Partly allowed

Manisha W/O Shri Narendra Sharma, v. State of Rajasthan

Rajasthan HC4 Jan 2024CRLMP/3920/2023

Case brief

AI extract

What is this about?

Petitioner challenged the order of Metropolitan Magistrate not to send complaint for registration of FIR under Section 156(3) Cr.P.C. Court set aside magisterial order directing magistrate to reconsider and send complaint for police investigation, relying on Lalita Kumari and XYZ cases regarding mandatory FIR registration when cognizable offence is alleged.

What did the court decide?

Impugned order declining to send complaint for investigation set aside; directive issued to judicial magistrate to reconsider and send complaint to police for registration of FIR and investigation und

Manisha W/O Shri Narendra Sharma, Vs State… — Civil Procedure and Limitation | Rajasthan HC (2024)

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[2024:RJ-JP:1290]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Miscellaneous (Petition) No. 3920/2023

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Manisha W/o Shri Narendra Sharma, aged about 33 Years, R/o 265/265, Sector -26, Pratap Nagar, Jaipur.

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----Petitioner

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Versus

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State of Rajasthan, through Public Prosecutor.

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----Respondent

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For Petitioner(s) : Mr. Ashish Gausinga For Respondent(s) : Mr. Chandragupt Chopra, PP

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HON'BLE MR. JUSTICE SUDESH BANSAL

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Order

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04/01/2024

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This misc. petition has been filed under Section 482 Cr.P.C. challenging the order dated 15.06.2023 passed by the Metropolitan Magistrate No.5, Jaipur Metropolitan-I in criminal complaint under Section 190 Cr.P.C. whereby the learned Magistrate decline to send the complaint under Section 156(3) Cr.P.C. for registration of FIR and for investigation, nevertheless directed to proceed for an enquiry into the matter under Section 200 Cr.P.C.

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Counsel for the petitioner complainant at the outset submits that a perusal of contents of complaint as a whole shows that a cognizable offence was committed by accused persons, therefore, it was incumbent upon the trial court to send the complaint for investigation by concerned police station in its powers under Sections 156(3) CrPC following the mandate of law as expounded by the Hon’ble Supreme Court in case of Lalita Kumari V. State

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of Uttar Pradesh [AIR 2014 SC 187 ]. It has been submitted that the concerned Judicial Officer did not ponder over allegations made in the complaint in respect of making an attempt to outrage the modesty of petitioner so also to beat her husband. The learned trial court in its impugned order has observed that contents of complaint give rise to offence u/s. 323 and 504 IPC which are non cognizable, but apart from such offence other other cognizable offences u/s.341, 354/511 and 509 IPC are also made out, and therefore, complaint as a whole is required to be investigated through Investigating Agency of concerned police station after registration of FIR. The jurisdiction by the Judicial Magistrate to proceed with enquiry instead of sending the complaint for registration of FIR by the police is in abuse of process of law, therefore, the impugned order warrants interference by this court in exercise of its jurisdiction u/s.482 CrPC and appropriate directions be issued to send the complaint of petitioner for investigation by the police.

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It has also been pointed out that in respect of same incident FIR No.476/2023 at Police Station Pratap Nagar has been registered at the beheset of opposite party which is pending at the stage of investigation and wherein petitioner, her husband and other two persons were arrested.

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Learned Public Prosecutor has supported the impugned and opposed the petition.

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Facts of the case are that the complainant along with her husband and seven years daughter on 21.05.2023 went to D-mart at Pratap Nagar for purchasing grocery items. When the

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complainant and her husband along with the trolley entered the lift to travel to the second floor, thereafter accused persons also entered in the lift and their trolley collided, due to which accused persons started abusing and used filthy language to petitioner and her husband. On reaching the lift at second floor, as soon as the petitioner and her husband came out of the lift, the accused again started to abuse and accused Jitendra Vijay tried to outrage the modesty of the petitioner, tried to touch her inappropriately. When petitioner’s husband tried to save her, he was beaten up. They continued to abuse filthy words. The accused-Jitendra Vijay claimed that he is an advocate and his wife is a Magistrate. The incident at the D-mart can also be verified from CCTV footage of the D-mart.

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Having perused contents of the complaint in toto and from perusal of the impugned order this court finds that it is not in dispute that at the behest of opposite party in respect of incident occurred on 21.05.2023 at D-mart, one FIR No.476/2023, has been registered at PS Pratap Nagar, jaipur and the same is under investigation. In that FIR, petitioner and her husband are accused. In that view of matter, the trial Court disbelieved that a false FIR was registered at the behest of opposite party. Though the trial court in its impugned order has also observed that, prima facie, from averments of the complaint offences u/s.323 and 504 IPC are made out but such offences are non cognizable, hence enquiry has been orderd to be proceeded; In the opnion of this Court, the trial Court committed jurisdictional error in not considering the other allegation of complainant. It would be in the abuse of

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process of law to conclude at this stage, without allowing investigation that apart from such offence of Section 323, 504 of IPC, no other cognizable offence is made out. In the complaint allegations to make attempt to outrage modesty of petitioner as also manhandling with her husband have also been alleged therein. The incident has been stated to be captured in CCTV footage of the D-mart. It is a matter of investigation by police agency to investigate about the allegation levelled in the complaint.

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The Hon’ble Supreme Court had an occasion to deal with the matter in issue in a case XYZ Vs. State of Madhya Pradesh [(2023) 9 SCC 705], wherein the concerned Judicial Officer declined to send the complaint for investigation by police rather opted to proceed with an inquiry, the Apex Court in para 25 & 27 held thus:

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“25. Especially in cases alleging sexual harassment, sexual assault or any similar criminal allegation wherein the victim has possibly already been traumatized, the Courts should not further burden the complaint and should press upon the police to investigate. Due regard must be had to the fact that it is not possible for the complainant to retrieve important evidence regarding her complaint. It may not be possible to arrive at the truth of the matter in the absence of such evidence. The complainant would then be required to prove her case without being able to bring relevant evidence (which is potentially of great probative value) on record, which would be unjust.

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At this stage, the court is not called upon to decide upon the veracity of the allegations in the complaint, save and except to underscore the importance of an investigation by the police in a matter where the CCTV footage (or other evidence) is not under the possession or control of the appellant, but to be inquired into in the course of an investigation by the police. The discretion which has been conferred upon the Magistrate by Section 156(3) Cr.P.C, must be exercised in a judicious manner.”

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Reliance has also been placed on a judgment of coordinate bench of this court in Mathura Devi V. State of Rajasthan, S.B. Criminal Miscellaneous Petition No. 5195/2021, dated 06.01.2022 , wherein relying on a judgment of the Apex Court in case of Lalita Kumari (supra) has observed that “Whenever, a complaint/report is moved before the Magistrate with the prayer to send the same to the police for registration of the FIR and investigation, if a bare perusal of the complaint/report reveals commission of a cognizable offence, the Judicial Magistrate was left with no other option but to send the same to the Police Station for registration of FIR. In this matter as is observed earlier a perusal of the complaint reveals commission of a cognizable offence thus action taken and the order passed by the learned Magistrate is dehors to the legal position and in blatant disregard of the judgment passed by the Hon’ble Supreme Court in Lalita Kumari’s case, therefore, the action taken by the Magistrate and the order passed by him, whereby the inquiry was initiated and the matter was sent under Section 200 CrPC to the Police is hereby quashed and set aside and it is directed that the Magistrate shall send the complaint to the Police Station concerned for registration of the FIR.”

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A Constitution Bench of the Hon’ble Apex Court in Lalita Kumar (supra) has observed that there is duty of police to register an FIR whenever a cognizable offence is made out in a complaint and observed thus:-

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“119. Therefore, in view of various counterclaims regarding registration or non-registration, what is necessary is only that the information given to the

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police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information give, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible, etc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence. If, after investigation, the information given is found to be false, there is always an option to prosecute the complainant for filing a false FIR.”

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Having adverted to contentions of counsel for parties and having enlightened by judgments of the Apex Court and coordinate bench of this court, as referred herein above, so also from perusal of contents of the complaint and taking into consideration that in respect of same incident at the behest of opposite party FIR No.476/2023 against petitioners has already been registered, this court is of the considered opinion that to meet the ends of justice it would be in the interest of justice to send the complaint of the petitioner for investigation by the police agency of the concerned Police Station.

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As a result, the misc. petition is partially allowed and the impugned order dated 15-6-2023 to the extent of declining to send the criminal complaint of petitioner for investigation, under Section 156(3) CrPC is set aside and it is directed that the Judicial Magistrate Court shall reconsider the matter and exercise its

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jurisdiction to pass appropriate orders to send the present compliant of the petitioner for investigation by the Police agency under Section 156(3) Cr.P.C. and shall monitor the investigation for being fair and impartial in accordance with law.

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Stay application and any other pending application(s), if any, also stand(s) disposed of.

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(SUDESH BANSAL), J

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arn /1069

Manisha W/O Shri Narendra Sharma, v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

Manisha W/O Shri Narendra Sharma, v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

What the court decided

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