NARSEENA BANO Vs. STATE AND OTHERS

JUDGEMENT

(1.) Instant petition filed under Section 561-A of the Code of Criminal Procedure is directed against the order dated 06.03.2019 passed by the learned Chief Judicial Magistrate, Jammu in File No.407/Misc. titled Nasreena Bano Vs. Rafiq Ahmed Jaral whereby learned Chief Judicial Magistrate, Jammu after recording the statement of the petitioner in compliance to the directions passed by the Hon'ble Supreme Court of India in SLP (Crl.) No.(S) 864/2019 has taken the cognizance of the complaint and has directed the Inspector General of Police, Jammu to conduct the inquiry himself or by any other Police Officer not below the rank of Senior Superintendent of Police. The petitioner also seeks a direction for registration of FIR against the respondents 5 to 7 for commission of the offence punishable under Sections 376 and 376-C read with Section 34 of the Ranbir Penal Code.

(2.) An advertence, though brief, to the factual antecedents leading up to the filing of the instant petition, may be advantageous to appreciate the controversy raised in this petition in proper prospective. As per the allegations contained in the complaint filed by the petitioner, aDemolition Squad lead by the SDM, North, Jammu along with respondents 5 to 7 demolished the house of the petitioner on 03.08.2018 with the use of JCB, Tipper and Cranes. The petitioner claims that not only her house was demolished without any notice or warning, but, she was also manhandled on spot by the Senior Police Officer, who forcibly put her into the Van and took her to the Police Post, Chinore. She alleges that she was kept in the Police Post for two nights from 03.08.2018 to 05.08.2018. She was also involved in a false and frivolous case registered against her under Sections 107/151 Cr.PC. Her further allegations is that on the evening of 03.08.2018, she was shifted to a secluded room behind the main building of the Police Post and was slapped and molested by respondent No. 6 who then forcibly committed intercourse with her without her consent. He was followed by the respondents Nos. 5 and 7, who also repeated the same act with the petitioner. There is further allegation that on the intervening night of 04.08.2018 and 05.08.2018, the respondents 5 to 7 ravished her again. The petitioner wanted to get herself medically examined on 05.08.2018, but, was also not permitted to do so. She claims to have gone to SMGS Hospital, Jammu for getting herself examined, but, the respondents managed that no such examination takes place in the Hospital. There is long tale of woe narrated by the petitioner in her complaint. The petitioner claims to have appeared before the Inspector General of Police, Jammu on 13.08.2018 during a public hearing and narrated him the whole episode and even showed him proof of the respondents 5 to 7 having committed the offence.

(3.) The petitioner further alleges that though her grievance was heard by the Inspector General of Police, Jammu, who forwarded her complaint to the SSP, Jammu but,strangely no FIR was registered against the respondents 5 to 7. The petitioner claims that she made complaint thereafter to all higher authorities including Governor of the State, Hon'ble Home Minister of India, Director General of Police, Border Security Force and Director General of Police, Jammu and Kashmir Police etc.etc. The petitioner states in her complaint that having failed to get an FIR registered against the respondents 5 to 7, she filed a complaint before the learned Chief Judicial Magistrate, Jammu narrating all that had happened to her in paragraphs 13 to 24 of the complaint. The petitioner sought a direction from the learned Chief Judicial Magistrate, Jammu for registration of FIR against the respondents 5 to 7 for commission of offences under Sections 376/376-C read with Section 34 RPC. Learned Chief Judicial, Jammu after going through the complaint and being satisfied that the commission of cognizable offence was disclosed against the respondents 5 to 7, directed Senior Superintendent of Police, Jammu to register an FIR under the relevant provisions of law and investigate the matter. This was done by the learned Chief Judicial Magistrate, Jammu purportedly in exercise of powers conferred on him under Section 156(3) of the Cr.PC. This order was challenged by the respondent No.6 before this Court by way of petition under Section 561-A Cr.PC, which came to be allowed by this Court vide judgment dated 03.11.2018. The order dated 15.10.2018 directing registration of an FIR was quashed and the matter remanded back to the learned Chief Judicial Magistrate, Jammu to decide the application of the petitioner under Section 156(3) of the Cr.PC afresh in the light of the judgement rendered by the Hon'ble Supreme Court of India in the case of Priyanka Srivastava and others Vs. State of U.P. and others, 2015 AIR(SC) 1758. Aggrieved, the petitioner took the matter to the Hon'ble Supreme Court of India by way of Special Leave Petition SLP(Crl.) No.(S) 864 of 2019, which came to be disposed of by the Hon'ble Supreme Court vide its order dated 01.02.2019 with a direction to the concerned Magistrate to have a fresh look into the matter after recording the statement of the victim. This is how the matter landed before the learned Chief Judicial Magistrate, Jammu once again. Learned Chief Judicial Magistrate, Jammu recorded the statement of the complainant and being satisfied that the averments made in the complaint coupled with the statement of the petitioner recorded pursuant to the directions of the Hon'ble Supreme Court of India, prima-facie discloses the commission of offences alleged, instead of directing the police to register FIR itself, took the cognizance of the complaint and deferred the issuance of the process. Learned Chief Judicial Magistrate, Jammu thought it necessary to have the inquiry conducted under Section 202 of the Cr.PC. The Magistrate, however, restricted the inquiry to seven points formulated in the order impugned. It is this order, the petitioner is aggrieved of. The sole grievance projected by her in this petition is that the Magistrate after recording the statement of the petitioner and being satisfied with respect to the commission of the cognizable offence was under statutory obligation to mandatorily direct the registration of FIR. Learned CJM, Jammu by taking cognizance of the complaint and referring the matter under Section 202 Cr.PC for inquiry has violated not only the mandate of law, but, has acted against the spirit of the directions issued by the Hon'ble Supreme Court. Placing strong reliance upon the judgment of the Hon'ble Supreme Court in the case of Lalita Kumari Vs. Govt. of UP and others, 2014 2 SCC 1, learned Senior counsel appearing for the petitioner submits that once the Magistrate finds that information contained in the application discloses the commission of a cognizable offence, it has no option but to direct registration of FIR as a matter of routine. The Magistrate can, however, refuse to direct registration of FIR if the information does not disclose the commission of cognizable offence or pertains to the disputes falling in the categories enumerated in the aforesaid judgment viz: