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Smt. Mona Panwar Versus The Hon'ble High Court of Judicature At Allahabad through its Registrar and others

2011 (2) TMI 1535 - SUPREME COURT

CRIMINAL APPEAL NO.298 OF 2011 (Arising out of S.L.P. (Crl.) 9803 of 2009) - Dated:- 2-2-2011 - PANCHAL, J.M. AND GOKHALE, H.L, JJ. JUDGMENT 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 .....

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stqeem 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 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 m .....

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n-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 that as her condition was deteriorating, she was got medically examined in District hospital by her mother and thereafter .....

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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 respondent No. 3 had filed her own affidavit in support of the case pleaded in the applic .....

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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 777 and Sukhwasi S/o Hulasi vs. State of U.P. 2007 (59) ACC 739 and after taking into consideration the princi .....

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n 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 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 .....

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e 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 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, passe .....

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al 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 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 b .....

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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 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 .....

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ther 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. 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 com .....

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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 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 Investi .....

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What is relevant to notice is that in the reply it is stated that on completion of investigation the Investigating 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 Sec .....

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offence has been committed. Neither Section 154 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. H .....

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II, Court No. 14, Saharanpur. When the 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 .....

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ode. The Magistrate can also 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, therefor .....

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e of proceeding under Section 200 and the 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 asce .....

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nd 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 avai .....

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ial 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 interfe .....

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de 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 .....

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abad 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 se .....

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nt 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 Mag .....

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ng 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 s .....

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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, hu .....

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t 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?" However, this C .....

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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. Again, in K.P. Tiwari vs. State of M.P. 1994 Supp. (1) SCC 540, this Court had to remind all co .....

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