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2008 DIGILAW 914 (PNJ)

Parmjit Kaur v. State Of Punjab

2008-04-24

RAJESH BINDAL

body2008
Judgment Rajesh Bindal, J. 1. The prayer in the present petition is for a direction to the official respondents to register a case under Sections 376, 366 365, 364,347,346 506 IPC against respondents. Nos. 5 and 6 and further for entrusting the same for investigation to the Central Bureau of Investigation or any other high level agency other than Punjab Police. 2. Briefly, the facts as stated are that the petitioner belongs to a respectable religious family. The family of the petitioner came to know that respondent No. 5 Maan Singh of Pehowa was giving various discourses/kirtan at different places. The petitioner being interested therein, used to attend the same. The incident, on the basis of which the registration of FIR is prayed for, allegedly occurred on 15.03.2006. it is stated by the petitioner that she was present alongwith her mother at the Dera of baba at village Dheena, Jalandhar. Mother of the petitioner was doing sewa of preparing langar; whereas the petitioner was mopping and cleaning the floors there. At abou 4:00 p.m. one Harbans Singh, who is very close to the baba, called the petitioner and directed her to wash her hands and go to his room. The petitioner feeling honoured, immediately went to his room. Harbans Singh, while moving out of the room, closed the door. Baba directed the petitioner to fetch the bottle of oil and massage his head. In the process, he started explaining many good things about the great Saints. It is further alleged in the petition that before the petitioner could understand all, baba caught hold of her by force and, throwing her down, committed rape against her wishes. The hue and cry of the petitioner could not be heard by anyone as the room was built in such a manner where no human noise or raula could be heard outside. After the incident, the petitioner was threatened not to disclose the same to anyone else. The petitioner came out of the room of the baba and narrated the entire incident to her mother. As it was already 9:30 p.m., both of them left the dera and reached Shri Harminder Sahib, Amritsar and spent the night there and in the morning left for their village. As it was the matter of dignity and reputation of the family, the matter was not immediately reported to the pol ice. 3. As it was already 9:30 p.m., both of them left the dera and reached Shri Harminder Sahib, Amritsar and spent the night there and in the morning left for their village. As it was the matter of dignity and reputation of the family, the matter was not immediately reported to the pol ice. 3. On 18.03.2006, a complaint was filed to SHO, Police Station Sadar, Jalandhar but no action was taken thereon. Thereafter representation was sent to Sardar Joginder Singh Vedanti, Jathedar of Sri Akal Takht Sahib bringing to his notice the heinous crime committed by the baba vide letter dated 20.05.2006. The same was responded vide communication dated 13.10.2006 (Annexure P3). It is further alleged that one Gurvinder Singh Samra who was earlier close to respondent No. 5, started raising voice against the baba and started exposing him, however, he was showered with series of FIRs at different places with similar allegations, which were referred by this Court for investigation by CBI vide judgment of this Court in Criminal Misc. No. 37885-M of 2007 Dr. Gurvinder Singh Samra v. State of Punjab andothers, decided on 15.2.2008. The petitioner even sworn an affidavit on 25.06.2007 and also made a complaint to the Punjab State Human Rights Commisson, Chandigarh. In this factual matrix the prayer of the petitioner is for a direction to the officials respondents to register FIR against respondents Nos. 5 and 6 and also to transfer the same to CBI for investigation. 4. In response to the contention raised by the learned counsel for the petitioner, learned counsel for the respondents submitted that after receipt of the copy of the petition, the inquiry was marked to Deputy Superintendent of Police, Rural-II, Jalandhar. In the process of inquiry, the petitioner as well as her mother and father were examined. The statements of respondents No. 5, 6 and one Karamjit Singh were recorded. Place of occurrence was also visited. On verification of the record, it was found that the complaint dated 18.03.2006, which was allegedly given to SHO, Police Station Sadar, Jalandhar, was not received. Even the alleged complaint dated 26.06.2007, filed with the Punjab State Human Rights Commission, was not received in the office of SSP, Jalandhar. Place of occurrence was also visited. On verification of the record, it was found that the complaint dated 18.03.2006, which was allegedly given to SHO, Police Station Sadar, Jalandhar, was not received. Even the alleged complaint dated 26.06.2007, filed with the Punjab State Human Rights Commission, was not received in the office of SSP, Jalandhar. In addition thereto a list of 20 cases was attached as Annexure R2 with the reply stating therein that the petitioner, her father and mother were involved in a number of cases and accordingly do not have clean record. It was further mentioned that-in fact baba was not present at the dera on the date of occurrence. The situation of the place of occurrence, as stated by the petitioner, did not tally at the spot and further that the petitioner did not get her medically examined immediately after the occurrence. It is further submitted that the petitioner has effective alternative remedy to approach the Magistrate under Section 156 Cr.P.C or filing a complaint. 5. I have heard learned counsel for the parties and perused the paper book. An identical issue has been considered by Honble the Supreme Court in Sakiri Vasu v. State of U.P. and others, 2008(1) RCR(Criminal) 392, where it has been opined that once effective alternative remedy is available with a person either to file a petition under Section 156 Cr.P.C or a criminal complaint under Section 200 Cr.P.C. writ petition or a petition under Section 482 Cr.P.C should not be entertained. Following paras of the judgment can be referred to for the purpose : "14. Section 156(3) states - "Any Magistrate empowered under Section 190 may order such an investigation as above- mentioned." The words as abovementioned obviously refer to Section 156(1). which contemplates investigation by the officer in charge of the Police Station. 15. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr.P.C. In case where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same. 16. 16. The power in the Magistrate to order further investigation under Section 156(3) is an independent power, and does not affect the power of the investigating officer to further investigate the case even after submission of his report "vide Section 173(8) Hence the Magistrate can order reopening of the investigation even after the police submits the final report, vide State of Bihar v. A.C. Saldanna, AIR 1980 SC 326 (para 19). 17. In our opinion Section 156(3) Cr P C is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an F.I.R and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) Cr.P.C, though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation. 18. It is well settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary to its execution. 19. The reason for the rule (doctrine of implied power) is quite apparent. Many matters of minor details are omitted from legislation. As Crawford observes in his Statutory Construction (3rd edn. Page 267) :- "If these details could not be inserted by implication, the drafting of legislation would be an indeterminable process and the legislative intent would likely be defeated by a most insignificant omission". XXX XXX XXX 26. Many matters of minor details are omitted from legislation. As Crawford observes in his Statutory Construction (3rd edn. Page 267) :- "If these details could not be inserted by implication, the drafting of legislation would be an indeterminable process and the legislative intent would likely be defeated by a most insignificant omission". XXX XXX XXX 26. If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) Cr.P.C or other,, police under Section 154 (3) Cr.PC or other police officer referred to in Section 36 Cr.P.C. If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) Cr.P.C instead of rushing to the High Court by way of a writ petition or a petition under Section 482 Cr.P.C. Moreover he has a further remedy of filing a criminal complaint- under Section 200 Cr.P.C. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies ? 27. As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR gnd to ensure a proper investigation, and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under Sections 36 and 154(3) before the concerned police officers, and if that is of no avail, under Section 156(3) Cr.P.C before the Magistrate or by filing a criminal complaint under Section 200 Cr.P.C and not by filing a writ petition or a petition under Section 482 Cr.P.C." 6. The facts in Gurvinder Singh Samras case (supra), relied upon by the petitioner, where this Court had ieferredthe matter to the Central Bureau of Investigation, are quite different. The facts in Gurvinder Singh Samras case (supra), relied upon by the petitioner, where this Court had ieferredthe matter to the Central Bureau of Investigation, are quite different. It was a case where as many as 37 FIRs with similar allegations were registered against Gurvinder Singh Samra and further the learned State counsel therein did not object to the investigation by the independent agency. The objection was only by private respondents. 7. Considering the allegations and counter allegations and the inquiry conducted by the official respondents in which number of discrepancies have been pointed out in the statement made by the petitioner in the complaint, without opining on the merits of the controversy least the same may affect the case of either of the parties, 1 do not find this to be a fit case for directing the official rspondets to register FIR and thereafter refer the same to CBI for investigation 8. For the reasons stated above, the petition is dismissed, however, with liberty to the petitioner to avail of her alternative remedies in accordance with law.