Madhu vs State of Haryana

R.L. Anand, J. (Oral)

Ours is a country which is governed by the rule of law. Our Constitution gives protection to everybody. In other small words, every body is equal before the law. When the rain spreads, it does not discriminate anybody. It does not see whether it is raining on the Kotha of a poor person or on the Place of a rich man. This rule of nature has virtually been accepted under Articles 14 and 16 of the Constitution of India. But here is a case where the State of Haryana has not been able to discharge its duties in an impartial manner and that is the reason that the cause has been taken up by Madhu, the present petitioner, who has filed the present petition under Article 226 of the Constitution of India read with section 482, Cr.P.C., seeking the directions of this Court against the respondents 1 to 3 for the registration of a criminal case u/s 354 read with section 509, IPC against Shri S.P.S. Rathore, posted as Addl. Director General of Police, Haryana.

Allegations in this case are virtually unfortunate. It is alleged against Shri Rathore that when he was posted on deputation with the Bhakra Beas Management Board and when he was the President of the Haryana Lawn Tennis Association, Panchkula (hereinafter referred to as `the HLTA'') he went to the house of Shri S.C. Girhotra on 11.8.1990 at his house bearing No. 363, Sector 6, Panchkula, at about Noon time and asked Shri Girhotra not to send his daughter Ruchika to Canada as she was a very promising tennis player and that he would provide her extra coaching. Shri Rathore also asked the father of the prosecutrix to send his daughter to him on 12.8.1990 at about 12 O''clock in his house which is also the office of the HLTA. On 12.8.1990, Ruchika along with her friend Reemu, a member of the HLTA, daughter of Shri Anand Parkash, Superintending Engineer, Haryana State Marketing Board, Panchkula, went to see Shri Rathore, who sent Reemu to fetch the coach of the tennis and finding Ruchika alone, started misbehaving with her and tried to molest her. In the meantime, while Shri Rathore was trying to outrage the modesty of Ruchika, Reemu returned without the coach. Shri Rathore, again, tried to send Reemu back to bring the coach personally. Getting a chance, Ruchika ran out of the room. Reemu also came out of the room. When Reemu was going out, Shri Rathore asked her to tell Ruchika to calm down and he would do whatever she would say. Again, on 14.8.1990, Shri Rathore summoned Ruchika in his office in the evening at about 6.30 PM. However, she did not go there fearing that Shri Rathore might misbehave with her again. Ultimately, she informed her father about the misbehaviour by Shri Rathore on 12.8.1990. The members of the HLTA and the respectables of Sector 6, Panchkula, tried to meet Shri Rathore on the same day, i.e. 14.8.1990, but Shri Rathore did not make himself available.

On the above allegations, enquiry was entrusted to the Director General of Police, Haryana, who vide report dated 3.9.1990, after recording the statements of a few witnesses, including Ruchika, Reemu (Aradhana) d/o Shri Anand Prakash, Shri S.C. Girhotra, Smt. Madhu Anand and Inspector Anil Kumar, SHO, Police Station, Panchkula, came to the finding as follows :

"My observation is that in the Indian Society no girl or any parent would lodge a false complaint of physical molestation of this nature for obvious reasons. In this case I am of the considered view that whatever Miss Ruchika a small girl of 15 years has stated about her molestation by Shri S.P.S. Rathore, is based on true facts and I am of the considered opinion that a cognizable offence is made out. I would, therefore, recommend that a case under appropriate sections of Indian Penal Code be got registered on the statement of Miss Ruchika and investigated."

It appears that this report has not been acted upon as recommended by the Director General of Police. The State thought it proper to proceed departmentally against Shri Rathore. Not satisfied with the action taken up by the State Govt., the present writ petition was filed by Smt. Madhu w/o Anand Prakash, in the year 1997.

Notice of this petition was given to the State as well as to respondent No. 4. Certain objections have been raised by the State itself and also by respondent No. 4.

The stand of respondent No. 4 is that the report of the Director General of Police, Haryana, is not only biased but motivated. The entire exercise done by the petitioner and others is to spoil the brilliant career of respondent No. 4. Shri Cheema, learned counsel for respondent No. 4 even went to the extent of submitting that the registration of the case against respondent No. 4 would be a futile exercise after a lapse of about eight years and the entire exercise is being done by the petitioner only to add miseries and problems to respondent No. 4. It was also submitted that the alleged cause has not been taken up by the relations connected with blood with the prosecutrix, who unfortunately is no more in this world, but by a person who is neither directly nor indirectly concerned with the crime but only wants to see the miseries of respondent No. 4. It was further submitted by Shri Cheema that there was strong motive on the part of the present petitioner to wreck vengeance against respondent No. 4.

In the alternative, it was submitted by Shri Cheema that in case the court is interested for the ordering of the registration of a criminal case, at least, the investigation should not be handled by a police officer of Haryana Cadre, who are already determined to spoil the brilliant career of his client.

Shri Shailender Singh, the learned DAG, Haryana, at first instance, has tried to justify the action of the State Govt. when it did not order for the registration of the case after the receipt of the report of the Director General of Police. It was also submitted by Shri Shailender Singh that the investigation should not be handed over to anybody else because it is the primary subject of the State Govt. to investigation the offence.

The point that survives for determination before me is whether I should order for the registration of the case or not. I have already stated above that we live in a country which is governed by the rule of law. So far as the statutory provisions are concerned, they are contained in Section 154, Cr.P.C. The Hon''ble Supreme Court has reminded from time to time to the police and has also given dictum to the subordinate courts that under what circumstances the case is bound to be registered. This court is cognizant of the fact that the powers u/s 482, Cr.P.C. and Article 226 of the Constitution of India, are extraordinary powers but since the court finds that the allegation discloses reasonably the commission of a cognizable offence, it becomes the duty of the police to register a case. Neither the police nor the State Govt. can side track from the issue by initiating preliminary enquiry or by taking departmental action against the public servant if he happens to be an erring offender. I have already quoted with approval the observations and opinion of the officer of the highest rank of the Haryana Police, i.e. the Director General of Police, who, prima facie, came to the conclusion that respondent No. 4 had committed a cognizable offence and he even further ordered for the registration of the case. His report has neither been accepted nor acted upon by the State Govt. and to that extent there is no satisfactory reply on behalf of respondent No. 4. May I quote with approval the dictum laid down by he Hon''ble Supreme court in State of Haryana and others v. Ch. Bhajan Lal and others, AIR 1992 SC 604, wherein the Hon''ble Judges of the Supreme Court were pleased to lay down as follows :

"The condition which is sine qua non for recording a First Information Report is that there must be an information and that information must disclose a cognizable offence. It is, therefore, manifestly clear that if any information disclosing a congnizable offence is laid before an officerincharge of a police station satisfying the requirements of Section 154(1) the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information."

This court is not supposed to hold or embark upon an enquiry. This is beyond the scope of the High Court. If this court is, prima facie, convinced that the allegations disclose a triable cognizable offence, it is the duty of the State police to register a case. But, here is a case where the Director General of Police was satisfied that there is a, prima facie case against respondent No. 4. The expectation of this court, rather, is that the case ought to have been registered immediately after the receipt of the report. Why the State Govt. had allowed eight years to elapse, has not been explained properly and I regret to make the comments regarding the working of the State Govt. The Hon''ble Supreme court in Ch. Bhajan Lal''s case (supra), has given certain exceptions when the court may not order for the registration of the case and the same read as under :

"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.

Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under S. 156(1) of the Code except under an order of a Magistrate within the purview of S. 155(2) of the Code.

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.

Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under S. 155(2) of the Code.

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.

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.

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 sue to private and personal grudge."

I have examined the allegations in the light of these exceptions but the same do not fall in any of the category. Repeatedly, it has been held by the Hon''ble Supreme Court and endorsed by various High Courts that offences against women are not only offence against an individual, it is an offence against the Society. In these circumstances, if the petitioner has advocated the case of the prosecutrix, I am of opinion that she has the locus standi even to file the present petition.

In the light of the above, I give directions to respondents 1 to 3 to register a criminal case u/s 354 read with section 509, IPC, against respondent No. 4 forthwith on receipt of a copy of this order. I have given these directions against an officer of the rank of Addl. D.G.P., though he may be under suspension. Law is uniform to everybody.

Counsel for respondent No. 4 has expressed an apprehension that his client may not get justice at the hands of the State Police. It is true that the first right to investigate the crime is that of the State but the court has ample cause in this case to entrust the investigation to a different agency for some valid reasons.

Counsel for respondent No. 4 has a genuine apprehension that respondent No. 4 may not be able to get an impartial investigation from the State Police which is already behind him in order to tarnish his bright career. In order to allay the fear of respondent No. 4, it would be proper for me to entrust the investigation of this case to some agency other than the agency of Haryana Police.

Resultantly, directions are given to S.P., Panchkula, that after the registration of the case, he shall hand over the investigation of this case to the C.B.I. authorities, Investigation of this case shall be conducted by an officer not less than the rank of a Deputy Inspector General, C.B.I. and the investigation shall be verified by the Inspector General, C.B.I., before submitting the report u/s 173, Cr.P.C.