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Judgment
S.D. Bajaj, J.—Petitioner Kanwar Pal Singh Gill D.G.P. is an I.P.S. officer, while author of the First Information Report Mrs. Rupan Deol Bajaj as also her husband B.R. Bajaj are both I.A.S. officers of more than 20 years, service enjoying super time scale in Commissioner''s rank. All the three of them had gone to House No. 288, Sector 16, Chandigarh, occupied by Shri S.L. Kapur, Financial Commissioner Home for dinner 18th July, 1988. Menfolk as also ladies have had their drinks before dinner could be served to them.
Around 10.00 P.M. on 18th July, 1968 the dinner night Petitioner went to the semi circle sitting place of ladies attending the party and requested the author of the First Information Report Mrs. Rupan Deol Bajaj to come and sit with him because he wanted to talk something to her. She got up from her chair and went towards him for sitting on the chair next after him. Twice over, when she was about to sit therein, the Petitioner allegedly pulled that chair close to and almost touching his owe chair. Feeling something wrong in the offing she returned to and sat in the chair previously occupied by her in the semi-circle of ladies.
Ten minutes thereafter, the Petitioner came towards the author of the Firtt Information Report and asked her to stand up and accompany him. Instead of doing so she pulled her chair backwards and was in the process of slipping away from the gap thereby created when the Petitioner allegedly slapped heron the posterior. In the complaint allegedly made orally to the host (Shri S.L. Kapur) as also to Joint Director; Intelligence Bureau (Mr. Pathak) immediately after the occurrence, the author of the First Information Report said, "He has even hit me". First Information Report was lodged 11 days after the occurrence on 29th July, 1988 and the complaint by her husband Shri B.R. Bajaj was instituted on 22nd November, 1968 nearly four months after the occurrence.
It has been urged on behalf of the Petitioner that the author of the First Information Report as also complainant are both making much ado about nothing. Both the Petitioner as also the author of the First Information Report were previously known to each other as brother/sister officers in two top most cadres of the country''s services and it was for this very reason that Mrs. Rupan Deol Bajaj had initially risen from her seat in the midst of ladies and willingly came to occupy the seat next to Shri Kanwar Pal Singh and what happened thereafter was only display of eagerness on the part of the Petitioner to prevent over-hearing of their talk by someone else and show of resentment over the author of the First Information Report''s conduct in avoiding the Petitioner instead of listening to him, for which Mrs. Rupan Deol Bajaj had initially come to sit closer to him. According to the learned Counsel for the Petitioner, there was complete absence of mensrea or guilty mind in the Petitioner to indulge in outraging the modesty of the author of the First Information Report nor could such an act be possibly intended to be indulged in or done in the presence of 48 other note worthy guests; every one of whom was more important in social circles of Chandigarh than the other. It was also asserted that sudden accidental slip even if any indulged in by the Petitioner has of course, to be ignored in terms of Section 95 of the Indian Penal Code.
Legal support for the argument aforesaid is forthcoming from the observations of Wright, J., in (1985) I Queen Bench 918 at page 921 which read:
Their Lordship agree with the view which was recently expressed by the Lord Chief Justice of England, when he said, "It is in my opinion of the utmost importance for the protection of the liberty of the subject that the court should always bear in mind that, unless the statute either clearly or by necessary implication rules out mensrea as a constitution part of a crime, a Defendant should not be found guilty of an offence against the criminal law unless he has got a guilty mind.
In Ram Das Vs. State of West Bengal, their Lordships of the Supreme Court observed:
Where an accused is tried for an offence u/s 354, and an assault is proved, the next question to be considered is whether he did so with intent to outrage the woman''s modesty, or with the knowledge that it would be outraged.
The story of a person trying to outrage the modesty of two women in the presence of two gentlemen is so unnatural, that there must be clear and unimpeachable evidence before it can be accepted. 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 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.
In the light of what has been said above, author of the First Information Report can''t be held entitled to complain of the harm allegedly caused to her in terms of Section 95 of the Indian Penal Code which reds:
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.
While interpreting it their Lordships of the Supreme Court observed in Veeda Menezes Vs. Yusuf Khan and Another,
The next question is whether, having regard to the circumstances, the harm caused to the Appellant and to her servant Robert was so slight that no person of ordinary sense and temper would complain of such harm. Section 95 is intended to prevent penalisation of negligible wrongs or of offences of trivial character. Whether an act which amounts to an offence is trivial would undoubtedly 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. A soldier assaulting his colonel, a policeman assaulting his Superintendent or a pupil beating his teacher, commit offences, the heinusness of which cannot be determined merely by the actual injury suffered by the officer or the teacher, for the assault would be wholly subversive of discipline. An assault by one child on another, or even by a grown-up person on another, which causes injury may still be regarded as so slight, having regard to the way and station of life of the parties, relation between them, situation in which the parties are placed, and other circumstances in which harm is caused, that the victim ordinarily may not complain of the harm.
Reaction of the author of the First Information Report or the woman whose modesty is alleged to have been outraged is not relevant for determining the existence of prime facie case against the accused Culpable intention of the accused is the crux of the matter. The same being wholly absent from the mind of the Petitioner as ascertained from the surrounding circumstances, referred to above and adverted to by the learned Counsel for the Petitioner, there is absolutely no chance of the two proceedings, one instituted on First Information Report and the other on the complaint filed by the husband of the author of the First Information Report named Shri B.R. Bajaj culminating in favour of the victim or the complainant and against the Petitioner arrayed as accused therein.
Eleven days'' delay in lodging the First Information Report as also nearly four months'' delay. In the institution of the complaint could not be satisfactorily explained by the Respondents. The object of the First Information Report is to obtain early information of alleged criminal activity to record the circumstances before there is time for them to be forgotten and embelished. This aspect of the matter is patent from the shifting stand in the two allegations, one made to Shri S.L. Kapur and Shri Pathak immediately after the occurrence saying. "He has even hit me" without specifying the part of the body or the method employed and the other one made in the First Information Report and the complaint stating that the Petitioner had slapped her on the posterior.
The use of qualifying words, reasonable complaint'', ''credible information'', ''reasonable suspicion'' in Clause (a) of Section 41. ''if satisfied'' used in Section 154 and ''reason to suspect, used in Section 157 of the Code of Criminal Procedure all suggest that before initiating action on the First Information Report the investigating officer ought to have applied his mind to the allegations made therein and reached a conclusion that prima facie there are grounds to justify action contemplated by them to be taken thereon. Union Territory of Chandigarh Administration arrayed as Respondent No. 3 in the quashing petition has also filed reply duly supported by an affidavit supporting the Petitioner in this regard and has submitted to the concerned ilaqa Magistrate First Information cancellation report. Complaint filed by B.R. Bajaj, husband of the author of the First Information Report being also in respect of the same occurrence and on almost identical allegations (except for the improvements allegedly made and set out in the quashing petition on account of time lag of four months) also merit quashing.
It was vociferously argued on behalf of the Respondents by their learned Counsel with reference to the observations made in R.P. Kapur Vs. The State of Punjab, State of West Bengal Vs. S.N. Basak, Hazari Lal Gupta Vs. Rameshwar Prasad and Another, etc., Kurukshetra University and Another Vs. State of Haryana and Another, State of Bihar and Another Vs. J.A.C. Saldanha and Others, Pratibha Rani Vs. Suraj Kumar and Another, , Eastern Spinning Mills and Virendra Kumar Sharda and Another Vs. Rajiv Poddar and Others, , and J.P. Sharma Vs. Vinod Kumar Jain and Others, that the statutory right to investigate into circumstances of the alleged cognizable offences and the statutory power of the police to investigate and file a challan and thereafter prosecute, cannot be interfered with by the exercise of powers under Articles 226 of the Constitution.
Section 154 deals with information in cognizable offence and Section 356 with investigation into such offences arid under these sections the police has the statutory right to investigate into the circumstances of any alleged cognizable offence without authority from a Magistrate and this statutory power of the police to investigate cannot be interfered with by the exercise of power u/s 439 or under the inherent power of the court u/s 561-A, when there was no case pending at the time excepting that the person against whom the investigation has started had appeared before the court, had surrendered and had been admitted to bail.
This argument gain is of no avail to the two Respondents nor does any of the authorities cited in support of it enure for their benefit. The basic idea on which the direction issued by Hon''ble the Supreme Court in all these cases is based is of the commission of a cognizable offence by the accused. It is this basic assumption, on which the directions proceed and which had been found wanting in the case set up against the Petitioner by Mrs. Kupan Deol Bajaj Respondent No. 1 and it has been held that allegations obtaining in complaint Annexure P. 1 could not give rise to a reasonable suspicion in the mind of the Superintendent of Police, Chandigarh, to order registration of the case on the basis of First Information Report aforesaid Salient distinction obtaining in this case renders the ratio of the authortties cited inapplicable to the facts and circumstances of the present case and takes the whole emphasis out of the argument advanced on their basis.
Adverting now to the law applicable on the facts and circumstances obtaining in this case, it must be said that the basic authority in this regard is AIR 1945 18 (Privy Council) The basic rule enunciated therein has consistently been approved by Hon''ble the Supreme Court in all its authoritative pronouncements thereafter. In State of West Bengal and Others Vs. Swapan Kumar Guha and Others, after discussing various authorities for and against the proposition, their Lordships of the Supreme Court observed:
My learned brother, A.N. Sen, J., has considered exhaustively the various authorities cited at the Bar by both the sides on the question as to the power of the courts to quash an investigation. I fully concur with his careful analysis of those authorities and would content myself with a broad indication of the trend of law bearing on the subject
If anything, therefore, the judgment King Emperor v. Khawaja Nazir Ahmad AIR 1945 Privy Council, 18 shows is that an investigation can be quashed if no cognizable offence is disclosed by the F.I.R. It shall also have been noticed, which is sometimes '' overlooked, that the Privy Council took care to qualify its statement of the law by saying that the judiciary should not interfere with the police in matters which are within the province of the police to investigate into a Report which does not disclose the commission of a cognizable offence and the Code does not impose upon them the duty of inquiry in such cases.
The position which emerges from these decisions and the other decisions which are discussed by Brother A.N. Sen is that the condition precedent to the commencement of investigation u/s 157 of the Code is that the F.I.R. must disclose, prima facie, that a cognizable offence has been committed. It is wrong to suppose that the police have an unfettered discretion to commence investigation u/s 157 of the Code.
Their right of inquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably, have reason so to suspect unless the F.I.R., prima facie, discloses the commission of such offence. If that condition is satisfied, the investigation must go on and the rule in Khawaja Nazir Ahmad will apply. The Court has then no power to stop the investigation, for to do so would be to trench upon the lawful power of the police to investigate into cognizable offences. On the other hand, if the F.I.R. does not disclose the commission of a cognizable offence, the Court would be justified in quashing the investigation on the basis of the information as laid or received.
A First Information Report which does not allege or disclose that the essential requirements of the penal provision are prima facie satisfied cannot form the foundation or constitute the starting point of a lawful investigation.
An investigation can be quashed if no cognizable offence is disclosed by the F.I.R. It is surely not within the province of the police to investigate into a Report. (F.I.R.) which does not disclose the commission of a cognizable offence and the Code does not impose upon them the duty of inquiry in such cases.
In this view of the matter, Criminal Misc. No. 9041-M of 1988 succeeds and is allowed. First Information Report No. 290 dated 29-7-1988 registered against the Petitioner in Police Station Central Sector 17, Chandigarh, at the instance of Respondent No. 1 as also the criminal complaint bearing No. 24 dated 26-11-1988 filed by her husband arrayed as Respondent No. 2 against the Petitioner in respect of the same occurrence are both quashed.