Mona Panwar vs High Court Of Judicat.At Allahabd.& Ors

learned Single Judge of the High Court of 2

Judicature at Allahabad in Criminal Misc.

Application No. 21606 of 2009 while setting aside

order dated August 1, 2009, passed by the

appellant in case No. nil of 2009 titled as Shabnam

vs. Irshad registering the application filed by the

respondent No. 3 under Section 156(3) of the Code

of Criminal Procedure ("Code" for short) as

complaint and directing the Registry to present the

file before the appellant on August 9, 2009 for

recording the statement of the complainant, i.e., of

Shabnam under Section 200 of the Code.

3. The facts giving rise to the present appeal are as

under:

The respondent No. 3 is wife of one Mustqeem and

resides at Village Sayyed Mazra, District Saharanpur

with her husband and in-laws. It may be stated that the

accused is her father-in-law. According to the

respondent No. 3 her father-in-law had bad eye on her

since her marriage. The case of the respondent No. 3 3

was that in the intervening night of June 18/19, 2009 at

about 3 O'clock she was all alone in her room as her

husband had gone out and she was sleeping but the

doors of the room were kept open due to heat. The

allegation made by the respondent No. 3 is that Irshad,

i.e., her father-in-law came inside her room, caught hold

of her with bad intention, scratched her breasts, forcibly

pushed cloth in her mouth and forcibly committed rape

on her. The case of the respondent No. 3 was that

though she offered resistance, Irshad did not pay any

heed and committed rape on her. The allegation made by

her was that because of the incident she became

unconscious and in the morning she narrated the whole

incident to her mother-in-law Bindi, but she advised her

not to disclose the incident to anyone as it was a matter

of reputation of the family. According to respondent No.

3 she telephoned her mother, who arrived at her in-laws'

place along with Muneer, her brother-in-law, on a motor

cycle but Irshad in the meanwhile had fled away from the

village. The case projected by the respondent No. 3 was 4

that as her condition was deteriorating, she was got

medically examined in District hospital by her mother

and thereafter she had gone to the Police Station, Nakur,

but the police had refused to register her FIR. It was

claimed by the respondent No. 3 that under the

circumstances she had moved an application before the

Senior Superintendent of Police, Saharanpur but he had

also not taken any action and, therefore, she had filed an

application under Section 156(3) of the Code before the

learned Judicial Magistrate II, Court No. 14, Saharanpur

mentioning therein as to how the incident of rape with

her had taken place and praying the learned Magistrate

to direct the Officer-in-charge of Police Station, Nakur, to

register her complaint and investigate the case against

the accused under Section 156 (3) of the Code.

4. On receipt of the application the appellant called for

report from the concerned police station. As per the

report received no case was registered regarding the

incident narrated by the respondent No. 3. The 5

respondent No. 3 had filed her own affidavit in

support of the case pleaded in the application filed

before the appellant and produced a carbon copy of

the application sent by her to the Senior

Superintendent of Police, Saharanpur with its

postal registration as well as photocopy of medical

certificate. The learned Magistrate perused the

averments made by the respondent No. 3 in her

application as well as documents annexed to the

said application. The appellant was of the view that

the respondent No. 3 was acquainted with the facts

and circumstances of the case and was also familiar

with the accused and knew the witnesses too. The

appellant was of the view that the respondent No. 3

would be able to produce all the evidence herself.

The appellant referred to the principles of law laid

down by the Allahabad High Court in Gulab Chand

vs. State of U.P. 2002 Cr.L.J. 2907, Ram Babu

Gupta vs. State of U.P. 2001 (43) ACC 50,

Chandrika Singh vs. State of U.P. 2007 (50) ACC 6

777 and Sukhwasi S/o Hulasi vs. State of U.P.

2007 (59) ACC 739 and after taking into

consideration the principles laid down in the above

referred to decisions the appellant was of the view

that this was not a fit case to be referred to the

police for investigation under Section 156(3) of the

Code and, therefore, directed that the application

submitted by the respondent under Section 156(3)

of the Code be registered as complaint and further

ordered the Registry to present the file before her on

August 28, 2009 for recording the statement of the

respondent No. 3 i.e. the original complainant under

Section 200 of the Code.

5. Feeling aggrieved, the respondent No. 3 invoked

jurisdiction of the High Court under Section 482 of

the Code by filing Criminal Misc. Application No.

21606 of 2009 and prayed the High Court to quash

the order dated August 1, 2009, passed by the

appellant and to direct the police to register her 7

F.I.R. filed against Irshad and to investigate the

same as provided under Section 156(3) of the Code.

6. The learned Single Judge of the High Court, who

heard the matter, was of the view that the appellant

had done the gravest injustice to the respondent No.

3. According to the learned Single Judge though

the appellant is a lady Magistrate yet she could not

think about the outcome of ravishing the chastity of

daughter-in-law by her father-in-law and the nature

of crime committed by the accused. After going

through the order dated August 1, 2009, passed by

the appellant, the learned Single Judge expressed

the view that the order indicated total non-

application of mind by the appellant. The learned

Single Judge noticed that the incident had occurred

inside the room in early hours of June 19, 2009 and

there was no mention of any witness in application

filed by the respondent but in the order passed by

the appellant it was noted that the victim was in the 8

knowledge of all the facts and that the witnesses

were also known to her, which indicated non-

application of mind by the appellant. The learned

Single Judge while setting aside the order dated

August 1, 2009, passed by the appellant, observed

that the order was a blemish on justice meted out to

a married lady who was ravished by her own father-

in-law. The learned Single Judge expressed the

view that the appellant had passed the order

ignoring all judicial disciplines and had not at all

applied her judicial mind and had only referred to

some of the judgments of the Allahabad High Court,

which were contrary to the opinion expressed by the

Apex Court rendered in many decisions. After

observing that a judicial order should be passed by

applying judicial mind, the learned Single Judge

severely criticized the conduct of the appellant and

recorded his serious displeasure against the

appellant for passing such type of illegal orders.

The learned Single Judge further warned the 9

appellant for future and cautioned the appellant to

be careful in passing the judicial orders. The

learned Single Judge observed that the appellant

should have thought that the rape not only causes

physical injury to the victim but also leaves scars on

the mind of the victim for the whole life and implant

the victim with such ignominy which is worse than

her death. The learned Single Judge expressed the

view that he was inclined to refer the matter to the

Administrative Committee for taking action against

the appellant but refrained from doing so because

the appellant is a young officer and has a long

career to go. The learned Single Judge by his

judgment dated September 9, 2009 set aside the

order dated August 1, 2009, passed by the

appellant, and directed the appellant to decide the

application of the respondent No. 3 within the ambit

of her power under Section 156(3) of the Code and

also directed her to pass order for registration of FIR

against the erring police officers, who had refused to 10

register the FIR of the respondent No. 3. The

learned Single Judge directed the Registry of the

High Court to send a copy of his judgment to the

appellant for her future guidance and also to the

Senior Superintendent of Police, Saharanpur. As

noted above, the disparaging remarks made by the

learned Single Judge while setting aside the order

passed by the appellant has given rise to the

present appeal.

7. This Court has heard the learned counsel for the

appellant as well as the learned counsel for the

State Government and the learned counsel

representing the High Court of Judicature at

Allahabad. The record shows that the Respondent

No.3 i.e. the original complainant is duly served in

the matter but she has neither appeared through a

lawyer or in person nor has filed any reply in the

matter. This Court has also considered the

documents forming part of the present appeal. 11

8. On receipt of notice issued by this Court, Mr. Anand

Kumar, Deputy Superintendant of Police,

Saharanpur, U.P. has filed reply affidavit

mentioning inter alia that as per the office record

maintained at the Police Station, Nakur or in the

officer of the Senior Superintendant of Police,

Saharanpur does not disclose receipt of any

complaint from the Respondent No. 3. It is

mentioned in the reply that when the impugned

judgment dated September 10, 2009 passed by the

learned Single Judge of High Court was brought to

the notice of the authorities concerned a first

information report was lodged at the Police Station,

Nakur being FIR 36/2009 against accused Irshad

and offence punishable under Section 376 IPC was

registered. The reply proceeds to state that the

Investigating Officer had recorded the statement of

the Respondent No. 3 as well as that of her mother

and the statement of her brother-in-law. But the

mother and the brother-in-law had mentioned that 12

they were not eye-witnesses to the incident. The

reply mentions that inquiries made by Investigating

Officer with the neighbourers of the accused

indicated that Respondent No. 3 was a divorcee and

was residing at her parents house from the date of

divorce. As per the reply of Deputy Superintendant

of Police almost all neighbourers had unanimously

informed the Investigating Officer that the

Respondent No. 3 was not seen at her husband's

house on 17th, 18th and 19th June, 2009 and thus

the incident referred to by Respondent No. 3 in her

complaint was found to be a concocted story. The

reply further mentions that the Investigating Officer

had recorded the statement of doctor who had

medically examined the Respondent No. 3 and the

doctor had categorically stated that medical

examination of the Respondent No. 3 did not

confirm allegation of rape made by her. What is

relevant to notice is that in the reply it is stated that

on completion of investigation the Investigating 13

Officer had closed the investigation and submitted

the final report as contemplated by Section 169 of

the Code on December 18, 2009.

9. Section 156(1) of the Code authorizes the police to

investigate into a cognizable offence without

requiring any sanction from a judicial authority.

However, sub-section (3) of Section 156 of the Code

provides that any Magistrate empowered under

Section 190 of the Code may order such an

investigation as mentioned in sub-section (1) of the

said Section. Section 190 of the Code deals with

cognizance of offences by Magistrates and inter alia

provides that any Magistrate of the first class may

take cognizance of an offence (a) upon receiving a

complaint of facts which constitute such offence, (b)

upon a police report of such facts and (c) upon

information received from any person other than a

police officer or upon his own knowledge that such

offence has been committed. Neither Section 154 14

nor Section 156 of the Code contemplates any

application to be made to the police under Section

156(3) of the Code. What is provided in Section

156(1) of the Code is that any officer in charge of a

police station may, without the order of a

Magistrate, investigate any cognizable case which a

Court having jurisdiction over the local area within

the limits of such station would have power to

inquiry into or try under the provisions of Chapter

XIII. However, this Court finds that in the present

case it was alleged by the respondent No. 3 that she

had filed complaint before police but according to

her, the police officer in charge of the police station

had refused to register her complaint and, therefore,

she had made application to the Senior

Superintendent of Police as required by Section

154(3) of the Code, but of no avail. Therefore, the

respondent No. 3 had approached the appellant,

who was then discharging duties as Judicial

Magistrate II, Court No. 14, Saharanpur. When the 15

complaint was presented before the appellant, the

appellant had mainly two options available to her.

One was to pass an order as contemplated by

Section 156(3) of the Code and second one was to

direct examination of the complainant upon oath

and the witnesses present, if any, as mentioned in

Section 200 and proceed further with the matter as

provided by Section 202 of the Code. An order

made under sub-section (3) of Section 156 of the

Code is in the nature of a peremptory reminder or

intimation to the police to exercise its plenary power

of investigation under Section 156(1). Such an

investigation embraces the entire continuous

process which begins with the collection of evidence

under Section 156 and ends with the final report

either under Section 169 or submission of charge

sheet under Section 173 of the Code. A Magistrate

can under Section 190 of the Code before taking

cognizance ask for investigation by the police under

Section 156(3) of the Code. The Magistrate can also 16

issue warrant for production, before taking

cognizance. If after cognizance has been taken and

the Magistrate wants any investigation, it will be

under Section 202 of the Code. The phrase "taking

cognizance of" means cognizance of offence and not

of the offender. Taking cognizance does not involve

any formal action or indeed action of any kind but

occurs as soon as a Magistrate applies his mind to

the suspected commission of an offence.

Cognizance, therefore, takes place at a point when a

Magistrate first takes judicial notice of an offence.

This is the position whether the Magistrate takes

cognizance of an offence on a complaint or on a

police report or upon information of a person other

than a police officer. Before the Magistrate can be

said to have taken cognizance of an offence under

Section 190(1)(b) of the Code, he must have not only

applied his mind to the contents of the complaint

presented before him, but must have done so for the

purpose of proceeding under Section 200 and the 17

provisions following that Section. However, when

the Magistrate had applied his mind only for

ordering an investigation under Section 156(3) of

the Code or issued a warrant for the purposes of

investigation, he cannot be said to have taken

cognizance of an offence. Taking cognizance is a

different thing from initiation of the proceedings.

One of the objects of examination of complainant

and his witnesses as mentioned in Section 200 of

the Code is to ascertain whether there is prima facie

case against the person accused of the offence in

the complaint and to prevent the issue of process on

a complaint which is either false or vexatious or

intended only to harass such person. Such

examination is provided, therefore, to find out

whether there is or not sufficient ground for

proceeding further.

10. From the order dated August 1, 2009, passed by the

appellant, it is evident that the appellant had called 18

for report from the concerned police station and

considered the said report wherein it was inter alia

mentioned that no case was registered on the basis

of the application made by the respondent No. 3.

The respondent No. 3 at the time of filing complaint

before the appellant had filed her own affidavit,

carbon copy of the application sent by her to the

Senior Superintendent of Police, Saharanpur with

its postal registration and photocopy of the medical

certificate. Under the circumstances the appellant

had exercised judicial discretion available to a

Magistrate and directed that the application, which

was submitted by the respondent No. 3 under

Section 156(3) of the Code, be registered as

complaint and directed the Registry to present the

said complaint before her on August 28, 2009 for

recording the statement of the respondent No.3

under Section 200 of the Code. The judicial

discretion exercised by the appellant was in

consonance with the scheme postulated by the 19

Code. There is no material on the record to indicate

that the judicial discretion exercised by the

appellant was either arbitrary or perverse. There

was no occasion for the learned Single Judge of

High Court to substitute the judicial discretion

exercised by the appellant merely because another

view is possible. The appellant was the responsible

judicial officer on the spot and after assessing the

material placed before him he had exercised the

judicial discretion. In such circumstances this

Court is of the opinion that the High Court had no

occasion to interfere with the discretion exercised

judiciously in terms of the provisions of Code.

Normally, an order under Section 200 of the Code

for examination of the complainant and his

witnesses would not be passed because it consumes

the valuable time of the Magistrate being vested in

inquiring into the matter which primarily is the duty

of the police to investigate. However, the practice

which has developed over the years is that 20

examination of the complainant and his witnesses

under Section 200 of the Code would be directed by

the Magistrate only when a case is found to be

serious one and not as a matter of routine course.

If on a reading of a complaint the Magistrate finds

that the allegations therein disclose a cognizable

offence and forwarding of the complaint to the police

for investigation under Section 156(3) of the Code

will not be conducive to justice, he will be justified

in adopting the course suggested in Section 200 of

the Code. Here, in this case the respondent No. 3

had averred in the application submitted before the

appellant that the Officer-in-charge of the Nakur

Police Station had refused to register her complaint

against her father-in-law regarding alleged rape

committed on her and that no action was taken by

the Senior Superintendent of Police though

necessary facts were brought to his notice. Under

the circumstances, the judicial discretion exercised

by the appellant, to proceed under Section 200 of 21

the Code in the light of principles of law laid down

by the Allahabad High Court in various reported

decisions could not have been faulted with nor the

appellant could have been subjected to severe

criticism as was done by the learned Single Judge.

There was no occasion for the learned Single Judge

to observe that the appellant, a Judicial Magistrate,

had done the gravest injustice to the victim or that

though the appellant is a lady Magistrate, yet she

did not think about the outcome of ravishing the

chastity of daughter-in-law by her father-in-law or

the seriousness of the crime committed by the

accused and the reason assigned by the learned

Magistrate in not directing the police to register the

FIR indicated total non-application of mind by the

appellant and that the order dated August 1, 2009,

passed by the appellant, was a blemish on the

justice system. The learned Single Judge was not

justified in concluding that the appellant as Judicial

Magistrate had passed the order dated August 1, 22

2009 ignoring all judicial disciplines or that the

appellant had not at all applied her judicial mind

and had only referred to some of the judgments of

the Allahabad High Court, which were contrary to

the opinion of the Apex Court rendered in many

decisions. There was no reason for the learned

Single Judge of the High Court to record his serious

displeasure against the order of the appellant which

was challenged before him as an illegal order nor

the learned Single Judge was justified in severely

criticizing the conduct of the appellant as Judicial

Magistrate because the application submitted by the

respondent N. 3 was ordered to be registered as a

complaint and was not dismissed.

11. This Court has laid down in several reported

decisions that higher courts should observe

restraint and disparaging remarks normally should

not be made against the learned members of the

lower judiciary. In Ishwari Prasad Mishra vs. 23

Mohd. Isa (1963) 3 SCR 722, a Three Judge Bench

of this Court has emphasized the need to adopt

utmost judicial restraint against using strong

language and imputation of motive against the

lower judiciary by noticing that in such matters the

concerned Judge has no remedy in law to vindicate

his position. The law laid down by this Court in

the matter of expunction of remarks where a

subordinate Judge has been subjected to

disparaging and undeserved remarks by the

superior Court, is well settled by this Court in the

matter of `K' a Judicial Officer Vs. Registrar

General, High Court of Andhra Pradesh 2001 (3)

SCC 54. In the said decision this Court has

succinctly outlined the guidelines in this regard in

paragraph 15 of the said Judgment as under:

"........The existence of power in higher echelons of judiciary to make observations even extending to criticism incorporated in judicial orders cannot be denied. However, the High Courts have to remember that criticisms and observations touching a 24

subordinate judicial officer incorporated in judicial pronouncements have their own mischievous infirmities. Firstly, the judicial officer is condemned unheard which is violative of principles of natural justice. A member of subordinate judiciary himself dispensing justice should not be denied this minimal natural justice so as to shield against being condemned unheard.

Secondly, the harm caused by such criticism or observation may be incapable of being undone. Such criticism of the judicial officer contained in a judgment, reportable or not, is a pronouncement in the open and therefore becomes public. Thirdly, human nature being what it is such criticism of a judicial officer contained in the judgment of a higher court gives the litigating party a sense of victory not only over his opponent but also over the Judge who had decided the case against him. This is subversive of judicial authority of the deciding Judge.

Fourthly, seeking expunging of the observations by a judicial officer by filing an appeal or petition of his own reduces him to the status of a litigant arrayed as a party before the High Court or Supreme Court- a situation not very happy from the point of view of the functioning of the judicial system. And last but not the least, the possibility of a single or casual aberration of an otherwise honest, upright and righteous Judge being caught unawares in the net of adverse observations cannot be ruled out. Such an incident would have a seriously demoralizing effect not only on him but also on his colleagues. If all this is avoidable why should it not be avoided?"

25

However, this Court has further provided that the

parameters outlined hereinbefore must not be

understood as meaning that any conduct of a

subordinate judicial office unbecoming of him and

demanding a rebuff should be simply overlooked. This

Court has outlined an alternate safer and advisable

course of action in such a situation, that is of separately

drawing up proceedings, inviting the attention of the

Hon'ble Chief Justice to the facts describing the conduct

of the subordinate Judge concerned by sending a

confidential letter or note to the Chief Justice. The

actions so taken would all be on the administrative side

with the subordinate Judge concerned having an

opportunity of clarifying his position and he would be

provided the safeguard of not being condemned unheard,

and if the decision be adverse to him, it being on the

administrative side, he would have some remedy

available to him under the law.

26

Again, in K.P. Tiwari vs. State of M.P. 1994 Supp.

(1) SCC 540, this Court had to remind all concerned that

using intemperate language and castigating strictures on

the members of lower judiciary diminishes the image of

judiciary in the eyes of public and, therefore, the higher

courts should refrain from passing disparaging remarks

against the members of the lower judiciary. The record

would show that the appellant had discharged her

judicial duties to the best of her capacity. To err is

human. It is often said that a Judge, who has not

committed an error, is yet to be born. This dictum

applies to all the learned Judges at all levels from the

lowest to the highest. The difference in views of the

higher and the lower courts is purely a result of a

difference in approach and perception. But merely

because there is difference in views, it does not

necessarily establish that the lower courts are necessarily

wrong and the higher courts are always right. Therefore,

this Court in several reported decision has emphasized

the need to adopt utmost judicial restraint against 27

making the disparaging remarks so far as members of

lower judiciary are concerned.

12. On the facts and in the circumstances of the case,

this Court is of the opinion that the disparaging

remarks referred to above, made by the learned

Single Judge of the Allahabad High Court, were not

justified at all and, therefore, the appeal will have to

be accepted.

13. For the foregoing reasons, the appeal succeeds. The

disparaging remarks made by the learned Single

Judge of the High Court of Judicature at Allahabad

in Criminal Misc. Application No. 21606 of 2009,

decided on September 9, 2009, while setting aside

order dated August 1, 2009, passed by the

appellant in case No. nil of 2009 titled as Shabnam

vs. Irshad directing that the application submitted

by the respondent No. 3 be registered as complaint

and ordering the Registry to present the same

before her for recording statement of the respondent 28

No. 3 under Section 200 of the Code, are hereby set

aside and quashed. In this Appeal prayer is to

expunge remarks made by the learned Single Judge

of High Court against the Appellant. The other

directions are not subject matter of challenge in the

appeal, therefore, those directions are not interfered

with.

14. The appeal accordingly stands disposed of.

.....................................J. [J.M. Panchal]

.....................................J. [H.L. Gokhale] New Delhi;

February 02, 2011.