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Himachal Pradesh High Court · body

2017 DIGILAW 1397 (HP)

Kawaljit Kaur v. State Of H. P.

2017-12-15

VIVEK SINGH THAKUR

body2017
JUDGMENT Vivek Singh Thakur, J. (Oral) - Petitioner, who is duly identified by her counsel, present in Court, in sequal to orders passed yesterday. 2. Present petition has been filed by seeking following relief(s): - "(a) Call for the records from the Court of learned JMIC Sirmaur at Nahan as well as from the office of SP Nahan, SHO P.S. Nahan and the Incharge Police Post Gunughat Nahan. (b) Please to issue directions to respondents No. 1 and 2 to protect the life and liberty of the petitioner at the hands of respondents No. 7 and 8 by providing protection to the petitioner. (c) Direct respondents No. 3 to 5 to file the charge sheet under Section 173 Cr.P.C. against respondents No. 7 and 8 and their unidentified accomplice; also to direct respondents No. 1 and 2 to take strict legal action against respondents No. 3 to 8, as the petitioner is not only a victim at the hands of private respondents and their accomplice but also at the hands of respondents No. 3 to 5 who are police officers and are harassing the innocent petitioner in the garb of investigation in collusion with respondents No. 7 and 8 and their accomplice and are pressuring and threatening the petitioner to compromise the matter with the culprits. (d) To pass direction to respondent to expedite the proceedings in the matter. (e) Pass such other further order(s), as this Hon''ble Court may deem fit and proper in the facts and circumstances of the present case and in the interest of justice. (f) Any other appropriate order or direction to which this Hon''ble Court may deem fit and proper in the facts and circumstances of the case as made out hereunder." 3. Controversy in present petition, in brief, is that on 7.9.2016 respondents No. 7 and 8 had ravished her in Ratri Vishramghar at Yashwant Chowk, Nahan whereupon she had approached the Police Post Gunnughat along with one Sahil, who met her in front of a shop opposite to Ratri Vishram Ghar and came forward to help her to approach the police. According to petitioner, her complaint was not lodged for two hours on the pretext that it would be lodged after arrival of senior police officer. According to petitioner, her complaint was not lodged for two hours on the pretext that it would be lodged after arrival of senior police officer. After waiting for two hours, she went back to Ludhiana via Chandigarh in buses and came on the next day along with her uncle and met Superintendent of Police at Nahan and filed a written complaint and as directed by Superintendent of Police, narrating entire incident. Thereafter, for taking no action by police against respondents No. 7 and 8, she filed a private complaint in the Court of learned Judicial Magistrate 1st Class, Sirmaur at Nahan on 24.9.2016. During the pendency of private complaint, a communication dated 18.04.2015, referring private complaint as an application under Section 156(3) Cr.P.C., was received by SHO, P.S. Nahan on 19.4.2015 from office of learned JMIC, Nahan to register FIR and investigate matter on the basis of complaint and documents sent with the said communication. Thereupon, FIR No. 53 of 2017 dated 21.4.2017 was registered under Sections 366, 376D, 354, 506 IPC read with Sections 25/54/59 of the Arms Act and Sections 5, 5A, 5B of the Immoral Traffic (Prevention) Act, 1956 at P.S. Nahan. Alleging harassment by the police officials and officers under the garb of investigation, petitioner approached this Court by filing petition. 4. In reply, all allegations have been refuted by the respondents and receipt of complaint dated 8.9.2016 in the office of Superintendent of Police and presence of Superintendent of Police at Nahan on that day has also been specifically denied as respondent No. 3 the then Superintendent of Police was at her native place in Kerala during her earned leave w.e.f.1.9.2016 to 10.9.2016. However, it is also contended by learned Advocate General on behalf of respondents No. 1 to 5 that communication sent from the JMIC Court to SHO was contrary not only to the procedure prescribed in the Code of Criminal Procedure particularly in Section 202 Cr.P.C. and also the Court record as no such order was ever passed by learned JMIC. 5. Perusal of Court record, requisitioned from the Court of learned JMIC, indicates that neither there was any application under Section 156 (3) Cr.P.C. nor any order was ever passed by learned Judicial Magistrate 1st Class to register FIR on the basis of such complaint. 5. Perusal of Court record, requisitioned from the Court of learned JMIC, indicates that neither there was any application under Section 156 (3) Cr.P.C. nor any order was ever passed by learned Judicial Magistrate 1st Class to register FIR on the basis of such complaint. It also transpires from the record that learned Judicial Magistrate had also noticed the said mistake of her ministerial staff and reprimanded the concerned Criminal Ahalmd, who had sent the communication in routine on behalf of learned Juidicial Magistrate 1st Class without application of mind as learned Judicial Magistrate vide order dated 10.3.2017, had only directed to send the complaint to SHO, Nahan for status report which was a part of inquiry being undertaken by JMIC keeping in view the allegations that earlier a written complaint was filed in the office of Superintendent of Police on 8.9.2016. 6. Be that as it may, during pendency of petition, petitioner has filed an application Cr.MP No. 1397 of 2017 seeking additional relief to be added as under: - "......that the FIR registered against respondents No. 7 and 8 may be quashed and learned JMIC may be directed to proceed with the complaint in accordance with the provision under Section 202 Cr.P.C." 7. Learned counsel for the respondents have neither opted to file reply despite granting opportunity nor opposed this application, rather it is convassed on behalf of the respondents that in view of provisions of Section 202 Cr.P.C., this prayer not only be permitted to be added as additional relief in petition, but petition be disposed of granting the same. 8. On 14.12.2017, learned Advocate General had reiterated that in view of additional relief for quashing of FIR, as proposed to be added in relief clause, petition could be allowed by passing appropriate direction, as prayed for. Learned counsel for respondents No. 7 and 8 had also conveyed agreement with submissions of learned Advocate General. 9. 8. On 14.12.2017, learned Advocate General had reiterated that in view of additional relief for quashing of FIR, as proposed to be added in relief clause, petition could be allowed by passing appropriate direction, as prayed for. Learned counsel for respondents No. 7 and 8 had also conveyed agreement with submissions of learned Advocate General. 9. In response, learned counsel appearing for petitioner, after having telephonic instructions as recorded in order dated 14.12.2017 in detail, had conveyed that petitioner shall be satisfied on allowing the petition by granting the additional relief, as prayed in Cr.MP No. 1397 of 2017, and by directing respondents No. 2 and 4 to provide protection to the petitioner from respondents No. 7 and 8 in the State of Himachal Pradesh and also directing learned Judicial Magistrate, Nahan for speedy proceeding in complaint filed by the petitioner, for which learned counsel for the respondents had agreed. Thereafter, the case was kept for passing an order in post lunch session at 2 PM. 10. When the case was called for dictating order, learned counsel Mr. Kamal Grover, came from Chandigarh, representing petitioner in morning session did not appear and remained outside the Court. He was called inside and on inquiry he expressed that as he was not well aware about contents of the petition, therefore, he had chosen to abstain from appearing and had directed the local counsel Ms. Veena Sharma, to appear on behalf of the petitioner. In these circumstances, the case was adjourned for today and it was observed that in view of such developments, it would be appropriate for the counsel of the petitioner to ensure personal appearance of the petitioner in Court. 11. In pursuance to aforesaid observation, petitioner is present in person in Court. Respondent No. 3 Ms. Soumya Sambasivan IPS, the then Superintendent of Police Sirmaur at Nahan now S.P. Shimla is also present in person. Petitioner answered in negative when she was asked as to whether she had met the police officer present in Court. 12. 11. In pursuance to aforesaid observation, petitioner is present in person in Court. Respondent No. 3 Ms. Soumya Sambasivan IPS, the then Superintendent of Police Sirmaur at Nahan now S.P. Shimla is also present in person. Petitioner answered in negative when she was asked as to whether she had met the police officer present in Court. 12. Today petitioner as well as learned counsel appearing on her behalf have reiterated the prayer, as made yesterday that petition may be allowed by quashing FIR No. 53 of 2017 registered in P.S. Nahan under Sections 366, 376D, 354, 506 IPC read with Section 25/54/59 of the Arms Act and Sections 5, 5A, 5B of the Immoral Traffic (Prevention) Act, 1956 with direction to learned JMIC to proceed further in accordance with provisions of Section 202 Cr.P.C. and direction to police to provide protection to the petitioner during her visits in Himachal Pradesh for pursuing the complaint filed by her and also directing learned Judicial Magistrate 1st Class for speedy proceedings in the complaint. 13. Learned counsel for the respondents have also reiterated their stand as conveyed yesterday that petition may be allowed as prayed for by the petitioner without going into the merits of allegations levelled in petition, which may be adjudicated if need in appropriate proceedings in appropriate Forum. 14. It is undisputed that on receiving a complaint, wherein offence complained of is triable exclusively by the Court of Sessions, procedure provided under Section 202 Cr.P.C. is to be followed, which reads as under: - "202. 14. It is undisputed that on receiving a complaint, wherein offence complained of is triable exclusively by the Court of Sessions, procedure provided under Section 202 Cr.P.C. is to be followed, which reads as under: - "202. Postponement of issue of process-(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, (and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction) postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant." 15. Section 202 Cr.P.C. provides that any Magistrate, on receipt of a complaint can postpone the issue of process against the accused and either inquire into into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding as to whether there is sufficient ground for proceeding. However, proviso (a) to its sub-section (1) provides that no such direction for investigation shall be made where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions. However, proviso (a) to its sub-section (1) provides that no such direction for investigation shall be made where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions. So far as recording of evidence of witness during inquiry is concerned, sub-section (2) of Section 202 Cr.P.C, empowers the Magistrate to call upon the witnesses and examine them on oath. 16. It is evident from the bare perusal of this Section and also as noticed by the learned Judicial Magistrate herself and as admitted by learned counsel of parties, the registration of FIR under Section 156(3) Cr.P.C. was neither warranted nor permissible under law and its registration under Section 156(3) Cr.P.C. is contrary to the provisions of Cr.P.C. 17. In view of aforesaid facts and circumstances and undisputed exposition of law, FIR No. 53 of 2017 registered in P.S. Nahan, District Sirmaur under Sections 366, 376D, 354, 506 IPC read with Section 25/54/59 of the Arms Act and Sections 5, 5A, 5B of the Immoral Traffic (Prevention) Act, 1956 along with consequential proceeding, taken in pursuance thereto by the concerned authorities, is quashed. 18. Complaint filed by the petitioner pending in the Court of learned JMIC, which is directed to proceed in accordance with the provisions of Cr.P.C. with further direction to adjudicate the same as expeditiously as possible avoiding unnecessary adjournments. 19. So far as providing protection to the petitioner during her visits in Himachal Pradesh in pursuance to her complaint pending before learned JMIC or any consequential proceeding in pursuance thereto is concerned, the State is always duty bound to provide protection to every person. However, keeping in view the peculiar facts and gravity of offence alleged in complaint, the Director General of Police, Superintendent of Police Sirmour at Nahan and SHO P.S. Nahan are directed to provide protection to the petitioner, as prayed for, as and when requested, by the petitioner or on her behalf, to either of them in advance in writing. However, it is made clear that in case of any emergent situation, as these officers are duty bound to provide police help to any person in need for difficulty or crime being committed against him, the police help shall be provided to the petitioner immediately on receiving information in any manner though any means, without waiting any written request at that time. Petition is disposed of with aforesaid observations without adjudicating the allegations and counter allegations levelled against each other and without giving findings on merit by leaving it open to be adjudicated and decided, if required, by the appropriate Forum at appropriate stage in accordance with law, without being influenced by any observation made by this Court hereinabove.