.3 was in shock with regard to the said incident. Therefore, Respondent No.3 went to the Police Station and lodged his complaint on 20/3/2023 by giving full disclosure as to what happened during the meeting on the earlier day. On recording such complaint, Old Goa Police found that cognizable offence is prima facie committed and accordingly registered the FIR and rightly so. Therefore, Respondent No.3 went to the Police Station and lodged his complaint on 20/3/2023 by giving full disclosure as to what happened during the meeting on the earlier day. On recording such complaint, Old Goa Police found that cognizable offence is prima facie committed and accordingly registered the FIR and rightly so. He submits that there is no material to show that such FIR is a counterblast. According to him, the Petitioner tried to molest the wife of Respondent No.3 and other two family members and even threatened them with dire consequences. 14. Mr Padgaonkar would then submit that this is not a case wherein this Court should interfere in its extraordinary jurisdiction as the investigation is not complete. He further submits that when the complaint lodged by Respondent No.3 discloses the commission of cognizable offences, the police are bound to register FIR as held by the Supreme Court in the case of Lalita Kumari. It is his contention that the FIR has been rightly registered against the Petitioner and no interference is warranted. 15. Rival contentions fall for determination of this Court. 16. The parameters for exercising extraordinary jurisdiction under Sec. 482 of Cr.P.C. are now well settled. In the case of Bhajan Lal (supra), the guidelines under which this Court should exercise its discretionary powers are laid down in para No.102. 17. In the case of Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra; AIR 2021 SC 1918 , the Apex Court after considering all its earlier decisions, has specifically observed in para 10 as under:- "10. From the aforesaid decisions of this Court, right from the decision of the Privy Council in the case of Khawaja Nazir Ahmad (supra), the following principles of law emerge: i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offences; ii) Courts would not thwart any investigation into the cognizable offences; iii) However, in cases where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go on; iv) The power of quashing should be exercised sparingly with circumspection, in the 'rarest of rare cases'. (The rarest of rare cases standard in its application for quashing under Sec. 482 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court); v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint; vi) Criminal proceedings ought not to be scuttled at the initial stage; vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule; viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Sec. 482 Cr.P.C. ix) The functions of the judiciary and the police are complementary, not overlapping; x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences; xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice; xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure; xiii) The power under Sec. 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court; xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; and xv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Sec. 482 Cr.P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR." 18. Keeping in mind above settled propositions of law while exercising powers under Sec. 482 of Cr.P.C., the matter needs to be considered. 19. Apart from raising the grounds of false and fabricated FIR, counterblast, abuse of process, the Petitioner has raised the issue with regard to the powers of the Police to register FIR on the same incident when an NC is already filed. Thus, the basic question which we are required to answer is whether the investigating agency is entitled to register FIR in connection with the same incident for which noncognizable complaint is already filed, by bypassing the provisions of Sec. 155(2) of Cr.P.C. 20. In order to appreciate this contention, Chapter XI of Cr.P.C. dealing with preventive action of the Police needs to be taken into consideration. Sec. 149 deals with preventive measures by the Police to prevent commission of any cognizable offence. In this regard, Sec. 151 gives power to the Police to arrest without orders from the Magistrate or without warrant, any person who is having a design to commit a cognizable offence. On arrest of such person, he shall be detained for a period not exceeding 24 hours unless his further detention is required or authorised by the concerned authority. 21. At this stage, it is necessary to note that the Petitioner was detained/arrested under Sec. 151 of Cr.P.C. on 19/3/2023 and that too, when he visited the Police Station. It happened when the wife of Respondent No.3 lodged NC complaint bearing Case No.147/2023. 21. At this stage, it is necessary to note that the Petitioner was detained/arrested under Sec. 151 of Cr.P.C. on 19/3/2023 and that too, when he visited the Police Station. It happened when the wife of Respondent No.3 lodged NC complaint bearing Case No.147/2023. The record shows that the Petitioner was placed under arrest under Sec. 151 of Cr.P.C. and was produced before the Deputy Collector/SDM who released the Petitioner on personal bond of ?5, 000/- to maintain good behaviour. 22. Coming back to the provisions of Cr.P.C., Chapter XII deals with information to the Police and their powers to investigate. Sec. 154 deals with information in cognizable cases which puts a duty on the concerned officer to register FIR on receiving information of cognizable offence. 23. Sec. 155 of Cr.P.C. reads thus:- "155. Information as to non-cognizable cases and investigation of such cases.-(1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate. (2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. (3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case. (4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable." 24. Plain reading of the above provision would show that when information as to non-cognizable cases is received by the officer in charge of the police station, he shall enter the substance of the information in the book and refer the informant to the Magistrate. 25. Admittedly, in this matter, the wife of Respondent No.3 went to Old Goa Police Station on 19/3/2023 and lodged her complaint, which was registered by Old Goa Police Station as NC complaint No.147/2023 which reads thus:- "Typed Copy Of NC Complaint dtd. 25. Admittedly, in this matter, the wife of Respondent No.3 went to Old Goa Police Station on 19/3/2023 and lodged her complaint, which was registered by Old Goa Police Station as NC complaint No.147/2023 which reads thus:- "Typed Copy Of NC Complaint dtd. 19/3/2023 Old Goa Police Station Police NC Case no.147/2023 date 19/03/2023 Name and address of the complainant: Mrs DISHA V.P R/O Nine jewels apartment Carambolim Name and address of Accused : Asif Khan R/O Nine Jewel apartment Date, Time and place of occurrence : On 19/03/2023 at about 1130 hrs at Nine jewels apartment Carambolim Facts of the case : On date, time, place mentioned above the above noted accused person who is resident of a Nine jewel apartment and member of the society caught hold of the shirt of the complainant's husband Shaji M.K and when his wife /complainant came to separate the complainant's mobile fell on the ground and accused person broke the same with stone and threw away out and also came to assault the complainant while the meeting was going on. Accused person also assaulted the husband of the complainant with slap hence the accused person committed offence under Sec. 352, 427, 323IPC. In the Shuffle accused person chain broke into pieces. Since your complaint is NC in nature. You advice to approach proper court of law under Sec. 155 CRPC if desired." 26. The above complaint shows the date, time, place as well as the name of the Accused. The substance of information discloses that at around 11:30 hours at Nine Jewels Apartments Carambolim, the Accused/Petitioner herein, caught hold the shirt of Respondent No.3 and when his wife/informant tried to separate, the Accused broke her mobile phone with stone and came to assault her while the meeting was going on. Similarly, the Accused/Petitioner assaulted her husband/Respondent No.3 with slaps. 27. The Old Goa Police considered such information as non-cognizable in nature and accordingly, advised the informant to approach the proper Court of law under Sec. 155 of Cr.P.C., if desired. 28. On the next day, i.e. on 20/3/2023, Respondent No.3 proceeded to the Police Station at around 20:28 hours and lodged his written complaint. The substance of such complaint is found in the copy of FIR at column No.12. This information shows that the incident took place on 19/3/2023 at around 11:00 a.m. at Nine Jewels Apartments Carambolim. 28. On the next day, i.e. on 20/3/2023, Respondent No.3 proceeded to the Police Station at around 20:28 hours and lodged his written complaint. The substance of such complaint is found in the copy of FIR at column No.12. This information shows that the incident took place on 19/3/2023 at around 11:00 a.m. at Nine Jewels Apartments Carambolim. At that time, the Petitioner pulled the neck of the complainant/Respondent No.3, assaulted him with slaps and punches on his face and head and damaged his gold chain. It further shows that when the wife of Respondent No.3 Mrs. Jisha and neighbours Mrs. Shweta and Mrs Tayara came to rescue, the Accused abused Mrs. Jisha and other ladies with filthy language, made gestures towards them which insulted their modesty and then, the Accused/Petitioner tried to assault the complainant/Respondent No.3 with a brick. When Mrs. Jisha i.e. wife of Respondent No.3 and other ladies tried to stop the Petitioner/Accused, he forcibly pushed down the said ladies on the floor thereby outraging their modesty. The Accused further damaged the mobile phone of Mrs. Jisha with a brick and threatened them with dire consequences. 29. Thus, the contents of the NC complaint registered on 19/3/2023 and the contents of the complaint lodged by Respondent No.3 on 20/3/2023 are practically the same. No doubt, there are few additions found in the complaint lodged by Respondent No.3 on 20/3/2023, which according to Old Goa Police, are sufficient enough to register FIR, without approaching the Magistrate under Sec. 155(2) of Cr.P.C. 30. We are unable to accept such contention. The Sec. is worded with clarity and there is no ambiguity in it so as to interpret in the manner which the Old Goa Police is trying to do so in the present matter. 31. The learned Counsel Mr Padgaonkar while arguing claimed that Old Goa Police failed to record all the relevant details when the wife of Respondent No.3 went to lodge her complaint on 19/3/2023. If that is so, the procedure is to approach the in-charge of the Police Station or his higher authorities by disclosing proper information and complaining about non-registration of FIR. Such procedure is clearly envisaged in Sec. 154(3) of Cr.P.C. It provides that any person aggrieved by refusal on the part of officer in-charge of the Police Station to record the information referred to in Sub-sec. Such procedure is clearly envisaged in Sec. 154(3) of Cr.P.C. It provides that any person aggrieved by refusal on the part of officer in-charge of the Police Station to record the information referred to in Sub-sec. 1, may send the substance of such information in writing or by post to the Superintendent of Police concerned who, if satisfied that such information disclosed commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by the Code which includes provision of Sec. 155(2) also when a NC is already registered and such officer shall have all the powers of an officer in-charge of a Police Station in relation to that offence. 32. This safeguard is provided in the Code itself so that the informant subsequently and after changing his mind or on some ill advice, may try to lodge another complaint on the same set of facts, on the same event or incident but by incorporating material which would permit the Police to register FIR when a non-cognizable case is already registered by it. The wordings of Sec. 155(2) as quoted earlier are mandatory. It specifically provides that no police officer shall investigate a non-cognizable case without the order of a Magistrate having the power to try such a case or commit the case for trial. 33. The intention of the Legislature clearly goes to show that when a non-cognizable case is registered with regard to an incident, the Police are prevented from investigating the same incident or the substance of information even if, subsequently, additional information is placed before it either by the informant or by the victim, without the leave of the Magistrate. It is a safeguard provided under the law so as to protect the complaints/information twisted or added after the passage of some time so as to register an FIR by ignoring NC complaints. 34. In other words, the above provision clearly goes to show that there is no complete restraint on the police to start an investigation on the substance of information given by the informant on which a noncognizable case is registered, on receiving further information which leads to the disclosure of commission of a cognisable offence. 34. In other words, the above provision clearly goes to show that there is no complete restraint on the police to start an investigation on the substance of information given by the informant on which a noncognizable case is registered, on receiving further information which leads to the disclosure of commission of a cognisable offence. The only condition imposed is that the officer shall not investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. This safeguard is provided so that no unfettered powers are given to the Police to register separate FIRs by adding some information to the earlier information received, claiming to be disclosing ingredients of a cognizable offence. Similarly, it also provides the opportunity for the Police to investigate a non-cognizable case registered earlier by obtaining order of the Magistrate when it comes to light that in fact it requires investigation to unearth a cognizable offence. The only safeguard is to obtain an order from a Magistrate having jurisdiction to try such a case or to commit the case for trial. For example, if the information is received about assault and it is registered as a non-cognizable case under Sec. 323 Cr.P.C. at the initial stage but subsequently it comes to the knowledge of the Police that due to such assault, in fact, a grievous injury is caused, the officer-in-charge of the Police Station is required to approach the concerned Magistrate under Sec. 155(2) with the additional material/information praying that he be permitted to investigate the noncognizable case. Once such permission is granted, the investigating officer is even free to apply the correct provision of the IPC or any other penal provision which comes within the ambit of a cognizable case. This is only an example which is disclosed to fulfil the condition imposed under Sec. 155(2) of Cr.P.C. 35. Mr Faldessai placed reliance in the case of Mansingh (supra), to submit that the Police are having powers to register FIR under Sec. 154 of Cr.P.C. once information of cognizable offence is disclosed, even if NC is registered on the earlier occasion. 36. In Mansingh (supra), petition under Sec. 482 of Cr.P.C. was filed for quashing of FIR mainly on the ground that such FIR was lodged on false and fabricated material and only to take revenge. 36. In Mansingh (supra), petition under Sec. 482 of Cr.P.C. was filed for quashing of FIR mainly on the ground that such FIR was lodged on false and fabricated material and only to take revenge. It is no doubt true that the facts of the case discloses that the informant initially went to the Police Station and ventilated her grievance regarding the alleged incident. Such information was registered as non-cognizable case under Ss. 323, 504 and 506 of IPC and the informant was told to approach the concerned Magistrate. A few days after the alleged incident and registration of NC, the informant, after consulting her husband and others, again visited the Police Station and claimed that said Mansingh and others abused her and her husband on caste, assaulted her and her daughter-inlaw with kicks, fist blows and with the handle of axe. One of the accused caught hold of the hand of daughter-in-law and tried to molest her. The assailants also gave threats. The Police registered offence under various Sec. of IPC and also under Sec. 3(1)(xi) of the SCST (Prevention of Atrocities) Act. While arguing the said matter, which is found recorded in para 5, it is clear that the entire argument on behalf of Mansingh was only on the contention that entire case is false and fabricated and no such incident occurred on that day. No ground was raised with regard to Sec. 155(2) of Cr.P.C. and the non-cognizable case registered earlier. Thus, the decision in Mansingh (supra) is distinguishable and not helpful to the Respondents. 37. In the present petition, the Petitioner has specifically claimed in para 18 that FIR No.41/2023 is based on the same facts for which the Petitioner was earlier arrested under Sec. 151 and the NC complaint was also registered as regards the same. Again, in para 22 of the petition, the Petitioner has referred to the observations of the Trial Court while granting anticipatory bail to the Petitioner. 38. Grounds No.2, 3 and 5 in the present petition are specifically with reference to powers of the Police to investigate a non-cognizable case without obtaining permission from the Magistrate under Sec. 155(2) of Cr.P.C. 39. 38. Grounds No.2, 3 and 5 in the present petition are specifically with reference to powers of the Police to investigate a non-cognizable case without obtaining permission from the Magistrate under Sec. 155(2) of Cr.P.C. 39. In Tulsidas Gopal Naik vs. State of Goa; 2022 SCC OnLine Bom 6691, this Court while dealing with a similar contention and on considering provisions of Sec. 155 of Cr.P.C., observed in paras 25 and 29 which reads thus:- "25. Perusal of the above provision clearly goes to show that when the officer in-charge of a police station considers any complaint as non-cognizable and enters or cause to be entered the substance of information in a book to be kept by such officer in such form as the State Government may prescribe and refer the informant to the Magistrate, he is not entitled to investigate into such matter without the order of a Magistrate. 29. It is not an empty formality but certain rights accrue in favour of the said party against whom complaint or allegations are made. The word "shall" used in Sub-sec. (2) of Sec. 155 of Cr.P.C. clearly shows the intention of the Legislature and mandate that the police officer shall not investigate a non-cognizable case without orders of the Magistrate having power to try such case. Therefore, once an opinion is formed in writing and conveyed to the informant that his case is non-cognizable case, the in-charge of the police station is certainly precluded from carrying out any further investigation in such non-cognizable case/complaint without the order of the jurisdictional Magistrate. There is a specific purpose for which Sub-sec. (2) of Sec. 155 is introduced. Such purpose cannot be taken away only by saying that the officer incharge did not record substance of information of non-cognizable case in the book maintained in the police station." 40. In Tulsidas Gopal Naik (supra), it was contended that initially the Police registered a non-cognizable case on receiving the information and directed the informant to approach the Magistrate, but due to some pressure on the police officer from higher authorities, he registered it as a cognizable offence. The facts in the matter in hand are quite similar. The wife of Respondent No.3 went to the Police Station on the day of incident itself and lodged her complaint, which is already reproduced in para 26. The facts in the matter in hand are quite similar. The wife of Respondent No.3 went to the Police Station on the day of incident itself and lodged her complaint, which is already reproduced in para 26. This information was considered as non-cognizable case and the informant was advised to approach the proper Court of law under Sec. 155 of Cr.P.C. On the next date, i.e. on 20/3/2023, Respondent No.3 filed another complaint in connection with the same incident and by giving some additional information, which Police considered as containing ingredients for registration of cognizable offence. 41. At this stage, it is necessary to note that Respondent No.3 went to the Police Station on the next day even though he very well knew that his wife lodged the complaint on the previous day and that it was registered as a non-cognizable case. The question remains as to whether the wife of Respondent No.3 failed to disclose all the facts to the Police and/or on the other side, the Police failed to record all the facts disclosed by the wife of Respondent No.3 while registering NC complaint. On both counts, the law provides a specific procedure. If the informant was not satisfied with the recording of her complaint by the Police, which is not at all the case put forth in this matter except claiming orally while arguing the matter, the said informant failed to approach the Superintendent of Police under Sec. 154(3) of Cr.P.C. The only inference is that whatever was disclosed by the wife of Respondent No.3 on 19/3/2023 and considered as non-cognizable case was properly recorded by the Police. The said informant on showing dissatisfaction on recording the information correctly by the Police, ought to have approached the Superintendent of Police with all the details. No such procedure was adopted. Thus, it shows that the Police recorded the information correctly as disclosed by the informant on 19/3/2023, as noncognizable case. 42. Secondly, when the Police on the next day i.e. on 20/3/2023, received some additional information about the same incident which was provided to them by Respondent No.3, were very well aware that NC complaint is registered in connection with the same incident and thus, was duty-bound to approach the concerned Magistrate under Sec. 155(2) of Cr.P.C. for permission to investigate. There was no impediment on the investigating agency to approach the concerned Magistrate. 43. There was no impediment on the investigating agency to approach the concerned Magistrate. 43. The view taken by this Court in Tulsidas Gopal Naik (supra) is applicable to the facts and circumstances of this matter. There is no material to deviate from such view. 44. The learned Counsel Mr de Sa claimed that FIR is lodged on the basis of false and fabricated material and only to harass the Petitioner. Though, at this stage, it is not for us to go into the veracity or otherwise of the allegations in the complaint, we cannot ignore that firstly, the information given to the Police by the wife of Respondent No.3 on 19/3/2023 was not in connection with any cognisable offence. The Police recorded such information as a non-cognizable case and advised the informant to approach the concerned Magistrate if so desired. Secondly, Respondent No.3, who is the husband of the informant in the NC case, did not file any affidavit of himself or of his wife stating that the Police did not record the correct information. Even otherwise, we are of the view that the option was available with the wife of Respondent No.3 to approach the Superintendent of Police under Sec. 154(3) of Cr.P.C., which has not been exercised. Thirdly, the contents of the NC complaint and the contents of the FIR lodged by Respondent No.3 are quite similar and in the sequence of events, except for a few additions, which, according to us, appear to be belatedly introduced only to bring the said material within the ingredients of cognisable offences. 45. Even though we granted time to Respondent No.3 to file a reply affidavit, no such affidavit was placed on record. Thus, it is clear from the contents of the non-cognizable case and the contents of the FIR that it relates to the same incident which occurred on 19/3/2023 at around 11:30 hours. However, by adding some material to the complaint filed by Respondent No.3, the Police Officer/Respondent No.2 registered it as an FIR without following the mandatory provision of Sec. 155(2) of Cr.P.C. The mandatory provisions of Sec. 155(2) cannot be bypassed in this manner to give the investigating agencies power to investigate noncognisable offences without the permission of the magistrate simply based upon belated additions to the original non-cognisable complaint or the complaint which according to the agencies had only disclosed an non cognisable offence. That was not the ratio of the decision relied upon by Mr Faldessai. 46. The entire incident appears to be the differences between the flat owners in a society wherein there are only nine flats. The dispute appears to be in connection with the parking space, disposal of garbage, etc. It is unfortunate that the occupants of only nine flats are unable to reside happily and without any serious quarrel. Be that as it may, the contention of the Petitioner needs to be accepted. The FIR vide Crime No.41/2023 registered at Old Goa Police Station is clearly hit by the provisions of Sec. 155(2) of Cr.P.C. and needs to be quashed and set aside. 47. Similarly, we cannot brush aside Mr de Sa's contention that the said FIR was lodged only to wreak revenge on the Petitioner who lodged some complaints against Respondent No.3 and his wife and other flat owners. This does appear to be a case of a counterblast. Because the initial complaint of the wife was recorded as an NC based on which the Petitioner was arrested but released under Sec. 151 of Cr.P.C. by Respondent No.2, the next day, additional allegations were made with embellishments regarding the very same incident. The investigating agencies should not have registered such FIR and sought to investigate into it without leave of the Magistrate under Sec. 155(2) of CrPC. Neither the parties nor the investigating agencies can achieve indirectly, what the law prohibits directly. These are matters of liberty and Article 21 is clear when it provides that no person shall be deprived of liberty except otherwise than by the procedure established by the law. 48. For all the above reasons, the FIR No.43/2023 dtd. 20/3/2023 registered at Old Goa Police Station for the offences punishable under Ss. 323, 506(II), 354, 509, 427 of IPC against the Petitioner, is hereby quashed and set aside. The Rule is made absolute in above terms. Parties shall bear their own cost.