Topic: Mrs. Rupan Deol Bajaj & Anr vs Kanwar Pal Singh Gill & Anr

This case has changed the meaning of the terms, modesty and privacy in such a way that, any kind of harassment or inconvenience done to a women’s private or public life will be considered as an offence.

Mrs. Rupan Deol Bajaj & Anr vs Kanwar Pal Singh Gill & Anr

Bench: Mukherjee M.K. (J) & Anand, A.S. (J) - Citation: 1996 AIR 309 1995 SCC (6) 194 - JT 1995 (7) 299 1995 SCALE (5)670 - Criminal Appeal No. 1184 OF 1995 - (arising out of S.L.P. (Cr.) No. 1361 of 1989) - Date Of Judgment 12/10/1995

Equivalent citations: 1996 AIR 309, 1995 SCC (6) 194


M.K. Mukherjee, J.

Special leave granted.    Heard the learned counsel appearing for the parties.

These two    appeals have been heard together as    they arise out of one and the same incident. Facts leading to these appeals and relevant for their disposal are as under : On July 29, 1988, Mrs. Rupan Deol Bajaj, an Officer of the Indian Administrative Service (I.A.S) belonging to the Punjab Cadre and then    working as the     Special Secretary, Finance, lodged     a complaint with the    Inspector General of Police, Chandigarh Union Territory alleging commission of offences under    Sections 341, 342, 352, 354, and 509 of the Indian Penal Code ("IPC" for short) by Mr. K.P.S. Gill, the Director General of Police, Punjab on     July 18, 1988 at a dinner    party.     Treating that     complaint as     the First Information Report (FIR) a case was     registered by     the Central     Police     Station, Sector 17, Chandigarh     and investigation was taken up. Thereafter on November 22, 1988, her husband Mr. B.R. Bajaj, who also happens to be a senior I.A.S. officer    of the    Punjab Cadre, lodged a complaint in the Court of the Chief Judicial Magistrate for the    same offences, alleging, inter alia, that Mr. Gill being a high- ranking Police    Officer the Chandigarh Police    had neither arrested him in connection with the case registered by the Police on his wife's complaint nor conducted investigation in a fair and    impartial manner and apprehending that the Police would conclude the investigation by treating the case as untraced he was filing the complaint. On receipt of the complaint the Chief Judicial Magistrate transferred it to a Judicial Magistrate for disposal and the latter, in view of the fact that an investigation by the Police was in progress in relation to the same offences, called for a report from the Investigating Officer in accordance with Section 210 of Code of     Criminal Procedure ("Cr.P.C." for short). In     the meantime - on December     16, 1988 to be precise - Mr. Gill moved the High Court by filing a petition under Section 482 Cr. P.C. for quashing the F.I.R. and the complaint. On that petition an interim    order    was passed staying     the investigation into the F.I.R. lodged by Mrs. Bajaj, but not the proceedings     initiated on the complaint of Mr. Bajaj. Resultantly, the learned Judicial Magistrate proceeded with the complaint case and     examined the complainant and     the witnesses produced by him. Thereafter, Mr. Bajaj moved an application before the learned Magistrate for summoning Mr. Y.S. Ratra, an I.A.S.    Officer of the Government of Punjab and Mr.     J.F. Rebeiro, Adviser to the Governor of Punjab for being examined    as witnesses on his behalf and for producing certain documents, which was allowed. Instead of appearing personally, the above two Officers sought for exemption from appearance; and     the District Attorney, after producing the documents, filed an application claiming privilege under Sections 123/124 of the Evidence Act in respect of them. The learned Magistrate rejected the prayer of the above     two officers and    also rejected,     after going    through     the documents, the claim of privilege, being of the opinion that the documents did not concern the affairs of     the State. Assailing the order of the learned Magistrate rejecting the claim of privilege, the State of Punjab filed a Criminal Revision Petition which was allowed by the High Court by its Order dated January 24, 1989. The petition earlier filed by Mr. Gill under Section     482 Cr. P.C. came up for hearing before the High Court    thereafter and    was allowed by     its order dated May 29, 1989 and     both the F.I.R. and     the complaint were    quashed. The above two     orders of the High Court are under challenge in these appeals at the instance of Mr.    and Mrs. Bajaj. Of the two appeals we first proceed to consider the merits of the one preferred against quashing of the    F.I.R. and the complaint (arising out of SLP (Crl.) No. 2358 of 1989) for, in case it fails, the other appeal {arising out of SLP (Crl.) No. 1361     of 1989} would , necessarily, be infructuous.

On perusal     of the     impugned judgment we find that the following reasons weighed with     the High Court in quashing the F.I.R.:-

(i) the allegations made therein do not disclose     any cognizable offence;

(ii) the nature of harm allegedly caused to Mrs. Bajaj did not entitle her to complain about the same in view of Section 95 IPC;

(iii) the allegations are unnatural and improbable; (iv) the Investigating Officer did not apply his mind to the allegations made in the F.I.R., for had he done so, he would have found that there was no reason to suspect commission of a cognizable offence, which was the `sine qua non'     for starting an investigation under Section 157 Cr. P.C.; and (v) there was unreasonable and unexplained delay of 11 days in lodging the F.I.R.

As regards     the complaint    of Mr. Bajaj, the High Court observed that the allegations    were almost identical    with some improvements made therein.

Mrs. Indira Jaisingh, the learned counsel appearing in support of the appeals     strongly criticised the impugned judgment and contended that in exercise of its powers under Section 482 Cr. P.C.,     the High Court should not    have interferred with the statutory     powers     of the police to investigate into cognizable offences and quashed the F.I.R. specially when     the allegations made in    the F.I.R. unmistakably constituted offences under the Indian Penal Code and that this unjustifiable interference was in clear violation of the principles laid down     by this Court in a number of decisions. She next contended that the finding of the High Court that the allegations made in     the F.I.R. attracted the provisions of Section 95 IPC was patently wrong as in a case where the modesty of a woman is involved, the said section cannot have any manner of application. She next contended that the story given out in the F.I.R. was neither improbable nor unreliable as the High Court thought of. As    regards     the delay in     lodging the F.I.R.,    Mrs. Jaisingh submitted that a satisfactory explanation for the delay had been given in the F.I.R. itself. This apart, she submitted, the    delay of 11 days in lodging an F.I.R., could not, by     any stretch of imagination, be made    a ground for quashing it. She lastly submitted that the High Court was wholly    unjustified in taking exception to     the police officer's registering     the F.I.R. and initiating     the investigation for, once it was found that     the F.I.R. disclosed cognizable    offence, it was the statutory obligation of the police to investigate into the same. According to Mrs. Jaisingh. the High Court committed grave injustice and illegality by quashing the F.I.R. and     the complaint.

Mr. Tulsi,     the learned Additional Solicitor General, appearing for Mr. Gill on the other hand submitted that the impugned judgment of the High Court was a well considered and well reasoned one so far as it held that the F.I.R. did not disclose any cognizable offence, that the allegations made therein being trivial attracted     the provisions of Section 95 IPC and that the allegations were improbable. He, however, in fairness, conceded     that the last two reasons canvassed by the High Court to quash the F.I.R. could not be sustained.

The question under what    circumstances and in    what categories of cases the High Court can quash an F.I.R. or a complaint in exercise of its powers under Article 226 of the Constitution of     India or under Section 482 Cr.P.C. has had been engaging the attention of this Court for long. Indeed, the learned counsel for the parties invited our attention to some of those decisions. We need not, however, refer to them as in State of Haryana Vs. Bhajan Lal 1992 Supp (1) SCC 335 this Court considered its earlier decisions, including those referred to by the learned counsel, and answered the above question as under:

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 of cases by way of    illustration wherein

such power process of any court or otherwise to secure the 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     FIR 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 FIR 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 FIR 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


(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 concerned 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.

We also give a note of caution to

the effect     that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too i the rarest of rare cases; that the court will not be justified in embarking upon an     enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."

(emphasis supplied)

In the context of     the reasons given by the High Court for quashing the F.I.R. and the complaint and the respective stands of the learned    counsel for the parties in relation thereto, we have to ascertain whether     the case presented before us comes under    categories (1),     (3) and (5) above. Besides, it raises the     applicability of Section 95    IPC. Since the answers to the above three questions have to be found out from the F.I.R. itself we need to look into the contents thereof.

It is first stated therein that in the evening of July 18, 1988 Mrs. Bajaj accompanied by her husband had gone to the residence of Shri S.L. Kapur, a colleague of theirs, in response to an invitation for dinner. Reaching there at or about 9     P.M. they found 20/25 couples present including Mr. Gill, who had come without his wife, and some other senior Government officers (named in    the F.I.R.). The party     had been arranged in the lawn at    the back of the house and as per tradition in Indian homes, the ladies were sitting segregated in a large    semi-circle and the gentlemen in another large semi-circle with the groups facing each other. With the above preface     comes Mrs. Bajaj's account of the incident in question, which reads as under:- "Around 10.00 P.M. Dr. P.N. Chutani and Shri K.P.S. Gill walked across to the circle of    the ladies and     joined     them

occupying the only two vacant chairs available, almost    on opposite sides of

the semi-circle. Shri K.P.S. Gill took a vacant chair about 5 to 6 chairs to the left of where I was sitting. Slowly, all the ladies sitting to the right and left of him, got up, and started leaving and going into     the house. I was talking to Mrs. Bijlani and    Mrs. K.P. Bhandari,

sitting on my right, and did not notice, or come to know, that those ladies were getting up     and vacating    their chairs

because he had misbehaved with them.

Shri K.P.S. Gill called out to me where I was sitting and said, "Mrs. Bajaj come and sit here, I want to    talk to you

about something." I got up from my chair to go and sit next to him. When I was about to sit down, he suddenly pulled the cane chair on     which I was going to sit close    to his chair and touching his

chair. I felt a little surprised. I put the chair back at its original place and about to sit down again when he repeated his action     pulling the chair close to his chair. I realised that something was very wrong     and without sitting down I immediately left and went     back and sat in my original place between the other ladies. Mrs. Bijlani,     Mrs.     K.P.

Bhandari, Mrs. Paramjit Singh and Mrs. Shukla Mahajan were occupying seats on my right and Mrs.     Nehra was sitting to the left of me at that time.

After about 10 minutes Shri K.P.S. Gill got up from his seat and came and stood straight but so close that his legs were about four inches from my knees. He made an action    with the crook of his finger

asking me    to stand and said, "You get

up. You come along with me." I strongly objected to his behaviour and told him, "Mr. Gill How dare you! You are behaving in an obnoxious manner, go away     from here". Whereupon he repeated his words like a command and said, "You get up! Get up immediately and come along with me." I looked to    the other ladies, all

the ladies looked shocked     and

speechless. I felt apprehensive and frightened, as he had blocked my way and I could not get up from my chair without my     body    touching his body. I     then

immediately drew my chair     back about a foot and half and     quickly got up and turned to    get out of the circle through

the space     between mine and     Mrs.

Bijlani's chair. Whereupon he slapped me on the posterior. This was done in the full presence of the ladies, and guests. Mrs. Bajaj     has then detailed her immediate reaction to the incident followed by the steps she took to apprise the Chief Secretary, the    Adviser     to the Governor and     the Governor of Punjab of     the incident.     She concluded     her narration with the following words:

"Ordinarily, my complaint to a Police Officer (Shri J.F. Ribeiro) is enough to be considered as an FIR and he had duly apprised the Governor, Punjab, and the Administrator of the Chandigarh, Union

Territory,     at the earliest occasion. Since I understand that the matter has not yet    percolated down from     the

Governor to lead to the registration a case, I am formally lodging an F.I.R. with the authorities of the Chandigarh Administration lest there is any problem about jurisdiction of the Police Officer later."

Sequentially summarised the statements and allegations as contained in the earlier quoted three paragraphs of the F.I.R. would read thus:

(i) Around 10    P.M. Dr. CHutani and Shri Gill walked across to and set in the ladies' circle;

(ii) Mrs. Bajaj, who was then talking     to Mrs. Bijlani and Mrs. Bhandari,    was requested by Mr. Gill to come and sit near him as he wanted to talk to her about something; (iii)     Responding to     his such request when     Mrs. Bajaj went to     sit in a chair next to him Mr. Gill suddenly pulled that chair close to his chair;

(iv) Felling a bit surprised, when she put that chair at its original place    and was     about to sit down, Mr. Gill again pulled his chair closer;

(v) Realising something was wrong she immediately left the place and went back to sit with the ladies; (vi) After about 10 minutes Shri Gill     came and stood in front of her so close that his legs were about 4" from her knees;

(vii)     He then by an action with the crook of his finger asked her to "get up immediately" and come along with him; (viii)     When she strongly objected to his behaviour and asked him to go away from there he repeated his earlier command which shocked the ladies present there; (ix) Being apprehensive     and frightened     she tried to leave the place but could not as he had blocked her way; (x) Finding no     other alternative when she drew her chair back and turned backwards, he slapped her on the posterior in the full presence of the ladies and guests. Coming now     to the     moot point as to whether the above allegations constitute    any or all of the offences for which the case was registered, we first turn to Section 354 and 509 IPC, both of which relate     to modesty of woman. These Sections read as under:

"354. Whoever     assaults or     uses

criminal force to any woman, intending to outrage     or knowing it to be likely that he    will thereby outrage     her

modesty,    shall     be punished     with

imprisonment of either description for a term which     may extend to two years, or with fine, or with both."

"509. Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or     gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished     with simple imprisonment for a term which may extend to    one year, or with fine, or

with both."

Since the    word `modesty'    has not     been defined in the Indian Penal Code we may profitably look into its dictionary meaning. According to    Shorter     Oxford     English Dictionary (Third Edition) modesty is the quality of being modest and in relation to woman means "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct".     The word `modest' in relation to woman is defined in the above dictionary as "decorous in manner and conduct; not forward or lewd; shamefast".    Webster's Third New International Dictionary of    the English language    defines     modesty as "freedom from coarseness, indelicacy or indecency; a regard for propriety in dress, speech or conduct". In the Oxford English     Dictionary (1933 Ed)     the meaning of the    word `modesty' is given as "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense     of shame proceeding    from instinctive aversion to impure or coarse suggestions". In State of Punjab vs. Major Singh (AIR 1967 Sc 63) a question arose    whether a female child     of seven and a half months could be said to be possessed of `modesty' which could be outraged. In answering the above question Mudholkar J., who     along with Bachawat J. spoke for the majority, held that when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that must fall     within the mischief of Section 354 IPC. Needless to say,     the `common notions    of mankind' referred to by the learned Judge have to be gauged by contemporary societal standards. The other learned Judge (Bachawat J.) observed that the essence of a woman's modesty is her sex and from her very birth she possesses the modesty which is the attribute of her sex. From the above dictionary meaning of `modesty' and the interpretation given to that word by     this Court in Major Singh's case (supra) it appears to us that the ultimate test for ascertaining whether modesty has been outraged is, is the action of the offender such as     could be perceived as     one which is     capable of shocking the sense of    decency of a woman. When the above test is     applied in the present case, keeping     in view the total fact situation, it cannot but be held that the alleged act of    Mr. Gill in slapping Mrs. Bajaj on her posterior amounted to `outraging of her modesty' for it was not only an affront to the normal sense of feminine decency but also an affront to the dignity of the lady - "sexual overtones" or not, notwithstanding.

It was however strenuously urged by Mr. Tulsi,    that even if     it was     assumed that Mr. Gill had outraged     the modesty of Mrs. Bajaj still no offence under Section 354 IPC could be said to have been committed by him for the other ingredient of the offence, namely, that he intended to do so was totally lacking. He urged that the culpable intention of the offender in committing the act is the crux of the matter and not the consequences thereof. To buttress his contention he invited our attention to the following passage from the judgment of this Court     in Hitendra Vishnu Thakur vs. State of Maharashtra    (1994) 4 SCC 602: (one of us, namely Anand, J. was a party)

"Thus the     true    ambit and scope of

Section 3    (1) is     that no conviction

under Section 3 (1) of    TADA can be

recorded unless the evidence led by the prosecution establishes that the offence was committed with the    intention as

envisaged by Section 3 (1) by means of the weapons etc. as enumerated in the section and was committed with the motive as     postulated by the     said

section. Even at the cost of repetition, we may say that where it     is only the consequence of the criminal act of an accused that terror, fear     or panic is caused, but the crime was not committed with the     intention as    envisaged by

Section 3    (1) to    achieve the objective

as envisaged by the section, an accused should not     be convicted for an offence under Section 3 (1) of TADA. To bring home a charge under Section 3 (1) of the Act, the terror or panic etc. must be actually intended with a view to achieve the result     as envisasged    by the     said

section and not be merely an incidental fall out     or a     consequence of the

criminal activity.     Every crime, being a revolt against the society, involves some violent activity which results in some degree of panic or    creates     some

fear or terror in the    people    or a

section thereof, but unless the panic, fear or terror was intended and was sought to     achieve either of     the objectives as envisaged in Section 3 (1), the offence would not fall stricto sensu under TADA."

It     is undoubtedly correct that if intention or knowledge is one of the ingredients of any offence, it has got to    be proved like other ingredients for    convicting a person. But, it is also equally true that those ingredients being states of mind may not    be proved by direct evidence and may have to be inferred from the attending circumstances of a given case. Since, however, in the instant case we are only at the incipient stage we have to ascertain, only prima facie, whether    Mr. Gill by slapping Mrs. Bajaj on     her posterior, in the background detailed by her in the FIR, intended to outrage or knew it to be likely that he would thereby outrage     her modesty, which is one of the essential ingredients of Section 354 IPC. The sequence of events which we have detailed earlier indicates that the slapping was the finale    to the earlier overtures of Mr.    Gill, which considered together, persuade us to hold that he had the requisite culpable intention. Even if we had presumed he had no such intention he must be attributed with such knowledge, as the alleged act was committed by him in the presence of a gathering comprising the elite of the society - as the names and designations of the people given    in the FIR indicate. While on this point we may also mention that there is nothing in the FIR to indicate, even remotely, that     the indecent act was committed by Mr. Gill, accidentally or by mistake or it was a slip. For the reasons aforesaid, it must also be     said that, - apart from the offence under Section 354 IPC - an offence under Section 509 IPC has been made out on the    allegations contained in the FIR as the words used and gestures made by Mr. Gill     were intended to insult the modesty of Mrs. Bajaj.

That brings us to     the other offences, namely, under Sections 352, 341, 342 IPC. We need not however take notice of the    offence under Section 352 IPC for the offence under Section 354 IPC includes the ingredients of the former. In other words, Section 352 IPC constitutes a minor offence in relation to the other. Regarding the offence of wrong confinement punishable    under Section 342 IPC    there is not any iota of material in the FIR; and so far as the offence under Section 341 IPC    is concerned, the only allegation relating to the same is that Mr. Gill stood in front of Mrs. Bajaj in such a manner that she had to move backward. From such act alone     it cannot be     said that he `wrongfully restrained' her     within the meaning of     Section 339 IPC to make him liable under Section 341 IPC.

Now that we have found that the allegations made in the FIR, prima facie, disclose offences under Section 354 and 509 IPC, we may advert to the applicability of Section 95 IPC thereto. The Section reads as follows: "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". In dealing     with the above Section in Veeda Menezes vs. Yusuf Khan (AIR 1966 SC 1773)     a three Judge Bench of this Court observed that the object of framing the Section was to exclude from the operation of the Indian Penal Code those cases which from the imperfection of     language may    fall within the letter of the law but are not within its spirit and are     considered, and for the most part dealt with by the courts, as innocent. In other words, the Section is intended to prevent penalisation of negligible wrongs or of offences of trivial character. In interpreting the expression `harm' appearing in the Section this Court said that it is wide enough to include physical injury as also injurious mental reaction. As regards the applicability of the Section in a given case, this Court observed as follows:- "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".

(emphasis supplied)

Viewed in    the light of the above principles we are of the opinion that Section 95 IPC has no manner of application to the    allegations made in the F.I.R. On perusal of the FIR we have     found that Mr. Gill,    the top most official of the State Police, indecently behaved with Mrs. Bajaj, a Senior lady IAS Officer, in the presence of a gentry and inspite of her raising objections continued with his such behaviour. If we are    to hold, on the face of such allegations that, the ignominy and trauma to     which she was subjected to was so slight that Mrs. Bajaj, as a    person of ordinary sense and temper, would not complain about the same, sagacity will be the first casualty. In     that view of the matter we need not delve into the contention of Mrs. JaiSingh, - much    less decide - that Section    95 IPC    cannot have any manner of application to    an offence relating to     modesty of woman as under no circumstances can it be trivial. In recording its third reason for quashing the FIR the High Court observed as under:

"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 (Mr. Gill) 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)."

We are constrained to say that in making the above observations the High Court has flagrantly disregarded - unwittingly we    presume - the settled principle of law that at the    stage of quashing an FIR or complaint the High Court is not    justified in embarking upon an enquiry as to     the probability, reliability or genuineness of the allegations made therein. Of course as has been pointed out in Bhajan Lal's case (supra) an    F.I.R. or a complaint may be quashed if the allegations made therein are so absurd and inherently improbable that     no prudent person can     ever reach a    just conclusion that     there is sufficient ground for proceeding against the accused but the High Court has not recorded such a finding, obviously because on the allegations in the FIR it was    not possible to do so. For the reasons aforesaid we must hold that the High Court has committed a gross error of law in quashing the FIR and the complaint. Accordingly, we set aside the impugned     judgment and dismiss the petition filed by Mr. Gill in the High Court     under    Section     482 Cr.P.C.

The consequential     direction that is to ordinarily follow from the above    order is mandates to the police to investigate into the FIR and to the learned Magistrate, who was in    seining of the complaint case, to proceed with it in accordance with     Section 210 Cr. P.C. but then we find from the records placed before us by Mr. Sanghi,    the learned counsel appearing for the Chandigarh Administration, that before the High Court    was moved by Mr. Gill through     his petition under    Section 482 Cr.P.C. and the interim order staying investigation of the case registered on the F.I.R. was passed thereon, the police had completed     the investigation and sent the papers relating thereto to the Legal Rememberancer-cum-Director of Prosecution (`LR'     for short) for his opinion. After his opinion was received the investigating officer prepared the `police (final) report' on November 22, 1988 and forwarded it, through the Senior Superintendent of Police, Chandigarh Administration (S.S.P) on November 28, 1988 to the `Ilaka' Magistrate stating that the evidence on record did not substantiate the accusations of the    complainant (Mrs. Bajaj). The learned Magistrate, in his turn, accepted the     report     on December 9, 1989     and ordered that the case    be filed with accused as `untraced'. In the    context of the fact that the High Court had, in the meantime quashed the F.I.R. the above order     was wholly unnecessary and     redundant but, now that we have revived the F.I.R. and the complaint it also revives. That necessarily means, that if we allow the above order to stand one course left open to us is, in view of our earlier    findings, to direct the Magistrate to proceed with the complaint in accordance with     the provisions     of Section 210 (3) Cr.P.C., but having regard to the police report and the manner in which it was dealt with and ultimately accepted, we consider it necessary to set aside the order treating the police case as "untraced".

From the records we find that while forwarding     the police papers to the `Ilaka' Magistrate on November     28, 1988, the S.S.P. recommended that the     case might be filed `as untraced' as requested by the local police in the final report. The papers however, do not appear to have been dealt with till July 17, 1989 when the Chief Judicial Magistrate entertained an application filed by Mrs. Bajaj in connection therewith wherein she stated that in Criminal Miscellaneous Petition No. 9041-M of     1988 (registered on the petition filed by Mr. Gill under Section 482 Cr.P.C.) the State had filed an affidavit averring that the    police had submitted its report under Section 173    Cr.P.C.     and prayed for a direction upon    the prosecution     to intimate the date of the filing of the report and give her an opportunity to inspect the same. Interestingly and surprisingly enough, the Chief Judicial Magistrate was none other than the L.R. who had earlier given the opinion that the    accusations of the complainant (Mrs. Bajaj) were    not substantiated from     the evidence collected during investigation. Indeed, it is under the influence of the above opinion that the police report was submitted as would     be evident from the report itself wherein     the Investigating Officer has stated "all     the statements of witnesses were sent to    the L.R. who,    vide letter No. LD-88/7163 dated 21.11.88, found that evidence on record    do not substantiate     the accusations of     the complainant" (as translated into english). It is difficult to believe that the learned Chief Judicial Magistrate was not aware of the fact that he had himself opined that no case for going to the trial was made out against Mr. Gill and therefore,    it was    expected that in the    interest of justice and fair play    he would have declined to deal with the case in his capacity as the Chief Judicial Magistrate. Instead of so doing, he passed an order on that application on July     19, 1989 directing issuance of notice. This     was followed by another order dated July    22, 1989 whereby he directed that the application    be listed on August 8, 1989 awaiting report. On the date so fixed he passed his next order which indicates that the report was received on that day and placed on record. It is not understood, which report the learned Magistrate was referring to for if it is to be read in     the context of the prayer made by Mrs. Bajaj in her application dated July 17, 1989 it would necessarily mean the `police report' but as already noticed, the affidavit filed by the State in the High Court and the prayer of the Senior Superintendent of the Police dated November 28, 1988 clearly indicate that it had been sent to the Court much earlier. It can, therefore, be legitimately inferred that the formal order regarding the receipt of the police report was belatedly made on August 8, 1989. Be that as it may, it appears that even thereafter the same learned Chief Judicial Magistrate continued to deal with the matter till September 16, 1989 when he made the following order: "The matter concerning State vs. K.P.S. Gill was being dealt with by me when I was Legal Remembrancer, Chandigarh Administration, Chandigarh. Accordingly, the papers     produced by the prosecution alongwith    all other relevant papers

pending in     this court are entrusted to the Court     of Sh. A.K.     Suri,    JMIC,

Chandigarh, for further proceedings in accordance with law.

Sh. A.S. Chahal, advocate, who is

appearing on behalf of Mrs. Rupan Deol Bajaj, complainant     has been directed to appear before that court    on 18.9.1989

for further proceedings. Papers be sent to that court immediately".

It passes our comprehension as to how an Officer (L.R.) who had     given the opinion to    submit a police report in favour of Mr. Gill could entertain the request of the police for accepting     the same while acting in his judicial capacity. More    surprising and    disquieting is the fact that he continued to deal with the matter till he realised that it would not be appropriate on his part to go any further. We need     not, however,    dilate on this aspect of the matter any further for in any case the order of the transferee Magistrate on the police report cannot be sustained inasmuch as he has not given any reason whatsoever for its acceptance though, it appears, the parties were heard on that question for days together, obviously to comply with the law laid down by     this Court in Bhagwant Singh vs. Commissioner of Police AIR 1985 SC 1285.

In Abhinandan Jha vs. Dinesh Mishra (AIR 1968 SC 117) the question arose whether a Magistrate to whom a report under Section 173 (1)    Cr. P.C. had been submitted to the effect that no case had been made out against the accused, could direct the police to file a charge-sheet on     his disagreeing with that report. In answering the question this Court first observed that the use of the words `may take cognizance of any offence' in sub-section (1) of Section 190 Cr.P.C. imports     the exercise of `judicial discretion' and the Magistrate    who receives the report under Section     173 Cr.P.C. will have to consider the said report and judicially take a    decision whether or not to take cognizance of the offence. The Court then held, in answering the question posed before it, that the Magistrate had no jurisdiction to direct the police to submit a charge-sheet but it was open to the    Magistrate to agree or     disagree with     the police report. If he agreed with the report that there was no case made out for issuing process to the accused he might accept the report and close the proceedings.     If he came to     the conclusion that further investigation was necessary he might make an     order to that effect    under Section 156(3). It was further held that if ultimately the Magistrate was of the opinion that the facts set    out in     the police report constituted an    offence he could take    cognizance thereof, notwithstanding contrary opinion of the police expressed in the report.

Since at the time of taking cognizance the Court has to exercise its judicial discretion it necessarily follows that if in a given    case - as the present one - the complainant, as the    person aggrieved raises objections to the acceptance of a police report which recommends discharge of the accused and seeks to satisfy the Court that    a case     for taking cognizance was    made out, but     the Court overrules such objections, it    is just and desirable that    the reasons therefor be recorded.     Necessity to    give reasons which disclose proper     appreciation of the issues before the Court needs no emphasis. Reasons introduce clarity    and minimise changes     of arbitrariness. That necessarily     means    that recording of reasons will not be necessary when the Court accepts such police report without any demur from     the complainant. As     the order of the learned Magistrate in the instant case does not contain any reason whatsoever, even though it was passed after hearing the objections of the complainant it    has got to be set aside and we do hereby set it aside. Consequent thereupon, two course are left open to us; to    direct the learned Magistrate    to hear     the parties afresh on the question     of acceptance    of the police report and pass a reasoned order or to decide for ourselves whether it is a fit case for taking cognizance under Section 190 (1) (b) Cr.P.C. Keeping in     view the fact     that the case is pending for the last seven years only on the threshold question we do not wish to take the former course as that would only delay the matter further. Instead thereof we have carefully looked into the     police     report and     its accompaniments keeping in view the following observations of this Court in H.S. Bains vs.    State AIR 1980 SC 1883, with which we respectfully agree:

"The Magistrate is not bound by the conclusions arrived at by the police even as    he is     not bound by the

conclusions arrived at by     the

complainant in a complaint. If a complainant states the relevant facts in his complaint and alleges that the accused is     guilty of an offence    under

Section 307 Indian Penal Code the Magistrate     is not bound by     the conclusion of the complainant. He may think that the facts disclose an offence under S. 324, I.P.C. only and he may take cognizance of an offence    under

Section 324 instead of    Section     307.

Similarly if a police report mentions that half    a dozen     persons examined by

them claim     to be    eye witnesses    to a

murder but     that for various reasons the witnesses could not be believed, the Magistrate is not bound to accept the opinion of the police regarding the credibility of the witnesses. He may prefer to ignore the conclusions of the

police regarding the credibility of the witnesses and take cognizance of the offence. If he does so, it would be on the basis     of the statements of the witnesses    as revealed by the police


(emphasis supplied)

Our such exercise persuades us to hold that the opinion of the    Investigating Officer that the allegations contained in the    F.I.R. were not substantiated    by the statements of witnesses recorded during investigation is not a proper one for we    find that there are sufficient materials for taking cognizance of the offences under Sections 354 and 509 I.P.C. We, however, refrain from detailing or discussing those statements and    the nature and extent of their corroboration of the    F.I.R. lest they create any unconscious impression upon the trial Court,    which has to ultimately decide upon their truthfulness, falsity or reliability,    after those statements are    translated into     evidence during trial. For the self same reasons    we do not wish to refer to     the arguments canvassed by Mr. Sanghi, in support of the opinion expressed in the police (final) report and our reasons in disagreement thereto.

On the conclusions as above we direct the learned Chief Judicial Magistrate, Chandigarh to take cognizance upon the police report in respect of the offences under Sections 354 and 509 IPC and try the case himself in accordance with law. We make     it abundantly    clear that the     learned Magistrate shall not in     any way be    influenced by    any of     the observations made by us relating to the facts of the case as our task was confined to the question whether a `prima facie case' to go to     the trial was made out or not whereas the learned Magistrate will have to dispose of the case solely on the basis of the evidence to be adduced during the trial. Since both the offences under Sections 354 and 509 IPC are tribal    in accordance    with Chapter XX of the Criminal Procedure Code    we direct the learned Magistrate to dispose of the case, as expeditiously as possible, preferably within a period of six months from the date     of communication of this order. In view    of our     above    directions and     the provisions of Section 210 (2) Cr.P.C.     the complaint    case instituted by Mr. Bajaj for the self same offences loses its independent existence thereby rendering the other appeal which arose out of that case,     redundant, though we are of the opinion, prima facie, that the claim of privilege, on the basis of the affidavit of the Chief Secretary, was not sustainable.

In the result the appeal No. 1183/95 arising out of SLP (Crl.) No.2358    of 1989     filed by Mr.    and Mrs. Bajaj is allowed and the other    appeal No.1184/95 arising out of SLP (Crl.) No.1361 of 1989 is dismissed as infructuous. Before we    part with this judgment we wish to mention that in     the course of his arguments, Mr. Sanghi, suggested that the matter may be given    a quietus if Mr. GIll was to express regret    for his     alleged misbehaviour.     That is a matter for the parties     to consider for the offences in question are compoundable with the permission of the Court.