Kuldeep Singh vs State Of J & K & Ors

M A Chowdhary, J

Petitioner has invoked the inherent jurisdiction of this court in terms of section 561-A of J&K CrPC (akin to section 482 of the Central CrPC) for quashing the order dated 06.10.2015 (for short ‘impugned order’) passed by Learned Judicial Magistrate [Special Mobile Magistrate (Electricity)] Batote, in a closure report arising out of FIR No. 42/2011 registered at Police Station, Batote for the commission of offence punishable under Section 376 RPC against the petitioner along with FIR (for short ‘impugned FIR’) .

It has been pleaded that the complainant had lodged a false and frivolous complaint against the petitioner for subjecting her to rape under the pretext of marriage. It has been pleaded that the complainant had initially lodged a false accusation against the petitioner and during investigation of the case, she had stated in her statement recorded during investigation before the Magistrate in terms of Section 164-A CrPC, where she admitted that she had been forcing the accused (petitioner herein) to marry her and she had voluntarily gone to Patnitop to meet him in connection with marriage proposal. As the petitioner refused to accept the proposal, she got infuriated and lodged a false and frivolous case of rape against him; that the complainant had shown the date of occurrence as 05.06.2011 and lodged the complaint on 08.06.2011 after a considerable delay. It has further been pleaded that the petitioner being a government employee did not want to lose his job and due to social and moral pressure created by the complainant, he agreed to execute a marriage agreement to pacify the complainant and after thorough investigation of the case a closure report was filed before the court below.

It was further alleged that during consideration of the closure report, the complainant on summons appeared and instead of filing any protest petition, pointed out the defects and shortcoming in the investigation and her fresh statement was recorded and impugned order was passed on that statement. The learned Magistrate appears to have come to the conclusion that the investigation by the respondent No.2 was shoddily conducted by the police in most casual and negligent manner, however, without pointing out the lapse in the investigation, the learned Magistrate rejected the closure report and directed Senior Superintendent of Police Ramban, to get the case re-investigated by an officer of the rank of not the less than DySP; that the impugned order has been challenged on many counts.

Learned senior counsel appearing for the petitioner, however, restricted his arguments only to the legal issue that the Magistrate was not competent to order re-investigation of the case as has been authoritatively held by the Supreme Court of India in a case titled “Chandra Babu @ Moses vs State

Through Inspector of Police & Ors.”, reported as 2015 (8) SCC 774, wherein it has been held that the Magistrate is not empowered to direct re-investigation or fresh investigation (de novo) in a case instituted on the basis of police report. Learned counsel for the petitioner prayed that in view of the facts and circumstances of the case and the legal position in view of the law laid down by the Apex Court, this petition be allowed and the order impugned directing re-investigation of the case and also the FIR No. 42/2011 registered at Police Station Batote, against the petitioner be quashed.

Learned counsel for the respondents submitted that the respondents had concluded the investigation into a closure report only, due to wavering stand taken by the complainant/prosecutrix, firstly alleging of the rape then resiling from that statement during her examination in terms of Section 164-A CrPC before the Magistrate and again alleging same-thing before the learned Magistrate when she was issued a notice while considering the closure report arising out of the case. He has further submitted that in the closure report action as warranted under Section 182 CrPC was recommended against the complainant for having lodged a false case, as such, respondents do not contest the case as projected by the petitioner for quashment of impugned order and the impugned FIR.

The complainant lodged the report with Police Station Batote on 08.06.2011 alleging that the petitioner Kuldeep Singh on 04.06.2011 asked her telephonically to meet him at Patnitop on 05.06.2011 where she want to meet him, however, she was taken to a forest area and subjected to rape; that she became unconscious and was shifted to hospital at Ramban where she remained under treatment. On the basis of this report a case was registered vide impugned FIR for the commission of offence punishable under Section 376 RPC. After investigation of the case, police concluded that complainant had filed a false case against the accused just to pressurize him into a marriage and laid the final report as closure report before the learned Magistrate. The learned Magistrate vide impugned order directed the Senior Superintendent of Police Ramban, to get the case re- investigated.

Hon’ble the Apex Court in the judgment relied upon Chandra Babu @ Moses’ case has concurred a view taken in its earlier judgment passed in “Vinay Tyagi vs Irshad Ali”, reported as (2013) 5 SCC 762 wherein it was ruled that the Magistrates have no jurisdiction to order re-investigation. It will be profitable to re-produce Para 20 of the judgment relied upon as under:-

In the said case, the question arose, whether the Magistrate can direct for reinvestigation. The Court, while dealing with the said issue, has ruled that:-

“At this stage, we may also state another well-settled canon of the criminal jurisprudence that the superior courts have the jurisdiction under Section 482 of the Code or even Article 226 of the Constitution of India to direct “further investigation”, “fresh” or “de novo” and even “reinvestigation”. “Fresh”, “de novo” and “reinvestigation” are synonymous expressions and their result in law would be the same. The superior courts are even vested with the power of transferring investigation from one agency to another, provided the ends of justice so demand such action. Of course, it is also a settled principle that this power has to be exercised by the superior courts very sparingly and with great circumspection”. And again:-

“Whether the Magistrate should direct “further investigation” or not is again a matter which will depend upon the facts of a given case. The learned Magistrate or the higher court of competent jurisdiction would direct “further investigation” or “reinvestigation” as the case may be, on the facts of a given case. Where the Magistrate can only direct further investigation, the courts of higher jurisdiction can direct further, reinvestigation or even investigation de novo depending on the facts of a given case. It will be the specific order of the court that would determine the nature of investigation.”

In view of the law laid down by the Top Court of the Country on the subject of re-investigation, having regard to the facts and circumstances of the case, it is held that the learned Magistrate was not competent to order re-investigation into the case, as such, the impugned order passed by the learned Magistrate directing re-investigation is erroneous and is not sustainable.

So far as the FIR is concerned, having regard to the facts and circumstances of the case and the wavering stand taken by the complainant initially that of subjecting her to rape at the time of lodging of FIR, denying that she was subjected to rape and that she had lodged the FIR just to coax the petitioner to solemnize marriage with her at the time her examination in terms of Section 164-A CrPC before Magistrate, during investigation and lastly again to allege same-thing at the time of closure report was being considered before the Magistrate, makes the allegation of the complainant doubtful so as to warrant any investigation. It appears that the accusation against the petitioner was that of false implication only, the FIR is also thus liable to be quashed, particularly so, in view of the fact that on investigation of the case the accusations made by the complainant were found un-true.

For the forgoing reasons and the observations made hereinabove, the instant petition is allowed and the impugned order dated 06.10.2015 passed by learned Judicial Magistrate [Special Mobile Magistrate (Electricity)] Batote, in a closure report, arising out of FIR No. 42/2011 registered at Police Station Batote, for the commission of offence punishable under Section 376 RPC against the petitioner along with FIR, is hereby ordered to be quashed.

The petition along with pending application(s), is thus disposed of, accordingly.