TMI Blog1995 (10) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... reto. On the conclusions as above we direct the learned Chief Judicial Magistrate, Chandigarh to take cognizance upon the police report in respect of the offences under Sections 354 and 509 IPC and try the case himself in accordance with law. We make it abundantly clear that the learned Magistrate shall not in any way be influenced by any of the observations made by us relating to the facts of the case as our task was confined to the question whether a ‘prima facie case’ to go to the trial was made out or not whereas the learned Magistrate will have to dispose of the case solely on the basis of the evidence to be adduced during the trial. Since both the offences under Sections 354 and 509 IPC are tribal in accordance with Chapter XX of the Criminal Procedure Code we direct the learned Magistrate to dispose of the case, as expeditiously as possible, preferably within a period of six months from the date of communication of this order. - CRIMINAL APPEAL NO. 1183 OF 1995 with CRIMINAL APPEAL NO. 1184 OF 1995 (arising out of S.L.P. (Cr.) No. 1361 of 1989) - - - Dated:- 12-10-1995 - M.K. MUKHERJEE AND A.S. ANAND, JJ. JUDGMENT Special leave granted. Heard the learned counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S. Ratra, an I.A.S. Officer of the Government of Punjab and Mr. J.F. Rebeiro, Adviser to the Governor of Punjab for being examined as witnesses on his behalf and for producing certain documents, which was allowed. Instead of appearing personally, the above two Officers sought for exemption from appearance; and the District Attorney, after producing the documents, filed an application claiming privilege under Sections 123/124 of the Evidence Act in respect of them. The learned Magistrate rejected the prayer of the above two officers and also rejected, after going through the documents, the claim of privilege, being of the opinion that the documents did not concern the affairs of the State. Assailing the order of the learned Magistrate rejecting the claim of privilege, the State of Punjab filed a Criminal Revision Petition which was allowed by the High Court by its Order dated January 24, 1989. The petition earlier filed by Mr. Gill under Section 482 Cr. P.C. came up for hearing before the High Court thereafter and was allowed by its order dated May 29, 1989 and both the F.I.R. and the complaint were quashed. The above two orders of the High Court are under challenge in these appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, the delay of 11 days in lodging an F.I.R., could not, by any stretch of imagination, be made a ground for quashing it. She lastly submitted that the High Court was wholly unjustified in taking exception to the police officer s registering the F.I.R. and initiating the investigation for, once it was found that the F.I.R. disclosed cognizable offence, it was the statutory obligation of the police to investigate into the same. According to Mrs. Jaisingh. the High Court committed grave injustice and illegality by quashing the F.I.R. and the complaint. Mr. Tulsi, the learned Additional Solicitor General, appearing for Mr. Gill on the other hand submitted that the impugned judgment of the High Court was a well considered and well reasoned one so far as it held that the F.I.R. did not disclose any cognizable offence, that the allegations made therein being trivial attracted the provisions of Section 95 IPC and that the allegations were improbable. He, however, in fairness, conceded that the last two reasons canvassed by the High Court to quash the F.I.R. could not be sustained. The question under what circumstances and in what categories of cases the High Court can quash an F.I.R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused. (6) 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. (7) 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 due to private and personal grudge. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too i the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice." (emphasis supplied) In the context of the reasons given by the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... original place between the other ladies. Mrs. Bijlani, Mrs. K.P. Bhandari, Mrs. Paramjit Singh and Mrs. Shukla Mahajan were occupying seats on my right and Mrs. Nehra was sitting to the left of me at that time. After about 10 minutes Shri K.P.S. Gill got up from his seat and came and stood straight but so close that his legs were about four inches from my knees. He made an action with the crook of his finger asking me to stand and said, "You get up. You come along with me." I strongly objected to his behaviour and told him, "Mr. Gill How dare you! You are behaving in an obnoxious manner, go away from here". Whereupon he repeated his words like a command and said, "You get up! Get up immediately and come along with me." I looked to the other ladies, all the ladies looked shocked and speechless. I felt apprehensive and frightened, as he had blocked my way and I could not get up from my chair without my body touching his body. I then immediately drew my chair back about a foot and half and quickly got up and turned to get out of the circle through the space between mine and Mrs. Bijlani s chair. Whereupon he slapped me on the posterior. This was done in the full presence of the ladi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tered, we first turn to Section 354 and 509 IPC, both of which relate to modesty of woman. These Sections read as under: "354. Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." "509. Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both." Since the word modesty has not been defined in the Indian Penal Code we may profitably look into its dictionary meaning. According to Shorter Oxford English Dictionary (Third Edition) modesty is the quality of being modest and in relation to woman means "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct". The word modest in relation to woman is defined in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otally lacking. He urged that the culpable intention of the offender in committing the act is the crux of the matter and not the consequences thereof. To buttress his contention he invited our attention to the following passage from the judgment of this Court in Hitendra Vishnu Thakur vs. State of Maharashtra (1994) 4 SCC 602: (one of us, namely Anand, J. was a party) "Thus the true ambit and scope of Section 3 (1) is that no conviction under Section 3 (1) of TADA can be recorded unless the evidence led by the prosecution establishes that the offence was committed with the intention as envisaged by Section 3 (1) by means of the weapons etc. as enumerated in the section and was committed with the motive as postulated by the said section. Even at the cost of repetition, we may say that where it is only the consequence of the criminal act of an accused that terror, fear or panic is caused, but the crime was not committed with the intention as envisaged by Section 3 (1) to achieve the objective as envisaged by the section, an accused should not be convicted for an offence under Section 3 (1) of TADA. To bring home a charge under Section 3 (1) of the Act, the terror or panic etc. must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 352 IPC for the offence under Section 354 IPC includes the ingredients of the former. In other words, Section 352 IPC constitutes a minor offence in relation to the other. Regarding the offence of wrong confinement punishable under Section 342 IPC there is not any iota of material in the FIR; and so far as the offence under Section 341 IPC is concerned, the only allegation relating to the same is that Mr. Gill stood in front of Mrs. Bajaj in such a manner that she had to move backward. From such act alone it cannot be said that he wrongfully restrained her within the meaning of Section 339 IPC to make him liable under Section 341 IPC. Now that we have found that the allegations made in the FIR, prima facie, disclose offences under Section 354 and 509 IPC, we may advert to the applicability of Section 95 IPC thereto. The Section reads as follows: "Nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm". In dealing with the above Section in Veeda Menezes vs. Yusuf Khan (AIR 1966 SC 1773) a three Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would attempt or dare to outrage the modesty of the author of the First Information Report in their very presence inside the residential house of Financial Commissioner (Home)." We are constrained to say that in making the above observations the High Court has flagrantly disregarded - unwittingly we presume - the settled principle of law that at the stage of quashing an FIR or complaint the High Court is not justified in embarking upon an enquiry as to the probability, reliability or genuineness of the allegations made therein. Of course as has been pointed out in Bhajan Lal s case (supra) an F.I.R. or a complaint may be quashed if the allegations made therein are so absurd and inherently improbable that no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused but the High Court has not recorded such a finding, obviously because on the allegations in the FIR it was not possible to do so. For the reasons aforesaid we must hold that the High Court has committed a gross error of law in quashing the FIR and the complaint. Accordingly, we set aside the impugned judgment and dismiss the petition filed by Mr. Gill in the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Criminal Miscellaneous Petition No. 9041-M of 1988 (registered on the petition filed by Mr. Gill under Section 482 Cr.P.C.) the State had filed an affidavit averring that the police had submitted its report under Section 173 Cr.P.C. and prayed for a direction upon the prosecution to intimate the date of the filing of the report and give her an opportunity to inspect the same. Interestingly and surprisingly enough, the Chief Judicial Magistrate was none other than the L.R. who had earlier given the opinion that the accusations of the complainant (Mrs. Bajaj) were not substantiated from the evidence collected during investigation. Indeed, it is under the influence of the above opinion that the police report was submitted as would be evident from the report itself wherein the Investigating Officer has stated "all the statements of witnesses were sent to the L.R. who, vide letter No. LD-88/7163 dated 21.11.88, found that evidence on record do not substantiate the accusations of the complainant" (as translated into english). It is difficult to believe that the learned Chief Judicial Magistrate was not aware of the fact that he had himself opined that no case for going to the trial wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter any further for in any case the order of the transferee Magistrate on the police report cannot be sustained inasmuch as he has not given any reason whatsoever for its acceptance though, it appears, the parties were heard on that question for days together, obviously to comply with the law laid down by this Court in Bhagwant Singh vs. Commissioner of Police AIR 1985 SC 1285. In Abhinandan Jha vs. Dinesh Mishra (AIR 1968 SC 117) the question arose whether a Magistrate to whom a report under Section 173 (1) Cr. P.C. had been submitted to the effect that no case had been made out against the accused, could direct the police to file a charge-sheet on his disagreeing with that report. In answering the question this Court first observed that the use of the words may take cognizance of any offence in sub-section (1) of Section 190 Cr.P.C. imports the exercise of judicial discretion and the Magistrate who receives the report under Section 173 Cr.P.C. will have to consider the said report and judicially take a decision whether or not to take cognizance of the offence. The Court then held, in answering the question posed before it, that the Magistrate had no jurisdiction to dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "The Magistrate is not bound by the conclusions arrived at by the police even as he is not bound by the conclusions arrived at by the complainant in a complaint. If a complainant states the relevant facts in his complaint and alleges that the accused is guilty of an offence under Section 307 Indian Penal Code the Magistrate is not bound by the conclusion of the complainant. He may think that the facts disclose an offence under S. 324, I.P.C. only and he may take cognizance of an offence under Section 324 instead of Section 307. Similarly if a police report mentions that half a dozen persons examined by them claim to be eye witnesses to a murder but that for various reasons the witnesses could not be believed, the Magistrate is not bound to accept the opinion of the police regarding the credibility of the witnesses. He may prefer to ignore the conclusions of the police regarding the credibility of the witnesses and take cognizance of the offence. If he does so, it would be on the basis of the statements of the witnesses as revealed by the police report." (emphasis supplied) Our such exercise persuades us to hold that the opinion of the Investigating Officer that the allegations ..... X X X X Extracts X X X X X X X X Extracts X X X X
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