CRIMINAL MISC. NO.M-32091 OF 2011 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: NOVEMBER 01, 2011 Jatinder Kumar and others .....Petitioners VERSUS The State of Punjab and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr.D. S. Kamra, Advocate, for the petitioners. **** RANJIT SINGH, J. The petitioners have approached this Court to seek direction for respondent Nos.2 and 3 to investigate the complaint dated 19.11.2009, Annexure P-3, which was in furtherance to the application dated 14.11.2009 with further prayer to register an FIR under appropriate Sections of the Indian Penal Code, including Sections 420, 452, 506 IPC against Shri Teli Ram Sharma son of Sh.Tek Chand, Smt.Kamlesh Sharma wife of Teli Ram and Smt.Vijayta Sharma daughter of Teli Ram. The present one is a second approach made by CRIMINAL MISC. NO.M-32091 OF 2011 :{ 2 }: the petitioners. Earlier the petitioners had approached this Court through Criminal Misc. No.M-34121 of 2009. The prayers made in the said petition were as under:- “i. issue a direction to respondents No.3,4 and 6 to take respondent No.9 into protective custody and to produce her before the magisterial court in consonance with the provisions of Section 23 of the Mental Health Act, 1987, for onward transmission (if necessary), into the custody of respondent No.2; ii. issue a direction to respondents No.1 and 2 for admitting and treating respondent No.9, if deemed necessary by the Magisterial Court keeping her in protective detention till such time as may be required for her treatment; iii. issue a direction to respondents No.4 and 5 to investigate into the complaint dated 19.11.2009 (Annexure P-10) lodged in furtherance of application dated 14.11.2009 (Annexure P-8) and to register an F.I.R. under appropriate Sections of the Indian Penal Code, including, but not limited to Sections 420, 452, 506 against respondents No.7 to 9; iv. issue a direction to respondents No.3 to 5 to provide protective/security cover to the petitioners CRIMINAL MISC. NO.M-32091 OF 2011 :{ 3 }: so as to prevent the forcible entry of respondents No.7 to 9 into their home and for interdicting respondents No.7 to 9 from making forcible entry into the home of the petitioners; v. issue a further direction to respondents No.3 to 6 to give ten days notice to the petitioners, in the event of registration of any F.I.R arising out of matrimonial discord between the petitioners and respondents No.7 to 9 and granting indulgence to the petitioners to directly approach this Hon'ble Court for securing an order granting anticipatory (pre-arrest) bail to the petitioners in such eventuality, in the most peculiar facts and circumstances of the instant case. It is further respectfully prayed that during the pendency of the instant petition, this Hon'ble Court may be pleased to:- i. direct respondents No.4 to 6 to provide protective cover to the petitioners and to give ten days' notice in the event of registration of an F.I.R. against the petitioners arising out of matrimonial discord between the petitioners and respondents No.7 to 9; ii. direct respondents No.7 to 9 to desist from forcibly entering into the home of the petitioners;” CRIMINAL MISC. NO.M-32091 OF 2011 :{ 4 }: While making submissions before the Court, the counsel for the petitioners had modified his prayer to state that the petitioners had made complaints, copies of which were annexed as Annexures P-8 and P-10 with the said miscellaneous petition and during the pendency of that petition, respondent No.9 had moved the complaint under Sections 498A, 406, 34 IPC against the petitioners. The counsel accordingly submitted before the Court that he would be satisfied if investigation into the complaint of respondent No.9 as well as the complaints of the petitioners (Annexures P-8 and P-10 with the said petition) was carried out simultaneously. To this prayer, the counsel for the respondents did not raise any objection. The petition was accordingly disposed of with a direction to respondent No.5 to examine the complaints (Annexures P-8 and P-10) with the complaint filed by respondent No.9 and to decide the same in accordance with law. As regards, the prayer for providing security, the estimated cost was projected to counsel for the petitioners, who then had responded to submit that the petitioners were not in a position to afford the same. The counsel had, however, prayed that respondent No.5 may be directed to prevent the forcible entry of respondent Nos.7 to 9 (in that petition) into the house of the petitioners. Respondent No.5 had assured the Court that he will see to it. The said miscellaneous petition CRIMINAL MISC. NO.M-32091 OF 2011 :{ 5 }: was accordingly disposed of. In the above background, DDR No.40 dated 29.12.2010 was recorded at Police Station Phase I, Mohali, District S.A.S. Nagar under the orders of S.S.P., S.A.S. Nagar, Mohali. Complaints, Annexures P-8 and P-10 annexed with the earlier Criminal Miscellaneous Petition and lodged by petitioner No.1 were accordingly enquired into alongwith the complaint dated 30.11.2009 lodged by Smt.Vijayta Sharma wife of petitioner No.1. Copy of this DDR has been annexed as Annexure P-1. The whole case set-up by the petitioners, as can be discerned from the record, is that Smt.Vijayta Sharma is of unsound mind and her parents, being fully aware of her mental condition, had got her marriage solemnized with petitioner No.1 in a deceitful manner without disclosing this fact. It is further urged that her first marriage was dissolved only on account of her mental condition. This, according to the petitioners, amounted to an act of fraud on the part of Smt.Vijayta Sharma and her parents. In the complaint, it is also disclosed that Smt.Vijayta Sharma had secured the decree of divorce on the ground of cruelty and the factum of her mental illness was accepted by this Court while dealing with an appeal filed against the judgment and decree, granting divorce, which was withdrawn by said Smt.Vijayta Sharma. Allegations are also made by the petitioners against CRIMINAL MISC. NO.M-32091 OF 2011 :{ 6 }: Smt.Vijayta Sharma and her parents for filing a palpably false complaint under Sections 498A, 406 IPC against the previous husband from whom they had allegedly extracted a sum of `4.50 lacs on the basis of a compromise, where they made a statement to the effect that complaint against the said previous husband was false. Various other allegations are made in the complaint, which have been read before me in extenso by counsel for the petitioners. The counsel has made very elaborate and detailed submissions to dispute and contest the opinion given by the District Attorney to the effect that no offence under Section 420 IPC is made out. As per the District Attorney, from the complaints as lodged, only an offence under Section 417 IPC is revealed. The counsel has made detailed reference to this opinion to urge that the view as expressed and accepted by the police on the face of it is erroneous as it is noticed in the opinion itself that property had exchanged hands and as such, it would reveal an offence under Section 420 IPC of cheating and not of a simple cheating, which is made punishable under Section 417 IPC. The counsel has not only made reference to the definition of offence of cheating as given in Section 415 of IPC but has referred to the illustration as well as to commentary under various Sections from the text book on criminal law authored by Rattan Lal and Dhiraj Lal. Any query by the Court in regard to the scope CRIMINAL MISC. NO.M-32091 OF 2011 :{ 7 }: of Section 482 Cr.P.C., where there is an alternative remedy available to the petitioners in case they found that proper investigation was not being done or FIR was not being registered under appropriate Sections, was met with an answer that the said remedy, though may be available, but would not be efficacious. Primarily, the petitioners are seeking adjudication from this Court to the effect that opinion expressed by District Attorney would need correction as the facts in this case clearly reveal offence under Section 420 IPC. Will that be within the scope of inherent power under Section 482 Cr.P.C? The counsel was apprised that it will not be fair for this Court to first express any view on the opinion of a counsel given to the investigating agency i.e. the police. Any expression of opinion by this Court would lead to a serious prejudice either to the case of the petitioners or to the case of the persons who may ultimately have to be made an accused of an offence of cheating. Learned counsel for the petitioners was not prepared to accept any view contrary to his submissions and insisted on pursuing his line of submission that offence under Section 420 IPC is revealed and case is made out for issuing direction to the police to register the FIR under the said Section. To support his stand, the counsel not only read in vernacular the opinion expressed in the DDR by the District CRIMINAL MISC. NO.M-32091 OF 2011 :{ 8 }: Attorney but further made the Court to go through the complaints dated 14.11.2009 and 19.11.2009 to urge that case of cheating is clearly made out. During the course of arguments, the counsel was apprised that the appropriate remedy would be to seek relief under the Hindu Marriage Act to either make an approach for getting divorce or annulment of marriage, if the plea is that his wife is suffering from mental illness. The counsel conceded that he can file a petition to seek annulment of this marriage on the ground of mental illness suffered by his wife but still insisted to seek direction from this Court to seek registration of a case under Section 420 IPC against wife of petitioner No.1 and her family. Apparently, the whole cause of trouble and problem in this case is due to alleged mental illness of the lady, who had married petitioner No.1. Strange behaviour of the wife on the very first day of marriage is advanced as a reason to urge that she is suffering from mental illness. Mental disease is not taken very kindly, though it otherwise is a disease like any other disease which one may happen to suffer. Society generally has attached stigma to this disease without realising that such person is a sick person requiring treatment. Very often, the family members disown persons suffering from mental diseases and mental asylum is the fate of such unfortunate people. Society does not act CRIMINAL MISC. NO.M-32091 OF 2011 :{ 9 }: or react very kindly to people suffering from such disorder. Had there been any form of any other disease noticed in either of the partners, he/she would have got treatment from a doctor. Instances would be in plenty where one may suffer from one form of disorder or the other after marriage. Such a thing unjustly could or may have happened to the husband as well. Should this lead to allegations of cheating or one may look towards treatment of disorder. If one is not ready to accept the other partner with such infirmities, then a better course is to separate if it is otherwise permissible as per law. Entering into litigation to seek prosecution of a person, who is stated to be suffering from mental disorder would not appear to be wise or justified course. In view of the above or other such human considerations, it was impressed upon that any other disease may not have necessarily led to this effect, but could have seen a way to a doctor for treatment and this could be so done in the present case as well. Basically the lady is statedly suffering from a disease which carries with it a social stigma. Should a person suffering from any disease be abandoned? What would happen if parents also abandon their children so suffering? That would not be expected as norm or human behaviour. Petitioner No.1 ofcourse has an other option available to seek dissolution of marriage on the ground of this illness, if the girl is found to be so CRIMINAL MISC. NO.M-32091 OF 2011 :{ 10 }: suffering from this disease. Still, the counsel would insist that the petitioners have been cheated and so, the wife and her parents are criminally responsible and liable and be prosecuted accordingly. All these submissions on merit are made on the basis of affidavit or the enquiry that police has held. It is not without any reason that the Hon'ble Supreme Court in the case of Sakiri Vasu Vs. State of U.P. And others, 2008(1) RCR (Criminal) 392 laid down some guidelines for invoking inherent jurisdiction under Section 482 Cr.P.C. in such like matters. In this case, the Hon'ble Supreme Court has observed that if a person has a grievance that the Police Station is not registering his FIR under Section 154 Cr.P.C., then he can approach the Superintendent of Police under Section 154(3) Cr.P.C. by an application in writing. The Court has further observed that even if that does not yield any satisfactory result in the sense that either the FIR is still not registered or even after registering it, no proper investigation is held, it is open to the aggrieved person to file an application under Section 156(3) Cr.P.C. before the learned Magistrate concerned. The Magistrate can direct FIR to be registered if such an application is filed before him and can also direct a proper investigation to be made where according to the aggrieved person, no proper investigation was made. As held by the Supreme Court, the Magistrate CRIMINAL MISC. NO.M-32091 OF 2011 :{ 11 }: can also monitor the investigation to ensure proper investigation under the same provision. Reference is made to the case of Mohd. Yousuf Vs. Smt.Afaq Jahan & Anr., 2006 (1) RCR (Criminal) 450, by the Hon'ble Supreme Court in Sakiri Wasu's case (supra), where the following observations of the Court are noted:- “The clear position therefore is that any judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156 (3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. 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. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigating under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to CRIMINAL MISC. NO.M-32091 OF 2011 :{ 12 }: register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.” The Hon'ble Court has further noticed the case of Dilawar Singh Vs. State of Delhi, 2007 (4) RCR (Criminal) 115, where the similar view was taken by the Hon'ble Supreme Court. Ultimately, the Supreme Court held that power under Section 156(3) Cr.P.C. is wide enough to include all such powers in the Magistrate, which are necessary for ensuring proper investigation. In this regard, the Court has observed as under:- “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.” After discussing the doctrine of implied power and after noticing various judgements in this regard, the Court CRIMINAL MISC. NO.M-32091 OF 2011 :{ 13 }: has held as under:- “24. In view of the abovementioned legal position, we are of the view that although Section 156(3) is very briefly worded, there is an implied power in the Magistrate under Section 156(3) Cr.P.C. to order registration of a criminal offence and /or to direct the officer in charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156 (3) Cr.P.C., we are of the opinion that they are implied in the above provision. 25. We have elaborated on the above matter because we often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition under Section 482 Cr.P.C. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters, and relegate the petitioner to his alternating remedy, firstly under Section 154(3) CRIMINAL MISC. NO.M-32091 OF 2011 :{ 14 }: and Section 36 Cr.P.C. before the concerned police officers, and if that is of no avail, by approaching the concerned Magistrate under Section 156(3).” The Hon'ble Supreme Court has also observed that though alternative remedy is not an absolute bar to a writ petition but it is equally well settled that if there is an alternative remedy, the High Court should not ordinarily interfere. Not only that the Hon'ble Supreme Court has observed that the High Court should discourage the practice of filing writ petitions or petitions 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. It is further noticed by the Supreme Court that for this grievance, the remedy lies under Section 36 and 154(3) Cr.P.C. before the concerned police officer and if that is of no avail, then under Section 156(3) Cr.P.C. before the Magistrate or by filing criminal complaint under Section 200 Cr.P.C. and not by filing writ petition or petition under Section 482 Cr.P.C. These would be the reasons enough for this Court not to interfere in the exercise of inherent jurisdiction under Section 482 Cr.P.C. The reference by the learned counsel to the case of G.V.Rao Vs. L.H.V.Prasad and others, (2000) 3 Supreme Court Cases 693 to substantiate his plea that offence under Section 420 read with Section 34 IPC is made CRIMINAL MISC. NO.M-32091 OF 2011 :{ 15 }: out in this case would be of no significance or avail in view of the observations made above in regard to the desirability to invoke jurisdiction under Section 482 Cr.P.C. in such like matters. G.V.Rao's case (supra) was a case of quashing of FIR registered under Sections 415, 419, 420 IPC read with Section 34 IPC, where the allegations were that the respondents had cheated the petitioner by intentionally inducing him to marry a girl of lower caste/community on misrepresentation that she belongs to a forward caste/community. The charge sheet submitted by the police after investigation was quashed by the High Court under Section 482 Cr.P.C. on the ground that offence of cheating was not involved. This view expressed by the High Court was disapproved, being erroneous view on the ground that offence of cheating need not necessarily pertain to property. The Court still declined to interfere by observing that it did not like to encourage such disputes and advised the parties to mutually settle their disputes as the complaint had arisen out of matrimonial dispute. Should not this Court encourage and suggest such a course to the petitioners? The petitioners may take note of such a wise counsel given by the highest court of the land to look for mutually settling the dispute/differences. Otherwise, the observations regarding the offence of cheating would not have much relevance in the facts and circumstances of the present case. It is not CRIMINAL MISC. NO.M-32091 OF 2011 :{ 16 }: even the view expressed by the investigating agency that the offence of cheating is not made out. No Court has quashed any proceedings. The issue of quashing the FIR under Section 482 Cr.P.C. had arisen in G.V.Rao's case (supra) in entirely different context. It is generally viewed that the trial should not be curtailed at the very inception and that may have been a reason with the Apex Court to interfere in the order, quashing the FIR in G.V.Rao's case (supra). All such matters in regard to details of the offence and what offence is made out have to be pleaded and proved before the Trial Court and it would not be appropriate for this Court to deal with such issues and then direct registration of a case under particular Section which would cause and lead to serious prejudice to the effected parties. The counsel has failed to appreciate a vital difference in the present case and that of G.V.Rao's case (supra). Here lady accused is stated to be suffering from mental disorder. She can not be accused of cheating because of her mental disorder. It may be a complete defence for her. In G.V.Rao's case (supra) lady was accused of cheating by giving upper cast wrongly to get married. She was not suffering from any mental infirmity. As a last resort, the counsel for the petitioners prayed that notice be issued to the wife and her parents in order to see and solve this matrimonial discord. I find that CRIMINAL MISC. NO.M-32091 OF 2011 :{ 17 }: the wife and her parents have not been impleaded as party respondents for the purpose of issuing any notice. That may also be an added reason for this Court not to interfere in this case for issuing direction to the respondents even to register a case against them, who are not impleaded as party. Accordingly, I am not inclined to accept this request even. The petition is accordingly dismissed. The petitioners, however, would be at liberty to invoke his alternative remedy in terms of the law laid down by the Hon'ble Supreme Court in Sakiri Wasu's case (supra) if they are not ready to adopt the wise course towards amicable settlement to solve this matrimonial dispute. November 01, 2011 ( RANJIT SINGH ) khurmi JUDGE