MRS. RUPAN DEOL BAJAJ & ANR. Vs KANWAR PAL SINGH GILL & ANR.

Rupan Deol Bajaj
PETITIONER:
MRS. RUPAN DEOL BAJAJ & ANR.
Vs.
RESPONDENT:
KANWAR PAL SINGH GILL & ANR.
DATE OF JUDGMENT12/10/1995
BENCH:
MUKHERJEE M.K. (J)
BENCH:
MUKHERJEE M.K. (J)
ANAND, A.S. (J)
CITATION:
1996 AIR 309 1995 SCC (6) 194
JT 1995 (7) 299 1995 SCALE (5)670
ACT:
HEADNOTE:
JUDGMENT:
WITH
CRIMINAL APPEAL NO. 1184 OF 1995
——————————– (arising out of S.L.P. (Cr.) No. 1361 of 1989)
B.R. Bajaj
V.
State of Punjab & Ors.
JUDGMENT
M.K. MUKHERJEE, J.
Special leave granted. Heard the learned counsel
appearing for the parties.
These two appeals have been heard together as they
arise out of one and the same incident. Facts leading to
these appeals and relevant for their disposal are as under :
On July 29, 1988, Mrs. Rupan Deol Bajaj, an Officer of
the Indian Administrative Service (I.A.S) belonging to the
Punjab Cadre and then working as the Special Secretary,
Finance, lodged a complaint with the Inspector General of
Police, Chandigarh Union Territory alleging commission of
offences under Sections 341, 342, 352, 354, and 509 of the
Indian Penal Code (“IPC” for short) by Mr. K.P.S. Gill, the
Director General of Police, Punjab on July 18, 1988 at a
dinner party. Treating that complaint as the First
Information Report (FIR) a case was registered by the
Central Police Station, Sector 17, Chandigarh and
investigation was taken up. Thereafter on November 22, 1988,
her husband Mr. B.R. Bajaj, who also happens to be a senior
I.A.S. officer of the Punjab Cadre, lodged a complaint in
the Court of the Chief Judicial Magistrate for the same
offences, alleging, inter alia, that Mr. Gill being a high-ranking Police Officer the Chandigarh Police had neither
arrested him in connection with the case registered by the
Police on his wife’s complaint nor conducted investigation
in a fair and impartial manner and apprehending that the
Police would conclude the investigation by treating the case
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as untraced he was filing the complaint. On receipt of the
complaint the Chief Judicial Magistrate transferred it to a
Judicial Magistrate for disposal and the latter, in view of
the fact that an investigation by the Police was in progress
in relation to the same offences, called for a report from
the Investigating Officer in accordance with Section 210 of
Code of Criminal Procedure (“Cr.P.C.” for short). In the
meantime – on December 16, 1988 to be precise – Mr. Gill
moved the High Court by filing a petition under Section 482
Cr. P.C. for quashing the F.I.R. and the complaint. On that
petition an interim order was passed staying the
investigation into the F.I.R. lodged by Mrs. Bajaj, but not
the proceedings initiated on the complaint of Mr. Bajaj.
Resultantly, the learned Judicial Magistrate proceeded with
the complaint case and examined the complainant and the
witnesses produced by him. Thereafter, Mr. Bajaj moved an
application before the learned Magistrate for summoning Mr.
Y.S. Ratra, an I.A.S. Officer of the Government of Punjab
and Mr. J.F. Rebeiro, Adviser to the Governor of Punjab for
being examined as witnesses on his behalf and for producing
certain documents, which was allowed. Instead of appearing
personally, the above two Officers sought for exemption from
appearance; and the District Attorney, after producing the
documents, filed an application claiming privilege under
Sections 123/124 of the Evidence Act in respect of them. The
learned Magistrate rejected the prayer of the above two
officers and also rejected, after going through the
documents, the claim of privilege, being of the opinion that
the documents did not concern the affairs of the State.
Assailing the order of the learned Magistrate rejecting the
claim of privilege, the State of Punjab filed a Criminal
Revision Petition which was allowed by the High Court by its
Order dated January 24, 1989. The petition earlier filed by
Mr. Gill under Section 482 Cr. P.C. came up for hearing
before the High Court thereafter and was allowed by its
order dated May 29, 1989 and both the F.I.R. and the
complaint were quashed. The above two orders of the High
Court are under challenge in these appeals at the instance
of Mr. and Mrs. Bajaj. Of the two appeals we first proceed
to consider the merits of the one preferred against quashing
of the F.I.R. and the complaint (arising out of SLP (Crl.)
No. 2358 of 1989) for, in case it fails, the other appeal
{arising out of SLP (Crl.) No. 1361 of 1989} would ,
necessarily, be infructuous.
On perusal of the impugned judgment we find that the
following reasons weighed with the High Court in quashing
the F.I.R.:-(i) the allegations made therein do not disclose any
cognizable offence;
(ii) the nature of harm allegedly caused to Mrs. Bajaj did
not entitle her to complain about the same in view of
Section 95 IPC;
(iii) the allegations are unnatural and improbable;
(iv) the Investigating Officer did not apply his mind to the
allegations made in the F.I.R., for had he done so, he would
have found that there was no reason to suspect commission of
a cognizable offence, which was the ‘sine qua non’ for
starting an investigation under Section 157 Cr. P.C.; and
(v) there was unreasonable and unexplained delay of 11 days
in lodging the F.I.R.
As regards the complaint of Mr. Bajaj, the High Court
observed that the allegations were almost identical with
some improvements made therein.
Mrs. Indira Jaisingh, the learned counsel appearing in
support of the appeals strongly criticised the impugned
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judgment and contended that in exercise of its powers under
Section 482 Cr. P.C., the High Court should not have
interferred with the statutory powers of the police to
investigate into cognizable offences and quashed the F.I.R.
specially when the allegations made in the F.I.R.
unmistakably constituted offences under the Indian Penal
Code and that this unjustifiable interference was in clear
violation of the principles laid down by this Court in a
number of decisions. She next contended that the finding of
the High Court that the allegations made in the F.I.R.
attracted the provisions of Section 95 IPC was patently
wrong as in a case where the modesty of a woman is involved,
the said section cannot have any manner of application. She
next contended that the story given out in the F.I.R. was
neither improbable nor unreliable as the High Court thought
of. As regards the delay in lodging the F.I.R., Mrs.
Jaisingh submitted that a satisfactory explanation for the
delay had been given in the F.I.R. itself. This apart, she
submitted, the delay of 11 days in lodging an F.I.R., could
not, by any stretch of imagination, be made a ground for
quashing it. She lastly submitted that the High Court was
wholly unjustified in taking exception to the police
officer’s registering the F.I.R. and initiating the
investigation for, once it was found that the F.I.R.
disclosed cognizable offence, it was the statutory
obligation of the police to investigate into the same.
According to Mrs. Jaisingh. the High Court committed grave
injustice and illegality by quashing the F.I.R. and the
complaint.
Mr. Tulsi, the learned Additional Solicitor General,
appearing for Mr. Gill on the other hand submitted that the
impugned judgment of the High Court was a well considered
and well reasoned one so far as it held that the F.I.R. did
not disclose any cognizable offence, that the allegations
made therein being trivial attracted the provisions of
Section 95 IPC and that the allegations were improbable. He,
however, in fairness, conceded that the last two reasons
canvassed by the High Court to quash the F.I.R. could not be
sustained.
The question under what circumstances and in what
categories of cases the High Court can quash an F.I.R. or a
complaint in exercise of its powers under Article 226 of the
Constitution of India or under Section 482 Cr.P.C. has had
been engaging the attention of this Court for long. Indeed,
the learned counsel for the parties invited our attention to
some of those decisions. We need not, however, refer to them
as in State of Haryana Vs. Bhajan Lal 1992 Supp (1) SCC 335
this Court considered its earlier decisions, including those
referred to by the learned counsel, and answered the above
question as under:
In the backdrop of the
interpretation of the various relevant
provisions of the Code under Chapter XIV
and of the principles of law enunciated
by this Court in a series of decisions
relating to the exercise of the
extraordinary power under Article 226 or
the inherent powers under Section 482 of
the Code which we have extracted and of
cases by way of illustration wherein
such power process of any court or
otherwise to secure the lay down any
precise, clearly defined and
sufficiently channelised and inflexible
guidelines or rigid formulae and to give
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an exhaustive list of myriad kinds of
cases wherein such power should be
exercised.
(1) Where the allegations made in the
first information report or the
complaint, even if they are taken at
their face value and accepted in their
entirety do not prima facie constitute
any offence or make out a case against
the accused.
(2) Where the allegations in the first
information report and other materials,
if any, accompanying the FIR do not
disclose a cognizable offence,
justifying an investigation by police
officers under Section 156(1) of the
Code except under an order of a
Magistrate within the purview of Section
155 (2) of the Code.
(3) Where the uncontroverted
allegations made in the FIR or complaint
and the evidence collected in support of
the same do not disclose the commission
of any offence and make out a case
against the accused.
(4) Where, the allegations in the FIR
do not constitute a cognizable offence
but constitute only a non-cognizable
offence, no investigation is permitted
by a police officer without an order of
a Magistrate as contemplated under
Section 155 (2) of the Code.
(5) Where the allegations made in the
FIR or complaint are so absurd and
inherently improbable on the basis of
which no prudent person can ever reach a
just conclusion that there is sufficient
ground for proceeding against the
accused.
(6) Where there is an express legal bar
engrafted in any of the provisions of
the Code or the concerned Act (under
which a criminal proceeding is
instituted) to the institution and
continuance of the proceedings and/or
where there is a specific provision in
the Code or the concerned Act, providing
efficacious redress for the grievance of
the aggrieved party.
(7) Where a criminal proceeding is
manifestly attended with mala fide
and/or where the proceeding is
maliciously instituted with an ulterior
motive for wreaking vengeance on the
accused and with a view to spite him due
to private and personal grudge.
We also give a note of caution to
the effect that the power of quashing a
criminal proceeding should be exercised
very sparingly and with circumspection
and that too i the rarest of rare cases;
that the court will not be justified in
embarking upon an enquiry as to the
reliability or genuineness or otherwise
of the allegations made in the FIR or
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the complaint and that the extraordinary
or inherent powers do not confer an
arbitrary jurisdiction on the court to
act according to its whim or caprice.”
(emphasis supplied)
In the context of the reasons given by the High Court
for quashing the F.I.R. and the complaint and the respective
stands of the learned counsel for the parties in relation
thereto, we have to ascertain whether the case presented
before us comes under categories (1), (3) and (5) above.
Besides, it raises the applicability of Section 95 IPC.
Since the answers to the above three questions have to be
found out from the F.I.R. itself we need to look into the
contents thereof.
It is first stated therein that in the evening of July
18, 1988 Mrs. Bajaj accompanied by her husband had gone to
the residence of Shri S.L. Kapur, a colleague of theirs, in
response to an invitation for dinner. Reaching there at or
about 9 P.M. they found 20/25 couples present including Mr.
Gill, who had come without his wife, and some other senior
Government officers (named in the F.I.R.). The party had
been arranged in the lawn at the back of the house and as
per tradition in Indian homes, the ladies were sitting
segregated in a large semi-circle and the gentlemen in
another large semi-circle with the groups facing each other.
With the above preface comes Mrs. Bajaj’s account of the
incident in question, which reads as under:- “Around 10.00 P.M. Dr. P.N. Chutani and
Shri K.P.S. Gill walked across to the
circle of the ladies and joined them
occupying the only two vacant chairs
available, almost on opposite sides of
the semi-circle. Shri K.P.S. Gill took a
vacant chair about 5 to 6 chairs to the
left of where I was sitting. Slowly, all
the ladies sitting to the right and left
of him, got up, and started leaving and
going into the house. I was talking to
Mrs. Bijlani and Mrs. K.P. Bhandari,
sitting on my right, and did not notice,
or come to know, that those ladies were
getting up and vacating their chairs
because he had misbehaved with them.
Shri K.P.S. Gill called out to me where
I was sitting and said, “Mrs. Bajaj come
and sit here, I want to talk to you
about something.” I got up from my chair
to go and sit next to him. When I was
about to sit down, he suddenly pulled
the cane chair on which I was going to
sit close to his chair and touching his
chair. I felt a little surprised. I put
the chair back at its original place and
about to sit down again when he repeated
his action pulling the chair close to
his chair. I realised that something was
very wrong and without sitting down I
immediately left and went back and sat
in my original place between the other
ladies. Mrs. Bijlani, Mrs. K.P.
Bhandari, Mrs. Paramjit Singh and Mrs.
Shukla Mahajan were occupying seats on
my right and Mrs. Nehra was sitting to
the left of me at that time.
After about 10 minutes Shri K.P.S. Gill
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got up from his seat and came and stood
straight but so close that his legs were
about four inches from my knees. He made
an action with the crook of his finger
asking me to stand and said, “You get
up. You come along with me.” I strongly
objected to his behaviour and told him,
“Mr. Gill How dare you! You are behaving
in an obnoxious manner, go away from
here”. Whereupon he repeated his words
like a command and said, “You get up!
Get up immediately and come along with
me.” I looked to the other ladies, all
the ladies looked shocked and
speechless. I felt apprehensive and
frightened, as he had blocked my way and
I could not get up from my chair without
my body touching his body. I then
immediately drew my chair back about a
foot and half and quickly got up and
turned to get out of the circle through
the space between mine and Mrs.
Bijlani’s chair. Whereupon he slapped me
on the posterior. This was done in the
full presence of the ladies, and guests.
Mrs. Bajaj has then detailed her immediate reaction to
the incident followed by the steps she took to apprise the
Chief Secretary, the Adviser to the Governor and the
Governor of Punjab of the incident. She concluded her
narration with the following words:
“Ordinarily, my complaint to a Police
Officer (Shri J.F. Ribeiro) is enough to
be considered as an FIR and he had duly
apprised the Governor, Punjab, and the
Administrator of the Chandigarh, Union
Territory, at the earliest occasion.
Since I understand that the matter has
not yet percolated down from the
Governor to lead to the registration a
case, I am formally lodging an F.I.R.
with the authorities of the Chandigarh
Administration lest there is any problem
about jurisdiction of the Police Officer
later.”
Sequentially summarised the statements and allegations
as contained in the earlier quoted three paragraphs of the
F.I.R. would read thus:
(i) Around 10 P.M. Dr. CHutani and Shri Gill walked across
to and set in the ladies’ circle;
(ii) Mrs. Bajaj, who was then talking to Mrs. Bijlani and
Mrs. Bhandari, was requested by Mr. Gill to come and sit
near him as he wanted to talk to her about something;
(iii) Responding to his such request when Mrs. Bajaj
went to sit in a chair next to him Mr. Gill suddenly pulled
that chair close to his chair;
(iv) Felling a bit surprised, when she put that chair at its
original place and was about to sit down, Mr. Gill again
pulled his chair closer;
(v) Realising something was wrong she immediately left the
place and went back to sit with the ladies;
(vi) After about 10 minutes Shri Gill came and stood in
front of her so close that his legs were about 4″ from her
knees;
(vii) He then by an action with the crook of his finger
asked her to “get up immediately” and come along with him;
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(viii) When she strongly objected to his behaviour and
asked him to go away from there he repeated his earlier
command which shocked the ladies present there;
(ix) Being apprehensive and frightened she tried to leave
the place but could not as he had blocked her way;
(x) Finding no other alternative when she drew her chair
back and turned backwards, he slapped her on the posterior
in the full presence of the ladies and guests.
Coming now to the moot point as to whether the above
allegations constitute any or all of the offences for which
the case was registered, we first turn to Section 354 and
509 IPC, both of which relate to modesty of woman. These
Sections read as under:
“354. Whoever assaults or uses
criminal force to any woman, intending
to outrage or knowing it to be likely
that he will thereby outrage her
modesty, shall be punished with
imprisonment of either description for a
term which may extend to two years, or
with fine, or with both.”
“509. Whoever, intending to insult
the modesty of any woman, utters any
word, makes any sound or gesture, or
exhibits any object, intending that such
word or sound shall be heard, or that
such gesture or object shall be seen, by
such woman, or intrudes upon the privacy
of such woman, shall be punished with
simple imprisonment for a term which may
extend to one year, or with fine, or
with both.”
Since the word ‘modesty’ has not been defined in the
Indian Penal Code we may profitably look into its dictionary
meaning. According to Shorter Oxford English Dictionary
(Third Edition) modesty is the quality of being modest and
in relation to woman means “womanly propriety of behaviour;
scrupulous chastity of thought, speech and conduct”. The
word ‘modest’ in relation to woman is defined in the above
dictionary as “decorous in manner and conduct; not forward
or lewd; shamefast”. Webster’s Third New International
Dictionary of the English language defines modesty as
“freedom from coarseness, indelicacy or indecency; a regard
for propriety in dress, speech or conduct”. In the Oxford
English Dictionary (1933 Ed) the meaning of the word
‘modesty’ is given as “womanly propriety of behaviour;
scrupulous chastity of thought, speech and conduct (in man
or woman); reserve or sense of shame proceeding from
instinctive aversion to impure or coarse suggestions”.
In State of Punjab vs. Major Singh (AIR 1967 Sc 63) a
question arose whether a female child of seven and a half
months could be said to be possessed of ‘modesty’ which
could be outraged. In answering the above question Mudholkar
J., who along with Bachawat J. spoke for the majority, held
that when any act done to or in the presence of a woman is
clearly suggestive of sex according to the common notions of
mankind that must fall within the mischief of Section 354
IPC. Needless to say, the ‘common notions of mankind’
referred to by the learned Judge have to be gauged by
contemporary societal standards. The other learned Judge
(Bachawat J.) observed that the essence of a woman’s modesty
is her sex and from her very birth she possesses the modesty
which is the attribute of her sex. From the above dictionary
meaning of ‘modesty’ and the interpretation given to that
word by this Court in Major Singh’s case (supra) it appears
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to us that the ultimate test for ascertaining whether
modesty has been outraged is, is the action of the offender
such as could be perceived as one which is capable of
shocking the sense of decency of a woman. When the above
test is applied in the present case, keeping in view the
total fact situation, it cannot but be held that the alleged
act of Mr. Gill in slapping Mrs. Bajaj on her posterior
amounted to ‘outraging of her modesty’ for it was not only
an affront to the normal sense of feminine decency but also
an affront to the dignity of the lady – “sexual overtones”
or not, notwithstanding.
It was however strenuously urged by Mr. Tulsi, that
even if it was assumed that Mr. Gill had outraged the
modesty of Mrs. Bajaj still no offence under Section 354 IPC
could be said to have been committed by him for the other
ingredient of the offence, namely, that he intended to do so
was totally lacking. He urged that the culpable intention of
the offender in committing the act is the crux of the matter
and not the consequences thereof. To buttress his contention
he invited our attention to the following passage from the
judgment of this Court in Hitendra Vishnu Thakur vs. State
of Maharashtra (1994) 4 SCC 602: (one of us, namely Anand,
J. was a party)
“Thus the true ambit and scope of
Section 3 (1) is that no conviction
under Section 3 (1) of TADA can be
recorded unless the evidence led by the
prosecution establishes that the offence
was committed with the intention as
envisaged by Section 3 (1) by means of
the weapons etc. as enumerated in the
section and was committed with the
motive as postulated by the said
section. Even at the cost of repetition,
we may say that where it is only the
consequence of the criminal act of an
accused that terror, fear or panic is
caused, but the crime was not committed
with the intention as envisaged by
Section 3 (1) to achieve the objective
as envisaged by the section, an accused
should not be convicted for an offence
under Section 3 (1) of TADA. To bring
home a charge under Section 3 (1) of the
Act, the terror or panic etc. must be
actually intended with a view to achieve
the result as envisasged by the said
section and not be merely an incidental
fall out or a consequence of the
criminal activity. Every crime, being a
revolt against the society, involves
some violent activity which results in
some degree of panic or creates some
fear or terror in the people or a
section thereof, but unless the panic,
fear or terror was intended and was
sought to achieve either of the
objectives as envisaged in Section 3
(1), the offence would not fall stricto
sensu under TADA.”
It is undoubtedly correct that if intention or
knowledge is one of the ingredients of any offence, it has
got to be proved like other ingredients for convicting a
person. But, it is also equally true that those ingredients
being states of mind may not be proved by direct evidence
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and may have to be inferred from the attending circumstances
of a given case. Since, however, in the instant case we are
only at the incipient stage we have to ascertain, only prima
facie, whether Mr. Gill by slapping Mrs. Bajaj on her
posterior, in the background detailed by her in the FIR,
intended to outrage or knew it to be likely that he would
thereby outrage her modesty, which is one of the essential
ingredients of Section 354 IPC. The sequence of events which
we have detailed earlier indicates that the slapping was the
finale to the earlier overtures of Mr. Gill, which
considered together, persuade us to hold that he had the
requisite culpable intention. Even if we had presumed he had
no such intention he must be attributed with such knowledge,
as the alleged act was committed by him in the presence of a
gathering comprising the elite of the society – as the names
and designations of the people given in the FIR indicate.
While on this point we may also mention that there is
nothing in the FIR to indicate, even remotely, that the
indecent act was committed by Mr. Gill, accidentally or by
mistake or it was a slip. For the reasons aforesaid, it must
also be said that, – apart from the offence under Section
354 IPC – an offence under Section 509 IPC has been made out
on the allegations contained in the FIR as the words used
and gestures made by Mr. Gill were intended to insult the
modesty of Mrs. Bajaj.
That brings us to the other offences, namely, under
Sections 352, 341, 342 IPC. We need not however take notice
of the offence under Section 352 IPC for the offence under
Section 354 IPC includes the ingredients of the former. In
other words, Section 352 IPC constitutes a minor offence in
relation to the other. Regarding the offence of wrong
confinement punishable under Section 342 IPC there is not
any iota of material in the FIR; and so far as the offence
under Section 341 IPC is concerned, the only allegation
relating to the same is that Mr. Gill stood in front of Mrs.
Bajaj in such a manner that she had to move backward. From
such act alone it cannot be said that he ‘wrongfully
restrained’ her within the meaning of Section 339 IPC to
make him liable under Section 341 IPC.
Now that we have found that the allegations made in the
FIR, prima facie, disclose offences under Section 354 and
509 IPC, we may advert to the applicability of Section 95
IPC thereto. The Section reads as follows:
“Nothing is an offence by reason that it
causes, or that it is intended to cause,
or that it is known to be likely to
cause, any harm, if that harm is so
slight that no person of ordinary sense
and temper would complain of such harm”.
In dealing with the above Section in Veeda Menezes vs.
Yusuf Khan (AIR 1966 SC 1773) a three Judge Bench of this
Court observed that the object of framing the Section was to
exclude from the operation of the Indian Penal Code those
cases which from the imperfection of language may fall
within the letter of the law but are not within its spirit
and are considered, and for the most part dealt with by the
courts, as innocent. In other words, the Section is intended
to prevent penalisation of negligible wrongs or of offences
of trivial character. In interpreting the expression ‘harm’
appearing in the Section this Court said that it is wide
enough to include physical injury as also injurious mental
reaction. As regards the applicability of the Section in a
given case, this Court observed as follows:- “Whether an act which amounts to an
offence is trivial would undoubtedly
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depend upon the nature of the injury,
the position of the parties, the
knowledge or intention with which the
offending act is done, and other related
circumstances. There can be no absolute
standard or degree of harm which may be
regarded as so slight that a person of
ordinary sense and temper would not
complain of the harm. It cannot be
judged solely by the measure of physical
or other injury the act causes”.
(emphasis supplied)
Viewed in the light of the above principles we are of
the opinion that Section 95 IPC has no manner of application
to the allegations made in the F.I.R. On perusal of the FIR
we have found that Mr. Gill, the top most official of the
State Police, indecently behaved with Mrs. Bajaj, a Senior
lady IAS Officer, in the presence of a gentry and inspite of
her raising objections continued with his such behaviour. If
we are to hold, on the face of such allegations that, the
ignominy and trauma to which she was subjected to was so
slight that Mrs. Bajaj, as a person of ordinary sense and
temper, would not complain about the same, sagacity will be
the first casualty. In that view of the matter we need not
delve into the contention of Mrs. JaiSingh, – much less
decide – that Section 95 IPC cannot have any manner of
application to an offence relating to modesty of woman as
under no circumstances can it be trivial.
In recording its third reason for quashing the FIR the
High Court observed as under:
“In the present case there were 48 more
persons present; 24 ladies and equal
number of gentlemen. It sounds both
unnatural and unconscionable that the
petitioner (Mr. Gill) would attempt or
dare to outrage the modesty of the
author of the First Information Report
in their very presence inside the
residential house of Financial
Commissioner (Home).”
We are constrained to say that in making the above
observations the High Court has flagrantly disregarded -unwittingly we presume – the settled principle of law that
at the stage of quashing an FIR or complaint the High Court
is not justified in embarking upon an enquiry as to the
probability, reliability or genuineness of the allegations
made therein. Of course as has been pointed out in Bhajan
Lal’s case (supra) an F.I.R. or a complaint may be quashed
if the allegations made therein are so absurd and inherently
improbable that no prudent person can ever reach a just
conclusion that there is sufficient ground for proceeding
against the accused but the High Court has not recorded such
a finding, obviously because on the allegations in the FIR
it was not possible to do so. For the reasons aforesaid we
must hold that the High Court has committed a gross error of
law in quashing the FIR and the complaint. Accordingly, we
set aside the impugned judgment and dismiss the petition
filed by Mr. Gill in the High Court under Section 482
Cr.P.C.
The consequential direction that is to ordinarily
follow from the above order is mandates to the police to
investigate into the FIR and to the learned Magistrate, who
was in seining of the complaint case, to proceed with it in
accordance with Section 210 Cr. P.C. but then we find from
the records placed before us by Mr. Sanghi, the learned
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counsel appearing for the Chandigarh Administration, that
before the High Court was moved by Mr. Gill through his
petition under Section 482 Cr.P.C. and the interim order
staying investigation of the case registered on the F.I.R.
was passed thereon, the police had completed the
investigation and sent the papers relating thereto to the
Legal Rememberancer-cum-Director of Prosecution (‘LR’ for
short) for his opinion. After his opinion was received the
investigating officer prepared the ‘police (final) report’
on November 22, 1988 and forwarded it, through the Senior
Superintendent of Police, Chandigarh Administration (S.S.P)
on November 28, 1988 to the ‘Ilaka’ Magistrate stating that
the evidence on record did not substantiate the accusations
of the complainant (Mrs. Bajaj). The learned Magistrate, in
his turn, accepted the report on December 9, 1989 and
ordered that the case be filed with accused as ‘untraced’.
In the context of the fact that the High Court had, in the
meantime quashed the F.I.R. the above order was wholly
unnecessary and redundant but, now that we have revived the
F.I.R. and the complaint it also revives. That necessarily
means, that if we allow the above order to stand one course
left open to us is, in view of our earlier findings, to
direct the Magistrate to proceed with the complaint in
accordance with the provisions of Section 210 (3) Cr.P.C.,
but having regard to the police report and the manner in
which it was dealt with and ultimately accepted, we consider
it necessary to set aside the order treating the police case
as “untraced”.
From the records we find that while forwarding the
police papers to the ‘Ilaka’ Magistrate on November 28,
1988, the S.S.P. recommended that the case might be filed
‘as untraced’ as requested by the local police in the final
report. The papers however, do not appear to have been dealt
with till July 17, 1989 when the Chief Judicial Magistrate
entertained an application filed by Mrs. Bajaj in connection
therewith wherein she stated that in Criminal Miscellaneous
Petition No. 9041-M of 1988 (registered on the petition
filed by Mr. Gill under Section 482 Cr.P.C.) the State had
filed an affidavit averring that the police had submitted
its report under Section 173 Cr.P.C. and prayed for a
direction upon the prosecution to intimate the date of the
filing of the report and give her an opportunity to inspect
the same. Interestingly and surprisingly enough, the Chief
Judicial Magistrate was none other than the L.R. who had
earlier given the opinion that the accusations of the
complainant (Mrs. Bajaj) were not substantiated from the
evidence collected during investigation. Indeed, it is under
the influence of the above opinion that the police report
was submitted as would be evident from the report itself
wherein the Investigating Officer has stated “all the
statements of witnesses were sent to the L.R. who, vide
letter No. LD-88/7163 dated 21.11.88, found that evidence on
record do not substantiate the accusations of the
complainant” (as translated into english). It is difficult
to believe that the learned Chief Judicial Magistrate was
not aware of the fact that he had himself opined that no
case for going to the trial was made out against Mr. Gill
and therefore, it was expected that in the interest of
justice and fair play he would have declined to deal with
the case in his capacity as the Chief Judicial Magistrate.
Instead of so doing, he passed an order on that application
on July 19, 1989 directing issuance of notice. This was
followed by another order dated July 22, 1989 whereby he
directed that the application be listed on August 8, 1989
awaiting report. On the date so fixed he passed his next
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order which indicates that the report was received on that
day and placed on record. It is not understood, which report
the learned Magistrate was referring to for if it is to be
read in the context of the prayer made by Mrs. Bajaj in her
application dated July 17, 1989 it would necessarily mean
the ‘police report’ but as already noticed, the affidavit
filed by the State in the High Court and the prayer of the
Senior Superintendent of the Police dated November 28, 1988
clearly indicate that it had been sent to the Court much
earlier. It can, therefore, be legitimately inferred that
the formal order regarding the receipt of the police report
was belatedly made on August 8, 1989. Be that as it may, it
appears that even thereafter the same learned Chief Judicial
Magistrate continued to deal with the matter till September
16, 1989 when he made the following order:
“The matter concerning State vs. K.P.S.
Gill was being dealt with by me when I
was Legal Remembrancer, Chandigarh
Administration, Chandigarh. Accordingly,
the papers produced by the prosecution
alongwith all other relevant papers
pending in this court are entrusted to
the Court of Sh. A.K. Suri, JMIC,
Chandigarh, for further proceedings in
accordance with law.
Sh. A.S. Chahal, advocate, who is
appearing on behalf of Mrs. Rupan Deol
Bajaj, complainant has been directed to
appear before that court on 18.9.1989
for further proceedings. Papers be sent
to that court immediately”.
It passes our comprehension as to how an Officer (L.R.)
who had given the opinion to submit a police report in
favour of Mr. Gill could entertain the request of the police
for accepting the same while acting in his judicial
capacity. More surprising and disquieting is the fact that
he continued to deal with the matter till he realised that
it would not be appropriate on his part to go any further.
We need not, however, dilate on this aspect of the matter
any further for in any case the order of the transferee
Magistrate on the police report cannot be sustained inasmuch
as he has not given any reason whatsoever for its acceptance
though, it appears, the parties were heard on that question
for days together, obviously to comply with the law laid
down by this Court in Bhagwant Singh vs. Commissioner of
Police AIR 1985 SC 1285.
In Abhinandan Jha vs. Dinesh Mishra (AIR 1968 SC 117)
the question arose whether a Magistrate to whom a report
under Section 173 (1) Cr. P.C. had been submitted to the
effect that no case had been made out against the accused,
could direct the police to file a charge-sheet on his
disagreeing with that report. In answering the question this
Court first observed that the use of the words ‘may take
cognizance of any offence’ in sub-section (1) of Section 190
Cr.P.C. imports the exercise of ‘judicial discretion’ and
the Magistrate who receives the report under Section 173
Cr.P.C. will have to consider the said report and judicially
take a decision whether or not to take cognizance of the
offence. The Court then held, in answering the question
posed before it, that the Magistrate had no jurisdiction to
direct the police to submit a charge-sheet but it was open
to the Magistrate to agree or disagree with the police
report. If he agreed with the report that there was no case
made out for issuing process to the accused he might accept
the report and close the proceedings. If he came to the
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conclusion that further investigation was necessary he might
make an order to that effect under Section 156(3). It was
further held that if ultimately the Magistrate was of the
opinion that the facts set out in the police report
constituted an offence he could take cognizance thereof,
notwithstanding contrary opinion of the police expressed in
the report.
Since at the time of taking cognizance the Court has to
exercise its judicial discretion it necessarily follows that
if in a given case – as the present one – the complainant,
as the person aggrieved raises objections to the acceptance
of a police report which recommends discharge of the accused
and seeks to satisfy the Court that a case for taking
cognizance was made out, but the Court overrules such
objections, it is just and desirable that the reasons
therefor be recorded. Necessity to give reasons which
disclose proper appreciation of the issues before the Court
needs no emphasis. Reasons introduce clarity and minimise
changes of arbitrariness. That necessarily means that
recording of reasons will not be necessary when the Court
accepts such police report without any demur from the
complainant. As the order of the learned Magistrate in the
instant case does not contain any reason whatsoever, even
though it was passed after hearing the objections of the
complainant it has got to be set aside and we do hereby set
it aside. Consequent thereupon, two course are left open to
us; to direct the learned Magistrate to hear the parties
afresh on the question of acceptance of the police report
and pass a reasoned order or to decide for ourselves whether
it is a fit case for taking cognizance under Section 190 (1)
(b) Cr.P.C. Keeping in view the fact that the case is
pending for the last seven years only on the threshold
question we do not wish to take the former course as that
would only delay the matter further. Instead thereof we have
carefully looked into the police report and its
accompaniments keeping in view the following observations of
this Court in H.S. Bains vs. State AIR 1980 SC 1883, with
which we respectfully agree:
“The Magistrate is not bound by the
conclusions arrived at by the police
even as he is not bound by the
conclusions arrived at by the
complainant in a complaint. If a
complainant states the relevant facts in
his complaint and alleges that the
accused is guilty of an offence under
Section 307 Indian Penal Code the
Magistrate is not bound by the
conclusion of the complainant. He may
think that the facts disclose an offence
under S. 324, I.P.C. only and he may
take cognizance of an offence under
Section 324 instead of Section 307.
Similarly if a police report mentions
that half a dozen persons examined by
them claim to be eye witnesses to a
murder but that for various reasons the
witnesses could not be believed, the
Magistrate is not bound to accept the
opinion of the police regarding the
credibility of the witnesses. He may
prefer to ignore the conclusions of the
police regarding the credibility of the
witnesses and take cognizance of the
offence. If he does so, it would be on
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the basis of the statements of the
witnesses as revealed by the police
report.”
(emphasis supplied)
Our such exercise persuades us to hold that the opinion
of the Investigating Officer that the allegations contained
in the F.I.R. were not substantiated by the statements of
witnesses recorded during investigation is not a proper one
for we find that there are sufficient materials for taking
cognizance of the offences under Sections 354 and 509 I.P.C.
We, however, refrain from detailing or discussing those
statements and the nature and extent of their corroboration
of the F.I.R. lest they create any unconscious impression
upon the trial Court, which has to ultimately decide upon
their truthfulness, falsity or reliability, after those
statements are translated into evidence during trial. For
the self same reasons we do not wish to refer to the
arguments canvassed by Mr. Sanghi, in support of the opinion
expressed in the police (final) report and our reasons in
disagreement thereto.
On the conclusions as above we direct the learned Chief
Judicial Magistrate, Chandigarh to take cognizance upon the
police report in respect of the offences under Sections 354
and 509 IPC and try the case himself in accordance with law.
We make it abundantly clear that the learned Magistrate
shall not in any way be influenced by any of the
observations made by us relating to the facts of the case as
our task was confined to the question whether a ‘prima facie
case’ to go to the trial was made out or not whereas the
learned Magistrate will have to dispose of the case solely
on the basis of the evidence to be adduced during the trial.
Since both the offences under Sections 354 and 509 IPC are
tribal in accordance with Chapter XX of the Criminal
Procedure Code we direct the learned Magistrate to dispose
of the case, as expeditiously as possible, preferably within
a period of six months from the date of communication of
this order. In view of our above directions and the
provisions of Section 210 (2) Cr.P.C. the complaint case
instituted by Mr. Bajaj for the self same offences loses its
independent existence thereby rendering the other appeal
which arose out of that case, redundant, though we are of
the opinion, prima facie, that the claim of privilege, on
the basis of the affidavit of the Chief Secretary, was not
sustainable.
In the result the appeal No. 1183/95 arising out of SLP
(Crl.) No.2358 of 1989 filed by Mr. and Mrs. Bajaj is
allowed and the other appeal No.1184/95 arising out of SLP
(Crl.) No.1361 of 1989 is dismissed as infructuous.
Before we part with this judgment we wish to mention
that in the course of his arguments, Mr. Sanghi, suggested
that the matter may be given a quietus if Mr. GIll was to
express regret for his alleged misbehaviour. That is a
matter for the parties to consider for the offences in
question are compoundable with the permission of the Court.

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