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2009 DIGILAW 3674 (ALL)

SHAH MOHAMMAD v. STATE OF U. P.

2009-12-07

AMAR SARAN

body2009
JUDGMENT AMAR SARAN, J. – Heard learned Counsel for the petitioners and Shri Rajendra Kumar Dwivedi, learned Additional Government Advocate. By means of this petition the petitioners have challenged an order dated 14.10.2009 passed by the Sessions Judge, Bahraich allowing the revision against the order dated 22.7.2009 passed by the Judicial Magistrate, Bahraich whereby ,the learned Magistrate had decided to treat the application under section 156(3) Cr.P.C as a complaint case. 2. It is argued by the learned Counsel for the petitioners that the said order had been passed by the Revisional Court without affording an opportunity of hearing to the petitioners-accused and the same is in violation of the decision of the Apex Court in Raghu Raj Singh Rousha v. Shivam Sundaram Promoters Private Limited and another. 3. No doubt, it has been observed in the said decision relying on section 401(2) of the Code of Criminal Procedure, which deals with the High Courts' power of revision that no order can be passed to the prejudice of the accused or any other person unless he is given an opportunity of being heard either personally or through pleader in his own defence. 4. Here, it is argued by learned Counsel for the applicants that as the learned Magistrate had only directed treating the application under section 156(3) Cr.P.C as a complaint because in his view the allegations of rape against the Devar and others only appeared to be a private infra-family dispute between the parties, the Sessions Judge erred in reversing the said order on 14.10.2009 when he directed the Magistrate to reconsider his decision in the light of the observations in his order, and it was further contended that the Sessions Judge ought not to have passed the said order without affording an opportunity of hearing to the accused-applicants. 5. As apparently, the allegations in this case are grave, where a woman has made allegations against her Devar and other relations of having committed rape on her after her husband had gone away to Saudi Arabia, to obviate, the aforesaid technical objections I have decided to provide an opportunity of hearing to the petitioners-accused and have heard his Counsel at length on the merits of the matter. 6. It is argued that the husband of opposite party No. 2 had gone to Saudi Arabia two years earlier. 6. It is argued that the husband of opposite party No. 2 had gone to Saudi Arabia two years earlier. On 15.2.2009, opposite party No. 2 complained of stomach pain and an ultra sound was done on her and she was found to be five months pregnant. Thereafter, on 3.5.2009, the husband, Mohammad Sayeed informed the father of opposite party No. 2 by post that he had given divorce to opposite party No.2, and it was argued that as a counter blast to the said steps taken by her husband, the opposite party No.2 has filed an application under section 156(3) Cr.P.C. 7. I am not impressed by these submissions of the learned Counsel for the petitioners. Extremely grave allegations have been made by opposite party No. 2 that in the month of ‘Kuar,’ 2008 after the festival of Eid when she had gone to her room, at about mid-night, the petitioner No.3 Kallu, entered her room, caught hold of her hand and stuffed cloth in her mouth. When she started protesting, he applied a country made pistol on her chest and forcibly committed rape on her and warned her that if she disclosed this fact to anyone, she would be killed. When she approached her mother-in-law and father-in-law, they paid no heed to her complaint. When she sought to call her parents, she was beaten and threatened that if she disclosed anything to her father, she would be murdered. The accused persons then forcibly brought her to her father's house. Out of shame, she had not disclosed this matter to her father. When her husband arrived, then she mentioned this fact to him, but he also refused to take any action. Then she sent an application to the SSP. When no action was' taken even on that application she filed the present application, under section 156(3) Cr.P.C. 8. As laid down by the Apex Court in Ranjit Hazarika v. State of Assam, State of Punjab v. Gurmit Singh, Rafiq v. State of U.P. Bharwada Blwginbhai Hirjibhai v. State of Gujarat et al, ordinarily, unless there are any exceptional circumstances, no woman would prefer such charges of rape against her, as they bring disgrace and humiliation on the victim as well, and rigidly insisting on corroboration in such cases may amount to adding insult to injury. Also normally when an application under section 156(3) Cr.P.C. is preferred before the Magistrate and the allegations prima facie disclose a cognizable offence, the Magistrate is to direct investigation of the case, and thus treating an application under section 156(3) Cr.P.C as a complaint is a step to be taken only in exceptional circumstances. 9. Having considered the submissions, it appears that there is a need for the police to properly investigate the matter to determine whether the opposite party No. 2 had indeed been raped or whether she had filed the application under section 156(3) Cr.P.C. in a mala fide manner. Also the Sessions Judge has done no more than to remand the• matter to the Magistrate concerned to consider whether to pass an order for investigation or not in the light of the observations made in his order. 10. Also ordinarily as was held in the four Judge Bench decision of the Apex Court in Chandra Deo Singh v. Prakash Chandra Bose, that when the accused had not even been summoned, at that precognizance stage normally the accused has no right of being heard. In this light we need to ponder and consider whether what cannot be done directly, i.e. where an accused has been given no right to be heard at the pre-cognizance stage, can be done indirectly, and the accused heard, and conferred with locus standi at the precognizance stage merely because in a particular case the Sessions Judge is of the view that on the grave facts of a particular case, the normal procedure of getting the matter investigated by the police ought to have been followed by the Magistrate on an application under section 156(3) Cr.P.C., and not the exceptional procedure of treating the application as a complaint be followed, merely because the Magistrate has not heard the accused before passing the said order. 11. 11. Even, apart from the said observations, in Clumdra Deo Singh v. Praknsh Chandra Bose (supra), I have considered the matter on merits and have given full opportunity of hearing to the accused-petitioners at this stage for passing the present order and am clearly of the opinion that inspite of the technical objections against his order, substantially, the learned Sessions Judge appears to have acted legally and done justice in holding that the investigation should be done in such a matter by the police and it would be wrong to consider such grave allegations to be purely a private matter of essentially a civil nature as was the situation in the case of Ragu Raj Singh Rousa (supra). 12. In view of what has been indicated herein above, I find no merit in this petition. It is accordingly dismissed. It may be mentioned that the observations made hereinabove on merits and on the legal issues have been made only in response to the contentions raised by the applicant's counsel, and the Magistrate concerned to whom the matter has been remanded by the Sessions Judge by the impugned order should pass orders on merits as per his own discretion. Petition Dismissed.