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2019 DIGILAW 354 (JK)

Vijay Sharma v. State of J&K

2019-07-25

TASHI RABSTAN

body2019
JUDGEMENT : Tashi Rabstan, J.—Petitioner through the medium of present writ petition has invoked the inherent powers of this Court under Section 561-A Cr.P.C., seeking to quash the order dated 30.11.2017, passed by Sub Registrar/ Judicial Magistrate 1st Class, Jammu in an application under Section 156(3) of Code of Criminal Procedure titled Joti Gorkha v. Vijay Kumar filed by respondent No. 2 directing respondent No.1 SHO, Police Station, Pir Mitha, Jammu-respondent No.1 to verify the matter and proceed under rules. 2. Before dealing the question of law involved in the present petition, it is necessary to give narration of brief facts. The respondent-complainant had approached the SHO Police Station, Women Cell, Gandhi Nagar, Jammu by filing an application dated 07.10.2017, alleging serious allegations of commission of rape, attempt to murder and other cognizable offences, but, the concerned SHO didn’t register the FIR. It is alleged that SHO concerned harassed and verbally abused the respondent-complainant. Aggrieved thereof, the respondent-complainant approached the Magistrate under Section 156 (3) Cr.P.C. for issuing directions to SHO, Pir Mitha, Jammu for lodging FIR against the petitioner for the commission of offences under Section 376, 506, 307, 325, 354-A RPC. The complaint is silent as to whether the respondent-complainant approached the Senior Police Officer or not. It is stated by the petitioner that complaint is false as respondent no. 2 had taken an amount of rupees one lac from the petitioner on promising to return the same after two months, however, on his demanding the money, she filed application before Women Cell, Police Station Gandhi Nagar, Jammu. On the contrary, respondent no.2/complainant has alleged in her application that during the year 2013, accused was accompanying her along with other friends on a tour to Amritsar where accused forcibly raped her and thereafter blackmailed her by saying that he has video clip of her rape and forced her to extract sexual favours on several occasions in different places. 3. Learned counsel for the petitioner submits that the impugned complaint is bad inasmuch as the learned Magistrate has proceeded in the application under Section 156(3) without application of mind. Learned counsel also placed reliance on a decision of the Hon’ble Supreme Court in Priyanka Srivastava Vs. 3. Learned counsel for the petitioner submits that the impugned complaint is bad inasmuch as the learned Magistrate has proceeded in the application under Section 156(3) without application of mind. Learned counsel also placed reliance on a decision of the Hon’ble Supreme Court in Priyanka Srivastava Vs. State of UP wherein it is provided that applications under Section 156(3) Cr.P.C. are to be supported by an affidavit duly sworn by the applicant, who seeks the invocation of the jurisdiction of the Magistrate and the same is not complied with by the complainant-respondent while filing the application before the Magistrate. Learned counsel further submits that the complainant-respondent No.2 cannot be believed to be true as she reproduced two different version of statement and remained silent for the last so many years, which is a serious question on the veracity of the allegations leveled against the petitioner. 4. Per contra, learned counsel for the complainant-respondent on the other hand submitted that the offence alleged against the petitioner are heinous and continuous offence and a complaint can be filed against such offences, at any point of time, notwithstanding the fact as to the delay and laches in filing the same. Learned counsel further contends that the learned Magistrate has only forwarded the application under Section 156(3) to the concerned Police Station for appropriate action under law after investigating the matter. Therefore, the petitioner has no locus standi to file the instant petition. The learned counsel for the respondent-complainant further placed reliance on the judgment of the Hon’ble Supreme Court in Lalita Kumar V. Govt. of UP and others 2014 (2) SCC 1 , wherein it is held that the Court has to take cognizance where heinous offence has been committed. Learned counsel further contends that the affidavit has been enclosed with the application under Section 156(3) so laid down in Priyanka Srivastava’s case. He further contends that as per the directions of the Hon’ble Supreme Court of India in Priyanka Srivastava’s judgment, which has reiterated the law, it is clear that the complainant has to approach the SHO of Police Station with an application and then SSP of the District and then the Magistrate. He further contends that as per the directions of the Hon’ble Supreme Court of India in Priyanka Srivastava’s judgment, which has reiterated the law, it is clear that the complainant has to approach the SHO of Police Station with an application and then SSP of the District and then the Magistrate. In the present case, it is contended by the learned counsel that the complainant has categorically stated that she approached the SHO and the SSP with the complaints, but, nothing was done in the matter and, therefore, she filed the present complaint with the learned Magistrate, who directed the verification under law, which was the legal duty of any Magistrate or the Police Officer since the offences alleged are cognizable and it becomes the duty of the Police to register an FIR in the said situation without fall. Learned counsel further contends that rape is a heinous offence and the petitioner cannot seek the indulgence of this Court at pre-cognizance stage. He also contends that the present case is one where the respondent-complaint has come up with a definite allegation of rape, and has supported her application filed before the Magistrate under Section 156(3) Cr.PC with an affidavit. 5. The order impugned is challenged on the ground that learned Magistrate has failed to follow the law and the guidelines laid down by the Hon’ble Supreme Court in case titled Priyanka Srivastava & another vs. State of U.P and Ors reported in (2015) 6 SSC 287 while forwarding the complaint to the Police Station concerned for verification and proceeding under law. It is further contended that as per law laid down in Priyanka Srivastava’s case (supra), the power under Section 156(3) of Cr.P.C warrants application of judicial mind before forwarding the application for verifying its truth and veracity and applications are required to be supported by an affidavit duly sworn by the respondent No.2-complainant, which in the present case is missing. It is stated that respondent No.2-complainant had not approached the Police Station, Pir Mitha, Jammu or Superintendent of Police before filing the application under Section 156(3) of Cr.P.C before the Magistrate as per the mandate of Section 154 Cr.P.C. 6. I have heard the learned counsel for the parties and perused the record. 7. It is stated that respondent No.2-complainant had not approached the Police Station, Pir Mitha, Jammu or Superintendent of Police before filing the application under Section 156(3) of Cr.P.C before the Magistrate as per the mandate of Section 154 Cr.P.C. 6. I have heard the learned counsel for the parties and perused the record. 7. In the present case, petitioner’s contention is that learned Magistrate has committed illegalities and irregularities by not following the guidelines laid down by the Hon’ble Supreme Court in case titled Priyanka Srivastava & Anr vs. State of U.P and Ors (supra) while directing the police to verify the allegations and proceed under rules in an application filed under Section 156 (3) Cr.P.C. It is submitted that applicant/respondent no. 2 without approaching the Police Station Pir Mitha, Jammu has approached the learned Magistrate and sought directions for registration of F.I.R. 8. Without delving into the merits or demerits of the allegations and counter-allegations made by the parties in the present case, this Court is of the view that in case of denial by the Police to register an FIR on her complaint, proper alternative remedy for redressal of her grievances, was to first approach the Superintendent of Police under Section 154 (3) Cr. P.C and in case it was ineffective, she had the right to file an appropriate application before the Magistrate under Section 156 (3) of Cr.P.C. Admittedly, in the present case, the applicant/respondent no. 2 approached the S.H.O, Women Cell, Police Station, Gandhi Nagar, Jammu and narrated her ordeal, but, the S.H.O concerned instead of registering the F.I.R, allegedly started harassing the applicant/respondent and didn’t register the F.I.R despite the fact that allegations are of serious nature and cognizable and scope of preliminary enquiry was very less. Record is silent as to whether the applicant approached the Senior Police Officer under Section 154 (3) Cr.P.C or not or Police Station Pir Mitha, Jammu. In the application filed under Section 156 (3) Cr.P.C, learned Magistrate below directed the police to verify the allegations and proceed under rules. 9. Record is silent as to whether the applicant approached the Senior Police Officer under Section 154 (3) Cr.P.C or not or Police Station Pir Mitha, Jammu. In the application filed under Section 156 (3) Cr.P.C, learned Magistrate below directed the police to verify the allegations and proceed under rules. 9. It is apparent from plain reading of Section 154 of Cr.P.C that the information disclosing the commission of cognizable offence is sine-qua-non for registration of FIR by the Police and any person, who is aggrieved by refusal on the part of Officer Incharge of Police Station to register FIR pertaining to the information disclosing commission of cognizable offence, may approach the Superintendent of the Police concerned, who if satisfied that such information discloses the commission of cognizable offence shall either investigate the case himself or direct the investigation to be made by any Police Officer subordinate to him. Undoubtedly, if the Police refuse to register an FIR, the remedy of the aggrieved person is to approach the concerned SSP, who has been given similar power to register the FIR to set the investigation in motion. The scope of Section 154 became subject matter of discussion in the case of Lalita Kumari Vs. Govt. of UP, (2014) 2 SCC 1 . The Supreme Court issued the following Guidelines regarding the registration of FIR. (i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. (ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. (iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further. (iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who donot register the FIR if information received by him discloses a cognizable offence. It must disclose reasons in brief for closing the complaint and not proceeding further. (iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who donot register the FIR if information received by him discloses a cognizable offence. (v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. (vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: (a) Matrimonial disputes/ family disputes (b) Commercial offences (c) Medical negligence cases (d) Corruption cases (e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over3 months delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. (vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry. (viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above. 10. The power of the Magistrate to direct registration of FIR is concerned, the same is provided under Section 156(3) Cr.PC which for facility of reference below: “156. Police officer’s power to investigate cognizable case.— (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. Police officer’s power to investigate cognizable case.— (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under Section 190 may order such an investigation as above mentioned.” 11. From the plain reading of Section 156(3) Cr.PC, it is clear that any Magistrate, who is empowered under Section 190 of the Cr.PC to take cognizance may order an investigation by the Police, which in other words would be a direction to register the FIR. The scope of the power of the Magistrate under Section 156(3) Cr.PC and parameters for exercise of such power by the Magistrate have been explained elaborately in the judgment rendered in the case of Priyanka Srivastava V. State UP AIR 2015 SC 1758 . 12. It emerges from above discussion that when someone has a grievance that his/her FIR has not been registered at Police Station and/or a proper investigation is not being done by the Police, first remedy is to approach the Superintendent of Police under Section 154 (3) Cr.P.C or other Police Officer referred to in Section 36 of Cr.P.C. If, despite approaching Superintendent of Police, the officer referred to in Section 36, his grievance still persists, then he can approach a Magistrate under Section 156 (3) Cr. P.C. However, the constitution Bench of Supreme Court in Lalita Kumari’s case (supra) and Priyanka Shirivastava’s case (supra) has emphasized the need for application of judicial mind at the stage of dealing with an application under Section 156(3) Cr.P.C. It is evident from the guidelines laid down that to eschew the misuse, rather abuse, of the remedy under Section 156(3) of Cr.P.C by providing that certain categories of offences such matrimonial disputes, commercial offences, medical negligence, corruption cases, cases where the application is brought with an abnormal delay/laches are to be approached with more caution by the Magistrate. 13. 13. It is also made clear that the principles laid down in the case of Priyanka Srivastava though of universal application, the same would have a slightly different dimension to it where the offence reported or alleged is a heinous crime like rape. Once the heinous offence like rape, murder, dacoity etc. is brought to the attention of the Magistrate, the threshold of caution to be observed, though not the requirement of application of mind, would certainly not be as high as in cases specified in Priyanka Srivastava (Supra) or Lalita Kumari (supra). If the application discloses the serious allegations of offence like rape, the Magistrate would be well within his jurisdiction to act swiftly and not much scrutiny is required to verify allegations, as in cases of matrimonial disputes, corruption cases where the chances of abuses of process of criminal law to settle scores are high. 14. The Supreme Court in Madhu Bala v. Suresh Kumar (1997) 8 SCC 476 , held that it is not illegal by the Magistrate to order to the police to register the case and investigate it provided that the complaint filed before the Magistrate discloses the commission of any cognizable offence. In Mohd Yousuf vs. Smt Afaq Jahan AIR 2006 SC 705 , the Court held that for the purpose of enabling the police to start investigation, it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. While exercising this power the Magistrate should apply his mind to the allegations in the complaint. The order of Magistrate has necessarily to indicate the application of mind. 15. In the case of Srinivas Gundluri v. SEPCO Electric Power Construction Corpn., (2010) 8 SCC 206 : 2010 Cri LJ 4457, the Supreme Court has held that “to proceed under Section 156(3) of the Code, what is required is a bare reading of the complaint and if it discloses a cognizable offence, then the Magistrate instead of applying his mind to the complaint for deciding whether or not there is sufficient ground for proceeding, may direct the police for investigation. 16. In Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy, (1976) 3 SCC 252 , the Supreme Court held that when a Magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint, disclose the commission of an offence. 16. In Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy, (1976) 3 SCC 252 , the Supreme Court held that when a Magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint, disclose the commission of an offence. If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself. 17. Applying the above laid down law to the present case, the learned Magistrate on receiving the application under Section 156(3 Cr.P.C disclosing the allegations of serious nature like rape and attempt to murder was justified and within its jurisdiction directing the police to verify the allegations and proceed under rules. It is also to be noted that Magistrate has not directed registration of FIR, but, only to verify the allegations, which the police was otherwise competent to investigate. It was also under the circumstances that applicant/respondent no. 2 had already approached the S.H.O Police Station, Women Cell, Gandhi Nagar, who didn’t registered the FIR despite allegations being of serious nature and cognizable. 18. Given the above narration of facts and position of law, the petition is devoid of any merit and is, therefore, dismissed along with connected CM(s). It has also come on record that police has already investigated some aspect of matter before this Court stayed the investigation, and on considering the circumstances of case and nature of allegations, the police is directed to complete the investigation preferably within two months from today. 19. Dismissed as above along with connected CM(s).