Himachal Pradesh High Court
Swati Kaundal vs State Of H.P. & Another on 11 December, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No. 1209 of 2023 Reserved on: 28.11.2023 .
Date of Decision: 11th December, 2023 Swati Kaundal ....Petitioner Versus State of H.P. & another of ....Respondents Coram Hon'ble Mr Justice Rakesh Kainthla, Judge.
rt Whether approved for reporting? No. For the Petitioner : Mr. Vivek Singh Attri, Advocate.
For the Respondents : Mr. Jitender Sharma, Additional Advocate General.
Rakesh Kainthla,Judge The petitioner has filed a present petition under Section 482 of Cr.P.C for quashing of Zero F.I.R. of 2023 dated 20.11.2023, registered at Police Station Amb, District Una, H.P. for the commission of offences punishable under Sections 376, 377 & 498-A read with Section 34 of IPC.
2 It has been asserted that the marriage of the petitioner was solemnized on 02.11.2020 as per Hindu rites and customs.
The parents-in-law of the petitioner started harassing her on one Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 11/12/2023 20:33:39 :::CIS 2 pretext or the other. The petitioner's husband used to suspect the petitioner's character and say that she did not have good moral character. The petitioner's husband and his family members .
harassed the petitioner in June 2021 and asked her to get ₹15 lacs from her parents for the marriage of her brother-in-law Sachin Kumar (younger brother of the husband). The petitioner tried to of convince her husband and parents-in-law that her parents had spent the money beyond their capacity and gave expensive articles and gifts at the time of her marriage. The petitioner rt narrated these incidents to her parents, who visited her matrimonial home and tried to convince her husband and his family members not to make any demands. The petitioner was taking a rest in her room when her brother-in-law entered her room and raped her. The petitioner's husband also used to maintain unnatural sexual relations with her without her consent.
The petitioner left her matrimonial home in July, 2023. She made a complaint to the SHO on 20.11.2023. The police registered a Zero F.I.R. and sent it to Pacnchkulla Police Station for its registration.
The petitioner had suffered mental agony and cruelty in her maternal home.The parents and relatives of the petitioner tried to reconcile the matter but her husband and his relative were ::: Downloaded on - 11/12/2023 20:33:39 :::CIS 3 adamant. The wife can lodge the Zero F.I.R. even in the place where she is residing and police erred in sending the F.I.R. to Panchkulla (Haryana). Therefore, it was prayed that the Zero F.I.R.
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be quashed and a direction be issued to register a fresh F.IR. as per the complaint filed by the petitioner or to convert the Zero F.I.R.
into a regular F.I.R. and carry out the investigation.
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3. Mr. Vivek Singh Attri, learned counsel for the petitioner submitted that the police in the Police Station where rt the wife is residing has the jurisdiction to register the F.I.R. and carry out the investigation. He has relied upon the judgment of the Hon'ble Supreme Court in Rupali Devi vs. State of Uttar Pradesh & Ors. 2019(5) SCC 384 in support of his submission. He prayed that the Zero F.I.R. be quashed or converted into the regular F.I.R.
and the police be directed to carry out the investigation as per the law.
4. Mr Jitender Sharma, learned Additional Advocate General submitted that since the incident had taken place at Panchkulla, therefore, the police had rightly sent the F.I.R.to Panckhulla for investigation. The petitioner has the remedy to approach the concerned Magistrate and this Court should not ::: Downloaded on - 11/12/2023 20:33:39 :::CIS 4 exercise its extraordinary jurisdiction to issue direction for registration of F.I.R. and for the investigation. Hence, he prayed that the present petition be dismissed.
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5. I have given considerable thought to the submissions at the bar and have gone through the records carefully.
6. It was held by Kerala High Court in Vasanthi Devi versus of S.I. of Police and anr., 2008 SCC online Kerala 47 that the Magistrate has the power to order the registration of the FIR and monitor the rt investigation under Section 156(3) of Cr.P.C.; therefore, the petition under Section 482 of Cr.P.C. for such directions is not maintainable. It was observed:
"11. Later, after adverting to the principle that an express grant of statutory power carries with it by necessary implication the authority to use all reasonable means to make such grant effective, the learned Judges construed the power under Section 156(3) Cr.P.C. to include an implied power to direct a proper investigation. In para.24 the principle is stated with precision in the following words "In view of the above-mentioned legal position, we are of the view that although Section 156(3) is very briefly worded, there is an implied power in the magistrate under Section 156(3) Cr.P.C to order registration of a criminal offence and/or to direct the officer-in-charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned ::: Downloaded on - 11/12/2023 20:33:39 :::CIS 5 in Section 156(3) Cr.P.C., we are of the opinion that they are implied in the above provision."
12. The learned Judges elaborated on the above matter with a specific purpose. Their Lordships were aware of the .
practice of persons rushing to the High Court with Writ Petitions or petitions under Section 482 Cr.P.C. The learned Judges want to make it clear that ordinarily such a practice should not be encouraged and the High Courts must refuse to interfere with such matters. In para.25 the following lines appear.
"We have elaborated on the above matter because we of often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a rt petition under Section 482 Cr.P.C. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters, and relegate the petitioner to his alternative remedy."
13. To dispel, any impression that the Magistrate does not have powers to ensure a proper investigation, their Lordships proceeded further and stated so in para.27 in the following words.
"As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation, and for his purpose, he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C. simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under Sections 36 and 154(3) before the concerned police officers, and ::: Downloaded on - 11/12/2023 20:33:39 :::CIS 6 if that is of no avail, under Section 156(3) Cr.P.C before the Magistrate or by filing a criminal complaint under Section 200 Cr.P.C, and not by filing a writ petition or a petition under Section 482 Cr.P.C."
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14. After observing that such an alternate remedy is available to such a petitioner, the learned Judges in para.28 stated thus:
"It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High Court should not ordinarily interfere."
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29. Having said so, it has to be considered as to whether this writ petition filed by the petitioner deserves to be rt entertained. Even following the decision in Sakiri Vasu as already noted in paragraph 25, the mandate is only that this court should not encourage the practice and should ordinarily refuse to interfere when applications are filed under Section 482 Cr.P.C and Article 226 of the Constitution complaining about the inadequate quality of investigation.
Jurisdiction is not taken away. The question is not one of lack of jurisdictional competence. The challenge is only one of identifying the fit case where notwithstanding the existenceof powers for the Magistrate under Section 156(3) Cr.P.C, this court should invoke the powers under Section 482 Cr.P.C and Article 226 of the Constitution.
30. Having considered all the relevant aspects in this case, I am certainly of the view that this is a fit case where the petitioner must be left to seek appropriate directions from the learned Magistrate under Section 156(3) Cr.P.C. She must air her grievance that a proper investigation is not being conducted before the learned Magistrate concerned. The learned Magistrate, needless to say, must pass appropriate orders."
::: Downloaded on - 11/12/2023 20:33:39 :::CIS 77. This judgment is based upon the judgment of the Hon'ble Supreme Court, therefore, there is a force in the submission of Mr Jitneder Sharma, and learned Additional .
Advocate General that this Court should not exercise its jurisdiction under Section 482 of Cr.P.C. and the remedy of the petitioner is to approach the concerned Magistrate.
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8. Therefore, the directions sought to be issued cannot be issued in view of the binding precedent of the Hon'ble Supreme Court.
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9. Consequently, the present petition fails and the same is dismissed.
(Rakesh Kainthla) Judge 11th December, 2023 (Ravinder) ::: Downloaded on - 11/12/2023 20:33:39 :::CIS