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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Manjari Nehru Kaul, J.
Simarjeet Singh Bains - Appellant
Versus
State Of Punjab & Anr. - Respondents
CRM M No. 26627 of 2021
Decided On : 23-07-2021
CRIMINAL - SECTION 156(3) CR.P.C. - MAGISTRATE'S POWER TO DIRECT REGISTRATION OF CASE - PENDENCY OF PETITION UNDER SECTION 482 CR.P.C. BEFORE HIGH COURT - JUDICIAL IMPROPRIETY - MAGISTRATE'S OBSERVATIONS REGARDING CUSTODIAL INTERROGATION - PRE-JUDGING OF CASE - SECTION 210 CR.P.C. - PROCEDURE TO BE FOLLOWED WHEN THERE IS A COMPLAINT CASE AND POLICE INVESTIGATION IN RESPECT OF THE SAME OFFENCE - SECTION 482 CR.P.C. - INHERENT POWERS OF HIGH COURT - ABUSE OF PROCESS OF LAW.
Fact of the Case:
Petitioner, a member of the Legislative Assembly, Punjab, and President of a political party, sought quashing of orders passed by the Additional Sessions Judge, Ludhiana, and the Additional Chief Judicial Magistrate, Ludhiana, setting aside the order treating the complainant's application under Section 156(3) Cr.P.C. as a complaint and remanding the case back to the Magistrate/trial court for a fresh decision, and directing the SHO to register a criminal case and investigate it, respectively. The complainant, a woman, alleged that she was raped and violated on numerous occasions by the petitioner and his accomplices despite her resistance, taking advantage of her vulnerable situation. The petitioner contended that the orders displayed judicial impropriety as the complainant had disclosed the filing of a petition under Section 482 Cr.P.C. in the High Court in her complaint under Section 156(3) Cr.P.C., and that the Magistrate erred in seeking a report under Section 202 instead of directing investigation under Section 156(3).
Finding of the Court:
The court held that the exercise of jurisdiction by a Magistrate under Section 156(3) Cr.P.C. is not vitiated merely because a petition under Section 482 Cr.P.C. is pending before the High Court. The Magistrate had the jurisdiction to order registration of an FIR, and the pendency of the petition under Section 482 Cr.P.C. did not take away that jurisdiction. The court further held that the Magistrate's observations regarding the custodial interrogation of the petitioner did not amount to pre-judging the case, as the court is only required to examine the existence of a cognizable offence and direct registration of FIR in case the necessary ingredients with respect to the cognizable offence are made out.
Issues: 1. Whether the exercise of the powers under Section 156(3) Cr.P.C. by the Magistrate during the pendency of the petition under Section 482 Cr.P.C. before the High Court would amount to an act of judicial impropriety? 2. Whether the observations made by the Magistrate while passing the impugned order (Annexure P6) while directing the registration of a criminal case amount to pre-judging the case?
Ratio Decidendi: 1. The power conferred upon the Magistrate under Section 156(3) Cr.P.C. viz.-e-viz. power vested in the High Court under Section 482 Cr.P.C. is implied in the grant of power to the Magistrate to order registration of a criminal offence and/or to direct the officer in charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. 2. The Magistrate's observations regarding the custodial interrogation of the petitioner did not amount to pre-judging the case, as the court is only required to examine the existence of a cognizable offence and direct registration of FIR in case the necessary ingredients with respect to the cognizable offence are made out.
Final Decision: The petition was dismissed.
JUDGMENT
Manjari Nehru Kaul, J. - The petitioner is seeking quashing of the order dated 07.06.2021 (Annexure P5) passed by the Additional Sessions Judge, Ludhiana, (hereinafter referred to as 'ASJ, Ludhiana') whereby revision petition of the complainant/respondent No.2 against the order dated 24.12.2020 (Annexure P3), treating her application under Section 156(3) Cr.P.C. as a complaint was set aside and the case remanded back to the Magistrate/trial court for a fresh decision. In addition, a prayer has also been made to set aside the order dated 07.07.2021 (Annexure P6) passed by the Additional Chief Judicial Magistrate, Ludhiana, (hereinafter referred to as 'ACJM, Ludhiana') whereby the SHO of Police Station Division No.6, Ludhiana, was directed to register a criminal case and to investigate it on the grounds that the said order was illegal having been passed contrary to the settled tenets of criminal jurisprudence and without any application of judicial mind.
2. On being put to notice, the State of Punjab filed its status report by way of a short affidavit of Shri Randhir Singh, PPS, Assistant Commissioner of Police, Industrial Area-B, Ludhiana. Respondent No.2- complainant was represented by a counsel and chose not to file any reply. Before adverting to the case in hand it would be apt to give a brief run up of the sequence of events which led the petitioner to file the instant petition.
3. The petitioner (who has been arraigned as accused) is a member of the Legislative Assembly, Punjab in addition to being President of a political party in the name and style of 'Lok Insaaf Party'. His brother too is a member of the Legislative Assembly. The dispute in the instant case emanates from a complaint filed by complainant/respondent No.2 wherein she alleged that she had purchased a house measuring 75 sq. yards in the year 2018 at Ishar Nagar, Ludhiana, with the help of co-accused Sukhchain Singh for a sale consideration of Rs.18 lakhs. The co-accused Sukhchain Singh allegedly misappropriated a sum of Rs.1.25 lakhs out of the sanctioned loan of Rs.10 lakhs which was allegedly secured through him from Vijaya Bank, Focal Point, Branch Ludhiana, as expenses for securing the said loan. Owing to the demise of her husband, the financial condition of the complainant/respondent No.2 deteriorated to such an extent that she defaulted in the re-payment of loan. The bank also initiated action for taking possession of the house of the complainant/respondent No.2. It was in the aforementioned background, the complainant/respondent No.2 through coaccused Sukhchain Singh approached the petitioner-accused for help. Thereafter, the complainant/respondent No.2 was called by the petitioner on various occasions on the pretext of availing some telephone facilities from the company where she was working at that point in time. Due to her precarious financial condition the complainant/respondent No.2 fell for the way out suggested by the co-accused Sukhchain Singh and the petitioner. It was further alleged that taking advantage of the vulnerable situation of the complainant/respondent No.2, the petitioner aided by his accomplices raped and violated her modesty on numerous occasions despite her resistance. She was also allegedly threatened with dire consequences if she disclosed the above facts to anyone. The allegations in detail are contained in the complaint dated 16.11.2020 (Annexure P10) made by the complainant/respondent No.2 to the Commissioner of Police, Ludhiana, which was also followed with reminders on 21.11.2020 and 01.12.2020 as well as in the application filed under Section 156(3) dated 03.12.2021 (Annexure P1). However, since the authorities concerned failed to act on her complaint, she approached this Court by way of CRM-M-39489-2020 invoking its inherent jurisdiction under Section 482 Cr.P.C. inter alia praying for the following relief:-
"i) To protect the life and liberty of the petitioner as she apprehends danger to her life at the hands of
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