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Allahabad High Court sets aside order dismissing complaint of sexual assault, asks magistrate to hear it again

The Allahabad High Court has allowed the petition preferred under Section 397/401 Cr.P.C against the order dated 23.06.2023 passed by the Chief Judicial Magistrate, Hathras in Criminal Complaint Case, whereby application moved by the applicant/revisionist under Section 156(3) Cr.P.C has been dismissed.

A Single Bench of Justice Ram Manohar Narayan Mishra passed this order while hearing a Criminal Revision filed by Sarita Sharma.

The facts of the case are that the applicant who is the victim has moved application under Section 156(3) Cr.P.C stating therein that the incident occurred on 24.06.2022 at 01:00 pm. When she moved towards office after finishing her teaching work in Civilian School run by Basic Education Department, Kota in Block Mursan, District Hathras, suddenly opposite party Laxmi Narayan Sharma who was working as Headmaster in Primary School Nagla Mallu, Block Mursan, District Hathras emerged there and asked her to stop, when she reached in the veranda of the school he abused her in filthy language and asked for her husband Jitendra Sharma in abusive language, then she stopped her to abuse them, he again abused her and acted in obscene manner with her.

He tried to grab her breast and tried to molest her, which resulted in outraging her modesty. On hearing her shierks, her husband Jitendra Sharma reached the spot and then the opposite party escaped from there after threatening him with life.

The opposite party used to threaten her every now and then, when she happened to be on way to school. Her report was not lodged at the police station, she reported the matter by registered post to police, but no action was taken. She moved an application under Section 156(3) Cr.P.C before the Magistrate concerned i.e Chief Judicial Magistrate, Hathras.

However, C.J.M placing reliance on preliminary inquiry report filed by Station House Officer concerned, dismissed the application with observation that application had been moved due to personal animosity of the applicant and her husband with the opposite party only with a view to exert unnecessary pressure on him. No cognizable offence is made out on the basis of evidence on record. Feeling aggrieved by the order the applicant/revisionist has preferred the revision.

Counsel for the revisionist submitted that the impugned order passed by the Magistrate is illegal and contrary to law. The impugned order is based on conjectures and surmises and wrong observation has been made by the Magistrate by rejecting the application under Section 256(3) Cr.P.C that no cognizable offence is made out.

In fact it is a clear case of outraging modesty of a woman and criminal intimidation etc. is also made out on the facts of the case, but the same has not been taken care of by learned C.J.M. No preliminary inquiry is called for, where a sexual offence having been alleged against the proposed accused. In Spite of a cognizable offence being made out, the C.J.M has dismissed the application on the basis of a preliminary inquiry report submitted by the police, in which no statement of witnesses was recorded.

Per contra, Saghir Ahmad Senior counsel for the respondent No 2 submitted that the Supreme Court in Priyanka Srivastava Vs State of U.P (supra) has laid down certain guidelines to avoid abuse of process of the law by moving an application under Section 156(3) Cr.P.C with malafide intention and only to settle scores with a person against whom he/she is having some personal animosity.

He vehemently contended that on one hand in the light of the Supreme Court judgment in Lalita Kumari Vs Government of Uttar Pradesh (2014) 2 SCC 1 held it mandatory for a police officer to lodge an FIR in exercise of powers under Section 154 (1) Cr.P.C where the information discloses commission of cognizable offence, on the other hand the Magistrate having jurisdiction is not bound to direct registration of the case and registration by police in each and every case where a cognizable offence is made out on the face of the application, and Magistrate is expected to apply his judicial mind towards the allegations made in the application so that abuse of judicial process could be avoided.

The Court observed that,

Thus, from perusal of the conclusion given by the Apex Court in Lalita Kumari (supra), it is obvious that the scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are: a) Matrimonial disputes/ family disputes b) Commercial offences c) Medical negligence cases d) Corruption cases e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay. However, the Apex Court clarified that these are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

On a bare perusal of of the judgement in Priyanka Srivastava (supra), it is obvious that the Supreme Court has enable the Magistrate on filing application under Section 156(3) Cr.P.C before him to take steps to verify the nature of allegations of the case and preliminary inquiry in the cases pertaining to fiscal sphere, matrimonial/family disputes, commercial offences, medical negligence cases, corruption cases, or cases where there is abnormal delay/laches in initiating criminal prosecution have been permitted as has been stated in Lalita Kumari (supra).

The Supreme Court observed in Priyanka Srivastava (supra) that the Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order.

The Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. Issuing a direction stating “as per the application” to lodge an FIR creates a very unhealthy situation in the society and also reflects the erroneous approach of the Magistrate.

It also encourages the unscrupulous and unprincipled litigants to take adventurous steps with courts to bring the financial institutions on their knees. Thus, on a conjoint reading of Lalita Kumari (supra), Priayanka Srivastava and Another vs State of UP and others (supra) cited on behalf of the respondent and ‘XYZ’ vs State of MP and others (supra), it can be discerned that in Priayanka Srivastava (supra), the Apex Court expressed need of directing a preliminary investigation by a magistrate while dealing with an application under Section 156(3) Cr.P.C, in the cases which are enumerated in Lalita Kumari vs Government of UP (supra) while lodging the FIR under Section 156(3) Cr.P.C.

“In cases like present one, in which informant has levelled specific allegations of sexual assault and molestation against the accused/respondent No 2 directing preliminary investigation to police into allegations made by the victim in application under Section 156(3) Cr.P.C and placing reliance on police report submitted in favour of the proposed accused is neither desirable nor lawful.

The approach of the magistrate is not in consonance with the recent pronouncements of the Apex Court in ‘XYZ’ vs State of MP and others in the year 2022. the impugned order passed by the trial court is found to be contrary to law and deserves to be set aside,” the Court further observed.

Accordingly, the Court allowed the criminal revision and the order dated 23.6.2023, passed by the Chief Judicial Magistrate, Hathras in Criminal Complaint Case, is hereby set aside and the matter is remanded to the Chief Judicial Magistrate, Hathras to decide the same afresh after giving opportunity of hearing to the revisionist/ de-facto complainant in the light of law propounded by the Apex Court as discussed hereinabove.

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