Allahabad High Court
Shivam Solanki vs State Of U.P. And Another on 11 August, 2022
Author: Manju Rani Chauhan
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 81 Case :- APPLICATION U/S 482 No. - 24962 of 2021 Applicant :- Shivam Solanki Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sunil Gupta,Anil Kumar Srivastava,Sr. Advocate Counsel for Opposite Party :- G.A.,Ishir Sripat Hon'ble Mrs. Manju Rani Chauhan,J.
1. Heard Mr. Chandrachud Pandey, Advocate holding brief of Mr. Anil Kumar Srivastava, learned counsel for the applicant, Mr. Ishir Sripat, learned counsel for the opposite party no.2 and Mr. Amit Singh Chauhan, learned counsel appearing for the State as well as perused the entire material available on record.
2. The present 482 Cr.P.C. application has been filed to quash the charge sheet No.57 dated 20.02.2021 and cognizance/summoning order dated 31.03.2021 as well as the entire prosecution of Criminal Case No.13805 of 2021 (State vs. Shivam Solanki), arising out of Case Crime No.504 of 2020, under Sections 323, 504, 506, 427, 386, 376 and 511 IPC, Police Station-Hariparvat, District-Agra, pending before the court of Chief Judicial Magistrate, Agra.
3. Brief facts of the case are that for the incident dated 26.12.2020 at about 08:00 hrs, NCR was lodged on 27.12.2020 under Sections 323, 504 and 506 IPC alleging therein that daughter of opposite party no.2, namely, Riddhi was called by the applicant at the gate of Ram Nagar Colony, using unparliamentary language, when Riddhi objected the same, the applicant assaulted her. On alarm being raised by opposite party no.2, persons of the locality reached there, where upon the applicant ran away giving threat to kill. On the NCR, so lodged, the Investigating Officer investigated the matter, collecting evidence by means of recording statements, medical and taking note of broken mobile i-phone and converted, the aforesaid NCR into FIR as is evident from Parcha No.52 dated 31.12.2020. Thus, an FIR was registered as Case Crime No.504 of 2020, under Sections 323, 504, 506, 354, 427 of IPC against the applicant. After registration of the FIR dated 31.12.2020, the Investigating Officer has prepared the fard of broken mobile, which belongs to injured. For the first time, on 01.01.2021, the statements of the complainant and victim Riddhi under Section 161 Cr.P.C. was recorded by the Investigating Officer, the statement of the victim under Section 164 Cr.P.C. was recorded on 06.01.2021. During investigation, the Investigating Officer has found that no offence under Section 354 IPC was made out against the applicant and, therefore, he has deleted the aforesaid section and added sections 354B and 386 IPC on the basis of statement of the victim under Section 164 Cr.P.C. as is evident from C.D. No.48 dated 06.01.2021. Thereafter, the second statement of the complainant, namely, Vishal Wadhwa and injured, namely, Riddhi Wadhawa under Section 161 Cr.P.C. were recorded on 03.02.2021. Subsequently, the charge sheet was submitted on 20.02.2021 against the applicant under Sections 323, 504, 506, 427, 386, 376, 511 IPC, pursuant to which, the applicant has been summoned vide order dated 31.03.2021 in the aforesaid sections.
4. Learned counsel for the applicant, before addressing the Court on merit, has raised a legal submission that Section 155(2) of the Cr.P.C. mandates that no investigation can be conducted against the accused in an offence that is non-cognizable without the express permission of the learned Magistrate, therefore, as the procedure provided under Section 155(2) Cr.P.C. has not been followed in the present case prior to lodging of the FIR, which is mandatory requirement, hence, all consequential proceedings pursuant to the initiation of an illegal action would not be justified in the eyes of law.
5. So far as the merit of the case is concerned, learned counsel for the applicant submits that the applicant has been falsely implicated in the present case. Initially, when the NCR was lodged, there were only allegations of using unparliamentary language and beating the victim and threatening to kill her, whereas without obtaining permission from the Magistrate concerned as is mandatory in under Section 155(2) Cr.P.C., the police has conducted the investigation and lodged the FIR. He further submits that there are no allegation of sexually assaulting the victim in the version of FIR nor any of the statements under Section 161 Cr.P.C. It is for the first time in the statement of the victim under Section 164 Cr.P.C. that the allegation of rape has been alleged by the victim, which appears to be afterthought as the applicant and victim were students, who happened to be friends.
6. Learned counsel further submits that though the incident as alleged is of 26.12.2020 at about 08:00 hrs, the statement of the victim under Section 164 Cr.P.C. was recorded on 06.01.2021, i.e. nearly after one month of the incident, which appears to be tutored one as the allegation with respect to rape were not in any statements, which were recorded earlier. He further submits that prior to submission of charge sheet, from the statement of the victim initially recorded on 01.01.2021 till second statement, the story has been changed every time, therefore, the entire case appears to be a false one. In such circumstances, continuance of proceedings would be abuse of process of law. Therefore, the chargesheet, summoning order as well as the entire proceedings may liable to be quashed.
7. On the other hand, learned AGA as well as learned counsel for the opposite party no.2 could not dispute the facts with respect to mandatory requirement of taking permission from the Magistrate concerned prior to initiating investigation as required under Section 155(2) Cr.P.C. So far as the merit of the case, learned AGA as well as learned counsel for the opposite party no.2 submits that in every crime, there is first, Mens Rea, i.e. intention to commit, secondly, preparation to commit it, and thirdly, attempt to commit it and if third stage, i.e. attempt is successful, then crime is complete. From the statements as well as evidence collected by the Investigating Officer, offence of attempt to commit rape has been clearly alleged, therefore, the charge sheet has been rightly submitted under Sections 376 and 511 IPC including other sections also, because preparation to commit any offence and completion of the preparation would amount to actual commission of the crime. In support of their submission, they are relied upon the judgment of the Apex Court in the case of State of Madhya Pradesh vs. Mahendra alias Golu reported in 2021 0 Supreme(SC) 626, wherein the Apex Court has held as under:-
"11. It is a settled preposition of Criminal Jurisprudence that in every crime, there is first, Mens Rea (intention to commit), secondly, preparation to commit it, and thirdly, attempt to commit it. If the third stage, that is, ''attempt' is successful, then the crime is complete. If the attempt fails, the crime is not complete, but law still punishes the person for attempting the said act. ''Attempt' is punishable because even an unsuccessful commission of offence is preceded by mens rea, moral guilt, and its depraving impact on the societal values is no less than the actual commission."
8. On the cumulative strength of the aforesaid submissions, learned AGA as well as learned counsel for the opposite party no.2 submits that admittedly, though the offence under Sections 323, 504, 506 IPC wherein the NCR was lodged, is non-cognizable offence, therefore, the investigation without prior permission of the Magistrate, are liable to be quashed. However, seeing the case on merits, prima facie offence under the relevant sections is made out against the applicant.
9. I have considered the submissions made by the learned counsel for the parties and gone through the records of the present application.
10. Before touching the merit of the case, it would be appropriate to deal with legal objection as raised by learned counsel for the applicant regarding permission of Magistrate before proceedings with the investigation for lodging of the FIR in the offences, which are non-cognizable.
11. It is relevant at this juncture to go through provisions of Section 155 of Criminal Procedure Code which are reproduced below:-
"Section 155 Cr.P.C.- Information as to non-cognizable cases and investigation of such cases:-
(1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate.
(2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.
(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.
(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable."
11. It is abundantly clear from above provisions of Section 155(2) and 155(3) Cr.P.C. that police is competent to investigate non cognizable offence with order of Magistrate and in such investigation the police officer receiving order of investigation may exercise same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case. Thus is clear that charge sheet submitted by police in non-cognizable offence after investigation made in pursuance of Magistrate order stands at par with charge sheet submitted by police in cognizable offence. Where the first information report and the accompanying materials do not disclose the commission of any cognizable offence justifying an investigation by the police officer under section 156(1) of the Code, no investigation of the case can be carried on without the order of the Magistrate in view of the mandate of Section 155(2) of the Code, as has been held by the Apex Court in the case of State of Haryana and Ors. vs. Ch. Bhajan Lal and Ors. reported in 1992 Suppl.(1) SCC 335. The relevant para no.108 of the aforesaid judgment reads as under:-
"108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
2. Where the allegations in the First Information Report and other materials, if any, accompanying the F. I. R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
5. Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/ or where there is a specific provision in the Code or the oncerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/ or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
12. When a non-cognizable offence is reported to the police, they are not empowered to investigate the matter and register an FIR, without compliance of Section 155(2) of Cr.P.C. without obtaining prior permission of the Magistrate concerned. It is only after referring the complaint to the concerned Magistrate and taking permission, thereafter, they can investigate the matter, as has been held by the Apex Court in the case of Gangadhar Narayan Nayak @ Gangadhar Hiregutti vs. State of Karnataka and Others reported in 2022 0 Supreme(SC) 232.
13. The Apex Court in the case of Tilak Nagar Industries Limited and Others vs. State of Andhra Pradesh and another reported in (2011) 15 SCC 571, has held that the statutory safeguards given under Section 155(2) of the Code must be strictly followed, since they are conceived in public interest and as a guarantee against frivolous and vexatious investigation.
14. The proceedings in non-cognizable offence, cannot be initiated by the police, by registering an FIR, without at the outset seeking the nod of the concerned Magistrate, as has been held in the case of Lokesh T.R. vs. State of Karnataka reported in 2022 SCC Online Kar 973. The relevant para nos.9 and 18 of the aforesaid judgment reads as under:-
"9. Therefore, when the SHO of the Police Station receives a report regarding commission of non-cognizable offence, it is his duty to enter the substance of the information in the prescribed book and refer the informant to the Magistrate as required under Section 155(1) of Cr. P.C. Thereafter, the jurisdictional Magistrate is required to pass an order permitting the Police Officer to investigate the case as mandated by the provisions of Section 155(2) of Cr. P.C., stated supra. Unless, the Police Officer is permitted by an order of the jurisdictional Magistrate to investigate the non-cognizable offence, the Police Officer does not get jurisdiction to investigate the matter and file a final report or the charge sheet.
18. ........................ The provision of Section 155(1) and (2) of Cr. P.C., referred above make it very much clear that the SHO of the Police Station on receiving the information regarding the commission of non- cognizable offence, his first duty is to enter or cause to be entered the substance of such commission in a book maintained by such Officer and then refer the informant to the Magistrate. This is the requirement of Section 155(1) of Cr. P.C. Once the requisition is submitted to the Magistrate, it is for the Jurisdictional Magistrate to consider the requisition submitted by the SHO of Police Station and pass necessary order either permitting the Police Officer to take up the investigation or reject the requisition. Section 155(2) of Cr. P.C., specifically provides that no Police Officer shall investigate the non-cognizable case without the order of the Magistrate having power to try such case or commit such case for trial. Therefore, passing an "order" by the Magistrate permitting the Police Officer to investigate the non- cognizable offence is an important factor. The word without the order of the Magistrate appearing in sub- Section (2) of Section 155 of Cr. P.C., makes it clear that the Magistrate has to pass an 'order' which means supported by reasons. On the other hand, in number of cases, the Jurisdictional Magistrates are writing a word 'permitted' on the requisition submitted by the Police itself which does not satisfy the requirement of Section 155(2) of Cr. P.C., Such an endorsement cannot be equated with the word 'Order'."
15. Thus reading of sub-section (1) of Section 155 of Cr.P.C. makes it clear that the duty of the SHO, who receives information as to the commission of a non-cognizable offence is only to enter or cause to be entered the substance of the information in the prescribed book and refer the informant to the Magistrate. It is for the informant to approach the jurisdictional Magistrate and seek a direction to the police for investigation. If the Magistrate on being approached by the informant, directs investigation, the Police Officer concerned would get jurisdiction to investigate the matter.
16. In the instant case, undisputedly, there is no such permission having been obtained by the police from the concerned Magistrate as required under Section 155(2) Cr.P.C on receiving credible evidence with regard to applicant having committed a non-cognizable offence, therefore, such proceedings would suffer from illegality. Compliance of Section 155 (2) Cr.P.C. is mandatory and not directory and therefore, investigation and report filed by the police in such case would not be legally sustainable.
17. It is a settled legal proposition that if initial action is not in consonance with law, all subsequent and consequential proceedings would fall through for the reason that illegality strikes at the root of the order. The aforesaid has been held by the Apex Court in the case of State of Punjab vs. Davinder Pal Singh Bhullar and others reported in (2011) 14 SCC 770.
18. Similarly, the Apex Court in the case of Mangal Prasad Tamoli vs. Narvadeshwar Mishra reported in (2005) 3 SCC 422, has held that if an order at the initial stage is bad in law, then all further proceedings, consequent thereto, will be non est and have to be necessarily set aside.
19. Meaning thereby that foundation being removed, structure/work falls, comes into play and applies on all scores. In the present case also, wherein, the entire proceedings have been initiated, without following the mandatory requirement of Section 155(2) of Cr.P.C. to take prior permission of the concerned Magistrate before proceeding with the investigation in the matter. Thus, wherein the initial action of the investigation against the applicant is illegal, all subsequent actions would be vitiated.
20. Ignoring the aforesaid fact that the concerned police officer has investigated the matter without following the procedure as mandated under Section 155(2) of Cr.P.C., while touching the merits of the case, there is no consistency in the version of informant as well as the victim starting from lodging of the NCR till the submission of charge sheet. It is for the first time, in the statement under Section 164 Cr.P.C., the victim has made allegation of attempt of being sexually assaulted. Thus, in view of law laid down by the Apex Court in the case of Santosh Prasad @ Santosh Kumar vs. the State of Bihar reported in (2020) 3 SCC 443, the proceedings against the applicant are nothing but an abuse of process of the Court. The statement of the victim should be of sterling quality in order to believe the allegations made by her against the applicant. The Apex Court in the aforesaid case of Santosh Prasad @ Santosh Kumar (supra) has considered the case of Raju v. State of Madhya Pradesh, reported in (2008) 15 SCC 133 as well as Rai Sandeep alias Deepu v. State (NCT of Delhi) reported in (2012) 8 SCC 21, while coming to the conclusion that the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality.
21. In the case of Raju (supra), it is observed and held by this Court in paragraphs 11 and 12 as under:-
"11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration."
22. In the case of Rai Sandeep alias Deepu (supra), the Apex Court had an occasion to consider as to who can be said to be a "sterling witness". In paragraph 22, it is observed and held as under:-
"22 In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
23. Thus, from the aforesaid discussions, it is clear, that, before arriving at a conclusion that the offence is made out or not, it is to be seen that the statement of the victim as well as other evidences are of a high quality and unassailable without there being any contradictions, exaggerations and the same should be consistent. In the present case, from narration of the facts in the NCR till submission of charge sheet, there is no consistency and only in the statement under Section 164 Cr.P.C., the victim has, for the first time, raised her grievance regarding allegation of an attempt of being sexually assaulted. The case of the applicant is also to be seen keeping in mind his career as he is student and false allegations against him will cause equal distress, humiliation and damage. Therefore, the case of the informant does not stand on the test of law laid down by the Apex Court in the aforesaid judgments.
24. Considering the facts and circumstances of the case, as noted herein above, and also the submissions made by the counsel for the parties, the court is of the considered opinion that the statutory safeguards as provided under Section 155(2) of Cr.P.C. has not been followed and the testimony of the victim was not of sterling quality to believe the allegations made against the applicant, therefore, the entire proceedings is liable to be quashed.
25. Accordingly, the charge sheet No.57 dated 20.02.2021 and cognizance/summoning order dated 31.03.2021 as well as the entire prosecution of Criminal Case No.13805 of 2021 (State vs. Shivam Solanki), arising out of Case Crime No.504 of 2020, under Sections 323, 504, 506, 427, 386, 376 and 511 IPC, Police Station-Hariparvat, District-Agra, pending before the court of Chief Judicial Magistrate, Agra are hereby quashed.
26. The application is, accordingly, allowed. There shall be no order as to costs.
27. A copy of this order be certified to the lower court forthwith.
(Manju Rani Chauhan, J.) Order Date :- 11.08.2022 Jitendra/-