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2011 (1) Supreme 663
SUPREME COURT OF INDIA
J.M. Panchal and H.L. Gokhale,JJ.
Smt. Mona Panwar — Appellant
versus
The Hon’ble High Court of Judicature At Allahabad through its Registrar and others — Respondents
Criminal Appeal No.298 of 2011
(Arising out of S.L.P. (Crl.) 9803 of 2009)
Decided on : 2-2-2011
Facts of the Case :
Present Appeal has been filed by appellant, member of judicial service of State of Uttar Pradesh, for expunging the remarks made by High Court while setting aside order passed by appellant in case No. nil of 2009 registering the application filed by respondent No. 3 under Section 156(3) of the Code as complaint and directing the Registry to present file before appellant for recording the statement of complainant, under Section 200 of the Code.
Findings of the Court :
Appellant had called for report from the concerned police station and 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. Under the circumstances appellant had exercised judicial discretion available to a Magistrate and directed that the application, which was submitted by respondent No. 3 under Section 156(3) of the Code, be registered as complaint and directed Registry to present said complaint before her for recording the statement of the respondent No.3 under Section 200 of Code. The judicial discretion exercised by appellant was in consonance with the scheme postulated by Code. No material was on the record to indicate that judicial discretion exercised by appellant was either arbitrary or perverse. There was no occasion for High Court to substitute the judicial discretion exercised by the appellant merely because another view was possible. There was no occasion for Single Judge to observe that appellant, a Judicial Magistrate, had done gravest injustice to the victim or that though appellant was a lady Magistrate, yet she did not think about the outcome of ravishing chastity of daughter-in-law by her father-in-law or seriousness of the crime committed by the accused and the reason assigned by Magistrate in not directing the police to register FIR indicated total non-application of mind by appellant and that the order passed by appellant, was a blemish on the justice system. Disparaging remarks made by High Court held liable to be set aside and quashed. Appeal was allowed.
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 appellant in case No. nil of 2009 titled as Shabnam vs. Irshad registering the application filed by the respondent No. 3 under Section 156(3) of the Code of Criminal Procedure (“Code” for short) as complaint and directing the Registry to present the file before the appellant on August 9, 2009 for recording the statement of the complainant, i.e., of Shabnam under Section 200 of the Code.
3. The facts giving rise to the present appeal are as under:
The respondent No. 3 is wife of one Mustqeem 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 made by the respondent No. 3 is that Irshad, i.e., her father-in-law came inside her room, caught hold of her with bad intention, scratched her breasts, forcibly pushed cloth in her mouth and forcibly committed rape on her. The case of the respondent No. 3 was that though she offered resistance, Irshad did not pay any heed and committed rape on her. The allegation made by her was that because of the incident she became unconscious and in the morning she narrated the whole incident to her mother-in-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 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 the case pleaded in the application filed before the appellant and produced a carbon copy of the application sent by her to the Senior Superintendent of Police, Saharanpur with its postal registration as well as photocopy of medical certificate. The learned Magistrate perused the averments made by the respondent No. 3 in her application as well as documents annexed to the said application. The appellant was of the view that the respondent No. 3 was acquainted with the facts and circumstances of the case and was also familiar 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 herse
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