CAUSE TITLE:
Kailash Vijayvargiya Versus Rajlakshmi Chaudhuri and others
DATE OF ORDER:
04-05-2023
JUDGE(S):
M.R.Shah, Sanjiv Khanna
PARTIES: Petitioner: Kailash Vijayvargiya
Respondent: Rajlakshmi Chaudhuri and others
FACTS
- The prosecutrix has charged Vijayvargiya with inviting her to his flat, where the accused allegedly raped her repeatedly. She added that the defendant had threatened to kill both her and her kid. Additionally, the woman claims that she was physically abused up to 39 times following this incident, leading to the filing of two complaints in December 2019. Despite the complaints being filed, no FIR was ever filed.
- On November 12, 2020, an application under Section 156(3) of the Code of Criminal Procedure was submitted since the police declined to lodge an FIR; however, the Chief Judicial Magistrate, Alipore, denied the application. A criminal revisional application was submitted to the high court in an attempt to challenge the aforementioned order, and the court approved it. The matter was returned to them for review after the bench overturned the magistrate's order.
- Finally, the magistrate ordered the complaint to be treated as an FIR in October 2021, solely based on the directives issued by the Calcutta High Court. A first information report was filed against the trio by this directive under Sections 376D (gang rape), 506(ii) (punishment for criminal intimidation), and 120B (punishment of criminal conspiracy) of the IPC.
Issue raised
- whether the CJM was warranted in determining the truth and truthfulness of the charges?
- Was the magistrate compelled to use his or her judicial mind at that point?
ARGUMENTS ADVANCED BY THE APPELLANT
- Learned Senior Attorney Shri Mahesh Jethmalani vehemently argued that the High Court made a grave error by invalidating and overturning the learned CJM's well-reasoned order dismissing the complaint under Section 156(3) Cr.P.C. while speaking on behalf of one of the appellants-accused.
- The learned Senior Advocates who are representing the appellants further contend that in the current case, the SHO also conducted a preliminary investigation by the rules established by this Court in the case of Lalita Kumari (supra) after receiving the complaint in October 2020 and declined to file the FIR.
ARGUMENTS ADVANCED BY THE RESPONDENT
- The State of West Bengal is represented by Shri R. Basant, a seasoned senior advocate, who has fiercely argued that the Magistrate lacks the authority to consider the validity of the complaint and the acceptability of the charges at the application stage under Section 156(3) Cr.P.C.
- It is claimed that a police officer cannot decline to file an FIR if it reveals the commission of a cognizable criminal, according to the Constitution Bench ruling in the Lalita Kumari case (above). It is argued that the initial investigation envisioned in Lalita Kumari (above) by a police officer only serves to determine whether or not a cognizable offense is disclosed. It is said that the complainant has no choice but to file a complaint under Section 156(3) Cr.P.C. if the police officer wrongfully or mistakenly refuses to record an FIR.
ANALYSIS OF COURT
The Court observed that the SHO had conducted a preliminary investigation in compliance with the standards established in Lalita Kumari v. Govt. of U.P., (2014) 2 SCC 1, and had chosen not to register the FIR given the complaint's two-year delay in filing.
Additionally, it referred to the CJM's detailed dismissal decision on the complaint made under Section 156(3) of the Criminal Procedure Code, which confirmed the accuracy of the allegations and was overturned by the High Court despite not adhering to the rulings in Mukul Roy v. State of W.B., 2018 SCC OnLine Cal 4861, and Priyanka Srivastava v. State of U.P., (2015) 6 SCC 288, and directed reconsideration.
According to the Court, "the law in the application should protect blameless against those informants who level false allegations and abuse the law causing distress, humiliation, and damage to reputation.
"The Court looked at Chapter 12 of the CrPC, which deals with police investigation authority and information. According to the court, "difference is drawn between the power to arrest an accused person under Section 41 and the registration of an FIR under Section 154 of the Code to strike a balance. Although the arrest of the accused following the filing of an FIR is not required, the FIR registration is.
It was further stated that the registration of the FIR is not predicated on the information being reasonable or credible. The Court cited the case Abhinandan Jha v. Dinesh Mishra (1967) 3 SCR 668, in which it was stated that "The power of the Magistrate is conferred once a report by Section 157 or a report under Section 173(3) is submitted by the Police, is not powerless given the powers conferred in terms of Sections 159 and 173, judgment, Section 202 of CrPC."The Court cited Priyanka Srivastava for the principle that "When the Magistrate is satisfied that the allegation judgment loses the commission of a cognizable offense, he must stay his hands, direct registration of an FIR and leave it to the investigative agency to unearth the facts and ascertain the truth of the allegations.
"Regarding the extent of the Magistrate's competence to direct an FIR u/s 156(3) CrPC, the Court cited Mohd. Yousuf v. Afaq Jahan, (2006) 1 SCC 627 and Anju Chaudhary v. State of U.P., (2013) 6 SCC 384. The Court noted that the High Court had done the right thing in returning the case to the CJM for additional review and overturned the judgement made by the Magistrate on remand that ordered the filing of an FIR. The Court also sent the case back to the Magistrate so that he might use his judgment and discretion to decide whether or not to give directions under section 156(3) or whether to take cognizance of the situation and follow section 202's procedure.
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