Des Raj Dhingra vs State of Haryana

Sat Pal, J.

This petition has been filed by Des Raj Dhingra, IAS, under Section 482 of the Code of Criminal Procedure (in short, the Code) for quashing the FIR No. 524 dated 4th October, 1994, registered at Police Station, Sonepat City under Sections 354, 506 and 509 Indian Penal Code.

Notice of this petition was issued to the respondents on 10th November, 1994. Separate replies have been filed on behalf of the State of Haryana (respondent No. 1), Shri Dalip Singh, IAS (respondent No. 2) and Smt. Sangeeta Gaur (respondent No. 3).

Briefly stated the facts of the case are that Smt. Sangeeta Gaur (respondent No. 3) filed a complaint in the Court of Chief Judicial Magistrate, Sonepat under Sections 354, 506 and 509 IPC on 3rd October, 1994. The allegations made inter alia against the petitioner in the complaint were that while he was posted as Additional Deputy CommissionercumExecutive Officer of District Rural Development Agency, Sonepat, he called the complainant at his residence along with certain files in the first week of July, 1993. Accordingly, when she went to the house of petitioner alongwith the files, the petitioner put his hand on the breast of the complainant. It was further alleged in the complaint that the next day, the petitioner called the complainant in his office and told her not to disclose the earlier day''s incident to anybody else, otherwise he would spoil her A.C.P. and her career would be ruined. The complaint came up for hearing before the Chief Judicial Magistrate, Sonepat, on 3rd October, 1994 and the learned Chief Judicial Magistrate passed the following order :

"Present : Complaintant in person with Shri M.D. Gaur, Advocate.

Complaint present today. It is sent to the SHO, Police Station, City Sonepat for the registration of the case and for probing into the matter as required under Section 156(3) of the Cr.P.C."

It was on the receipt of the above mentioned order passed by the learned Chief Judicial Magistrate, Sonepat that the impugned FIR dated 4th October, 1994 was registered at Police Station City Sonepat under Sections 354, 509 and 506 IPC. The registration of the FIR dated 4th October, 1994 pursuant to the order dated 3rd October, 1994, passed by the learned Chief Judicial Magistrate, Sonepat, has been challenged in this petition.

Mr. Chhibber, learned Senior Counsel, appearing on behalf of the petitioner, referred to Section 156(3) of the Code and submitted that under the provisions of the Code, the Chief Judicial Magistrate was not empowered to direct the Police for registration of the FIR. He further submitted that the learned Chief Judicial Magistrate could have ordered the investigation of the case under Section 156(3) but he has no jurisdiction to direct the Police to register the FIR. He, therefore, contended that the FIR dated 4th October, 1994, registered at Police Station, City Sonepat against the petitioner was not sustainable and as such the same should be quashed. In support of his submissions, learned counsel placed reliance on two decisions rendered by a Division Bench of this Court in Cr. Misc. No. 3545M of 1992 and Cr. Misc. No. 4614 of 1994 (Ganesh Dass etc. v. State of Haryana). Learned counsel also submitted that in view of the documents, Annexures P4 and P5 which are on record, no case was made out against the petitioner under Sections 354, 509 and 506 IPC. He submitted that in fact the complaint has been filed at the instance of Shri Dalip Singh, IAS who at the relevant time was Deputy Commissioner, Sonepat.

Mr. Mahajan, learned counsel appearing on behalf of respondent No. 2 submitted that respondent No. 2 has unnecessarily been impleaded as one of the respondents and the allegations made against the said respondent were totally false and untrue.

Mr. Takkar, learned counsel appearing on behalf of respondent No. 3 submitted that the allegations made in the complaint against the petitioner were of serious nature and as per those allegations, a clear case is made out under Sections 354, 509 and 506 IPC. He further submitted that while exercising the power under Section 482 of the Code, this Court cannot go to the question as to whether the allegations made in the complaint are likely to be established or not. In support of his submission, the learned counsel placed reliance on a recent judgment of the Supreme Court in Mrs. Roopan Deol Bajaj v. K.P.S. Gill, JT 1995 (7) SC 299.

I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and have pursued the record. In the case of Gopal Das Sindhi v. State of Assam, AIR 1961 SC 986, the Supreme Court observed as follows :

"It would be clear from the observations of Mr. Justice Das Gupta that when a Magistrate applies his mind not for the purpose of proceeding under the various Sections of Chapter XVI but for taking action of some other kind e.g. ordering investigation under Section 156(3) for issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence".

Relying on the above observations, the Hon''ble Supreme Court in a later case, Tula Ram v. Kishore Singh, AIR 1977 SC 2401, observed as follows :

"That a Magistrate can order investigation under Section 156(3) only at the precognizance stage, that is to say, before taking cognizance under Sections 190, 200 and 204 and where a Magistrate decides to take cognizance under the provisions of Chapter 14 he is not entitled in law to order any investigation under Section 156(3) though in cases not falling within the proviso to Section 202 he can order an investigation by the police which would be in the nature of an enquiry as contemplated by Section 202 of the Code.

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Where a Magistrate orders investigation by the police before taking cognizance under Section 156(3) of the Code and receives the report thereupon he can act on the repot and discharge the accused or straightaway issue process against the accused or apply his mind to the complaint filed before him and take action under Section 190 as described above".

The Division Bench of this Court in the case of Ganesh Dass (supra) while relying on Tula Ram''s case (supra) observed as follows :

"In view of the propositions laid down by their Lordships of the Supreme Court in the case of Tula Ram (supra) and in view of catena of decisions which take the view contrary to the views expressed in the case of Baru Ram, we are of the considered opinion that the Magistrate while passing order under Section 156(3) Cr.P.C. is not empowered to direct the Police to register the First Information Report. The registration of the FIR pertains to the sphere of powers of investigation by the police and the registration of the First Information Report is done in exercise of powers by the Police under Section 154 Cr.P.C. That function of the Police need not and cannot be usurped by the Magistrate while passing an order under Section 156(3) Cr.P.C. Even plain reading of Section 156(3) Cr.P.C. indicates that the Magistrate is empowered to direct the investigation by the police and there is no mention regarding the powers to direct registration of the FIR".

In view of the law laid down by the Hon''ble Supreme Court in the case of Tula Ram (supra) and in view of the judgment dated 10th August, 1995 rendered by the Division Bench of this Court in the case of Ganesh Das (supra) the order of the Chief Judicial Magistrate, Sonepat directing the SHO, Police Station, City Sonepat to register the FIR against the petitioner has to be quashed.

As regards the contention of Mr. Chhibber that no case is made out against the petitioner keeping in view the allegations made in the complaint read with Annexures P4 and P5, I am of the view that this point cannot be gone into in these proceedings. As held by the Supreme Court in the case of Ganesh Naryana Hegde v. S. Bangarappa, 1995(2) Recent Criminal Reports 373 : JT 1995(4) SC 224 , the High Court should not embark upon an inquiry whether the allegations made in the complaint are likely to be established by evidence or not in exercising jurisdiction under Section 482 of the Code.

For the reasons recorded hereinabove, the order of the Chief Judicial Magistrate, dated 3rd October, 1994, directing the SHO, Police Station, City Sonepat to register the FIR against he petitioner is quashed. The FIR dated 4the October, 1993 which was registered against the petitioner under Sections 354, 509 and 506 IPC in pursuance of the order dated 3rd October, 1994, of the Chief Judicial Magistrate, Sonepat, shall also stand quashed. It shall, however, remain open to the Chief Judicial Magistrate to proceed with the case in accordance with law. The view I have taken finds supports also from two decisions of this Court in Mani Ram and others v. State of Haryana and another, 1995(2) RCR 99 and in Cr. Misc. No. 3545M of 1992 (Ganesh Dass etc. v. State of Haryana), decided on 18th January, 1995.