KAILASH VIJAYVARGIYA versus RAJLAKSHMI CHAUDHURI AND OTHERS
[2023] 6 S.C.R. 135, Supreme Court of India, 2023
Outcome: Disposed off
Segment: Facts
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KAILASH VIJAYVARGIYA
v.
RAJLAKSHMI CHAUDHURI AND OTHERS
(Criminal Appeal No. 1581 of 2021 Etc.)
MAY 04, 2023
[M. R. SHAH AND SANJIV KHANNA, JJ.]
Code of Criminal Procedure, 1973 :
s. 156(3) – Police officer’s power to investigate cognizable
case – Application u/s. 156(3) by the victim-complainant alleging
rape by the appellants; and sought direction to police to investigate
the matter treating the complaint as an FIR – Prior to filing of the
said application, the victim filed several complaints before the police
authorities, who conducted an enquiry and found that there was
delay of two years in filing the complaint and refused to register the
same – Dismissal of the application u/s. 156(3) by the Magistrate –
Revision application thereagainst, allowed by the High Court, setting
aside the order of the Magistrate holding that the Magistrate at
that stage could not verify the veracity of allegations – Issuance of
direction to the Magistrate to re-consider the application u/s. 156(3)
– On remand, the Magistrate passed an order u/s. 156(3) directing
registration of the FIR – On appeal, held: It is impermissible and
contrary to law to adjudicate on merits the allegations and determine
the facts as baseless, without further scrutiny and examination –
Thus, the High Court was correct in remitting the matter to the
Magistrate for further examination – Magistrate, while passing a
subsequent order u/s. 156(3) directing registration of the FIR, misread
the order and
directions given by the High Court – Magistrate was
required to examine, apply his judicious mind and then exercise
discretion whether or not to issue directions u/s. 156(3) or whether
he should take cognizance and follow the procedure u/s. 202 – He
could also direct a preliminary inquiry by the Police – In view thereof,
the order passed by the High Court remanding the matter back to
the Magistrate is upheld – The subsequent order passed by the
Magistrate on remand, directing registration of FIR is remitted back
to the Magistrate to apply his judicial mind and exercise the
discretion u/s. 156(3) or to take cognizance u/s. 202 of the Code.
[2023] 6 S.C.R. 135
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ss. 156 (3) and 202 – Power of the Magistrate to direct
investigation at pre-cognizance u/s. 156(3) and post-cognizance
stages u/ss. 200-210 – Distinction between – Held: Power u/s.156(3)
is to be exercised before the Magistrate takes cognizance u/s. 190
– Once the Magistrate takes cognizance, the Magistrate has
discretion to take recourse to his powers u/s. 202 – Magistrate
exercises a very limited power u/s.156(3) whereas, u/s. 202, the
Magistrate can analyse the veracity of the complaint made and
appreciate whether there are grounds to proceed further.
Disposing of the appeals, the Court
HELD: 1.1 The invocation of power under Section 156(3)
CrPC is wider as held in Priyanka Srivastava’s case , yet there
are limits within which the Magistrate must act. When the
Magistrate is satisfied that the allegations made disclose
commission of a cognizable offence, he must stay his hands, direct
registration of an FIR and leave it to the investigative agency to
unearth the facts and ascertain the truth of the allegations. The
Magistrate in terms of the ratio in Lalita Kumari’s case can for
good reasons direct preliminary enquiry. [Para 22][164-F-H]
1.2. The operandi for registration of information in a
cognizable offence and eventual investigation is not limited to
Police, and sub-section (3) to Section 156, subject to legal
stipulations, gives the ameliorating power to a Magistrate
empowered under Section 190 to order an
investigation in a
cognizable offence. Two different powers vested with two distinct
authorities, namely the Police and the Magistrate, who discharge
distinct functions and roles under the Code as indicated above
are not entirely imbricating. The power of Magistrate to direct
investigation falls under two limbs of the Code: one is pre-
cognizance stage under Section 156(3), and another on cognizance
under Chapter XIV (‘Conditions Requisite for Initiation of
Proceedings’; Sections 190-199) read with Chapter XV
(‘Complaints to Magistrates’; Sections 200-210). These two
powers are different and there also lies a procedural distinction
between the two. [Para 23, 24][165-B-D]
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1.3. The direction for registration of an FIR should not be
issued in a routine manner. The Magistrate is required to apply
his mind and exercise his discretion in a judicious manner. If the
Magistrate finds that the allegations made before him disclose
commission of a cognizable offence, he can forward the complaint
to the Police for investigation under Section 156 and thereby
save valuable time of the Magistrate from being wasted in inquiry
as it is primarily the duty of the Police to investigate. However,
the Magistrate also has the power to take cognizance and take
recourse to procedure under Section 202 of the Code and
postpone the issue of process where the Magistrate is yet to
determine existence of sufficient ground to proceed. In a third
category of cases, the Court may not take cognizance or direct
registration of an FIR, but direct preliminary inquiry in terms of
the dictum in Lalita Kumari’s case. [Para 27][167-D-F]
1.4 In the instant case, the preliminary inquiries conclude
that in the communications made to the police between 2018 to
2020, there is no allegation that rape took place on 29th November
2018. As per the report the complainant had failed to give any
logical and satisfactory account for the delay in lodging the
complaint. The accused assert that the complaint is an abuse of
the process of law and has been filed to put pressure on the
accused in view of the rape case filed by her against the third
person. At the same time, it is
noticeable that the complainant/
informant has made several allegations of rape, sexual harassment,
etc. against persons with whom she had been acquainted and
working. The complainant/informant has pleaded threat and
harassment at the hands of the persons named as perpetrators,
who are people of influence and power as the ground and reason
for delay. She pleads that period of limitation prescribed in section
468 of the Code does not apply to an offence punishable with
imprisonment exceeding three years. While examining the
question of delay in making the complaint, the courts must remain
alive to the fact that it is difficult for a woman to come forward
and make a statement alleging rape or sexual assault. [Paras 33
and 34][171-B-F]
KAILASH VIJAYVARGIYA v. RAJLAKSHMI CHAUDHURI
AND OTHERS
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1.5 Every criminal case, it is stated, is a voyage of discovery
in which truth is the quest. Right from the inception of the judicial
system, it has been accepted that discovery, vindication and
establishment of truth are the primary purposes underlying the
existence of the courts of justice. However, the supremacy of
truth is easier to assert than to define. Often this task becomes
difficult when contradictory factual positions are asserted duly
supported and affirmed on oath. In adversarial systems, the
process of ascertaining truth requires compliance of procedures
and rules of evidence, and limit the role of the adjudicator, in
acting as an investigator to verify veracity of the allegations and
counter-allegations till evidence and material is laid and examined
as per codified procedural law. Yet it is believed that clash of
adversaries is best calculated to getting out the facts. In a well-
designed system, judicial findings of formal legal truth should
coincide with the substantive truth. This can happen when the
facts as asserted by the contestants are skilfully explored in
accordance with the procedure prescribed by law. Abuse of law
must be checked, if possible, at the very threshold, albeit when it
is possible and also as per the procedure prescribed by law. [Para
35][171-F-H; 172-A-B]
1.6. When a complaint is presented before a Magistrate,
he has two options. One is to pass an order contemplated by
Section
156(3). The second one is to direct examination of the
complainant on oath and the witness present, and proceed further
in the manner provided by Section 202. An order under Section
156(3) is in the nature of a peremptory reminder or intimation to
the police to exercise its plenary power of investigation under
Section 156(1). However, once the Magistrate has taken
cognizance under Section 190 of the Code, he cannot ask for an
investigation by the Police. After cognizance has been taken, if
the Magistrate wants any investigation, it will be under Section
202, whose purpose is to ascertain whether there is prima facie
case against the person accused of the offence and to prevent
issue of process in a false or vexatious complaint intended to
harass the person named. Such examination is provided,
therefore, to find out whether there is or not sufficient ground
for proceeding further. [Para 36][173-B-D]
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1.7 The question of the merits of the allegations, and what
procedure the Magistrate should follow is not gone into as this is
an aspect which the Magistrate must first consider and decide
judiciously and as per the law. What is impermissible and contrary
to law is an adjudication on merits of the allegations and
determination of the facts as baseless, without further scrutiny
and examination. Therefore, the High Court was correct in
remitting the matter to the judicial magistrate for further
examination. [Para 37][173-E-F]
1.8 The Magistrate, on remand, has passed an order under
Section 156(3) directing registration of the FIR. He has misread
the order and directions given by the High Court. The Magistrate
is required to examine, apply his judicious mind and then exercise
discretion whether or not to issue directions under Section 156(3)
or whether he should take cognizance and follow the procedure
under Section 202. He can also direct a preliminary inquiry by
the Police in terms of the law laid down by this Court in Lalita
Kumari’s case. [Para 38][173-G]
1.9 The accused do not have any right to appear before the
Magistrate before summons are issued. However, the law gives
them a right to appear before the revisionary court in proceedings,
when the complainant challenges the order rejecting an application
under section 156(3) of the Code. The appellants, therefore, had
appeared before the High Court and contested the proceedings.
They have filed several
papers and documents before the High
Court and this Court. To be fair to them, the copies of the papers
and documents filed before the High Court and this Court would
also be forwarded and kept on record of the Magistrate who would,
thereupon, examine and consider the matter. However, the
complainant/informant would be entitled to question the
genuineness and the contents of the said documents. [Para
39][174-A-C]
1.10. In view thereof, while affirming the impugned judgment
and order passed by the High Court remanding the matter back
to the Magistrate, the subsequent order passed by the Magistrate
on remand, pursuant to the impugned judgment and order passed
by the High Court is set aside and the matter is remitted back to
KAILASH VIJAYVARGIYA v. RAJLAKSHMI CHAUDHURI
AND OTHERS
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the Magistrate to examine and apply his judicial mind and then
exercise discretion whether or not to issue directions under
section 156(3) or whether he can take cognizance and follow the
procedure under section 202. He can also direct the preliminary
enquiry by the police in terms of the law laid down by this Court
in the case of Lalita Kumari. [Para 40][174-D-E]
Lalita Kumari v. Government of Uttar Pradesh and
Others (2014) 2 SCC 1 : [2013] 14 SCR 713 – followed.
Priyanka Srivastava v. State of Uttar Pradesh (2015) 6
SCC 287 : [2015] 4 SCR 108 – relied on.
Mukul Roy v. The State of West Bengal 2018 SCC
Online Cal. 4861; Maksud Saiyed v. State of Gujarat
(2008) 5 SCC 668 : [2007] 9 SCR 1113; Anil Kumar v.
M.K. Aiyappa (2013) 10 SCC 705 : [2013] 9 SCR 869;
Ramdev Food Products Private Limited v. State of
Gujarat (2015) 6 SCC 439 : [2015] 5 SCR 283; Suresh
Kankra v. State of U.P. & Another (Criminal Appeal
No. 52/2022, decided on 07.01.2022); Srinivas
Gundluri and Others v. SEPCO Electric Power
Construction Corporation (2010) 8 SCC 206;  Anju
Chaudhary v. State of U.P. (2013) 6 SCC 384 : [2012]
13 SCR 901; Assistant Collector of Customs, Bombay
v. L.R. Melwani AIR 1970 SC 962 : [1969] SCR 438;
Krishna Lal Chawla v. State of Uttar Pradesh (2021) 5
SCC 435; Abhinandan Jha v. Dinesh Mishra AIR 1968
SC 117 : [1967] SCR 668; State of Haryana and Others
v. Bhajan Lal and Others, (1992) 1 Supp SCC 335 :
[1990] 3 Suppl. SCR
259; Mohd. Yusuf v. Afaq Jahan
(Smt) and Another (2006) 1 SCC 627 : [2006] 1 SCR
1; HDFC Securities Ltd. v. State of Maharashtra (2017)
1 SCC 640 : [2016] 8 SCR 968; Chandra Deo Singh v.
Prokash Chandra Bose Alias Chabi Bose and Another
AIR 1963 SC 1430 : [1964] SCR 639; Jasraj Inder
Singh v. Hemraj Multanchand (1977) 2 SCC 155 :
[1977] 2 SCR 973; Gopal Das Sindhi and Others v.
State of Assam and Another AIR 1961 SC 986; Suresh
Chand Jain v. State of M.P. and Another (2001) 2 SCC
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628 : [2001] 1 SCR 257; Mona Panwar v. High Court
of Judicature of Allahabad through its Registrar and
Others (2011) 3 SCC 496 : [2011] 2 SCR 413 – referred
to.
Case Law Reference
[2007] 9 SCR 1113
referred to
Para 3.6
[2013] 9 SCR 869
referred to
Para 3.6
[2015] 5 SCR 283
referred to
Para 3.6
[2012] 13 SCR 901
referred to
Para 4.2
[1969] SCR 438
referred to
Para 5.7
(2021) 5 SCC 435
referred to
Para 7
[1967] SCR 668
referred to
Para 18
[1990] 3 Suppl. SCR 259
referred to
Para 21
[2013] 14 SCR 713
followed
Para 22, 27, 38
[2015] 4 SCR 108
relied on.
Para 22, 27
[2006] 1 SCR 1
referred to
Para 29
[2016] 8 SCR 968
referred to
Para 31
[1964] SCR 639
referred to
Para 32
[1977] 2 SCR 973
referred to
Para 35
[2001] 1 SCR 257
referred to
Para 36
[2011] 2 SCR 413
referred to
Para 36
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1581 of 2021.
From the Judgment and Order dated 01.10.2021 of the High Court
at Calcutta in CRR No. 92 of 2021.
With
Criminal Appeal Nos. 1582 and 1583 of 2021.
Mahesh Jethmalani, Maninder Singh,  P. S. Patwalia, Sr. Advs.,
Kabir Shankar Bose, Amit Mishra,  Amit Tiwari, Kanika Singhal,
Ms. Mughda Pandey, Surjendu Sankar Das, Ms. Annie Mittal,
Ms. Swarupama Chaturvedi, Ms. Kanika Singhal, Dheeraj Trivedi, Debu
KAILASH VIJAYVARGIYA v. RAJLAKSHMI CHAUDHURI
AND OTHERS
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Chowdhury, Arvind Gupta, Ms. Saumya Kapoor, Siddhant Yadav,
Nachiketa Joshi, Amit Tiwai, Santosh Kumar, Praneet Pranav, Vedansh
Anand, Ayush Anand, Advs. for the Appellant.
R. Basant,  Bikash Ranjan Bhattacharya, Sr. Advs., Suhaan
Mukerji, Vishal Prasad, Akshay Sahay, Sayandeep Paharii, M/s. Plr
Chambers and Co., Rauf Rahim, Ali Asghar Rahim, Arvind C., Advs.
for the Respondents.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 01.10.2021 passed by the High Court of Calcutta in
Criminal Revision Application No. 92/2021, by which the High Court
has allowed the said revision application preferred by respondent no.1
herein – original complainant (victim) and has quashed and set aside
order dated 12.11.2020 passed by the learned Chief Judicial Magistrate,
Alipore (for short, ‘learned CJM’) rejecting the petition filed by respondent
no.1 herein – original complainant under Section 156(3) of the Code of
Criminal Procedure,1973 (Code/Cr.PC) original respondent nos. 2 to 4
(alleged accused) have preferred the present appeals.
2. The facts leading the present appeals in a nutshell are as under:
That respondent no.1 herein – original complainant lodged a
complaint under Section 156(3) Cr.P.C. in the Court of learned CJM,
making allegations against the appellants herein alleging that she was
raped by all the three appellants on 29.11.2018
at about 5:00 p.m. at the
residence of original accused no.3 – Kailash Vijayvargiya, when she
was invited to discuss another Crime No. 1 of 2018 registered against
their colleagues filed by her. That it was prayed to direct the Officer in
Charge of Bhowanipore Police Station to start investigation into the matter
after treating the complaint as an FIR.
2.1 It was the case on behalf of the complainant in the complaint
before the learned CJM that she was a member of the State Committee
of the Bhartiya Janata Party in the State of West Bengal. As a person
involved in active politics, she has acquaintance with the leaders of the
State at national level. On the allegation of rape, she filed a written
complaint before the Officer in Charge, Behala (Woman) Police Station
against one Amalendu Chattopadhyay. The said complaint was registered
as Case No. 01/2018 dated 31/08/2018 under Sections 417/376/406/313/
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120B IPC. The investigation of the said case resulted in filing of the
charge sheet against the above-named Amalendu Chattopadhyay. It was
further alleged that since the filing of the charge sheet, she was
pressurised by the appellants, namely, Pradeep Joshi, Jishnu Basu and
Kailash Vijayvargiya, national level leaders of the said party to withdraw
the case against Amalendu Chattopadhyay. On the pretext of having a
discussion over the said matter, the appellants asked her to come at the
residential apartment of accused – Kailash Vijayvargiya. It was further
alleged in the complaint that she tried to inform the matter to the Officer
in Charge of the Bhowanipore Police Station but the police suggested
her to meet them in response to such call.
That she went to the residential apartment of the accused – Kailash
Vijayvargiya on 29.11.2018 at about 5:00 p.m. The other accused were
present in the said apartment from before. It was further alleged that
the appellants committed rape upon her against her will one by one.
Therefore, it was alleged that she became the victim of libido of the
leaders of the said political party occupying position at national level. It
was further alleged in the complaint that after the incident she was
threatened with dire consequences. She was threatened by the appellants
that in the event she takes any legal steps against them, her son would
also be killed. It was further alleged that subsequently also she was
subjected to physical
assault and mental torture and she lodged complaints
against the accused before different police stations, such as, Sarsuna
P.S. Case No. 131/2019 under Sections 341/506(ii)/34 IPC and Bolpur
P.S. Case No. 89/2020 under Sections 341/323/325/506/34 IPC. It was
further alleged and so stated in the complaint that over the incident dated
29.11.2018, she tried to make the complaint with the local police station
but police refused to accept such complaint from her. She also informed
the matter to the higher authorities of the police but they also failed to
take any action against the accused by registering an FIR. It appears
that the respondent informed the Officer in Charge of Behala Police
Station on 14.08.2020 about the alleged rape by the accused persons
allegedly on 9.8.2018.
2.2 She filed a complaint before the DCP (South Division), 34,
Park Street, Kolkata on 5.10.2020. According to her, she filed a written
complaint before the concerned police station, i.e., P.S. Bhowanipore on
27.10.2020. She filed another complaint to the Deputy Commissioner of
Police on 04.11.2020. According to the complainant, despite the aforesaid
KAILASH VIJAYVARGIYA v. RAJLAKSHMI CHAUDHURI
AND OTHERS [M. R. SHAH, J.]
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complaints to the various authorities making specific allegations against
the accused persons having committed a rape upon her on 29.11.2018,
FIR has not been lodged and no investigation has been carried out and
therefore she filed an application in the Court of the learned CJM, Alipore
under Section 156(3) Cr.P.C. on 12.11.2020 and requested to direct the
concerned police officer to register an FIR and investigate into the matter.
2.3 That the learned CJM, by a detailed order dated 12.11.2020
and after giving cogent reasons, dismissed the said application under
Section 156(3) Cr.P.C.
2.4 Feeling aggrieved and dissatisfied with the order passed by
the learned CJM, dismissing the application under Section 156(3) Cr.P.C.
filed by the complainant, the complainant preferred Revision Application
before the High Court being Criminal Revision Application No. 92/2021.
By the impugned judgment and order, the High Court has allowed the
said revision application and has quashed and set aside order dated
12.11.2020 passed by the learned CJM, dismissing the application under
Section 156(3) Cr.P.C., mainly relying upon the decision of this Court in
the case of Lalita Kumari v. Government of Uttar Pradesh and others,
reported in (2014) 2 SCC 1 and holding that as held by this Court in the
case of Lalita Kumari (supra), the police authority in case of preliminary
inquiry prior to the registration of a case concerning cognizable
offence,
has no jurisdiction to verify the veracity of the allegations and therefore
a Magistrate cannot verify the truth and veracity of the allegations
contained in the application under Section 156(3) Cr.P.C. and therefore
the learned CJM acted contrary to the law laid down by this Court in the
case of Lalita Kumari (supra), while entering into the truth and veracity
of the allegations. It has been further held that the learned CJM ought
not to have dismissed the application under Section 156(3) Cr.P.C. on
the ground that there was a delay of two years in lodging the complaint,
which aspect can be considered only at the time of trial.
2.5 Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court, quashing and setting aside the order
passed by the learned CJM dated 12.11.2020 dismissing the application
under Section 156(3) Cr.P.C. and remanding the matter to the learned
CJM to reconsider the application filed by the complainant under Section
156(3) Cr.P.C. in light of the observations made in the impugned judgment
and order and pass a reasoned order, the original respondents – alleged
accused have preferred the present appeals.
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3. S/Shri Mahesh Jethmalani, Maninder Singh and P.S. Patwalia,
learned Senior Advocates have appeared on behalf of the respective
appellants. Shri R. Basant, learned Senior Advocate has appeared on
behalf of the State of West Bengal and Shri Bikash Ranjan Bhattacharya,
learned Senior Advocate has appeared on behalf of the original
complainant.
3.1 Learned Senior Advocate Shri Mahesh Jethmalani appearing
on behalf of one of the appellants-accused has vehemently submitted
that in the facts and circumstances of the case, the High Court has
committed a grave error in quashing and setting aside the well-reasoned
order passed by the learned CJM dismissing the complaint under Section
156(3) Cr.P.C.
3.2 It is submitted that the High Court ought to have appreciated
that the learned CJM dismissed the application under section 156(3)
Cr.P.C. upon verifying the truth and veracity of the allegations made in
the application, more particularly considering the fact that there was a
delay of almost two years after the date of the alleged incident which
has not been explained. It is submitted that therefore the learned CJM
was well within its jurisdiction to verify the truth and veracity of the
allegations made in the application when such serious allegations were
made after a period of almost two years after the date of the alleged
incident and that in between though number of other complaints were
filed against the accused and others, at no point of time, any allegation
of
rape on 29.11.2018 was made.
3.3 It is submitted that while passing the impugned judgment and
order and quashing and setting aside the order passed by the learned
CJM, the High Court has wrongly relied upon and/or considered and/or
applied the decision of this Court in the case of Lalita Kumari (supra).
3.4 It is submitted that the High Court has materially erred in
observing that while considering the application under Section 156(3)
Cr.P.C., Magistrate has no jurisdiction at all to verify the truth and veracity
of the allegations.
3.5 It is submitted that the observations made by the High Court
in the impugned judgment and order that while considering the application
under Section 156(3) Cr.P.C., Magistrate has no jurisdiction to even prima
facie verify the truth and veracity of the allegations made in the application
are just contrary to the law laid down by this Court in the case of Priyanka
KAILASH VIJAYVARGIYA v. RAJLAKSHMI CHAUDHURI
AND OTHERS [M. R. SHAH, J.]
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Srivastava v. State of Uttar Pradesh, reported in (2015) 6 SCC 287.
It is submitted that the same is also contrary to the decision of the co-
ordinate Bench of the Calcutta High Court in the case of Mukul Roy v.
The State of West Bengal, 2018 SCC Online Cal. 4861, expressly
following the judgment in Priyanka Srivastava (supra).
3.6 Learned Senior Advocate appearing on behalf of the appellants
have also heavily relied upon the decisions of this Court in the cases of
Maksud Saiyed v. State of Gujarat, reported in (2008) 5 SCC 668;
Anil Kumar v. M.K. Aiyappa, reported in (2013) 10 SCC 705; and
Ramdev Food Products Private Limited v. State of Gujarat, reported
in (2015) 6 SCC 439 and decision of this Court in the case of Suresh
Kankra v. State of U.P. & another (Criminal Appeal No. 52/2022,
decided on 07.01.2022), in support of their submission that the
Magistrate was well within its jurisdiction to verify the truth and veracity
of the allegations made in the application, more particularly when such a
serious allegation of rape was made after a period of two years after the
date of the alleged incident.
3.7 It is further submitted that the learned Single Judge of the
High Court is not right and/or justified in taking a contrary view than the
view taken by the co-ordinate Bench in the case of Mukul Roy (supra).
It is submitted that if the learned Single Judge of the High Court was of
the opinion that the view taken in the
case of Mukul Roy (supra) is not
a correct law, in that case, propriety demands that the learned Single
Judge ought to have referred the matter to the larger Bench, rather than
taking a contrary view.
3.8 It is submitted that even otherwise the learned Single Judge
ought to have appreciated that the decision of the High Court in the case
of Mukul Roy (supra) was expressly following the judgment of this
Hon’ble Court in the case of Priyanka Srivastava (supra). It is
submitted that therefore also, the learned Single Judge ought not to have
taken a contrary view.
3.9 It is further submitted by the learned Senior Advocates
appearing on behalf of the appellants that in the present case even the
SHO after receiving the complaint in the month of October, 2020 conducted
a preliminary enquiry as per the law laid down by this Court in the case
of Lalita Kumari (supra) and thereafter refused to register the FIR.
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3.10 Learned Senior Advocates appearing on behalf of the
respective appellants have taken us to the number of emails and messages
sent to one of the appellants – Kailash Vijayvargiya from 30.11.2018,
i.e., the next day after the alleged incident up till March, 2020. It is
submitted that if he had committed the rape on 29.11.2018, as alleged, in
that case, subsequently there was no reason for her to send emails and
messages to the appellant – Kailash Vijayvargiya.
3.11 It is further submitted that in between 29.11.2018 and October,
2020, the complainant filed various complaints before various police
stations against the very accused. The first complaint was filed on
12.12.2019 (Sarsuna case). The said complaint categorically mentions
that she met the appellant, however, complaint does not make any mention
of the alleged incident of rape. It is submitted that in the said FIR, the
only allegations were that she was called by the top-level leaders for 4
times in the last year, November 2018 and each time they locked her for
4 to 5 hours and pressurised her to withdraw the case. It is submitted
that the said FIR was registered as FIR No. 131/2019. It is submitted
that the said case has been closed now, as a closure report dated
16.06.2020 was filed in the aforesaid case.
3.12 It is submitted that thereafter one another complaint dated
6.2.2020 was filed, however, there was no mention of any particular
date of the alleged rape incident. It is submitted that
thereafter one another
complaint was filed on 12.03.2020 wherein she did not mention about
the alleged rape incident at all. It is submitted that after a period of two
years of alleged incident of rape, the complainant filed a complaint dated
27.10.2020 in which for the first time she stated that in order to pressurise
her to withdraw the 2018 case against Amalendu Chattopadhyay, the
appellants called her at the apartment of appellant no.1 – Kailash
Vijayvargiya and raped her on 29.11.2018. It is submitted that therefore
the learned CJM rightly observed that as there was an unexplained and
inordinate delay of two years in making the complaint against the alleged
offence, it casts doubt regarding the truth and veracity of the allegations
contained in the application under Section 156(3) Cr.P.C.
3.13 It is further submitted by the learned Senior Advocates
appearing for the respective appellants that while passing order dated
12.11.2020, the learned CJM made some pertinent observations to
highlight that there was an inordinate delay in making the first police
complaint against the alleged offence and that there existed sufficient
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inconsistencies to raise doubts regarding the truth and veracity of the
allegations contained in the application under Section 156(3). It is submitted
that firstly, the learned CJM observed that according to the complainant
the alleged offence took place on 29.11.2018, however, attempt to initiate
criminal proceedings was made for the first time only on 27.10.2020 –
the date when a complaint was lodged at the Bhowanipore Police Station.
This was after a gap of about two years from the date of the alleged
offence.
3.14 It is submitted that thereafter the learned CJM further noted
that the complainant in her application under Section 156(3) has stated
that she made several complaints before various police stations against
the accused persons and their men for the physical attacks carried out
on her, however, no such complaint finds mention of the alleged offence
of rape. Therefore, the learned CJM noted that possibility of false
implication cannot be ruled out, especially when the same complainant
made several other complaints against the same accused in that period
in which no allegation of rape on 29.11.2018 was made.
3.15 It is further submitted that the learned CJM also further
observed that the complainant in her complaint to Behala Police Station
dated 14.08.2020 had accused one of the appellants – Kailash
Vijayvargiya of raping her at Hotel Peerless Inn on 09.08.2018, however,
the learned CJM did not find any
mention of such incident in her application
under Section 156(3) Cr.P.C.. The learned CJM further observed that
Behala Police Station Case No. 01/2018 against Amalendu Chattopadhyay
and others was filed on 31.08.2018, that was much after the alleged
rape by Kailash Vijayvargiya at Hotel Peerless Inn, however, even that
complaint made to the Behala Police Station finds no mention of such
incident. Therefore, considering the unexplained delay of about two years
in making the complaint along with several inconsistencies in the
allegations, the learned CJM concluded that allegations appear to be
unbelievable and therefore rightly rejected Section 156(3) application of
the complainant.
3.16 It is further submitted by the learned Senior Advocates
appearing on behalf of the appellants that in the instant case, the learned
CJM found the explanation for delay by the complainant wholly
unsatisfactory. It is submitted that it is no doubt true that delay is not
always fatal in the case of rape, particularly if adequately explained,
however, there must be at least some credibility in the explanation for
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delay. It is submitted that in the first information report for rape, a delay
of almost 2 years after the date of the alleged incident is a factor that of
necessity would itself put any judicial mind on guard regarding the veracity
of the complainant’s allegations. It is submitted that the learned CJM
however did not dismiss the application under Section 156(3) Cr.P.C.
solely on the ground of delay, but examined her conduct since the date
of the alleged rape till the filing of Section 156(3) application and found
that her conduct contradicted her explanation for delay. That she was
not a timid victim inasmuch as she was an experienced social/political
worker; had a history of filing FIRs including for rape; had earlier filed
FIRs against the accused in the instant case for other offences and
indeed had invoked police powers against several powerful people. It is
submitted that therefore complainant is not a person who could be easily
intimidated or silenced into inaction for an act of rape committed on her.
It is submitted that therefore the learned CJM committed no error in
dismissing the application under Section 156(3) which ought not to have
set aside by the High Court on wrong application of law holding that at
the stage of considering the application under Section 156(3) Cr.P.C.,
the Magistrate has no jurisdiction at all to consider the truth and veracity
of the allegations in the complaint/application. It is submitted that the
High Court has
wrongly applied the ratio in Lalita Kumari (supra),
which lays down the guidelines for the police and the investigating officer
and not applicable to a Magistrate exercising the jurisdiction under Section
156(3) Cr.P.C.
3.17 It is submitted that the High Court has observed that as held
by this Court in the case of Lalita Kumari (supra), when the police
officer at the stage of registering the FIR has no jurisdiction to verify the
veracity and truth of the allegations, how a Magistrate in exercise of
powers under Section 156(3) can verify the veracity of the allegations in
the complaint. It is submitted that the directions issued by this Court in
the case of Lalita Kumari (supra) shall be confined to the police and
shall not be applicable to a Magistrate exercising the jurisdiction under
Section 156(3) Cr.P.C.
3.18 It is further submitted that even the subsequent conduct on
the part of the complainant creates serious doubts about her credibility.
It is submitted that the complainant having realised the serious doubt
that her delayed complaint casts upon the veracity of her allegations
completely, before this Court in the counter affidavit, she has stated on
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oath and has come out with a case now that she had in fact lodged a
complaint with the police against the alleged rape incident on 29.11.2018
by lodging complaint on the very next day at 11:00 a.m.at the Behala
Police Station. It is submitted that that was not her case even in the
application under Section 156(3) and/or even in the complaints before
the concerned police officers. It is submitted that even the learned Senior
Advocate for the State of West Bengal has informed the Court that
there was no such record of the complaint being filed. It is submitted
that thus the complainant has made a false statement before this Court
on oath only to get out of delay and to get out the fact that till October,
2020, no complaint was given by her in respect of the alleged incident of
rape on 29.11.2018.
3.19 Making above submissions, it is submitted that the present
case is a glaring example of abuse of process and abuse of law. It is
submitted that accusation of rape is prima facie false and manufactured
with an intent to extort or blackmail the accused on the pretext of these
false allegations. It is submitted that such a serious allegation of rape
after a period of about two years from the date of alleged incident have
been made to tarnish the image of the appellants and to take a political
revenge and to finish the political career of the appellants. Therefore, it
is prayed to allow the present appeals and quash and set
aside the
impugned judgment and order passed by the High Court. It is submitted
that during the pendency of the present proceedings, despite the fact
that the present appeals were pending before this Court, the learned
CJM has passed an order dated 08.10.2021 directing the Officer in
Charge of Bhowanipore Police Station for treating the application as an
FIR and pursuant to the order of the learned CJM, FIR No. 221/2021
has been registered against the appellants. It is submitted that the said
FIR is lodged consequent to the impugned judgment and order passed
by the High Court. It is submitted that therefore if the impugned judgment
and order passed by the High Court is set aside, in that case, all subsequent
consequential orders and subsequent registration of the FIR also deserve
to be quashed and set aside.
4. Shri R. Basant, learned Senior Advocate appearing on behalf
of the State of West Bengal has vehemently submitted that the
Magistrate is not authorised to inquire into the credibility of the complainant
and the acceptability of the allegations at the stage of application under
Section 156(3) Cr.P.C.
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4.1 It is submitted that the Constitution Bench judgment in the
case of Lalita Kumari (supra)holds that a police officer cannot refuse
to register an FIR if it discloses commission of a cognizable offence. It
is submitted that the preliminary enquiry contemplated in Lalita Kumari
(supra) by a police officer is only to ascertain whether a cognizable
offence is revealed or not. It is submitted that if the police officer wrongly
or incorrectly refuses to register an FIR, the complainant has no option
in law but to file a complaint under Section 156(3) Cr.P.C.
4.2 It is submitted that though the judgment in Priyanka Srivastava
(supra) empowers the Magistrate to consider the credibility of the
complainant and the acceptability of the allegations also at the stage of
application under Section 156(3) Cr.P.C., in view of the prior decisions
of this Court in the cases of Srinivas Gundluri and others v. SEPCO
Electric Power Construction Corporation, reported in (2010) 8 SCC
206; and Anju Chaudhary v. State of U.P., reported in (2013) 6
SCC 384, the plea that the veracity and/or credibility of the complainant
and the acceptability of the allegations raised can be gone into by the
Magistrate at Section 156(3) stage does not appear to be correct.
4.3 It is submitted that the Magistrate is approached by the
complainant alleging that the police officer has not registered the FIR.
Hence, there cannot be a mismatch between the duty of the police officer
under section
154(1) and the contours of the jurisdiction of the Magistrate
under Section 156(3) at the pre-cognizance stage. It is submitted that if
so understood, the test of veracity enabled in Priyanka Srivastava
(supra) can only be to ascertain whether a cognizable offence is in fact
made out or not. It cannot receive an interpretation, divorced of the
context and the dictum in Lalita Kumari (supra). If so, there will be a
mismatch between Section 154(1) and Section 156(3) Cr.P.C. It is
submitted that the decision of this Court in the case of Priyanka
Srivastava (supra)cannot lead to a conclusion that the Magistrate can
delve into the credibility of the complainant/witnesses and the acceptability
of the allegations made by her. It is submitted that Priyanka
Srivastava(supra) was not intended to confer such a jurisdiction.
4.4 It is further submitted that if the Magistrates were given
powers to dismiss the complaint as soon as he chooses not to make a
reference under Section 156(3), it would virtually be quashing the
complaint by arriving at a premature conclusion without any evidence
on record that the complainant cannot be believed. It is submitted that
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this would in effect amount to the Magistrate arrogating to himself the
inherent powers conferred on the High Court under Section 482 Cr.P.C.
It is submitted that at the stage of Section 156(3), the Magistrate will not
have any material which would enable him to take a decision on the
credibility of the complainant or the acceptability of the allegations in the
complaint.
4.5 It is further submitted that firstly the learned CJM could have
exercised the discretion to direct the concerned police officer to register
an FIR as the complaint reveals the commission of a cognizable offence.
It is submitted that the police officer having not chosen to register an
FIR, the Magistrate if he is satisfied certainly has to refer the complaint
to the police station under Section 156(3) to register an FIR. It is submitted
that alternatively if the learned Magistrate chooses not to refer the
complaint to the police under Section 156(3), in any case, he could not
have dismissed the complaint and must have proceeded to the stage of
Section 200/202 Cr.P.C. and take an appropriate decision under Section
203 or 204 Cr.P.C. It is submitted that the petition made by the complainant
dated 27.10.2020 inter alia praying for action by the Magistrate to direct
investigation, amounts to a “complaint” under Section 2(d) Cr.P.C. It is
submitted that therefore the Magistrate has the discretion to decide
whatever action needs to be taken in the given
facts of the case, under
Section 156(3) or Section 200/202 Cr.P.C.
4.6 It is submitted that therefore, resort to Section 156(3) is also
“taking action under the Code” and therefore the complaint does not
cease to be a complaint because the complainant has inter alia requested
for action under Section 156(3) also. It is submitted that the jurisdiction
of the Magistrate under Section 156(3) and Sections 200/202 Cr.P.C
does not depend upon the prayer/choice/preference of the complainant.
Formal requirements of filing a list of witnesses and documents under
Section 204 Cr.P.C. relate to a post-cognizance stage and the filing or
non-filing of such list cannot affect the status of the petition as a complaint
under Section 2(d) Cr.P.C. It is submitted that when presented with
such a complaint, the Magistrate certainly has a discretion to make a
pre-cognizance reference under Section 156(3) or alternatively take a
post-cognizance action under Sections 200/202 Cr.P.C. If a petition
answers the definition of a complaint under Section 2(d), all these courses
are open and available to the Magistrate. It is submitted that therefore
when the Magistrate does not choose to proceed under Section 156(3),
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the Magistrate cannot dismiss the complaint merely because he finds
the resort to Section 156(3) not advisable. It is submitted that the
Magistrate must still continue under Sections 200/202 Cr.P.C. and pass
orders dismissing the complaint under Section 203 Cr.P.C. or issue a
process under Section 204 Cr.P.C.
5. While opposing the present appeals, Shri Bikash Ranjan
Bhattacharya, learned Senior Advocate appearing on behalf of the original
complainant has vehemently submitted that in the present case the
complaint filed by the complainant discloses commission of a cognizable
offence. It is submitted that therefore it was the duty of the concerned
police officer to register an FIR and investigate into the matter. It is
submitted that however as the concerned police officer failed to register
an FIR and investigate into the matter, the Magistrate in exercise of
powers under Section 156(3) has to direct registration of an FIR and
direct the concerned police officer to investigate into the allegations made
in the FIR.
5.1 It is submitted that at the stage of registering an FIR, neither
the police officer nor even the Magistrate at the stage of 156(3) have
any jurisdiction and/or authority to hold a detailed enquiry/preliminary
enquiry. It is submitted that the failure of the police to comply with Sections
156(1) and 156(2) Cr.P.C. requires the Magistrate to pass an order
directing such an investigation. It is submitted that the purpose and object
is to prima
facie ensure that the ingredients of any cognizable offence
are satisfied.
5.2 It is submitted that as mandated by the Constitution Bench
judgment of this Court in the case of Lalita Kumari (supra), the moment
a complaint discloses the ingredients of any cognizable offence, the
registration of an FIR becomes mandatory and any investigation
consequent thereto is to prima facie satisfy that an offence so alleged is
apparently cognizable. It is submitted that at that stage, the only
requirement is to satisfy whether the allegations made in the FIR disclose
commission of a cognizable offence or not and not beyond that.
5.3 It is further submitted by the learned Senior Counsel appearing
on behalf of the original complainant that as held by this Court in the
case of Lalita Kumari (supra), reasonableness or credibility of
information is not a condition precedent for registration of an FIR. It is
further observed and held that use of word “shall” in Section 154 Cr.P.C.
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is a mandate to register the FIR and the rule of literal construction would
apply. It is submitted that as per the decision of this Court in the case of
Lalita Kumari (supra), only in exceptional cases, before registering
the FIR, the preliminary enquiry by the concerned police officer is held
to be permissible. It is submitted that, however, when the offence alleged
is against the woman and when there are serious allegations of rape
made, there is no question of holding any further preliminary enquiry at
the stage of Section 156(3) application.
5.4 It is submitted that in the case of Priyanka Srivastava (supra),
in paragraphs 29 & 30, it was observed that Magistrates were issuing
process directing lodging of FIR in a stereotype and routine manner and
therefore this Court observed and held that “to curb litigants from filing
frivolous petitions, there should be prior applications under Sections 154(1)
and 154(3) and that the petition under Section 156(3) should be supported
by an affidavit”. It is submitted that the observations in paragraph 30,
viz, in appropriate cases, the Magistrate could verify the truth and also
verify the veracity of the allegations has to be read with the observations
in earlier paragraphs wherein it was held that a Magistrate should take
note of the allegations in entirety; the date of the incident and whether
any cognizable case is remotely made out. It is submitted that therefore
reliance
placed by the learned Senior Advocates on behalf of the
appellants on Priyanka Srivastava(supra) to contend that the judgment
is an authority for the proposition that a Magistrate may verify the veracity
of the allegations and thereby conduct a mini trial is wholly misplaced. It
is submitted that at that stage the preliminary judicial act is to ensure
whether any cognizable offence is remotely made out/disclosed. It is
submitted that therefore decisions of this Court in the cases of Lalita
Kumari (supra) and Priyanka Srivastava (supra) have to be
harmoniously construed and read.
5.5 It is further submitted that noting the rise of crime against
women, the Criminal Amendment Act (13 of 2013) was promulgated
amending Section 154(1) Cr.P.C, Section 173(1A) Cr.P.C and Section
166A, IPC. It is submitted that the procedural requirement to compulsorily
register an FIR was already existing in Section 154 Cr.P.C. but required
the judicial interpretation in Lalita Kumari (supra) to be a mandate.
The insertion of section 166A to the IPC has made the non-registration
of complaint as FIR containing a cognizable offence, liable to penal
consequences against the public servant (police). It is submitted that
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therefore it is the duty of the police to register the FIR on the basis of the
complaint disclosing commission of a cognizable offence and non-
registration of a complaint as FIR is now offence.
5.6 It is submitted that even in complaint cases, it is only the prima
facie satisfaction which is to be recorded and the scope of enquiry under
Section 202 Cr.P.C. is restricted only to finding out the truth of the
allegations in order to determine whether process should be issued or
not and the inquiry even at that stage does not partake the character of
a full-dress trial which can take place only after process is issued. Reliance
is placed on paragraphs 40 & 41 of the decision of this Court in the case
of Anju Chaudhary (supra).
5.7 It is further submitted by the learned Senior Counsel appearing
on behalf of the complainant that in the present case the primary reason
for not entertaining the petition under Section 156(3) was delay. It is
submitted that as held by this Court in the case of Assistant Collector of
Customs, Bombay v. L.R. Melwani, reported in AIR 1970 SC 962,
the Court before which the complaint was filed could not have thrown
out the same on the sole ground that there has been delay in filing it. It is
observed that the question of delay in filing a complaint may be a
circumstance to be taken into consideration in arriving at the final verdict.
But by itself it affords no ground for dismissing the complaint. It is
submitted that in the present
case the complainant had given cogent and
specific reasons for the delay giving open threats to her. It is submitted
that further, section 468 Cr.P.C. does not law down the period of limitation
for offences punishable with imprisonment exceeding three years. It is
submitted that therefore on the ground of delay, the application of the
complainant could not have been dismissed.
5.8 It is submitted that in the present case, the learned CJM also
ought not to have opined at the stage of 156(3) Cr.P.C. that the allegations
appear to be unbelievable. It is submitted that the application of judicial
mind at this stage is limited only to the extent of causing investigation to
find out whether the offence alleged is cognizable or not and the
ingredients prima facie satisfied.
5.9 Summing up the submissions, learned Senior Counsel appearing
on behalf of the original complainant has submitted that on reading the
decisions of this Court in the cases of Lalita Kumari (supra) and
Priyanka Srivastava (Supra) harmoniously and the limited scope of
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enquiry at the stage of Section 156(3) application, the learned CJM erred
in rejecting the application under Section 156(3) and therefore the High
Court has rightly directed to register the complaint as FIR and investigate
into the matter.
5.10 Making above submissions, it is prayed to dismiss the present
appeals.
6. We have heard learned counsel appearing on behalf of the
respective parties at length.
6.1 The present proceedings arise out of a complaint filed by the
original complainant under Section 156(3) Cr.P.C. The learned CJM, by
a detailed order and giving cogent reasons, dismissed the said application/
complaint under Section 156(3) Cr.P.C and refused to direct the police
to register an FIR. It is not even disputed by the State that prior to filing
of the application/complaint by the complainant under Section 156(3)
Cr.P.C., complaints were made to the police authorities, namely, Officer
in Charge of Bahela Police Station, DCP (South Division) and the SHO.
The SHO conducted a preliminary enquiry as mandated by a Constitution
Bench of this Court in the case of Lalita Kumari (supra) and upon
finding that there was a delay of about two years in filing the complaint,
refused to register the FIR. That thereafter, the original complainant
filed a complaint/application before the learned CJM under Section 156(3)
Cr.P.C. and on a careful consideration of the allegations in the complaint/
application under Section
156(3) Cr.P.C., by a detailed reasoned order,
the learned CJM dismissed the said application under Section 156(3)
Cr.P.C.
6.2 That while dismissing the application/complaint, the learned
CJM verified the truth and veracity of the allegations, regard being had
to the nature of the allegations of the case, considering the binding decision
of the High Court of Calcutta in the case of Mukul Roy (supra). The
learned CJM also considered the decision of this Court in the case of
Priyanka Srivastava (supra). The order passed by the learned CJM
was challenged before the High Court and by the impugned judgment
and order, not agreeing with the view taken by the co-ordinate Bench of
the High Court in the case of Mukul Roy (supra) and even not following
the decision of this Court in the case of Priyanka Srivastava (supra),
and following the decision of Constitution Bench of this Court in the
case of Lalita Kumari (supra), the High Court has quashed and set
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aside the order passed by the learned CJM and has directed to re-consider
the application under Section 156(3) Cr.P.C., in light of the observations
made in the impugned judgment and order. While quashing and setting
aside the order passed by the learned CJM, the High Court was of the
opinion that at the stage of considering the application under Section
156(3) Cr.P.C., it was not open for the learned CJM to verify the truth
and veracity of the allegations. The High Court was of the opinion that
in view of the decision of this Court in the case of Lalita Kumari (supra),
what was required to be considered was, whether the allegations in the
complaint/application disclose prima facie commission of a cognizable
offence or not and if so, the Magistrate has to pass an order directing
the concerned police officer to register an FIR. That thereafter, pursuant
to the impugned judgment and order passed by the High Court and on
remand, the learned CJM has straightway directed to register the
application/complaint as an FIR. Therefore, as such, the subsequent order
passed by the learned CJM is a consequential order passed by the High
Court on quashing and setting aside the order passed by the learned
CJM dismissing the application/complaint.
7. It is the contention on behalf of the appellants – original accused
that at the stage of deciding the application under Section 156(3) Cr.P.C.,
it is open for the Magistrate to verify the truth and veracity of the
allegations, regard being had to the nature of the allegations of the case,
and at that stage, the Magistrate has to apply the judicial mind. Reliance
is placed on the decisions of this Court in the case of Priyanka
Srivastava (supra); Maksud Saiyed (supra); Anil Kumar (supra);
and Krishna Lal Chawla v. State of Uttar Pradesh, reported in (2021)
5 SCC 435, as also, on the decision of the Calcutta High Court in the
case of Mukul Roy (supra). It is the case on behalf of the appellants
that the High Court has materially erred in relying upon and/or following
the decision of this Court in the case of Lalita Kumari (supra), while
holding that at the stage of considering the application under Section
156(3) Cr.P.C., the Magistrate has no jurisdiction to verify the truth and
veracity of the allegations. It is submitted that however the said decision
shall not be applicable in a case where the Magistrate exercises the
powers under Section 156(3) Cr.P.C. It is submitted that in the case of
Lalita Kumari (supra), this Court was considering the powers of the
police officer under Section 154 Cr.P.C. and to register the FIR. It is
submitted that the powers exercised by the Magistrate at the stage of
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Section 156(3) Cr.P.C shall not be and/or cannot be equated with the
powers to be exercised by the police officer under Section 154 Cr.P.C.
8. On the other hand, it is the case on behalf of the original
complainant as well as the State that as mandated by this Court in the
case of Lalita Kumari (supra), at the stage of registering the FIR,
neither the Magistrate nor the police officer has any jurisdiction to verify
the truth and veracity of the allegations and/or consider the truthfulness
of the allegations. According to the respondents, what is required to be
considered at that stage is, whether the allegations in the complaint/
application disclose commission of any cognizable offence or not.
Therefore, the main issue posed for the consideration of this Court is,
whether in the facts and circumstances of the case, the learned CJM
was justified in verifying the truth and veracity of the allegations at the
stage of deciding the application under Section 156(3) Cr.P.C. and
whether at that stage the Magistrate is required to apply judicial mind or
not?
9. Article 21 of the Constitution protects lives and personal liberties
of both the victim and those accused of having committed an offence.
For this reason, the procedure established by law should be construed in
the manner that the text of the statute ensures right to seek investigation
to redress injustice and uncover crime by recourse to expeditious, fair
and
impartial procedure. Concomitantly, the law in application should
protect blameless against those informants who levels false allegations
and abuse the law causing distress, humiliation and damage to reputation.
Relevant legal provisions of Chapter XII of the Code of
Criminal Procedure, 1973.
10. The Code vide Chapter XII, ranging from Section 154 to Section
176, deals with information to the Police and their power to investigate.
Section 154 deals with the information relating to the commission of a
cognizable offence and fiats the procedure to be adopted when prima
facie commission of a cognizable offence is made out. Section 156
authorises a police officer in-charge of a Policestation to investigate any
cognizable offence without the order of a Magistrate. Sub-section (3) of
Section 156 provides for any Magistrate empowered under Section 190
to order an investigation as mentioned in Section 156(1). In cases where
a cognizable offence is suspected to have been committed, the officer
in-charge of the Policestation, after sending a report to the
Magistrateempowered to take cognizance of such offence, is entitled
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under Section 157 to investigate the facts and circumstances of the case
and also to take steps for discovery and arrest of the offender. Clauses
(a) and (b) of the proviso to sub-section (1) to Section 157 give discretion
to the officer in-charge not to investigate a case, when information of
such offence is given against any person by name and the case is not of
serious nature; or when it appears to the officer in-charge of the
Policestation that there is no sufficient ground for entering the
investigation. In each of the cases mentioned in clauses (a) and (b) to
the proviso to sub-section (1) to Section 157, the officerin-charge of the
Policestation has to file a report giving reasons for not complying with
the requirements of sub-section (1) and in a case covered by clause (b)
to the proviso, also notify the informant that he will not investigate the
case or cause it to be investigated. Section 159 gives power to a
Magistrate, on receiving such report of the officer in-charge, to either
direct an investigation or if he thinks fit, proceed to hold a preliminary
inquiry himself or through a Magistrate subordinate to him, or otherwise
dispose of the case in the manner provided by the Code.
11. Sections 160 to 164 deal with the power of the Police to require
attendance of witnesses, examination of witnesses, use of such
statements in evidence, inducement for recording statement and recording
of statements. Section 165 deals with the power of a Police
officer to
conduct search during investigation in the circumstances mentioned
therein.
12. The power under the Code to investigate generally consists of
following steps: (a) proceeding to the spot; (b) ascertainment of facts
and circumstances of the case; (c) discovery and arrest of the suspected
offender; (d) collection of evidence relating to commission of offence,
which may consist of examination of various persons, including the person
accused, and reduction of the statement into writing if the officer thinks
fit; (e) the search of places of seizure of things considered necessary
for investigation and to be produced for trial; and (f) formation of opinion
as to whether on the material collected there is a case to place the
accused before the Magistrate for trial and if so, taking the necessary
steps by filing a chargesheet under Section 173.
13. Section 173 provides that the investigation is to be completed
without unnecessary delay and makes it obligatory on the officer in-
charge of the Policestation to send a report to the Magistrate concerned
containing the necessary particulars in the manner provided therein.
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Mandatory nature of Section 154(1) of the Code.
14. The question, whether the Police is bound to register a First
Information Report (FIR) for a cognizable offence under Section 154 on
receiving the information as such or has some latitude for conducting
preliminary inquiry before registration of FIR, had led to the decision of
the Constitutional Bench in Lalita Kumari (supra). In this case, one of
the arguments raised was that when an innocent person is falsely
implicated, he suffers mental tension, loss of reputation and his personal
liberty is seriously impaired and, therefore, Section 154 of the Code should
be read and interpreted in conformity with the mandate of Article 21 of
the Constitution. Harmonizing the delicate balance to be maintained
between the rights of the victim and the accused, it was opined, there
are sufficient safeguards provided in the Code itself to protect liberty of
an individual against registration of a false case. However, as Section
154 has been drafted keeping in mind the interest of the victim, and their
right to have access to fair and independent investigation, the mandatory
registration of FIRs under Section 154 will not contravene Article 21 of
the Constitution. Drawing on several earlier judgments and the language
of Section 154 of the Code, it was held that the Police is bound to proceed
to conduct investigation, even without receiving information about
commission of a cognizable
offence if the officer in-charge otherwise
suspects the commission of such an offence. The legislative intent is to
ensure that no information of commission of a cognizable offence is
ignored and not acted upon, which would otherwise result in unjustified
protection of the alleged offender/accused. Every cognizable offence
must be promptly investigated in accordance with the law. This being
the legal position, there is no reason that there should be any discretion
or option left with the Police to register or not to register an FIR when
information is given about commission of a cognizable offence. This
interpretation in a way keeps a check on the power of the Police, which
is required to protect the liberty of individuals and society rights inherent
in a democracy. It is the first step which provides access for justice to a
victim and upholds the rule of law, facilitates swift investigation and
sometimes even prevents commission of crime and checks manipulation
in criminal cases.
15. To strike a balance, distinction is drawn between power of
arrest of an accused person under Section 41 and registration of an FIR
under Section 154 of the Code. While registration of an FIR is mandatory,
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the arrest of the accused on registration of the FIR is not. FIR is registered
on the basis of information without any qualification like credible,
reasonable or true information. Reasonableness or credibility of
information is not a condition precedent for registration of the FIR.
However, for making arrest in terms of Section 41(1)(b) or (g), the legal
requirements and mandate is reflected in the expression ‘reasonable
complaint’ or ‘credible information’.
16. Further there is a distinction between Section 154 and 157 as
the latter provision postulates a higher requirement than under Section
154 of the Code. Under Section 157(1) of the Code, a Police officer can
foreclose the investigation if it appears to him that there is no sufficient
ground to investigate. The requirement of Section 157(1) for the Police
officer to start investigation is that he has “reason to suspect the
commission of an offence”. Therefore, the Police officer is not liable
to launch investigation in every FIR which is mandatorily registered on
receiving information relating to commission of a cognizable offence.
When the Police officer forecloses investigation in terms of clauses (a)
and (b) of the proviso to Section 157(1), he must submit a report to the
Magistrate. Here, the Magistrate can direct the Police to investigate, or
if he thinks fit, hold an inquiry. Where a Police officer, in a given case,
proceeds to investigate the matter, then he files the final report under
Section 173 of the Code. The noticeable feature of the scheme is that
the Magistrate is kept in the picture at all stages of investigation, but he
is not authorised to interfere with the actual investigation or to direct the
Police how the investigation should be conducted.
17. Having said so, the Constitutional Bench in Lalita Kumari
(supra), nevertheless, felt it was necessary by judicial interpretation to
carve out another layer of protection vide preliminary inquiry by police.
In certain instances, a preliminary inquiry may be justified owing to the
genesis and novelty of crimes. The category of cases in which preliminary
inquiry may be made, purely as illustration were indicated as matters
relating to: (a) matrimonial/family disputes; (b) commercial offences;
(c) medical negligence cases; (d) corruption cases; or (e) cases where
there is abnormal delay/laches in initiating criminal prosecution, for
example, over three months delay in reporting the matter without
satisfactorily explaining the reasons for the delay. The categorisation
indicated being illustrative is not exhaustive of the cases that may warrant
preliminary inquiry. Preliminary inquiry, when held, should be conducted
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without causing delay and in a time bound manner. Reasons leading to
the inquiry, causes and delay are to be mandatorily and meticulously
recorded in the General Dairy entry. Lalita Kumari (supra)initially held
that the preliminary inquiry must be completed within 7 days, which
period was felt to be unrealistic in some cases and accordingly clause
(vii) of the judgment dated 12th November, 2012 was modified vide order
dated 05th March 2014 in the following terms:-
“……we modify clause (vii) of paragraph 111 of our judgment
dated 12th November, 2013, in the following manner:
“(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 fifteen days
generally and in exceptional cases, by giving adequate reasons,
six weeks’ time is provided. The fact of such delay and the
causes of it must be reflected in the General Diary entry.”
18. Referring to the distinction between the power of the Police
to investigate and the judicial powers given to the Magistrate under
Chapter XII of the Code, this Court in Abhinandan Jha v. Dinesh
Mishra, AIR 1968 SC 117 has observed that although the Magistrate
may have certain supervisory powers, nevertheless, from these
considerations alone he cannot impinge upon the jurisdiction of the Police
to investigate. The power of the Magistrate is conferred once a report in
terms of Section 157
or a report under Section 173(3) is submitted by
the Police before the Magistrate. Thus, the Magistrate, who has little or
no scope to interfere with the investigation, is not absolutely powerless
in view of the powers conferred in terms of Sections 159 and 173, and
infra, Section 202 of the Code.
Inherent power of the High Court under the Code to quash
the FIR.
19. At this stage, it is important to refer to judgments of this Court
on exercise of inherent power of the High Court in quashing the FIR.
This power is normally exercised when the allegations in the FIR or the
complaint, even if they are taken at their face value and accepted in
entirety, do not constitute the offence alleged. Thus, in these cases, no
question of appreciating evidence arises and it would be manifestly unjust
to allow the process of criminal court to be issued against the accused
persons.
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20. Once an offence is disclosed, an investigation into the offence
must necessarily follow in the interest of justice. Investigation is required
for the purpose of gathering necessary materials for establishing or proving
an offence which is disclosed. Absence of proper investigation where
an offence is disclosed, the offender may succeed in escaping from the
consequences which would be detrimental to the cause of justice and
society at large. Whether an offence is disclosed or not must necessarily
depend on the facts and circumstances of each case. It depends upon
consideration of the relevant material. In other words, when an offence
is disclosed, the court will not normally interfere into an investigation,
however, if the materials do not disclose an offence, no investigation can
be permitted.
21. Referring to the legal position, this Court in State of Haryana
and others v. Bhajan Lal and others, 1992 Supp (1) SCC 335, while
clarifying that it is not laying down any precise formula or an exhaustive
list, highlighted the cases in which the power to quash an FIR can be
exercised as:
“102. In the backdrop of the interpretation of the various relevant
provisions of the Code under Chapter XIV and of the principles
of law enunciated by this Court in a series of decisions relating to
the exercise of the extraordinary power under Article 226 or the
inherent powers under Section 482 of the Code which we have
extracted and reproduced above, we give the
following categories
of cases by way of illustration wherein such power could be
exercised either to prevent abuse of the process of any court or
otherwise to secure the ends of justice, though it may not be possible
to lay down any precise, clearly defined and sufficiently
channelised and inflexible guidelines or rigid formulae and to give
an exhaustive list of myriad kinds of cases wherein such power
should be exercised.
(1) Where the allegations made in the first information report
or the complaint, even if they are taken at their face value and
accepted in their entirety do not prima facie constitute any
offence or make out a case against the accused.
(2) Where the allegations in the first information report and
other materials, if any, accompanying the FIR do not disclose
a cognizable offence, justifying an investigation by Police
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officers under Section 156(1) of the Code except under an
order of a Magistrate within the purview of Section 155(2) of
the Code.
(3) Where the uncontroverted allegations made in the FIR or
complaint and the evidence collected in support of the same
do not disclose the commission of any offence and make out a
case against the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable offence,
no investigation is permitted by a Police officer without an
order of a Magistrate as contemplated under Section 155(2)
of the Code.
(5) Where the allegations made in the FIR or complaint are so
absurd and inherently improbable on the basis of which no
prudent person can ever reach a just conclusion that there is
sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the
provisions of the Code or the concerned Act (under which a
criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a specific
provision in the Code or the concerned Act, providing efficacious
redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with
mala fide and/or where the proceeding is maliciously instituted
with an ulterior motive for wreaking vengeance on the accused
and with a view to spite him due to private and personal grudge.”
22. One would grant that the jurisdiction of the Court when asked
to invoke power under Section 156(3) is wider as held in Priyanka
Srivastava (supra), yet there are limits within which the Magistrate
must act. When the Magistrate is satisfied that the allegations made
disclose commission of a cognizable offence, he must stay his hands,
direct registration of an FIR and leave it to the investigative agency to
unearth the facts and ascertain the truth of the allegations. Magistrate in
terms of the ratio in Lalita Kumari (supra) can for good reasons direct
preliminary enquiry. We would now refer to the power of the Magistrate
to take cognizance, postpone issue of process and follow the procedure
under Section 202 of the Code.
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Difference in the power of Police to register and investigate
an FIR under Section 154(1) read with 157 of the Code, and the
Magistrate’s direction to register an FIR under Section 156(3) of
the Code.Power of the Magistrate to direct registration of an FIR
under Section 156(3) in contrast with post-cognizance stage power
under Section 202 of the Code.
23. The operandi for registration of information in a cognizable
offence and eventual investigation is not limited to Police, and as observed
above, sub-section (3) to Section 156, subject to legal stipulations, gives
the ameliorating power to a Magistrate empowered under Section 190
to order an investigation in a cognizable offence. Two different powers
vested with two distinct authorities, namely the Police and the Magistrate,
who discharge distinct functions and roles under the Code as indicated
above are not entirely imbricating.
24. The power of Magistrate to direct investigation falls under
two limbs of the Code: one is pre-cognizance stage under Section 156(3),
and another on cognizance under Chapter XIV (‘Conditions Requisite
for Initiation of Proceedings’; Sections 190-199) read with Chapter XV
(‘Complaints to Magistrates’; Sections 200-210). These two powers are
different and there also lies a procedural distinction between the two.
25. A three Judge Bench decision of this Court in Ramdev Food
Products Private Limited (supra) had examined the distinction between
powers of the Magistrate to direct
registration of an FIR under Section
156(3) and power of the Magistrate to proceed under Section 202 of the
Code. It was observed that the power under the former Section is to be
exercised, on receiving a complaint or a Police report or information
from any person other than the Police officer or upon his own knowledge,
before he takes cognizance under Section 190. Once the Magistrate
takes cognizance, the Magistrate has discretion to take recourse to his
powers under Section 202, which provides for postponement of the issue
of process and inquire into the case himself or direct 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 are sufficient grounds for
proceedings. The proviso to Section 202 states that no direction for
investigation shall be made where a complaint has not been made by a
Court, unless the complainant and the witnesses present (if any) are
examined on oath under Section 200. When it appears to the Magistrate
that the offence complained of is triable exclusively by the Court of
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Sessions, he shall call upon the complainant to produce all his witnesses
and examine them on oath. However, in such cases, the Magistrate
cannot issue direction for investigation of an offence. Thus, the Magistrate
has the power, when a written complaint is made, to issue direction
under Section 156(3), but this power is to be exercised before the
Magistrate takes cognizance of the offence under Section 190. However,
in both cases, whether under Section 156(3) or under Section 202 of the
Code, the person accused as the perpetrator, when the proceedings are
pending before the Magistrate, remains unrepresented. Under Section
203, the Magistrate, after considering the statement of the complainant
and witnesses (if any) on oath and the result of an inquiry (if any) under
Section 202, can dismiss the complaint if he is of the opinion that there is
no sufficient ground for proceeding and in every such case briefly record
his reasons. If the Magistrate after taking cognizance of the offence, is
of the opinion that there are sufficient grounds for proceeding he will
issue the process to the accused for appearance as per the procedure
and mode specified under Section 204 of the Code. Process to the accused
under Section 204 falls under Chapter XVI of the Code and is issued
post the cognizance and inquiry/investigation/evidence recorded in a
private complaint in terms of Section 202 of the Code.
26. In Ramdev Food Products
Private Limited (supra),
examining whether discretion of the Magistrate to call for a report under
Section 202 instead of directing investigation under Section 156(3) is
controlled by any defined parameters,it was held thus:
“22. Thus, we answer the first question by holding that:
22.1. The direction under Section 156(3) is to be issued, only after
application of mind by the Magistrate. When the Magistrate does
not take cognizance and does not find it necessary to postpone
the issuance of process and finds a case made out to proceed
forthwith, direction under the said provision is issued. In other
words, where on account of credibility of information available,
or weighing the interest of justice it is considered appropriate to
straightaway direct investigation, such a direction is issued.
22.2. The cases where Magistrate takes cognizance and postpones
issuance of process are cases where the Magistrate has yet to
determine “existence of sufficient ground to proceed”. Category
of cases falling under para 120.6 in Lalita Kumari [Lalita
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Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri)
524] may fall under Section 202.
22.3. Subject to these broad guidelines available from the scheme
of the Code, exercise of discretion by the Magistrate is guided by
interest of justice from case to case.”
Explaining the nature of cases to be dealt with under Section 202
of the Code, the judgment observes, are those cases where the material
available is not clear to proceed further. The Magistrate, though in seisin
of the matter having taken cognizance, has to decide whether there is
any ground to proceed further. Further, Section 202 not only refers to an
inquiry but also to an investigation. Thus, in such cases, the Police cannot
on its own exercise the power of arrest in course of making its report in
pursuance of the direction under Section 202 of the Code.
27. In this Court in Priyanka Srivastava(supra)referred to the
nature of power exercised by the Magistrate under Section 156(3) of
the Code and after referring to several earlier judgments held that the
direction for registration of an FIR should not be issued in a routine
manner. The Magistrate is required to apply his mind and exercise his
discretion in a judicious manner. If the Magistrate finds that the allegations
made before him disclose commission of a cognizable offence, he can
forward the complaint to the Police for investigation under Section 156
and thereby save valuable time of the Magistrate from being wasted in
inquiry as it
is primarily the duty of the Police to investigate. However,
the Magistrate also has the power to take cognizance and take recourse
to procedure under Section 202 of the Code and postpone the issue of
process where the Magistrate is yet to determine existence of sufficient
ground to proceed. In a third category of cases, the Court may not take
cognizance or direct registration of an FIR, but direct preliminary inquiry
in terms of the dictum in Lalita Kumari’s case (supra).
28. In Priyanka Srivastava(supra), this Court highlighted abuse
of the criminal process by the unprincipled and deviant litigants who do
knock at the door of the criminal court for malevolent reasons. In the
said case criminal action wasinitiated by those against whom the financial
institutions had proceeded under the Securitisation and Reconstruction
of Financial Assets and Enforcement of Security Interest Act, 2002.
This was notwithstanding the protection given to the officers under Section
32 of the aforesaid Act against action taken in good faith. Reiterating
Lalita Kumari(supra), it was observed that an action under Section
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156(3) should not be entertained without the complainant taking recourse
to sub-section (1) and (3) of Section 154 and compliances of these two
Sections should be clearly spelt out in the application and necessary
documents filed. To check malevolence and false assertions, the Court
directed that every petition/application under Section 156(3) should be
supported by an affidavit so that the person making an application should
be conscious of it and to see that no false allegation is made. If the
affidavit is found to be false, the complainant will be liable for prosecution
in accordance with the law. Vigilance is specially required in cases
pertaining to fiscal sphere, matrimonial/family disputes, commercial
offences, medical negligence cases, corruption cases, or cases where
there is abnormal delay/laches. Thus, the Magistrate must be attentive
and proceed with perspicacity to examine the allegation made and the
nature of those allegations. He should not issue directions without proper
application of mind which would be contrary to the object and purpose
of the statute.
29. As to the scope of power of the Magistrate to direct an FIR
under Section 156(3), this court in Mohd. Yusuf v. Afaq Jahan (Smt)
and another, (2006) 1 SCC 627 opined that:
“11. 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 investigation 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 register the FIR regarding the cognizable
offence disclosed by the complainant because that Police officer
could take further steps contemplated in Chapter XII of the Code
only thereafter.”
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30. In Anju Chaudhary (supra), this court analysing the power
of the Magistrate under Section 156(3) observed:
“41. Thus, the Magistrate exercises a very limited power under
Section 156(3) and so is its discretion. It does not travel into the
arena of merit of the case if such case was fit to proceed further.
This distinction has to be kept in mind by the court in different
kinds of cases….”
31. In HDFC Securities Ltd. v. State of Maharashtra,(2017) 1
SCC 640, this court while interpreting the words “may take cognizance”
and Section 156(3), held:
“24. Per contra, the learned counsel for Respondent 2 submitted
that the complaint has disclosed the commission of an offence
which is cognizable in nature and in the light of Lalita Kumari
case [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1
SCC (Cri) 524] , registration of FIR becomes mandatory. We
observe that it is clear from the use of the words “may take
cognizance” in the context in which they occur, that the same
cannot be equated with “must take cognizance”. The word “may”
give discretion to the Magistrate in the matter. If on a reading of
the complaint he finds that the allegations therein disclose a
cognizable offence and that 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. It is
settled that when a Magistrate receives a complaint, he is not
bound to take cognizance if the facts alleged in the complaint, do
not disclose the commission of an offence.”
32. However, the position is different at the post-cognizance stage.
Under Section 202, the Magistrate can analyse the veracity of the
complaint made and appreciate whether there are grounds to proceed
further. In Chandra Deo Singh v. Prokash Chandra Bose alias Chabi
Bose and Another, AIR 1963 SC 1430, this Court referred to the
objective of Section 202, to observe:
“8. ……to enable the Magistrate to form an opinion as to
whether process should be issued or not and to remove from
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his mind any hesitation that he may have felt upon the mere
perusal of the complaint and the consideration of the
complainant’s evidence on oath. The courts have also pointed
out in these cases that what the Magistrate has to see is
whether there is evidence in support of the allegations of the
complainant and not whether the evidence is sufficient to
warrant a conviction. The learned Judges in some of these
cases have been at pains to observe that an enquiry under
Section 202 is not to be likened to a trial which can only take
place after process is issued, and that there can be only one
trial. No doubt, as stated in sub-section (1) of Section 202
itself, the object of the enquiry is to ascertain the truth or
falsehood of the complaint, but the Magistrate making the
enquiry has to do this only with reference to the intrinsic
quality of the statements made before him at the enquiry which
would naturally mean the complaint itself, the statement on
oath made by the complainant and the statements made before
him by persons examined at the instance of the complainant.”
33. Counsel for the accused, on the other hand, have highlighted
the complainant’s conduct, which it is submitted, is contradictory to her
explanation for the delay. She was/is not a timid person and an experienced
social and political worker of standing. She has been continuously filing
FIRs. In an FIR filed on 31st August 2018, she had made allegations of
rape against a third person who is a political worker in the same
organisation. In a complaint filed on 12th December 2019, she had alleged
that the accused had met her on four occasions in the last year and each
time they had locked “me for 4 to 5 hours and pressurized me for
withdrawing the case”. The police after investigation on this complaint
dated 12th December 2019 had filed an FIR No. 131 of 2019 dated 20th
December 2019 and filed closure report dated 16th June 2020. As a
matter of fact, the case has been closed. The complainant subsequently
filed another complaint dated 6th February 2020, wherein there is no
mention of that particular case of the alleged rape incident. Even in the
complaint filed on 12thMarch 2020 by the complainant, there was again
no mention of the alleged rape. The complainant’s assertion in the counter
affidavit that she had filed a police complaint in respect of the rape
incident on 29th November 2018 by lodging a complaint the very next
day at 11:00 a.m. at Behala (Women) Police Station has been denied by
the State of West Bengal, who have informed this Court that there is no
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such record of the complaint being filed. The accused filed an application
on 4th October 2021 under the Right to Information Act, 2005 and have
received on 22nd October 2021 copies of preliminary inquiries done by
Police Station Bhawanipore dated 30th October 2020 and 5th November
2020. The preliminary inquiries conclude that in the communications made
to the police between 2018 to 2020, there is no allegation that rape took
place on 29th November 2018. As per the report the complainant had
failed to give any logical and satisfactory account for the delay in lodging
the complaint. The accused assert that the complaint is an abuse of the
process of law and has been filed to put pressure on the accused in view
of the rape case filed by her against the third person.
34. At the same time, it is noticeable that the complainant/informant
has made several allegations of rape, sexual harassment, etc. against
persons with whom she had been acquainted and working. The
complainant/ informant has pleaded threat and harassment at the hands
of the persons named as perpetrators, who are people of influence and
power as the ground and reason for delay. She pleads that period of
limitation prescribed in section 468 of the Code does not apply to an
offence punishable with imprisonment exceeding three years. On the
question of delay, reliance is placed on the constitutional bench decision
of this Court in the L.R. Melwani (supra). It is submitted that this Court
on several
occasions has sustained conviction relying solely upon the
testimony of the prosecution/victim, when there is no doubt about her
credibility and trustworthiness. While examining the question of delay in
making the complaint, the courts must remain alive to the fact that it is
difficult for a woman to come forward and make a statement alleging
rape or sexual assault.
35. Every criminal case, it is stated, is a voyage of discovery in
which truth is the quest. Right from the inception of the judicial system,
it has been accepted that discovery, vindication and establishment of
truth are the primary purposes underlying the existence of the courts of
justice. However, the supremacy of truth is easier to assert than to define.
Often this task becomes difficult when contradictory factual positions
are asserted duly supported and affirmed on oath. In adversarial systems,
the process of ascertaining truth requires compliance of procedures and
rules of evidence, and limit the role of the adjudicator, in acting as an
investigator to verify veracity of the allegations and counter-allegations
till evidence and material is laid and examined as per codified procedural
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law. Yet it is believed that clash of adversaries is best calculated to
getting out the facts. In a well-designed system, judicial findings of formal
legal truth should coincide with the substantive truth. This can happen
when the facts as asserted by the contestants are skilfully explored in
accordance with the procedure prescribed by law. Abuse of law must
be checked, if possible, at the very threshold, albeit when it is possible
and also as per the procedure prescribed by law. V.R. Krishna Iyer, J.
aptly summarize the procedure on the quest for truth and justice in Jasraj
Inder Singh v. Hemraj Multanchand, (1977) 2 SCC 155:
“8. To pick out a single true item which had been inextricably got
enmeshed in the skein of entries and cross-entries was to tear up
the fabric of the whole truth. In a finer sense, harmony is the
beautiful totality of a whole sequence of notes and the concord of
sweet sounds is ill-tuned into disjointed discord if a note or two is
unmusically cut and played. Truth, like song, is whole and half-
truth can be noise; Justice is truth, is beauty and the strategy of
healing injustice is discovery of the whole truth and harmonising
human relations. Law’s finest hour is not in meditating on
abstractions but in being the delivery agent of full fairness. This
divagation is justified by the need to remind ourselves that the
grammar of justice according to law is not little litigative solution
of isolated
problems but resolving the conflict in its wider bearings.”
36. The State of West Bengal has drawn our attention to the
judgment of this Court in Gopal Das Sindhi and Others v. State of
Assam and Another, AIR 1961 SC 986 to the effect that even when a
private complaint is filed, the Magistrate is not bound to take cognizance
under Section 190 as the word used therein is ‘may’, which should not
be construed as ‘must’ for obvious reasons. The Magistrate may well
exercise discretion in sending such complaint under Section 156(3) to
the police for investigation. However, when a Magistrate chooses not to
proceed under Section 156(3), he cannot simply dismiss the complaint if
he finds that resorting to Section 156(3) is not advisable. Reference in
this regard can also be made to Suresh Chand Jain v. State of M.P.
and another, (2001) 2 SCC 628 which distinguishes between the power
of the police to investigate under Section 156, the direction of the
Magistrate for investigation under Section 156(3) and post-summoning
inquiry and investigation after cognizance under Section 190 and Section
202 of the Code. When a Magistrate orders investigation under Section
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156(3), he does so before cognizance of the offence. If he takes
cognizance, he needs to follow the procedure envisaged in Chapter XV
(see Afaq Jahan (supra).
The decision in Mona Panwar v. High Court of Judicature of
Allahabad through its Registrar and Others, (2011) 3 SCC 496 is
rather succinct. This Court held that when a complaint is presented
before a Magistrate, he has two options. One is to pass an order
contemplated by Section 156(3). The second one is to direct examination
of the complainant on oath and the witness present, and proceed further
in the manner provided by Section 202. An order under Section 156(3) is
in the nature of a peremptory reminder or intimation to the police to
exercise its plenary power of investigation under Section 156(1).
However, once the Magistrate has taken cognizance under Section 190
of the Code, he cannot ask for an investigation by the Police. After
cognizance has been taken, if the Magistrate wants any investigation, it
will be under Section 202, whose purpose is to ascertain whether there
is prima facie case against the person accused of the offence and to
prevent issue of process in a false or vexatious complaint intended to
harass the person named. Such examination is provided, therefore, to
find out whether there is or not sufficient ground for proceeding further.
37. We do not intend to go into the question of the merits of the
allegations, and what procedure the Magistrate should follow as this is
an aspect
which the Magistrate must first consider and decide judiciously
and as per the law. What is impermissible and contrary to law is an
adjudication on merits of the allegations and determination of the facts
as baseless, without further scrutiny and examination. Therefore, the
High Court was correct in remitting the matter to the judicial magistrate
for further examination.
38. We were informed that the Magistrate, on remand, has passed
an order under Section 156(3) directing registration of the FIR. He has
misread the order and directions given by the High Court. In terms of
the judgments of this Court, the Magistrate is required to examine, apply
his judicious mind and then exercise discretion whether or not to issue
directions under Section 156(3) or whether he should take cognizance
and follow the procedure under Section 202. He can also direct a
preliminary inquiry by the Police in terms of the law laid down by this
Court in Lalita Kumari (supra).
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39. We would refrain and not comment on the allegations made
as this may affect the case put up by either side. The accused do not
have any right to appear before the Magistrate before summons are
issued. However, the law gives them a right to appear before the
revisionary court in proceedings, when the complainant challenges the
order rejecting an application under Section 156(3) of the Code. The
appellants, therefore, had appeared before the High Court and contested
the proceedings. They have filed several papers and documents before
the High Court and this Court. To be fair to them, the copies of the
papers and documents filed before the High Court and this Court would
also be forwarded and kept on record of the Magistrate who would,
thereupon, examine and consider the matter. However, the complainant/
informant would be entitled to question the genuineness and the contents
of the said documents.
40. In view of the above and for the reasons stated above, while
affirming the impugned judgment and order passed by the High Court
remanding the matter back to the learned Magistrate, we set aside the
subsequent order passed by the Magistrate on remand, pursuant to the
impugned judgment and order passed by the High Court and remit the
matter back to the learned Magistrate to examine and apply his judicial
mind and then exercise discretion whether or not to issue directions
under section 156(3) or whether he can take
cognizance and follow the
procedure under section 202. He can also direct the preliminary enquiry
by the police in terms of the law laid down by this Court in the case of
Lalita Kumari (supra). Copies of the papers and documents filed before
the High Court and this Court could also be forwarded and brought on
record of the Magistrate, who would thereupon examine and consider
the matter. As observed hereinabove, the complainant/informant would
be entitled to question the genuineness of the contents of the said
documents.
41. The present appeals stand disposed of in terms of the above.
Nidhi Jain
Appeals disposed of.
(Assisted by : Tamana, LCRA)