Goldy Rajiv Santhoji vs State Of Uttarakhand And Others
2021 Latest Caselaw 1617 UK

                                              Reserved
     IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
              Criminal Misc. Application No. 887 of 2020

Goldy Rajiv Santhoji                                           ......... Petitioner

                                     Vs.
State of Uttarakhand and others                              .......Respondents



Present:
            Mr. Trideep Pai, Senior Advocate, assisted by Ms. Amritananda
            Chakrvarty and Mr. Abhijay Negi, Advocate for the petitioner.
            Mr. J.S. Virk, Deputy Advocate General with Mr. Lalit Miglani, AGA
            and Mr. Rohit Dhyani, Brief Holder for the State/respondent nos. 1, 2,
            4 & 5.
            Mr. Rakesh Thapliyal, Senior Advocate, assisted by Mr. P.C. Petshali,
            Advocate for respondent nos. 3.

                                            With

               Criminal Misc. Application No. 31 of 2021

DD                                                             ......... Petitioner

                                     Vs.
State of Uttarakhand and others                              .......Respondents



Present:
            Mr. Rakesh Thapliyal, Senior Advocate, assisted by Mr. P.C. Petshali,
            Advocate for the petitioner
            Mr. J.S. Virk, Deputy Advocate General with Mr. Lalit Miglani, AGA
            and Mr. Rohit Dhyani, Brief Holder for the State/respondent nos. 1, 2
            & 3.
            Mr. Trideep Pai, Senior Advocate, assisted by Ms. Amritananda
            Chakrvarty and Mr. Abhijay Negi, Advocate for respondent no.4.


                               JUDGMENT

Per: Hon'ble Ravindra Maithani, J.

Since, common question of law and facts are involved in both these petitions, [(filed under Section 482 of the Code of Criminal Procedure, 1973 ("the Code")], they are being taken up together and decided by this common judgment.

2. In this judgment, parties shall be referred to as they are arrayed in Criminal Misc. Application No. 887 of 2020. Accordingly, Goldy Rajiv Santhoji shall be referred to as the petitioner and one of the victims, who is respondent no.3 in it shall be referred to as DD in order to mask his name. It may be noted that DD is petitioner in Criminal Misc. Application No. 31 of 2021.

FACTS

3. A report was received by the Senior Superintendent of Police (for short "SSP") Udham Singh Nagar, purportedly sent by the Parents Teachers' Association("PTA") Beershiva Residential Senior Secondary School, Sirolikalan, Kitchha, District Udham Singh Nagar (For short, "the school"). According to it, the petitioner was the Manager of the School. He committed unnatural sex with the students and also told them not to reveal it to anyone under threat that in case it is revealed, he would fail them in the practical. There were other allegations as well in the report. The report was sent to various authorities including the Education Department and the administration also. The SSP, Udham Singh Nagar, by his letters dated 19.05.2014 and 23.05.2014, directed Dr. Uttam Singh Negi, Circle Officer, Sitarganj, District Udham Singh Nagar (for short, "the informant") to inquire and take necessary action in the matter. The informant inquired the matter and recorded the statements of the petitioner Goldy Rajiv Santhoji, Smt. Shakuntala Chauhan, Murlidhar Vashnav, K.C. Pandey and Jeewan Chandra Upadhayay and five students, who were allegedly victimized by the petitioner. The informant in his report dated 26.07.2014 concluded that the petitioner did indecent behaviour with the students; touched them inappropriately, but neither any student nor any guardian was agreeable to take any legal action. Therefore, according to the informant, a detailed inquiry by the Education Department would be expedient in the matter.

4. The report dated 26.07.2014, was submitted by the informant to the SSP, Udham Singh Nagar, who directed that an FIR be lodged in the matter, after obtaining a written report. SSP Udham Singh Nagr

further directed that in case written report could not be obtained, FIR be lodged on the basis of the report dated 26.07.2014, of the informant. Pursuant to it, the report dated 26.07.2014 of the informant was registered as an FIR No. 53 of 2015 under Sections 377, 511 IPC and Section 9 read with Section 10 of the Protection of Children from Sexual Offences Act, 2012 (for short, "the POCSO Act") on 1.7.2015. Investigation was carried out. Some of the victims were examined by the investigating officer ("IO") and statements were also recorded. After investigation, a final report ("FR") was submitted, which was registered as Misc Case No. 178 of 2019, Dr. Uttam Singh vs. Goldy Rajiv Santhoji, in the court of FTC/Additional Sessions Judge/Special Judge (POCSO), Rudrapur, District Udham Singh Nagar (for short, "the first Misc Case"). In the first Misc Case, information was sent to the informant and his statements were recorded by the court. Thereafter, on 14.1.2019, the court accepted the final report.

5. Subsequent to it, DD filed a petition against the FR on the ground that he was a student in the school from the year 2012 to 2014 and at the relevant time, the petitioner Goldy Rajiv Santhoji was running the school. The petitioner would disrobe the students in his room and would do obscene activities including anal sexual intercourse with them and also made their videos. The protest petition also states that on a Saturday in the month of February, 2014, the petitioner took DD and one more victim to Ram Nagar, and there whole night he had unnatural sex with the victim and with another victim S.K. It was reported to one school teacher, who when spoke to the petitioner about it, was compelled to resign from the school. DD left the school out of shame and took admission in another school. When the matter was reported, police had once inquired from DD and had told him that he would be summoned by the court for recording the evidence, but he was never summoned. Finally, when DD was told as to why did he settle the case after taking money from the petitioner, he got the file inspected and filed the protest petition. This protest petition was registered as Misc Case No. 226 of 2019, DD Vs. Goldy Rajiv Santhoji ("the second Misc Case") On this protest petition, on 15.11.2019, the court refused to set-aside its order dated 14.1.2019, passed in the first

Misc Case, but treated the protest petition as complaint and summoned the petitioner for the offence punishable under Sections 377, 506 IPC and 67 of the Information Technology Act and Section 5/6 of POCSO Act..

6. In Criminal Misc. Application No. 887 of 2020, the petitioner challenged the order dated 15.11.2019, passed in the second Misc Case by which he has been summoned under Sections 377, 506 IPC, Section 67 of the Information Technology Act and Section 5/6 of POCSO Act.

7. In Criminal Misc. Application No. 31 of 2021, DD also challenged the order dated 15.11.2019, passed in the second Misc Case seeking further investigation in the matter.

Counter Affidavit in Criminal Misc. Application No. 31 of 2021

8. State filed counter affidavit. According to it, the protest petition filed by DD has already been treated as a complaint and grievance of DD is being looked after by the competent court, therefore, there is no reason to exercise inherent jurisdiction under Section 482 of the Code. According to counter affidavit of the State, the petition under Section 482 of the Code filed by DD is devoid of merits and is liable to be dismissed.

9. The petitioner also filed his counter affidavit. It is quite in detail. According to it, the petition is misleading and incorrect and based on wrong understanding of law; vague assertions and baseless allegations and it does not warrant any interference under Section 482 of the Code. Therefore, the relief as prayed should not be granted.

10. Heard learned counsel for the parties and perused the record.

ARGUMENT On behalf of the petitioner

11. Learned Senior Counsel appearing for the petitioner would submit that this order dated 15.11.2019, summoning the petitioner is not

in accordance with law and it deserves to be set aside. Learned Senior Counsel raised the following points in his argument:

(i) On the report, a inquiry was conducted by the informant, which was registered as an FIR and this FIR is first complaint.

(ii) After investigation, FR was submitted, which after hearing the informant has already been accepted. Since, there was no Parents-Teachers' Association, information of FR was given to the informant. Thereafter, FR was accepted. There is no provision to give information of FR to the victim or his relatives. Therefore, acceptance of final report is as per law and it does not require any interference. Therefore, on the protest petition filed subsequently by the DD, cognizance could not have been taken.

(iii) In second complaint, cognizance can be taken under certain circumstances, which are not present in the instant case.

(iv) Each and every protest petition cannot be treated as a complaint.

(v) The protest petition to be treated as a complaint must have requisites of a complaint.

(vi) The State in its counter affidavit has raised an issue that the grievance of the DD is being looked after by the court of competent jurisdiction and FR has rightly been accepted.

(vii) First Information Report was filed on 1st July, 2015 and after investigation when FR was submitted, it was accepted on 14.1.2019.

(viii) In his protest petition, DD admits that he was interrogated by the police, but DD did not take any step to lodge protest petition when the FR was being considered on 14.01.2019.

(ix) After receipt of FR, the court issued notice to the informant and recorded his statement. Such statement is unknown to law. Informant Dr. Uttam Singh Negi did not file any protest petition. His statement, recorded after receipt of FR, cannot be treated as a protest petition.

(x) FR has been accepted after considering the material collected during investigation including the statements of the victims recorded under Section 164 of the Code. The statements recorded under Section 164 of the Code carry credibility with them.

(xi) The petitioner has been summoned against the provisions of law. Even if the protest petition is to be treated as a complaint, inquiry under Section 200 and 202 of the Code was mandatory before taking cognizance. Since, it was not done in the instant case, order summoning the petitioner dated 15.11.2019 passed in the second Misc Case deserves to be set aside.

(xii) The petition filed by the petitioner deserves to be allowed.

(xiii) The petition filed by DD is liable to be dismissed.

12. In support of his contentions, learned Senior Counsel placed reliance on the principles as laid down in the case of Bhagwant Singh Vs. Commissioner of Police and another 1, (it is cited to argue that after receipt of final report, the Magistrate is bound to hear the informant and not the victim or his relatives and also to argue that after submission of final report, the informant is heard at the time of consideration of final report and not at any other time); Pramatha Nath Talukdar Vs. Saroj Ranjan Sarkar2, Mahesh Chand Vs. B. Janardhan Reddy and another3, Vishnu Kumar Tiwari Vs. State of Uttar Pradesh through Secretary Home, Civil Secretariat, Lucknow and another4, Abhijit Pawar Vs. Hemant Madhukar Nimbalkar and another5 and Gangadhar Janardan Mhatre Vs. State of Maharashtra and others 6.

13. In fact, once argument concluded on behalf of the petitioner, learned Senior Counsel also filed written arguments before his reply to the arguments made on behalf of the respondents. In the written arguments, following additional (contradictory also) points have been raised:-

(1985) 2 SCC 537

(1962) Supp (2) SCR 297

(2003) 1 SCC 734

(2019) 8 SCC 27

(2017) 3 SCC 528

(2004) 7 SCC 768

(i) The court did not commit any illegality in recording the statement of the informant after receipt of the final report.

(ii) Assuming that there was no need to record the statement of the informant, it does not render order dated 14.01.2019 accepting FR as void.

(iii) Inquiries conducted by the Divisional Education Officer and the Deputy District Collector have their relevance because it is settled law that if a charge is not proved in the Departmental inquiry then it is highly unlikely to be proved in the criminal trial. Reliance has been placed in the judgment of Lokesh Kumar Jain Vs. State of Rajasthan 7.

(iv) The Court should interfere with the investigation only in rare and exceptional cases where there is abuse of process and non compliance of the provision of the Code. Reliance has been placed to the principle of law as laid down in the cases of P. Chidambaram Vs. Directorate of Enforcement 8 and Vinay Tyagi Vs. Irshad Ali 9.

(v) DD is essentially asking for re-investigation or fresh investigation in the garb of further investigation, but only constitutional courts can order fresh investigation in exceptional circumstances.

14. Learned Senior Counsel for the petitioner also argued that the petition under Section 482 of the Code filed by the DD is in variance to the protest petition in terms of the prayer and substance. It is submitted that in the protest petition further investigation has not been sought by DD.

15. In the case of Bhagwant Singh (supra) Hon'ble Supreme Court observed that "we are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under sub- Section (2) (i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no

(2013) 11 SCC 130

(2019) 9 SCC 24

(2013) 5 SCC 762

sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report".

16. The Hon'ble Court further observed "we may also observe that even though the Magistrate is not bound to give notice of the hearing fixed for consideration of the report to the injured person or to any relative of the deceased, he may, in the exercise of his discretion, if he so thinks fit, give such notice to the injured person or to any particular relative or relatives of the deceased, but not giving of such notice will not have any invalidating effect on the order which may be made by the Magistrate on a consideration of the report".

17. In the case of Gangadhar Janardan Mhatre (supra) also the Hon'ble Supreme Court observed "therefore, there is no shadow of doubt that the informant is entitled to a notice and an opportunity to be heard at the time of consideration of the report."

18. In the case of Pramatha Nath Talukdar (supra), the Hon'ble Supreme Court observed as hereunder:-

"50. .....The scope of enquiry under Section 202 is limited to finding out the truth or otherwise of the complaint in order to determine whether process should issue or not and Section 203 lays down what materials are to be considered for the purpose. Under Section 203 Criminal Procedure Code the judgment which the Magistrate has to form must be based on the statements of the complainant and of his witnesses and the result of the investigation or enquiry if any. He must apply his mind to the materials and form his judgment whether or not there is sufficient ground for proceeding. Therefore if he has not misdirected himself as to the scope of the enquiry made under Section 202, of the Criminal Procedure Code, and has judicially applied his mind to the material before him and then proceeds to make his order it cannot be said that he has acted erroneously. An order of dismissal under Section 203, of the Criminal Procedure Code, is, however, no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances, e.g., where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings, have been adduced. It cannot be said to be in the interests of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be

given another opportunity to have his complaint enquired into. Allah Ditto v. Karam Baksh [ILR 12 Lah 9, 12] ; Ram Narain Chaubey v. Panachand Jain [AIR 1949 Patna 256] ; Hansabai v. Ananda [AIR 1949 Bombay 384] Doraisami v. Subramania [AIR 1949 Mad 484] . In regard to the adducing of new facts for the bringing of a fresh complaint the Special Bench in the judgment under appeal did not accept the view of the Bombay High Court or the Patna High Court in the cases above quoted and adopted the opinion of Maclean, C.J. in Queen Empress v. Dolegobinda Das [ILR 28 Cal 211, 216] affirmed by a Full Bench in Dwarka Nath Mandal v. Benimadhas Banerji [(1901) ILR 28 Cal 652] . It held therefore that a fresh complaint can be entertained where there is manifest error, or manifest miscarriage of justice in the previous order or when fresh evidence is forthcoming."

(emphasis supplied)

19. In the case of Mahesh Chand (supra), the principles of law, as laid down in the case of Pramatha Nath Talukdar (supra) have been followed.

20. In the case of Vishnu Kumar Tiwari (supra), the Hon'ble Supreme Court referred to the judgment in the case of H.S. Bains Vs. State (Union Territory of Chandigarh)10, as hereunder:-

"17. This Court in the course of its judgment in H.S. Bains [H.S. Bains v. State (UT of Chandigarh), (1980) 4 SCC 631 : 1981 SCC (Cri) 93] , held as follows: (SCC pp. 634-35, para 6) "........The mere fact that he had earlier ordered an investigation under Section 156(3) and received a report under Section 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections 200, 203 and 204. Thus, a Magistrate who on receipt of a complaint, orders an investigation under Section 156(3) and receives a police report under Section 173(1), may, thereafter, do one of three things: (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under Section 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report; (3) he may take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. If he adopts the third alternative, he may hold or direct an inquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be.""

21. In the case of Abhijit Pawar (supra), the Hon'ble Supreme Court discussed the scope of Section 202 of the Code, particularly in cases where the accused is residing at a place, beyond the area in which the Magistrate exercises his jurisdiction and observed as hereunder:-

(1980) 4 SCC 631

"23. Admitted position in law is that in those cases where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, it is mandatory on the part of the Magistrate to conduct an enquiry or investigation before issuing the process. Section 202 CrPC was amended in the year 2005 by the Code of Criminal Procedure (Amendment) Act, 2005, with effect from 22-6- 2006 by adding the words "and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction". There is a vital purpose or objective behind this amendment, namely, to ward off false complaints against such persons residing at a far-off places in order to save them from unnecessary harassment. Thus, the amended provision casts an obligation on the Magistrate to conduct enquiry or direct investigation before issuing the process, so that false complaints are filtered and rejected. The aforesaid purpose is specifically mentioned in the note appended to the Bill proposing the said amendment."

22. In the case of Lokesh Kumar Jain (supra), the Hon'ble Supreme Court discussed the scope of Departmental proceedings vis-a-vis criminal pending cases. In paras 23 and 24 held as hereunder:-

"23. In P.S. Rajya v. State of Bihar [(1996) 9 SCC 1 : 1996 SCC (Cri) 897] , this Court noticed that the appellant was exonerated in the departmental proceeding in the light of report of the Central Vigilance Commission and concurred by the Union Public Service Commission. The criminal case was pending since long, in spite of the fact that the appellant was exonerated in the departmental proceeding for same charge.

24. Having regard to the aforesaid fact, this Court held that if the charges which are identical could not be established in the departmental proceedings, one wonders what is there further to proceed against the accused in criminal proceedings where standard of proof required to establish the guilt is far higher than the standard of proof required to establish the guilt in the departmental proceedings."

23. In the case of P. Chidambaram (supra), the Hon'ble Supreme Court, inter alia, observed that "............... in exercise of its inherent power under Section 482 CrPC, the court can interfere and issue appropriate direction only when the court is convinced that the power of the investigating officer is exercised mala fide or where there is abuse of power and non compliance of the provisions of Code of Criminal Procedure..... The Hon'ble Court further observed that ".......it is not the function of the court to monitor the investigation process so long as the investigation does not violate any provision of law. It must be left to the discretion of the investigating agency to decide the course of investigation....."

24. In the case of Vinay Tyagi (supra), the Hon'ble Supreme Court discussed the difference between further investigation and fresh investigation.

"22. "Further investigation" is where the investigating officer obtains further oral or documentary evidence after the final report has been filed before the court in terms of Section 173 (8). This power is vested with the executive. It is the continuation of previous investigation and, therefore, is understood and described as "further investigation". The scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the court even if they are discovered at a subsequent stage to the primary investigation. It is commonly described as "supplementary report". "Supplementary report" would be the correct expression as the subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered police officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency. This is a kind of continuation of the previous investigation. The basis is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. In other words, it has to be understood in complete contradistinction to a "reinvestigation", "fresh" or "de novo" investigation.

23. However, in the case of a "fresh investigation", "reinvestigation" or "de novo investigation" there has to be a definite order of the court. The order of the court unambiguously should state as to whether the previous investigation, for reasons to be recorded, is incapable of being acted upon. Neither the investigating agency nor the Magistrate has any power to order or conduct "fresh investigation". This is primarily for the reason that it would be opposed to the scheme of the Code. It is essential that even an order of "fresh"/"de novo" investigation passed by the higher judiciary should always be coupled with a specific direction as to the fate of the investigation already conducted. The cases where such direction can be issued are few and far between. This is based upon a fundamental principle of our criminal jurisprudence which is that it is the right of a suspect or an accused to have a just and fair investigation and trial. This principle flows from the constitutional mandate contained in Articles 21 and 22 of the Constitution of India. Where the investigation ex facie is unfair, tainted, mala fide and smacks of foul play, the courts would set aside such an investigation and direct fresh or de novo investigation and, if necessary, even by another independent investigating agency. As already noticed, this is a power of wide plenitude and, therefore, has to be exercised sparingly. The principle of the rarest of rare cases would squarely apply to such cases. Unless the unfairness of the investigation is such that it pricks the judicial conscience of the court, the court should be reluctant to interfere in such matters to the extent of quashing an investigation and directing a "fresh investigation".

On Behalf of the State

25. Learned State counsel would submit that in the instant case, the IO did not record the statement of all the victims under Section 161 or 164 of the Code; investigation is defective. Learned State counsel also

fairly conceded that after treating the protest petition as a complaint, without conducting the inquiry under Sections 200 and 202 of the Code, the petitioner could not have been summoned. Therefore, summoning order dated 15.11.2019 is bad in the eyes of law. It is argued on behalf of the State that if the summoning order dated 15.11.2019 is quashed then the Court may order further investigation.

On Behalf of DD

26. On behalf of the DD, learned Senior Counsel would submit that the investigation in the instant case is quite defective. He raised the following points in his arguments:-

(i) In the instant case, first report was lodged by the PTA of the school. The PTA was not informed at the time of consideration of the FR.

(ii) There were many victims as per the report also, but all of them were not examined under Section 161 of the Code or under Section 164 of the Code.

(iii) Dr. Uttam Singh Negi did not file any protest petition. His statement was recorded at the time of considering the protest petition. In paras 16, 17 and 18 of his statement, he has supported the case that students were sexually assaulted by the petitioner.

(iv) DD is the victim. He has every right to file the protest petition.

(v) The statement recorded under Section 164 of the Code, appears to have been procured. They all are cyclostyled statements.

(vi) Magistrate did not apply his mind while considering the protest petition filed by DD.

(vii) The statement of the informant as recorded at the time of consideration of the FR is not according to law. It should not be read.

(viii) FR was accepted after considering the statement of the informant, therefore order accepting FR dated 14.01.2019 deserves to be set aside.

(ix) In alternate, it is argued that in case the statement of Uttam Singh Negi is treated to be protest petition, paras 16, 17 and 18 of it proves the case against the petitioner.

(x) The FR was not filed on the ground that no offence is made out instead it is recorded in the FR that evidence could not be collected.

(xi) The Magistrate while treating the protest petition as complaint could straightway summon the accused and he need not conduct an inquiry under Sections 200 and 202 of the Code.

27. Learned Senior Counsel would submit that it is fit case for further investigation. In support of his contention, learned counsel has placed reliance upon the judgment in the case of Gangadhar Janardan Mhatre (supra). In para 9 bottom of it has been referred to, which is as hereunder:-

"9. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also. [See India Carat (P) Ltd. v. State of Karnataka [(1989) 2 SCC 132 : 1989 SCC (Cri) 306 : AIR 1989 SC 885] .] The informant is not prejudicially affected when the Magistrate decides to take cognizance and to proceed with the case. But where the Magistrate decides that sufficient ground does not subsist for proceeding further and drops the proceeding or takes the view that there is material for proceeding against some and there are insufficient grounds in respect of others, the informant would certainly be prejudiced as the first information report lodged becomes wholly or partially ineffective. Therefore, this Court indicated in Bhagwant Singh case [(1985) 2 SCC 537 : 1985 SCC (Cri) 267 : AIR 1985 SC 1285] that where the Magistrate decides not to take cognizance and to drop the proceeding or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, notice to the informant and grant of opportunity of being heard in the matter becomes mandatory. As indicated above, there is no provision in the Code for issue of a notice in that regard."

DISCUSSION

28. Facts in the instant case are not in dispute. They may briefly be reproduced, in chronology, as hereunder:-

(i) The PTA of the school purportedly gave a report of sexual assault and harassment by the petitioner. The report was given to the SSP, Udham Singh Nagar, Educational Authorities as well as to the administration.

(ii) The SSP, Udham Singh Nagar vide his letter dated 19.05.2014 and 23.05.2014, directed the Circle Officer, Sitarganj, Udham Singh Nagar to inquire and take necessary action on it.

(iii) Dr. Uttam Singh Negi, Circle Officer Sitarganj, Udham Singh Nagar conducted the inquiry and filed report dated 26.07.2014.

(iv) Under the order of SSP, this report dated 26.07.2014 was registered as FIR No. 53 of 2015.

(v) In FIR No. 53 of 2015, after investigation, FR was submitted.

(vi) At the time of the FR, the court issued notice to the informant Dr. Uttam Singh Negi. His statement was recorded in the first Misc Case on 10.12.2018 and thereafter, the FR was accepted on 14.01.2019.

(vii) DD filed the protest petition dated 14.10.2019 in the Misc Case seeking that the order dated 14.01.2019 be cancelled, cognizance be taken and the petitioner be summoned.

(viii) The Court on 15.11.2019 did not cancel earlier order dated 14.01.2019, but treated the protest petition as a complaint and straightway summoned the petitioner for the offence punishable under Sections 377, 506 IPC, Section 67 of Information Technology Act, and Section 5/6 of the POCSO Act.

FINAL REPORT AND ITS DISPOSAL

29. It is well settled that the Magistrate is not bound by the opinion formed by the IO. In the case Abhinandan Jha and others Vs. Dinesh Mishra11, the Hon'ble Supreme Court categorically observed that even after submission of a report under Section 173 that no case is made out for summoning of an accused for trial, a Magistrate may order further

(1967) 3 SCC 668

investigation under Section 156 (3) of the Code. If protest petitions are filed, they may be treated as a complaint and may be proceeded in accordance with law.

30. In the case of H.S. Bains (supra), the Hon'ble Supreme Court further laid down the law. In the case of H.S. Bains (supra), in fact, a complaint was made to the Magistrate. The Magistrate to whom the complaint was made, ordered for investigation under Section 156 (3) of the Code. The Police after investigation submitted FR. Under these facts and circumstances, the Hon'ble Supreme Court observed "Thus, a Magistrate, who on receipt of a complaint, orders an investigation under Section 156 (3) and receives a police report under Section 173 (1), may, thereafter, do one of three things: (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under Section 190 (1) (b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report; (3) he may take cognizance of the offence under Section 190 (1) (a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200.........". (emphasis supplied)

31. It may be noted here that in the case of H.S. Bains (supra), initially, a complaint was given to the Magistrate on which investigation was ordered under Section 156 (3) of the Code. In other words, in the case of H.S. Bains (supra), no report was given to the Police under Section 154 of the Code, no first information report was lodged in the case; the basis of the FIR was a complaint.

32. In the case of Bhagwant Singh (supra) as stated, the Hon'ble Supreme Court categorically held that at the time of considering final report, notice has to be given to the informant; the Magistrate is not bound to give notice to the victim or his relatives, but if they appear they may be heard.

33. In the case of Rakesh and another Vs. State of Uttar Pradesh and another12, the principles of law as laid down in the case of H. S. Bains (supra) have been reiterated.

34. As held in the case of Abhinandan Jha (supra), a Magistrate on receipt of FR, if comes to a conclusion that further investigation is necessary, he may order to that effect under Section 156 (3) of the Code.

35. In the case of Vishnu Kumar Tiwari (supra), the principles of law, as laid down in the cases of Abhinandan Jha (supra) and H.S. Bains (supra) case have also been considered. The settled position comes out to be as hereunder:-

"If after investigation, the IO files a report indicating that no offence is made out, the Magistrate has following options:-

(1) The Magistrate may concur with the opinion of the IO and accept an FR and drop the proceedings. (2) The Magistrate may differ with the opinion of the IO and straightway summon the accused for the offence as made out from the material collected during investigation. This may be done under Section 190 (1)(b) of the Code.

(3) The Magistrate may order further investigation, if he finds that investigation was not done in accordance with law.

(4) In any case, before consideration of FR, the Magistrate shall issue notice to the informant. In case, informant files protest petition, the Magistrate may treat the protest petition as a complaint and proceed further under Chapter XV of the Code. The protest petition may be treated as a complaint, if it has requisite of a complaint.

FIR vs. COMPLAINT vs. PROTEST PETITION

36. As and when any FR is submitted, these phrases come into picture. Interestingly even final report, as such, is not defined in the Code. It is a report submitted by the police after investigation indicating that no

(2014) 13 SCC 133

offence is made out. In so far as the "complaint" is concerned, it is defined under Section 2(d) of the Code, which is as hereunder:-

"2 (d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation.- A report made by a police officer in a case which discloses, after investigation, the commission of a non- cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant:"

37. A bare perusal of the definition reveals that a complaint may be oral and there is no format for a complaint. What is the essence of the complaint is that allegations are made to a Magistrate with a view of his taking action under the Code against any person, known or unknown, who had committed an offence. It is not a police report.

38. The words "first information report" are also not defined under the Code. But, it refers to the report given to the officer in-charge of the police station about commission of the cognizable offence. This information is given under Section 154 of the Code.

39. A broad distinction may be drawn between a complaint and an FIR. On the one hand, complaint is necessarily to be made to the Magistrate, whereas, FIR is not made to a Magistrate. Information of cognizable offence under Section 154 of the Code is given to the officer in-charge of the police station which is known as FIR. There is no format of FIR also. The law is quite in detail on this aspect as to what constitutes an FIR. The law is settled that the FIR should be not much cryptic. At the same time, it may not be considered as encyclopedia of each and every fact, which constitutes the offence. In fact, the purpose of the FIR is to put the wheel of justice into motion by giving information of cognizable offence to the police.

40. The "protest petition" as such is not defined in the Code. It is not even referred to anywhere in the Code. It is practice, which has given recognition to protest petition. Even in the case of Abhinandan Jha (supra), the protest petition was filed. It is, in fact, objection filed against

the FR. It may have many prayers or any prayer including - (i) to reject FR and summon the accused under Section 190 (1) (b) of the Code, or to order for further investigation or to treat protest petition as a complaint. These are illustrations only.

41. On behalf of the petitioner, reference has been made to the judgment in the case of Vishnu Kumar Tiwari (supra), to argue that, each and every protest petition cannot be treated as a complaint. Protest petition may be treated as a complaint only when it fulfills the requirement of a complaint. In the case of Vishnu Kumar Tiwari (supra), the Hon'ble Supreme Court in para 46 observed that "If a protest petition fulfils the requirements of a complaint, the Magistrate may treat the protest petition as a complaint and deal with the same as required under Section 200 read with Section 202 of the Code. In this case, in fact, there is no list of witnesses as such in the protest petition. The prayer in the protest petition is to set aside the final report and to allow the application against the final report. While we are not suggesting that the form must entirely be decisive of the question whether it amounts to a complaint or is liable to be treated as a complaint, we would think that essentially, the protest petition in this case, is summing up of the objections of the second respondent against the final report."

42. The filing of a protest petition subsequent to the acceptance of report has been considered in various cases. In the case of Vishnu Kumar Tiwari (supra), the Hon'ble Supreme Court observed as hereunder:-

"21. In regard to the filing of protest petition by the informant who filed the first information report, it is important to notice the following discussion by this Court: (Gangadhar Janardan Mhatre case [Gangadhar Janardan Mhatre v. State of Maharashtra, (2004) 7 SCC 768 : 2005 SCC (Cri) 404] , SCC pp. 772-74, paras 6 &

9)

"6. There is no provision in the Code to file a protest petition by the informant who lodged the first information report. But this has been the practice. Absence of a provision in the Code relating to filing of a protest petition has been considered. This Court

in Bhagwant Singh v. Commr. of Police [Bhagwant Singh v. Commr. of Police, (1985) 2 SCC 537 : 1985 SCC (Cri) 267] stressed on the desirability of intimation being given to the informant when a report made under Section 173(2) is under consideration. The Court held as follows: (SCC p. 542, para 4)

'4. ... There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under sub- section (2)(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report.'

23. In Kishore Kumar Gyanchandani v. G.D.

Mehrotra [Kishore Kumar Gyanchandani v. G.D. Mehrotra, (2011) 15 SCC 513 : (2012) 4 SCC (Cri) 633] , a first information report was lodged in respect of certain offences. The police filed a final report which came to be accepted. Nearly three months thereafter, a protest petition was filed. The Magistrate directed the same to be considered as a complaint. He held an inquiry under Section 202 of the Code and proceeded to take cognizance. Para 4 is relevant and it reads as follows: (SCC p. 514, para 4)

"4. There is some controversy between the parties that before accepting the final form by the Magistrate on 27- 1-1996 notice had been served on the complainant and the complainant did not file objections, whereas the case of the complainant is that he had not received any notice from the court. Be that as it may, we are not entering into that controversy for deciding the present case as in our view it is not material either way nor does it oust the jurisdiction of the Magistrate on the basis of a complaint to take cognizance of the offence alleged to have been committed by the accused even if he had already accepted the final form, the same having been filed by the police."

24. In fact, the case itself was decided by a Bench of three learned Judges of this Court in view of the divergence of opinion in the Court. The Court held as follows: (Kishore Kumar Gyanchandani case [Kishore Kumar Gyanchandani v. G.D. Mehrotra, (2011) 15 SCC 513 : (2012) 4 SCC (Cri) 633] , SCC p. 514, para 6)

"6. It is too well settled that when police after investigation files a final form under Section 173 of the Code, the Magistrate may disagree with the conclusion

arrived at by the police and take cognizance in exercise of power under Section 190 of the Code. The Magistrate may not take cognizance and direct further investigation in the matter under Section 156 of the Code. Where the Magistrate accepts the final form submitted by the police, the right of the complainant to file a regular complaint is not taken away and in fact on such a complaint being filed the Magistrate follows the procedure under Section 201 of the Code and takes cognizance if the materials produced by the complainant make out an offence. This question has been raised and answered by this Court in Gopal Vijay Verma v. Bhuneshwar Prasad Sinha [Gopal Vijay Verma v. Bhuneshwar Prasad Sinha, (1982) 3 SCC 510 : 1983 SCC (Cri) 110] whereunder the view [Bhuneshwar Prasad Sinha v. State of Bihar, 1980 SCC OnLine Pat 165 : 1981 Cri LJ 795] of the Patna High Court to the contrary has been reversed. The Court in no uncertain terms in the aforesaid case has indicated that the acceptance of final form does not debar the Magistrate from taking cognizance on the basis of the materials produced in a complaint proceeding."

(Emphasis supplied)

43. In the case of Rakesh (supra), the Hon'ble Supreme Court referred to the judgment in the case of Gopal Vijay Verma v. Bhuneshwar Prasad Sinha 13, in which it was observed that "The High Court was clearly in error in thinking that the Magistrate could not take cognizance of a case upon complaint because he had earlier refused to take cognizance of the case on a police report. The Order of the High Court is set aside. The matter is remitted to the Chief Judicial Magistrate, Patna for disposal according to law. If the accused have any further objections to raise, they may do so before the Chief Judicial Magistrate."

44. In view of the foregoing discussions, it is clear as hereunder:-

(i) an "FIR" cannot be termed as a "complaint" as defined under Section 2 (d) of the Code.

(ii) "complaint" is defined under Section 2 (d) of the Code, which is made to a Magistrate.

(iii) The first information report is a report of a cognizable offence given to the officer in-charge of the police station.

(1982) 3 SCC 510

(iv) A Magistrate on a complaint made before him, may order for an investigation. In such cases, the court has both informations, original complaint as well as FIR. Both are same. In the case of H.S. Bains (supra), this was a situation when the Court observed that, in fact, if FR is filed, Court may take cognizance on the original complaint.

(v) If police after investigation files FR and is accepted by the Magistrate, a complaint may be filed for the same offence. It is not barred. If such a complaint is filed, it shall proceed under Chapter XV of the Code.

COGNIZANCE ON THE SECOND COMPLAINT

45. In the instant case, on 15.11.2019, cognizance was taken treating the protest petition filed by the DD as a complaint. There are mainly three arguments to challenge the summoning order, namely, (i) the protest petition should have all the requirements of a complaint, before it is treated as a complaint and; (ii) inquiry under Sections 200 and 202 of the Code is mandatory before summoning on a complaint; (iii) A second complaint on the similar facts cannot be entertained unless it has exceptional situation as laid down in the case of Pramatha Nath Talukdar (supra), as referred to in the case of Mahesh Chand (supra).

46. The Court first proceed to address as to whether the protest petition filed by DD may be treated as a complaint.

47. As discussed hereinbefore, there is no format in which the complaint may be made to the Magistrate. The protest petition filed by DD is on record. It is quite in detail. It gives description as to how offence was committed by the petitioner with DD and other victims; When DD was subjected to sexual assault by the petitioner and how it was done. After giving details of the incidents (in fact, it is in quite detail), DD requested that earlier order dated 14.01.2019, by which FR was accepted, be cancelled and cognizance be taken and the petitioner be summoned. The protest petition qualifies all the ingredients of Section 2 (d) of the Code to be treated as a complaint.

48. At the time of argument, learned Senior Counsel for the petitioner would submit that the protest petition had no list of witnesses, as required to be filed under Section 204 (2) of the Code. This Court does not intend to discuss this further. It is true that in the case of Vishnu (supra), in para 46, the Hon'ble Supreme Court made a mention to the list of witnesses, which was not attached with the protest petition in that case, but the Hon'ble High Court did not lay down any law, in the case of Vishnu Kumar Tiwari (supra), that if the list of witnesses is not attached with the protest petition, it may not be treated as a complaint. What is complaint is quite distinct, than how cognizance is taken on a complaint. As stated, the complaint is defined under Section 2(d) of the Code and the protest petition in the instant case filed by DD can definitely be treated as a complaint in accordance with Section 2(d) of the Code. Now, the question is if the list of witnesses is not filed with the protest petition by DD, does it make a protest petition ineligible to be treated as a complaint. The answer is definitely in negative, because the list of witnesses was required to be filed under Section 204 (2) of the Code before processes are issued against the accused. Therefore, merely because list of witnesses was not filed alongwith protest petition, it cannot be said that the protest petition cannot be treated as a complaint. The protest petition, in the instant case filed by DD may be treated as complaint and by treating it so no error of law has been committed.

Second Complaint

49. Next question is whether the protest petition is a second complaint? Reference has been made on behalf of the petitioner in the cases of Parmanand Talukdar (supra) and Mahesh Chand (supra). The law does not work in vacuum. It cannot be in absolute terms. In the case of Parmanand Talukdar (supra), a complaint was initially dismissed by the Magistrate. Its revision was also dismissed. Special leave to appeal filed before the Hon'ble Supreme Court was subsequently withdrawn. Then within 22 days of that order a fresh complaint was filed and on the second complaint, cognizance was taken. The Magistrate, while taking cognizance had observed that the dismissal of first complaint did not, as a

matter of law, operate as bar to the entertainment of the second complaint. It is under those facts that the Hon'ble Supreme Court observed that the second complaint on the same facts may be entertained only in exceptional circumstances, e.g. where previous order was passed on a incomplete record or misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings have been adduced.

50. In the case of Mahesh Chand (supra), an FIR was filed and during investigation, a criminal complaint was also filed. After investigation, the IO submitted FR. The informant filed a protest petition. Subsequently FR was accepted and the complaint was also closed. Thereafter, third complaint was filed, on which cognizance was taken. While hearing this matter, the Hon'ble Court observed with approval to the observations made in the case of Pramatha Nath Talukdar (supra) with regard to the entertainability of the subsequent complaint on same facts.

51. In the instant case, in fact, the report purportedly given by PTA of the school is not on record. On that report, an inquiry was conducted by the informant, who was Circle Officer, Police and it is that report which was lodged as FIR, in which, after investigation, FR was submitted. There is no complaint, in fact, in this case. Initially, the PTA did not lodge any complaint to the Magistrate. They purportedly gave an information of the commission of offence to Police administration and school authorities not to the Magistrate. On that report, inquiry was conducted. The inquiry report can also not be considered as a complaint. It was submitted to SSP, Udham Singh Nagar. Therefore, there has been no complaint in the past before filing of the FR in the instant case. On 14.01.2019, when FR was considered there was no protest petition before the Court. The statement of the informant was recorded, but there is no provision in law to record such a statement. That statement of Dr. Uttam Singh Negi recorded in the first Misc Case may, by no stretch of imagination, be treated as a protest petition.

52. In the case of Samta Naidu Vs. State of Madhya Pradesh 14, the Hon'ble Supreme Court discussed the eventuality when second protest petition was filed and observed as hereunder:

"15. Reliance was, however, placed by Ms Meenakshi Arora, learned Senior Advocate, on para 18 of the decision of this Court in Shivshankar Singh [Shivshankar Singh v. State of Bihar, (2012) 1 SCC 130 : (2012) 1 SCC (Cri) 513] . In that case, a protest petition was filed by the complainant even before a final report was filed by the police. While the said protest petition was pending consideration, the final report was filed, whereafter the second protest petition was filed. Challenge raised by the accused that the second protest petition was not maintainable, was accepted by the High Court [Anand Kumar Singh v. State of Bihar, 2009 SCC OnLine Pat 857 : (2010) 1 PLJR 167] . In the light of these facts the matter came to be considered by this Court as under : (Shivshankar Singh case [Shivshankar Singh v. State of Bihar, (2012) 1 SCC 130 : (2012) 1 SCC (Cri) 513] , SCC pp. 133-34 & 136, paras 7 & 18-19) "7. Shri Gaurav Agrawal, learned counsel appearing for the appellant has submitted that the High Court failed to appreciate that the so-called first protest petition having been filed prior to the filing of the final report was not maintainable and just has to be ignored. The learned Magistrate rightly did not proceed on the basis of the said protest petition and it remained merely a document in the file. The second petition was the only protest petition which could be entertained as it had been filed subsequent to the filing of the final report. ...

18. Thus, it is evident that the law does not prohibit filing or entertaining of the second complaint even on the same facts provided the earlier complaint has been decided on the basis of insufficient material or the order has been passed without understanding the nature of the complaint or the complete facts could not be placed before the court or where the complainant came to know certain facts after disposal of the first complaint which could have tilted the balance in his favour. However, the second complaint would not be maintainable wherein the earlier complaint has been disposed of on full consideration of the case of the complainant on merit.

19. The protest petition can always be treated as a complaint and proceeded with in terms of Chapter XV CrPC. Therefore, in case there is no bar to entertain a second complaint on the same facts, in exceptional circumstances, the second protest petition can also similarly be entertained only under exceptional circumstances. In case the first protest petition has been filed without furnishing the full facts/particulars necessary to decide the case, and prior to its entertainment by the court, a fresh protest petition is filed giving full details, we fail to understand as to why it should not be maintainable.""

(emphasis supplied)

53. As held by this Court that in the instant case before filing of the FR, there was no complaint filed. No complaint was decided ever. The

(2020) 5 SCC 378

first information report was investigated and FR submitted. While considering the FR on 14.01.2019, there was no protest petition before the Court. The protest petition dated 14.10.2019 was, in fact, the first protest petition in the instant case. This protest petition had all the requirements of being treated as a complaint and it was rightly so treated. Therefore, this court concludes that the Court below did not commit any error in treating the protest petition dated 14.10.2019 filed by the DD as a complaint. The cognizance was taken on first complaint. It was not second complaint. Whether cognizance was as per law, it is a separate issue, which shall now be dealt with.

Inquiry under Sections 200 and 202 of the Code

54. In the instant case, FR was accepted on 14.01.2019. Subsequent to it, protest petition was filed on 14.10.2019, which was treated as a complaint on 15.11.2019 and straightway cognizance was taken. The procedure to deal with complaint is given under Chapter XV of the Code. Section 200 of the Code is as hereunder:-

"200. Examination of complainant. - A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:

Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses -

(a) if a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint; or

(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192:

Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them."

55. A bare perusal of Section 200, makes it abundantly clear that when a complaint is filed, the complaint shall be examined by the Magistrate. The proviso gives exception in case of public servant or other cases.

56. Section 202 of the Code provides that the Magistrate may instead of issuing process either inquire into the case himself or direct an

investigation. But in all cases, where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, he shall invariably conduct an inquiry under Section 202 of the Code or order for investigation under that section. It cannot be avoided. In the instant case, though, protest petition was treated as a complaint, but the summoning order is bad in the eyes of law because the Court did not conduct any inquiry either under Section 200 or 202 of the Code. Therefore, the summoning order dated 15.11.2019 cannot be sustained in law and it deserves to be set aside. Accordingly, Criminal Misc. Application No. 887 of 2020 deserves to be allowed.

ORDER DATED 14.01.2019

57. On 14.01.2019, the Court considered the FR. Before considering, information was given to the informant. There are a few disputed facts, namely:-

(i) Information was not given to the original informant.

(ii) The statement of the informant was recorded without their being any provision of law to that effect.

(iii) The statement of the informant, if recorded, was not considered properly.

(iv) In its counter affidavit, the State has stated that there was no Parents Teachers' Association, therefore, there was no question to give information to Parents Teachers' Association.

58. Recording of the statement of the informant at the time of considering FR was definitely without any provision of law. Whole procedure for considering the FR was bad in law in the instant case. On 14.01.2019, the Court considered the statement of the informant, which was recorded before the Court and it was considered at length. The statement could not have been recorded. Such statement cannot be made basis of the order. It vitiates the order dated 14.01.2019.

59. An argument is very vehemently argued on behalf of the petitioner that there was no obligation on the Court to issue notice to the victim and for that purpose reference has been made to the judgment in the case of Bagwant Singh (supra).

60. It is true that in the case of Bhagwant Singh (supra) the Hon'ble Supreme Court has categorically held that Magistrate is not bound to give notice of the hearing fixed for consideration of the FR to the injured person or to any relative of the deceased, but then law was laid down in view of existing provisions of the Code. Instant is a case under POCSO Act also. Now the question is: whether the order dated 14.01.2019, accepting FR is in accordance with law; and whether FR ought to have been rejected and cognizance was to be taken or further investigation was to be ordered. An error was committed by recording the statement of the informant and as stated, it contributes to vitiate the order.

61. Undoubtedly, the Court while considering the FR is not guided by the opinion of the IO. The material collected during investigation guides the Court in deciding the fate of the FR. If material reveals commission of offence, the Court can take cognizance irrespective of the opinion given otherwise by the IO. Similarly, if the Investigation has not been done in accordance with law or witnesses were not examined or other circumstances so warrant, the Court may order for fresh investigation. After all, investigation is search for the truth. It is nothing but to bring before the Court the truth of the matter.

62. In the case of Vinay Tyagi (supra) Hon'ble Supreme Court discussed the usefulness of "fair and proper investigation" and in para 48 of the judgment observed as hereunder:-

"48. What ultimately is the aim or significance of the expression "fair and proper investigation" in criminal jurisprudence? It has a twin purpose: Firstly, the investigation must be unbiased, honest, just and in accordance with law; secondly, the entire emphasis on a fair investigation has to be bring out the truth of the case before the court of competent jurisdiction. Once these twin paradigms of fair investigation are satisfied, there will be the least requirement for the court of law to interfere with the investigation, much less quash the same, or transfer it to another agency. Bringing out the truth by fair and investigative means in accordance with law would essentially repel the very basis of an unfair, tainted investigation or cases of false implication. Thus, it is

inevitable for a court of law to pass a specific order as to the fate of the investigation, which in its opinion is unfair, tainted and in violation of the settled principles of investigative canons."

63. In the case of Pooja Pal Vs. Union of India and others 15 also, the Hon'ble Supreme Court discussed the guiding star in the judicial process as hereunder:

"92. That the pre-eminence of truth is the guiding star in a judicial process forming the foundation of justice, had been aptly propounded by this Court in Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira [Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira, (2012) 5 SCC 370 : (2012) 3 SCC (Civ) 126] . It was ruled that the entire judicial system had been created only to discern and find out the real truth and that the Judges at all levels have to seriously engage themselves in the journey of discovering the same. Emphasising that the quest for truth is the mandate of law and indeed the bounden duty of the courts, it was observed that the justice system will acquire credibility only when the people will be convinced that justice is based on the foundation of the truth. While referring with approval, the revealing observation made in Ritesh Tewari v. State of U.P. [Ritesh Tewari v. State of U.P., (2010) 10 SCC 677 : (2010) 4 SCC (Civ) 315] that every trial is voyage of discovery in which truth is the quest, the following passage of Lord Denning scripted in Jones v. National Coal Board [Jones v. National Coal Board, (1957) 2 QB 55 : (1957) 2 WLR 760 : (1957) 2 All ER 155 (CA)] was extracted in affirmation : (Maria Margarida case [Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira, (2012) 5 SCC 370 : (2012) 3 SCC (Civ) 126] , SCC p. 384, para 39) "39. ... '... It's all very well to paint justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth.' (Jones case [Jones v. National Coal Board, (1957) 2 QB 55 : (1957) 2 WLR 760 : (1957) 2 All ER 155 (CA)] , QB p.

64)""

Hon'ble Court further observed as hereunder:

"87. Any Criminal offence is one against the society at large casting an onerous responsibility on the State, as the guardian and purveyor of human rights and protector of law to discharge its sacrosanct role responsibility and committedly, always accountable to the law-abiding citizenry for any lapse. The power of the constitutional courts to direct further investigation or reinvestment is a dynamic component of its jurisdiction to exercise judicial review, a basic feature of the Constitution and though has to be exercised with due care and caution and informed with self-imposed restraint, the plenitude and content thereof can neither be enervated nor moderated by any legislation.

88. The expression "fair and proper investigation" in criminal jurisprudence was held by this Court in Vinay Tyagi v. Irshad Ali [Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762 : (2013) 4 SCC (Cri) 557] to encompass two imperatives; firstly, the investigation must be unbiased, honest, just and in accordance with law; and secondly, the

(2016) 3 SCC 135

entire emphasis has to be to bring out the truth of the case before the court of competent jurisdiction."

(emphasis supplied)

64. Undoubtedly, investigation is the structure on which the trial is based. Fair, just and proper investigation is essence of fair trial. It is an attribute of Article 21 of the Constitution of India, as observed in the case of Vinubhai Haribhai Malaviya and others Vs. State of Gujarat and another16. Para 27 of the judgment is as hereunder:

"27. It is thus clear that the Magistrate's power under Section 156 (3) CrPC is very wide, for it is this judicial authority that must be satisfied that a proper investigation by the police takes place. To ensure that a "proper investigation" takes place in the sense of a fair and just investigation by the police- which such Magistrate is to supervise- Article 21 of the Constitution of India mandates that all powers necessary, which may also be incidental or implied, are available to the Magistrate to ensure a proper investigation which, without doubt, would include the ordering of further investigation after a report is received by him under Section 173 (2); and which power would continue to ensure in such Magistrate at all stages of the criminal proceedings until the trial itself commences. Indeed, even textually, the "investigation" referred to in Section 156 (1) CrPC would, as per the definition of "investigation" referred to in Section 156 (1) CrPC would, as per the definition of "investigation" under Section 2 (h), include all proceedings for collection of evidence conducted by a police officer; which would undoubtedly include proceedings by way of further investigation under Section 173 (8) CrPC."

65. Has the investigation been proper? Is it a case fit for further investigation? It is true that in the protest petition DD did not request for further investigation. DD by means of the protest petition sought cancelation of the order dated 14.01.2019, by which FR was accepted with the request that cognizance may be taken against the petitioner. The order dated 14.01.2019, may be cancelled only when it is not in accordance with law or only when it is held that Magistrate ought to have passed some other order. In his petition before the Court, DD has categorically sought directions for further investigation of the matter.

66. In the instant case, right from the beginning the course adopted was not in accordance with law. The complaint of sexual assault was made against the Manager of the school purportedly by the PTA. The case diary reveals that it was examined by Education Department and by SDM. The SSP, Udham Singh Nagar directed the Circle Officer, Sitarganj

(2019)17 SCC 1

to enquire and take necessary action in the matter. The question of considering departmental inquiry is something strange in such cases.

67. It was an offence against POCSO Act, an Act which is enacted to protect children from sexual offences, etc. It was found that there was no Parents Teachers' Association but, it also does not diminish the utility of the information initially supplied. The IO records in the case diary that when the report of the informant was forwarded by the SSP, Udham Singh Nagar for registration of the case, it was directed that a written complaint may be obtained. What was its utility? The reference to the report submitted by SDM is also given in the case diary, according to which, one of the victims had supported the case. Though, the Education Department's report did not support the case. But, how this course was adopted since beginning?

68. This Court is cautious of the fact that, reference to case diary may not generally be made, but here is a case which challenges the acceptance of the FR submitted by the IO and while considering the FR the only material available before the Court is the material collected by the IO, which finds place in the case diary. Therefore, reference to case diary is being made.

69. The report of cognizable case is lodged under Section 154 of the Code. If the case discloses commission of the cognizable offence, can an inquiry be ordered without lodging the FIR? This has been the subject for discussion before the Hon'ble Supreme Court in the case of Lalita Kumari Vs. Government of Uttar Pradesh and others 17, and after discussing all the laws on the points, the Hon'ble Supreme Court summed up to the conclusion in para 120 as hereunder:

"120. In view of the aforesaid discussion, we hold: 120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

(2014) 2 SCC 1

120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further. 120.4. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.

120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

(a) Matrimonial disputes/family disputes

(b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. 120.7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.

120.8. Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above."

70. A bare perusal of the above direction of the Hon'ble Supreme Court mandates that in the instant case there was no scope for

any preliminary inquiry at all. Initially the course taken was wrong. The SSP Udham Singh Nagar had no business to direct for an inquiry in a report which revealed commission of offence of sexual assault upon the children of a Boarding School. The offence was in fact heinous. The victim of such offence could not have spoken against the school authorities; when the protector becomes an assailant, particularly of the hostel, the plight of such victims can be understood. If the victims had not reported the matter directly, it had no bearing in investigating the matter. Not only this, Section 19 of the POCSO Act provides that as and when such offences are reported they should be lodged. It is reproduced as hereunder:

"Reporting of offences (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) any person (including the child), who has apprehension that an offence under this Act is likely to be committed or has knowledge that such an offence has been committed, he shall provide such information to,--

(a) the Special Juvenile Police Unit; or

(b) the local police.

(2) Every report given under sub-section (1) shall be--

(a) ascribed an entry number and recorded in writing;

(b) be read over to the informant;

(c) shall be entered in a book to be kept by the Police Unit. (3) Where the report under sub-section (1) is given by a child, the same shall be recorded under subsection (2) in a simple language so that the child understands contents being recorded. (4) In case contents are being recorded in the language not understood by the child or wherever it is deemed necessary, a translator or an interpreter, having such qualifications, experience and on payment of such fees as may be prescribed, shall be provided to the child if he fails to understand the same. (5) Where the Special Juvenile Police Unit or local police is satisfied that the child against whom an offence has been committed is in need of care and protection, then, it shall, after recording the reasons in writing, make immediate arrangement to give him such care and protection including admitting the child into shelter home or to the nearest hospital within twenty- four hours of the report, as may be prescribed. (6) The Special Juvenile Police Unit or local police shall, without unnecessary delay but within a period of twenty-four hours, report the matter to the Child Welfare Committee and the Special Court or where no Special Court has been designated, to the Court of Session, including need of the child for care and protection and steps taken in this regard.

(7) No person shall incur any liability, whether civil or criminal, for giving the information in good faith for the purpose of sub- section (1)."

71. Therefore, initially non lodging of FIR on the report purportedly given by PTA was not in accordance with law. The SSP

Udham Singh Nagar violated the law in not lodging the FIR at the first instance. The direction for inquiry and report was not in accordance with law.

72. This Court has observed that once FR is received and informant was informed, the statement of the informant cannot be recorded under any provision of law. This was another illegality committed by the Court, while considering the FR.

73. In the instant case, FR has been filed on the ground that the IO could not get the evidence. In the order dated 14.01.2019, the Court has observed that the IO filed the FR on the basis that the evidence could not be obtained against the petitioner. The evidence was to be collected. IO in fact, failed to do so for the simple reason that all the victims were not examined. In the inquiry report the informant categorically records that some of the victims i.e. three particularly, supported the case of sexual assault against the petitioner. Though subsequently, when examined under Section 164 of the Code, they did not support the case and retracted from their earlier statements. But, there was DD and two more victims who were named by one of the victims during inquiry conducted by the informant. Neither he nor other victims were examined by either the informant during his inquiry or by the IO. Why? Even statement of one victim is enough. The victims should have been examined in the instant case, but it was not done. It is a huge lapse.

74. In case like instant one, in which, the allegations are that the School Manager has sexually assaulted the children studying in the hostel, IO had no discretion to record the statements of few victims and leave others. The statement of one victim is enough.

75. In the case of Bagwant Singh (supra), Hon'ble Supreme Court made it obligatory that before consideration of FR notice should be given to the informant. But, POCSO Act is a different Act. It is a special Act. Section 25(2) of it requires that in case final report is submitted all the documents as specified under Section 207 of the Code shall be

provided to the children and their parents or their representatives. Section 25 is as hereunder:

"Recording of statement of a child by Magistrate (1) If the statement of the child is being recorded under section 164 of the Code of Criminal Procedure, 1973 (2 of 1974) (herein referred to as the Code), the Magistrate recording such statement shall, notwithstanding anything contained therein, record the statement as spoken by the child:

Provided that the provisions contained in the first proviso to sub-section (1) of section 164 of the Code shall, so far it permits the presence of the advocate of the accused shall not apply in this case.

(2) The Magistrate shall provide to the child and his parents or his representative, a copy of the document specified under section 207 of the Code, upon the final report being filed by the police under section 173 of that Code."

76. As is evident from the above once FR is filed, in view of Section 25(2) of the POCSO Act the Magistrate shall provide copy of the documents specified under Section 207 of the Code to the child and his parents or his representative. Section 25(2) of the POCSO Act used the words 'final report'. FR is not defined anywhere in the Code. After investigation by Police a report is submitted under Section 173 of the Code which is known as Police Report. A Police Report if reveals that either no offence is committed or offender is not traced, such Police Reports are known as 'final report'. In the case of Abhinandan Jha (supra) the Hon'ble Supreme Court observed that "It will be seen that the Code, as such, does not use the expression 'charge-sheet' or 'final report'. But it is understood, in the Police Manual containing Rules and Regulations, that a report by the police, filed under Section 170 of the Code, is referred to as a 'charge-sheet'. But in respect of the reports sent under Section 169 i.e. when there is no sufficient evidence to justify the forwarding of the accused to a Magistrate, it is termed variously, in different States, as either 'referred charge', 'final report', or 'summary'." The Court further posed a question that "Then the question is, what is the position, when the Magistrate is dealing with a report submitted by the police, under Section 173, that no case is made out for sending up an accused for trial, which report, as we have already indicated, is called, in the area in question, as a 'final report'?"

77. It may be noted that in the POCSO Act a clear distinction is

drawn between 'police report' and 'final report'. In Section 33 of the

POCSO Act it is provided that cognizance of the offence under the Act

may be taken by the Special Court upon a complaint or upon a 'police

report'. We have noticed that in Section 25(2) of the POCSO Act the

words used are 'final report'. Section 31 of the POCSO Act provides that

the provisions of the Code shall be applicable in the trial under the

POCSO Act and the Special Court shall be deemed to be a Court of

Sessions. In Session trials before committal of the case for trial, copies of

documents are given to an accused under Section 208 of the Code. The

Code does not provide for giving copies to an informant. In the case of

Bhagwant Singh (supra) the Hon'ble Supreme Court directed that when

final report is submitted the Magistrate must give notice to the informant

and provide him an opportunity of hearing. The POCSO Act makes a

special provision in cases when final report is submitted and as stated, in

such cases under Section 25(2) of the POCSO Act the Magistrate is under

obligation to provide to the child and his parents or his representative, a

copy of the document specified under Section 207 of the Code. It makes

amply clear that under POCSO Act if after investigation FR is filed the

child, his parents or his representative shall be necessarily heard.

78. In the FIR of the case which was filed on the basis of inquiry

report dated 25.06.2014 of the informant, the name of DD is shown as a

victim. He was named by another victim and there are other victims also.

But, DD was not provided the documents in accordance with Section

25(2) of the POCSO Act. This requirement may be read along with

judgment in the case of Bhagwant Singh (supra). The judgment in the

case of Bhagwant Singh (supra) was not passed under POCSO Act. It was

with regard to the provisions of the Code. When the judgment in the case

of Bhagwant Singh (supra) was given the POCSO Act was not in

existence. Therefore, in the instant case, it was mandatory for the Court to

supply all the statements and the conclusion drawn by the IO or statement

under Section 164 of the Code or any other document as specified under

Section 207 of the Code to DD and other victims, but it was not done. The

FR was accepted in defiance to the provision of Section 25 of the POCSO

Act. It also vitiates the order dated 14.01.2019 passed in first Misc Case.

79. In the instant case, DD has stated in his protest petition that

during investigation, police had approached him, but the fact remains that

the statement of DD was neither recorded by the Inquiry Officer nor by

the Investigating Officer. Why? This Court had already observed that

despite the name of DD and some other victims, having been revealed by

a victim; they were not examined by the IO. It makes the investigation

incomplete. Investigation in the instant case was incomplete.

CONCLUSION

80. In view of the foregoing discussion, this Court is of the view

that the order dated 14.01.2019, passed in the first Misc Case is not in

accordance with law. It ought to have been set aside and further

investigation ordered in the matter. The impugned order dated 15.11.2019

is therefore bad in the eye of law.

81. The impugned order dated 15.11.2019 is also not as per law

because the petitioner has been summoned without any inquiry having

been conducted under Section 200 and 202 of the Code. In view thereof,

order dated 15.11.2019 is liable to be set aside and both the petitions

allowed.

82. Criminal Misc. Application No. 887 of 2020 is allowed.

83. Criminal Misc. Application No. 31 of 2021 is also allowed.

84. The impugned order dated 15.11.2019 passed in the second

Misc Case is set aside.

85. The order dated 14.01.2019 passed in the first Misc Case by

which the final report in the matter was accepted is set aside.

86. Final report no. 15 of 2015 submitted by the IO in FIR No 53

of 2015, under Sections 377, 511 IPC and Section 9 read with 10 of the

POCSO Act, Police Station Pulbhatta, District Udham Singh Nagar is

rejected. The Investigation Officer is directed to further investigate the

case.

(Ravindra Maithani, J.) 06.05.2021 Jitendra