Not Lawful For Magistrate To Direct Preliminary Inquiry Into Sexual Assault Allegations Made In S. 156 (3) CrPC Application: Allahabad HC
The Allahabad High Court has observed that it is neither desirable nor lawful for a Magistrate, dealing with a Section 156 (3) plea containing sexual assault allegations, to direct a preliminary investigation/inquiry by police and to place reliance on the police report submitted in favour of the proposed accused.
The Court observed that such an approach of the magistrate is not in accordance with the Apex Court's Judgment in the case of 'XYZ' vs the State of MP and others, 2022 LiveLaw (SC) 676.
For context, in the XYZ case, the Top Court held that the magistrate should order a police investigation, while dealing with an application under section 156 (3) CrPC, when the cognizable offence is prima facie found, especially in case of sexual offences.
A bench of Justice Ram Manohar Narayan Mishra also added that on a conjoint reading of Lalita Kumari vs Govt.Of U.P.& Ors (2013), Priyanka Srivastava & Anr. v. State of Uttar Pradesh & Ors. (2015) and 'XYZ' case, it can be discerned that a preliminary investigation by a magistrate dealing with a Section 156 (3) CrPC should be directed in those cases which are enumerated in the Lalita Kumari case.
For context, in the Lalita Kumari case, the Supreme Court held that registering an FIR is mandatory under Section 154 CrPC in case the information discloses the commission of a cognisable offence and no preliminary inquiry is permissible in such a situation.
The Bench had, however, specified specific categories of cases in which a preliminary inquiry may be made. They are (list not exhaustive as per SC's view):
- Matrimonial disputes and family disputes
- Commercial offences
- Medical negligence cases
- Corruption cases
- Cases where there is an abnormal delay or laches in initiating criminal prosecution; for example, over three months' delay in reporting the matter without satisfactorily explaining the reasons for the delay.
The High Court was essentially dealing with a criminal revision plea filed by a woman challenging an order of the Chief Judicial Magistrate, Hathras, dismissing an application moved by the applicant/revisionist under Section 156(3) CrPC.
It was the case of the revisionist that a headmaster of a Primary school in Hathras district abused her and acted in an obscene manner with her, and he tried to sexually assault and molest her, which resulted in outraging her modesty.
Since her report was not lodged at the police station, she reported the matter to the police by registered post, but no action was taken, so she moved an application under Section 156(3) CrPC before the Magistrate concerned.
However, the CJM concerned, while placing reliance on the preliminary inquiry report filed by the Station House Officer concerned, dismissed her application with the observation that the application had been moved due to the personal animosity of the applicant and her husband and no cognizable offence is made out based on evidence on record.
Feeling aggrieved by the order, the applicant/revisionist has preferred the present revision.
Before the HC, her counsel argued that despite a cognizable offence being made out, the CJM concerned had dismissed the application based on a preliminary inquiry report submitted by the police, in which no statement of witnesses was recorded.
It was strongly argued that when a cognizable offence like sexual offence is made out, which has been committed against a woman, the Magistrate has no option but to direct registration of an FIR, where an application under Section 156(3) CrPC has been filed by the victim.
Against the backdrop of these submissions, the High Court noted that as per Apex Court's judgment in the Priyanka Srivastava case, a Magistrate, while dealing with a Section 156 (3) CrPC application, has to take steps to verify the nature of allegations of the case and preliminary inquiry in the cases pertaining to fiscal sphere, matrimonial/family disputes, commercial offences, medical negligence cases, corruption cases, or cases where there is abnormal delay/laches in initiating criminal prosecution have been permitted as has been stated in Lalita Kumari (supra).
“The Hon'ble Supreme Court observed in Priyanka Srivastava (supra) that the Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. The learned Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. Issuing a direction stating "as per the application" to lodge an FIR creates a very unhealthy situation in the society and also reflects the erroneous approach of the learned Magistrate,” the Court observed.
However, the single judge added that in cases of the present nature, where the informant has levelled specific allegations of sexual assault and molestation against the accused, directing preliminary investigation to police into allegations made by the victim in application under Section 156(3) Cr.P.C. and placing reliance on police report submitted in favour of the proposed accused is neither desirable nor lawful.
In view of this, allowing the revision plea, the Court set aside the order passed by the CJM concerned and remanded the matter to the CJM concerned to decide the same afresh after giving the revisionist/de-facto complainant an opportunity of hearing in the light of the law propounded by the Apex Court.
Appearances
Senior Advocate NI Jafri, assisted by Advocates Ali Jamal Khan and Sadrul Islam Jafri, appeared for the revisionist.
Senior Advocate Saghir Ahmad, assisted by Advocate Rahul Kumar Sharma, and AGA appeared for the opposite parties.
Case title – XXX vs State of U.P. and Another
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