TMI Blog2011 (2) TMI 1535X X X X Extracts X X X X X X X X Extracts X X X X ..... order ignoring all judicial disciplines and had not at all applied her judicial mind. he severely criticized the conduct of the appellant and recorded his serious displeasure against the appellant for passing such type of illegal orders. Therefore, set aside the order passed by the appellant, and directed the appellant to decide the application of the respondent No. 3 within the ambit of her power u/s 156(3) of the Code. while setting aside the order has given rise to the present appeal. HELD THAT:- Under the circumstances the appellant had exercised judicial discretion available to a Magistrate and directed that the application, which was submitted by the respondent No. 3 u/s 156(3) of the Code, be registered as complaint and directed the Registry to present the said complaint for recording the statement of the respondent No.3 u/s 200 of the Code. Under the circumstances, the judicial discretion exercised by the appellant, to proceed u/s 200 of the Code could not faulted with nor the appellant could be subject to severe criticism as was done by the learned Single Judge. Therefore, this Court is of the opinion that the disparaging remarks made by the learned Single Judge of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 she had gone to the Police Station, Nakur, but the police had refused to register her FIR. It was claimed by the respondent No. 3 that under the circumstances she had moved an application before the Senior Superintendent of Police, Saharanpur but he had also not taken any action and, therefore, she had filed an application under Section 156(3) of the Code before the learned Judicial Magistrate II, Court No. 14, Saharanpur mentioning therein as to how the incident of rape with her had taken place 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009, passed by the appellant, the learned Single Judge expressed the view that the order indicated total non- application of mind by the 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, passed by the appellant, observed that the order was a blemish on justice meted out to a married lady who was ravished by her own father- in-law. The learned Single Judge expressed the view that the appellant had passed the order ignoring all judicial disciplines and 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 expressed by the Apex Court rendered in many decisions. After observing that a judicial order should be passed by applying judicial mind, the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranpur does not disclose receipt of any complaint from the Respondent No. 3. It is mentioned in the reply that when the impugned judgment dated September 10, 2009 passed by the learned Single Judge of High Court was brought to the notice of the authorities concerned a first information report was lodged at the Police Station, Nakur being FIR 36/2009 against accused Irshad and offence punishable under Section 376 IPC was registered. The reply proceeds to state that the Investigating Officer had recorded the statement of the Respondent No. 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 Investigating Officer that the Respondent No. 3 was not seen at her husband's house on 17th, 18th and 19th June, 2009 and thus the incident referred to by Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resented 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 of a peremptory reminder or intimation to the police to exercise its plenary power 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 the final report either under Section 169 or submission of charge sheet under Section 173 of the Code. A Magistrate can under Section 190 of the Code before taking cognizance ask for investigation by the police under Section 156(3) of the Code. 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 cognizan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and directed the Registry to present the said complaint before her on August 28, 2009 for recording the statement of the respondent No.3 under Section 200 of the Code. The judicial discretion exercised by the appellant was in consonance with the scheme postulated by the Code. There is no material on the record to indicate that the judicial 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 interfere with the discretion exercised judiciously in terms of the provisions of Code. Normally, an order under Section 200 of the Code for examination of the complainant and his witnesses would not be passed because it consumes the valuable time of the Magistrate being vested in inquiring into the matter which primarily is the duty of the police to investigate. Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Magistrate because the application submitted by the respondent N. 3 was ordered to be registered as a complaint and was not dismissed. 11. This Court has laid down in several reported decisions that higher courts should observe restraint and disparaging remarks normally should not be made against the learned members of the lower judiciary. In Ishwari Prasad Mishra vs. Mohd. Isa (1963) 3 SCR 722, a Three Judge Bench of this Court has emphasized the need to adopt utmost judicial restraint against using 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs, inviting the attention of the Hon'ble Chief Justice to the facts describing the conduct of the subordinate Judge concerned by sending 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 concerned that using intemperate language and castigating strictures on the members of lower judiciary diminishes the image of judiciary in the eyes of public and, therefore, the higher courts should refrain from passing disparaging remarks against the members of the lower judiciary. The record would show that the appellant had discharged her judicial duties to the best of her capacity. To err is human. It is often said that a Judge, who has not committed an error, is yet to be born. This dictum applies to all the learned Judges at all levels from the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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