MONA PANWAR Vs HIGH COURT OF JUDICAT.AT ALLAHABD.
Bench: J.M. PANCHAL,H.L. GOKHALE, , ,
Case number: Crl.A. No.-000298-000298 / 2011
Diary number: 34956 / 2009
Advocates: T. MAHIPAL Vs
RAVI PRAKASH MEHROTRA
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICITON
CRIMINAL APPEAL NO.298 OF 2011 (Arising out of S.L.P. (Crl.) 9803 of 2009)
Smt. Mona Panwar ..,. Appellant
Versus
The Hon’ble High Court of Judicature At Allahabad through its Registrar and others ... Respondents
J U D G M E N T
J.M. Panchal, J.
Leave granted.
2. The present appeal is filed by the appellant, who is
member of judicial service of the State of Uttar
Pradesh, for expunging the remarks made by the
learned Single Judge of the High Court of
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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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,
21
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.
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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
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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?”
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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.
25
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
26
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
27
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.
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