Shabir Ahmed vs State Of Jammu & Kashmir And Another

Heard.

Through the present petition petitioner seeks quashment of FIR No.14/2017 dated 09.03.2017 registered at Police Station, Ramsoo, District Ramban for commission of offences under Sections 376/452 RPC and also for quashment of order dated 02.03.2017 passed by the JMIC, Banihal by virtue of which SHO has been directed to register an FIR.

The petitioner claims to be a Mason and doing the construction work, he is a poor person and has five children i.e., three daughters and two sons, all are School going children. It is stated that respondent No. 2 who is not having a good reputation has filed an application under Section 156(3) of Criminal procedure Code before the Court of Judicial Magistrate 1st Class Banihal. The said Court has sent the application under Section 202 to the SHO Police Station, Ramsoo, District Ramban for conducting enquiry. Thereafter the enquiry was conducted by the SHO Police Station, Ramsoo and SDPO Banihal, both have conducted investigation and submitted the report before the Court. The report was submitted by the SHO and SDPO by which the both of them have stated that as per the order passed by the Court for conducting enquiry under Section 202 Cr.P.C., they have conducted the investigation and recorded the statement of witnesses and from the investigation and statement of witnesses, it has come to fore that no case is made out against the petitioner. It has further been stated that the SHO Police Station, Ramsoo and SDPO Banihal have recorded the statement of Nishada Begum, Farooq Ahmed, but the complainant was not able to produce any witness in her favour. Police have conducted enquiry from real parents of complainant, relations and members of the committee of Jama Masjid Jaradi, Riaz Ahmed, Mohd. Yousuf, Abdul Latief, Mohd. Ashraf, Haji Abdul Rashid, Mohd. Amin, Nazeer Ahmed, Mohd. Ramzan and Abdul Sadiq, all residents of Jaradi and during the course of investigation, it has been found that Nishada Begum is in illegal relationship with Shabir Ahmed for the last five/six years. It is stated that the complainant and her husband have good relation with the said Shabir Ahmed. The people of the village advised the complainant not to keep relation with Shabir Ahmed, but the complainant continued illegal relationship with Shabir Ahmed.

It has further been stated that on 29.02.2016, the husband of the complainant had gone to Delhi; Shabir Ahmed came in the house of complainant with the consent of the complainant; that the complainant has mentioned date of occurrence as 02.11.2016 night, and during investigation it was found that the complainant at 9 PM had rang up to Tempo Driver Riaz Ahmed that she is at the place of Parwari and she has to go to Jaradi to her home and it is too late. After receiving the phone, Driver Riaz Ahmed started the Tempo towards Parwari and on reaching Parwari he found that the complainant was waiting for him, he took the complainant in his vehicle and gone towards Jaradi. At about 10:00 PM the driver dropped the complainant near Jaradi from where there is a half an hour walking distance towards the complainant's house. The driver of the tempo came back and the complainant gone to her house on foot. The complainant/respondent has not given the fare to the driver also and said that she will give afterwards, so it clearly shows that the application of the complainant/respondent is false.

It is also stated in the report that the complainant has mentioned in the application that the petitioner at 9 PM night entered the room, kitchen by breaking down the door and also shown the sharp edge weapon to the complainant, but during the investigation it is found that there is nothing done to the door, the door of the kitchen was perfect and there is no sign of any breaking of the doors and it has also come in the report that real relatives of the complainant have also made the statement that the complainant is a greedy and characterless woman and every time she wants some excuse to trap the people. The complainant/respondent has filed this application just to make her husband happy while the husband is not happy with the complainant and both have strained relation. The father-in-law and mother-in-law of the complainant are adjacent to the house of the complainant while it is one house, but they are living separately. The statement of father-in-law and mother-in-law of the complainant were also recorded, but they declined to make any statement and they have deposed that their daughter-in-law is not having a good reputation and the neighbourers have also given statements against the complainant/respondent. The real brother of the complainant/respondent Nazir Ahmed has also stated that the complainant is a characterless woman and she used to mentally harass the people unnecessary and she used to involve the person in false cases. The SHO and SDPO have also mentioned in the report that they have conducted the investigation separately, but nobody has supported the complainant, so the SHO and SDPO have submitted the report before the Court.

The learned Judicial Magistrate 1st Class Banihal has passed the order on 02.03.2017 wherein it has been mentioned that the police report with respect to SHO and SDPO including the statements of witnesses have been saved and according to the said police report nothing is made out against the accused (petitioner), but according to the statement of the complainant, the petitioner has committed rape with the complainant, so the court has directed the SHO to register an FIR. Thereafter, the Police Station, Ramsoo registered a FIR No. 14/2017 dated 09.03.2017 under Sections 376/452 RPC against the petitioner. The said FIR was registered on the basis of application filed by the complainant/respondent and there is nothing mentioned and on what basis the Court has directed the SHO to register the FIR while the SHO has specifically mentioned regarding the report in the FIR.

Petitioner being aggrieved of FIR No.14/2017 dated 09.03.2017 under Sections 376/452 RPC challenges the same on the following grounds:-

i. The FIR and order are against law and facts. So the same is not sustainable.

ii. The FIR is not sustainable on the ground that the complainant/respondent has filed directly complaint before the Hon'ble Court and the Hon'ble Court has forwarded the same without appreciating that there is violation of the provisions of Section - 154 and 156 because under the provisions of section 154, firstly the complaint has to be made before the SHO as to the information to the commission of offence has to be given orally to the officer Incharge and if the Officer Incharge refused to register a case then sent the post of substance of such information in writing to the Superintendent of Police concerned and if the case is not registered then the application under Section-156(3) has to be made before the Magistrate and in the present case the complainant/respondent directly filed a complaint before the Magistrate on 03.11.2016 without following the provisions of law laid down by the Hon'ble Supreme Court and the Hon'ble Court without appreciating this sent the same to the SHO for conducting enquiry and even the SHO and SDPO have conducted the thorough investigation and submitted the report thereby certifying that the complaint is false even then the Hon'ble Court without assigning any reason directed the SHO to register the FIR. So the FIR is not sustainable.

iii. The FIR is also not sustainable on the ground that the FIR is against the provision of section-156(1) of Cr.P.C because before the filing of application under Section-156(3) the person has to approach the local police for registration of the case and if the local police refused to register the case then approached to the Senior Superintendent of Police and then filed an application under Section-156(3) accompanied with application along with an affidavit and in the present case the complaint was directly filed before the Hon'ble Court and the Hon'ble Court without following the provisions of law laid down by the Hon'ble Supreme Court sent for conducting investigation without appreciating the complaint is not maintainable as there is non-compliance of the provisions of law laid down by the Hon'ble Supreme Court and violation of the provisions of Section 154(3) and section 156(1) of Cr.P.C. Moreover, even from the complaint no offence under Section-376 and 452 RPC has been made out against the petitioner. So the FIR is not sustainable.

iv. The FIR and the order dated 02.03.2017 are also not sustainable on the ground that from the perusal of the FIR no offence under Section 376 and 452 RPC has been made out because from the statement of witness recorded by the police during investigation it is the record that the complainant/respondent and Shabir Ahmed has illicit relationship for the last five/six years. The people residing in the village and even real cousin brother and parents and in-laws of the respondent and member of the Masjid Committee have also made statement against the complainant thereby stating that the complainant is not keeping good reputation and she is greedy and characterless woman and she blackmailing the persons for getting money. The police by assigning a reason has closed the case and mentioned that there is nothing in the case and the complaint is false. The Hon'ble Court without appreciating this passed the order. So the FIR is not sustainable.

v. The FIR and the order dated 02.03.2017 are also not sustainable on the ground that the Hon'ble Court without appreciating the provisions of law directed the SHO to register the FIR when it is clear from the record that the complainant/respondent has not produced any witness in her support and there is no witness, who has made any statement in favour of the complainant/respondent. The Hon'ble Court has mentioned that from the statement of complainant/respondent it is clear that the petitioner has committed rape with the complainant while from the investigation it has come that the complainant was not at her home at the time of alleged occurrence and there is no witness, who proves that the complainant at home. The complainant has three children and elder son is nine years of old. Nobody has stated in favour of the respondent. So the FIR is not sustainable.

The Respondent-State has filed the status report.

In the status report, it is averred that petition under Section 561-A along with MP is not maintainable as the same has been filed by suppressing the real facts of the case, as such, petition deserves to be dismissed. It is further submitted that the petitioner has no legal right to seek the indulgence of this Court for quashing FIR No.14/2017 dated 09.03.2017 registered at Police Station, Ramsoo under Sections 376/452 RPC and order dated 02.03.2017 passed by the learned JMIC Banihal by which the Court has directed the SHO to register FIR after recording satisfaction. Further, that petitioner is alleged to have committed a very heinous offence under Sections 376/452 RPC which is a crime not only against an individual but affects the society at large and has serious ramification.

In the status report, it is further averred that the statement of the prosecutrix under Section 164-A Cr.P.C. stands recorded before the JMIC, Ukhral, in which she has categorically deposed against the accused/ petitioner herein for commission of offences under Sections 376/452 RPC. It is pertinent to mention here that while dealing with a challenge to legality or validity of charge, Court has to be very reluctant and cautions, as framing of the charge is a much advanced stage in proceeding under the code and similarly, parameters of inherent powers of High Court are well settled and well defined by now in catena of judgments of the Apex Court of the Country that

"While framing charge, purpose is limited to find out whether a prima facie case is made out or not and the court is not required to undertake an elaborate enquiry by sifting and weighing the material to arrive at a conclusion that it will not lead to conviction as held in guide line given in Sajan Kumar's case.

I have heard learned counsel for the petitioner and gone through the record on the file.

From perusal of the record of the court below, it reveals that complainant herein filed a complaint before JMIC, Banihal on 09.11.2016 and the said Court directed the police to investigate the matter in terms of Section 202 Cr.P.C. The police conducted detailed investigation and recorded the statement of the witnesses and after concluding the investigation submitted the report to the Magistrate stating that no offence has been proved against the petitioner herein.

Law with regard to 'pre cognizance' and 'post cognizance' stage by a Magistrate on complaint is now well settled. Whenever a written complaint is made before a Magistrate, he takes cognizance of offence under Section 190 of Cr.P.C. While exercising jurisdiction under Section 190 Cr.P.C., Magistrate may send the complaint to police for investigation under Section 156(3) of Cr.P.C., if cognizable offence is made out from bare reading of complaint. This is called pre cognizance stage. The Magistrate has another option after receiving the written complaint by aggrieved party. He may record the statements of the complainant and witness, if any, upon oath in terms of Section 200 Cr.P.C. In terms of Section 202, the Magistrate on receipt of a complaint of an offence of which he is authorized to take cognizance may postpone the issue of process for compelling the attendance of the person complained against, and may enquire into the case himself or direct an inquiry or investigation to be made by any Magistrate subordinate to him or by a police officer or by such other person as he thinks fit. Any police officer or any other person to whom the Magistrate has directed to conduct the inquiry/investigation shall exercise all the powers conferred by this Code on the officer Incharge of Police Station, except that he shall not have any power to arrest without warrant. On receipt of the order under Section 202 Cr.P.C., the Magistrate or police officer or any other person to whom the investigation or inquiry has been directed, he shall conduct the same and after completion of same shall file a report in this regard to the Magistrate. After completion of investigation/inquiry, this report may be in the shape that allegations made in the complaint are true or may be in the shape that allegations are not true. The Magistrate after receiving the said report, if it is shown that allegations are not true and no case is made out, the Magistrate shall issue notice to the complainant for filing protest petition. After considering the protest petition and the inquiry/investigation report, Magistrate may dismiss the complaint in terms of Section 203 Cr.P.C. or may issue process under section 204 Cr.P.C. However, it will not debar the Magistrate to take cognizance of offence after going through the inquiry/investigation report even if it has been stated that no case is made out. In case, inquiry/investigation report shows that allegations are true, the Magistrate may take cognizance of an offence if there is sufficient ground for proceeding and shall issue a summon at the first instance for attendance of accused.

But once magistrate has proceeded to record the statements of complainant and witness, if any, and directs the police to inquire or investigate the allegations leveled under section 202 Cr.P.C, he cannot ask the police to conduct the investigation under section 156(3) Cr.P.C after receiving the report of investigation under section 202 Cr.P.C.

In Devarpalli Lakshminarayana Reddy and others Vs. Narayana Reddy and others AIR 1976 SC 1672, it has been held as under:-

"17. Section 156(3) occurs in Chapter XII, under the caption: "Information to the Police and their powers to investigate"; while Section 202 is in Chapter XV which bears the heading "Of complaints to Magistrates". The power It order police investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the pre cognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3). It may be noted further that an order made under sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers 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 a report or chargesheet under Section 173. On the other hand Section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under Section 202 to direct within the limits circumscribed by that section, an investigation "for the purpose of deciding whether or not here is sufficient ground for proceeding ". Thus the object of an investigation under Section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him."

In case titled Rameshbhai Pandurao Hedau vs State of Gujarat AIR 2010 SC 1877, it has been held as under:-

"13. The settled legal position has been enunciated by this Court in several decisions to which we shall refer presently. The Courts are ad idem on the question that the powers under Section 156(3) can be invoked by a learned Magistrate at a pre- cognizance stage, whereas powers under Section 202 of the Code are to be invoked after cognizance is taken on a complaint but before issuance of process. Such a view has been expressed in Suresh Chand Jain's case (supra) as well as in Dharmeshbhai Vasudevbhai's case (supra) and the case of Devarapalli Lakshminarayana Reddy's case (supra).

The three aforesaid cases have been cited on behalf of the parties. We may also refer to the decision of this Court in Dilawar Singh vs. State of Delhi [(2007) 12 SCC 641], where the difference in the investigative procedure in Chapters XII and XV of the Code has been recognized and in that case this Court also appears to have taken the view that any Judicial Magistrate, before taking cognizance of an offence, can order investigation under Section 156(3) of the Code and in doing so, he is not required to examine the complainant since he was not taking cognizance of any offence therein for the purpose of enabling the police to start investigation. Reference has been made to the decision of this Court in Suresh Chand Jain's case (supra). In other words, as indicated in the decisions referred to hereinabove, once a Magistrate takes cognizance of the offence, he is, thereafter, precluded from ordering an investigation under Section 156(3) of the Code.

It is now well-settled that in ordering an investigation under Section 156(3) of the Code, the Magistrate is not empowered to take cognizance of the offence and such cognizance is taken only on the basis of the complaint of the facts received by him which includes a police report of such facts or information received from any person, other than a police officer, under Section 190 of the Code.Section 200 which falls in Chapter XV, indicates the manner in which the cognizance has to be taken and that the Magistrate may also inquire into the case himself or direct an investigation to be made by a police officer before issuing process.

Reference was also made to the decision of this Court in Mohd. Yousuf vs. Afaq Jahan (Smt.) and Anr. [(2006) 1 SCC 627], where it has been held that when a Magistrate orders investigation under Chapter XII of the Code, he does so before he takes cognizance of the offence. Once he takes cognizance of the offence, he has to follow the procedure envisaged in Chapter XV of the Code. The inquiry contemplated under Section 202(1) or investigation by a police officer or by any other person is only to help the Magistrate to decide whether or not there is sufficient ground for him to proceed further on account of the fact that cognizance had already been taken by him of the offence disclosed in the complaint but issuance of process had been postponed.

The law is well-settled that an investigation ordered by the Magistrate under Chapter XII is at the pre-cognizance stage and the inquiry and/or investigation ordered under Section 202 is at the post-cognizance stage. What we have to consider is whether the Magistrate committed any error in refusing the appellant's prayer for an investigation by the police under Section 156(3) of the Code and resorting to Section 202 of the Code instead, since both the two courses were available to him.

The power to direct an investigation to the police authorities is available to the Magistrate both under Section 156(3) Cr.P.C. and under Section 202 Cr.P.C. The only difference is the stage at which the said powers may be invoked. As indicated hereinbefore, the power under Section 156(3) Cr.P.C. to direct an investigation by the police authorities is at the pre-cognizance stage while the power to direct a similar investigation under Section 202 is at the post-cognizance stage.

The learned Magistrate has chosen to adopt the latter course and has treated the protest petition filed by the Appellant as a complaint under Section 200 of the Code and has thereafter proceeded under Section 202 Cr.P.C. and kept the matter with himself for an inquiry in the facts of the case. There is nothing irregular in the manner in which the learned Magistrate has proceeded and if at the stage of Sub-section (2) of Section 202 the learned Magistrate deems it fit, he may either dismiss the complaint under Section 203 or proceed in terms of Section 193 and commit the case to the Court of Sessions.

We, therefore, see no reason to interfere with the order of the learned Magistrate and the views expressed by the High Court in the impugned order on the invocation of jurisdiction by the learned Magistrate under Section 202 Cr.P.C. The appeal is, accordingly, dismissed."

In Madhao & Anr. vs State of Maharashtra & Anr. reported in 2013 (5) SCC 615 on 3 May, 2013, it has been held as under:-

"13) When a magistrate receives a complaint he is not bound to take cognizance if the facts alleged in the complaint disclose the commission of an offence. The magistrate has discretion in the matter. If on a reading of the complaint, he finds that the allegations therein disclose a cognizable offence and 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 itself. As said earlier, in the case of a complaint regarding the commission of cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). However, if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to revert back to the pre-cognizance stage and avail of Section 156(3)."

In view of above discussion and law laid down by Apex Court, I am of the view that the order of JMIC Banihal dated 02.03.2017 ordering the P/S to investigate the matter under section 156(3) Cr.P.C, has to be set aside and accordingly it is set aside. Consequently, FIR No.14/2017 dated 09.03.2017 registered at Police Station, Ramsoo, District Ramban for commission of offences under Sections 376/452, is quashed. JMIC to proceed as per law on complaint.

In view of above order passed in CRMC No.174/2017, BA No.36/2018 has become infructuous.