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TMI Blog2011 (2) TMI 1535X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove referred to decisions the appellant was of the view that this was not a fit case to be referred to the police for investigation under Section 156(3) of the Code and, therefore, directed that the application submitted by the respondent under Section 156(3) of the Code be registered as complaint and further ordered the Registry to present the file before her on August 28, 2009 for recording the statement of the respondent No. 3 i.e. the original complainant under Section 200 of the Code. 5. Feeling aggrieved, the respondent No. 3 invoked jurisdiction of the High Court under Section 482 of the Code by filing Criminal Misc. Application No. 21606 of 2009 and prayed the High Court to quash the order dated August 1, 2009, passed by the appellant and to direct the police to register her F.I.R. filed against Irshad and to investigate the same as provided under Section 156(3) of the Code. 6. The learned Single Judge of the High Court, who heard the matter, was of the view that the appellant had done the gravest injustice to the respondent No. 3. According to the learned Single Judge though the appellant is a lady Magistrate yet she could not think about the outcome of ravishing the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of her power under Section 156(3) of the Code and also directed her to pass order for registration of FIR against the erring police officers, who had refused to register the FIR of the respondent No. 3. The learned Single Judge directed the Registry of the High Court to send a copy of his judgment to the appellant for her future guidance and also to the Senior Superintendent of Police, Saharanpur. As noted above, the disparaging remarks made by the learned Single Judge while setting aside the order passed by the appellant has given rise to the present appeal. 7. This Court has heard the learned counsel for the appellant as well as the learned counsel for the State Government and the learned counsel representing the High Court of Judicature at Allahabad. The record shows that the Respondent No.3 i.e. the original complainant is duly served in the matter but she has neither appeared through a lawyer or in person nor has filed any reply in the matter. This Court has also considered the documents forming part of the present appeal. 8. On receipt of notice issued by this Court, Mr. Anand Kumar, Deputy Superintendant of Police, Saharanpur, U.P. has filed reply affidavit mentioning inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trate of the first class may take cognizance of an offence (a) upon receiving a complaint of facts which constitute such offence, (b) upon a police report of such facts and (c) upon information received from any person other than a police officer or upon his own knowledge that such offence has been committed. Neither Section 154 nor Section 156 of the Code contemplates any application to be made to the police under Section 156(3) of the Code. What is provided in Section 156(1) of the Code is that any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquiry into or try under the provisions of Chapter XIII. However, this Court finds that in the present case it was alleged by the respondent No. 3 that she had filed complaint before police but according to her, the police officer in charge of the police station had refused to register her complaint and, therefore, she had made application to the Senior Superintendent of Police as required by Section 154(3) of the Code, but of no avail. Therefore, the respondent No. 3 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a different thing from initiation of the proceedings. One of the objects of examination of complainant and his witnesses as mentioned in Section 200 of the Code is to ascertain whether there is prima facie case against the person accused of the offence in the complaint and to prevent the issue of process on a complaint which is either false or vexatious or intended only to harass such person. Such examination is provided, therefore, to find out whether there is or not sufficient ground for proceeding further. 10. From the order dated August 1, 2009, passed by the appellant, it is evident that the 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. The respondent No. 3 at the time of filing complaint before the appellant had filed her own affidavit, carbon copy of the application sent by her to the Senior Superintendent of Police, Saharanpur with its postal registration and photocopy of the medical certificate. Under the circumstances the appellant had exercised judicial discretion available to a Magistrate and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 200 of the Code in the light of principles of law laid down by the Allahabad High Court in various reported decisions could not have been faulted with nor the appellant could have been subjected to severe criticism as was done by the learned Single Judge. There was no occasion for the learned Single Judge to observe that the appellant, a Judicial Magistrate, had done the gravest injustice to the victim or that though the appellant is a lady Magistrate, yet she did not think about the outcome of ravishing the chastity of daughter-in-law by her father-in-law or the seriousness of the crime committed by the accused and the reason assigned by the learned Magistrate in not directing the police to register the FIR indicated total non-application of mind by the appellant and that the order dated August 1, 2009, passed by the appellant, was a blemish on the justice system. The learned Single Judge was not justified in concluding that the appellant as Judicial Magistrate had passed the order dated August 1, 2009 ignoring all judicial disciplines or that the appellant had not at all applied her judicial mind and had only referred to some of the judgments of the Allahabad High Court, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such criticism of a judicial officer contained in the judgment of a higher court gives the litigating party a sense of victory not only over his opponent but also over the Judge who had decided the case against him. This is subversive of judicial authority of the deciding Judge. Fourthly, seeking expunging of the observations by a judicial officer by filing an appeal or petition of his own reduces him to the status of a litigant arrayed as a party before the High Court or Supreme Court- a situation not very happy from the point of view of the functioning of the judicial system. And last but not the least, the possibility of a single or casual aberration of an otherwise honest, upright and righteous Judge being caught unawares in the net of adverse observations cannot be ruled out. Such an incident would have a seriously demoralizing effect not only on him but also on his colleagues. If all this is avoidable why should it not be avoided?" However, this Court has further provided that the parameters outlined hereinbefore must not be understood as meaning that any conduct of a subordinate judicial office unbecoming of him and demanding a rebuff should be simply overlooked. This Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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