UTTARAKHAND HIGH COURT
Ravindra Maithani, J.
Goldy Rajiv Santhoji and Anr. – Petitioners
versus
State of Uttarakhand and Ors. – Respondents
Criminal Misc. Application No.887 of 2020 with Criminal Misc. Application No.31 of 2021
Decided on 6.5.2021

IMPORTANT POINTS
(1) Merely because list of witnesses was not filed alongwith protest petition, it cannot be said that protest petition cannot be treated as a complaint.
(2) Fair, just and proper investigation is essence of fair trial. It is an attribute of Article 21 of Constitution of India.
(3) Question of considering departmental inquiry is something strange in POCSO cases.
(4) If material reveals commission of offence, Court can take cognizance irrespective of opinion given otherwise by I.O.

Headnote:

(A) Criminal Procedure Code, 1973 – Sections 2(d) and 154 – Complaint and FIR – -A broad distinction may be drawn between a complaint and an FIR – Complaint is necessarily to be made to Magistrate, whereas, FIR is not made to a Magistrate – Information of cognizable offence under Section 154 of Code is given to officer-in-charge of police station which is known as FIR – There is no format of FIR also – FIR should be not much cryptic – At the same time, it may not be considered as encyclopedia of each and every fact, which constitutes offence – Purpose of FIR is to put wheel of justice into motion by giving information of cognizable offence to police – Material collected during investigation guides Court in deciding fate of Final Report – If material reveals commission of offence, Court can take cognizance irrespective of opinion given otherwise by IO – Similarly, if investigation has not been done in accordance with law or witnesses were not examined or other circumstances so warrant, Court may order for fresh investigation – Investigation be search for truth – It is nothing but to bring before Court truth of matter. (Paras 39 and 61)

(B) Criminal Procedure Code, 1973 – Sections 173 – Police report – Magistrate is not bound by opinion formed by IO – Even after submission of a report under Section 173 that no case is made out for summoning of an accused for trial, Magistrate may order further investigation under Section 156 (3) of Code – If protest petitions are filed, they may be treated as a complaint and may be proceeded in accordance with law. (Para 29)

(C) Protection of Children from Sexual Offences Act, 2012 – Sections 9 and 10 read with Sections 377, 511, IPC – Criminal Procedure Code, 1973 – Sections 200, 202 and 482 – Unnatural sex with students – Petitioner was Manager of School – Protest petition filed by DD is on record – It is quite in detail – It gives description as to how offence was committed by petitioner with DD and other victims – When DD was subjected to sexual assault by petitioner and how it was done – Protest petition qualifies all ingredients of Section 2 (d) of Code to be treated as a complaint – Merely because list of witnesses was not filed alongwith protest petition, it cannot be said that protest petition cannot be treated as a complaint – Report purportedly given by PTA of school is not on record – On that report, inquiry was conducted by informant, who was Circle Officer, Police and it is that report which was lodged as FIR, in which, after investigation, FIR was submitted – There is no complaint in this case – However, though, protest petition was treated as a complaint, but summoning order is bad in eyes of law because Court did not conduct any inquiry either under Section 200 or 202 of Code – Summoning order cannot be sustained in law and it deserves to be set aside – Error was committed by recording statement of informant and it contributes to vitiate the order – Right from beginning course adopted was not in accordance with law – Complaint of sexual assault was made against Manager of school purportedly by PTA – Case diary reveals that it was examined by Education Department and by SDM – SSP directed Circle Officer to enquire and take necessary action in the matter – Question of considering departmental inquiry is something strange in such cases – Impugned order set aside and Investigation Officer directed to further investigate the case. (Paras 47, 48, 51, 56, 60, 66, 80 and 86)

(D) Constitution of India – Article 21 – Criminal Procedure Code, 1973 – Sections 173 – Crime investigation – Investigation is structure on which trial is based – Fair, just and proper investigation is essence of fair trial – It is an attribute of Article 21 of Constitution of India. (Para 64)

Result: Criminal Misc. Applications allowed.