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Neeta Adarsh vs State And Ors. on 28 December, 2018

HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU

CRMC No. 469/2018, IA No. 01/2018
Date of order: 28.12.2018
Neeta Adarsh Vs. State and ors.
Coram:

Hon’ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:

For Petitioner(s) : Mr. Nirmal Kotwal, Advocate
For respondent (s) : Mr. C. M. Koul, Sr. AAG

i) Whether to be reported in
Digest/Journal : Yes/No.
ii) Whether approved for reporting
in Press/Media : Yes/No.

1. Through the instant petition filed under Section 561-A of the Code of
Criminal Procedure (hereinafter for short, Cr.P.C.), petitioner seeks
quashing of the order dated 17.05.2018, passed by learned 3rd Additional
Munsiff, Jammu whereby it has been held that no direction can be passed
under Section 156(3) of Cr.P.C to the police to investigate the matter and
the complaint has been dismissed.

2. The factual matrix of the case is that petitioner filed a complaint u/s
376/109 read with Section 34 and 120-B of RPC against respondent Nos.
2 to 4 pleading therein that the petitioner in the year 2008 in connection
with her training hired rented accommodation in the House of respondent
Nos.2 to 4 i.e., JDA-22 New Rehari Jammu w.e.f. 17th July, 2008 on
monthly rent of Rs.2,400/-. The petitioner used to pay monthly rent to the
respondents, but the respondent No.4 exploited the emotions and
sentiments of the petitioner by saying that the petitioner is like a daughter
knowing well that the petitioner belongs to a Scheduled Caste

CRMC No.469/2018 Page 1 of 13
community and the respondents 2 to 4 are from Brahamin community.
The petitioner has pleaded in the complaint that with the passage of time
the petitioner/complainant being alone at Jammu fell prey to the
sentiments expressed by respondent No.4 and the petitioner was made to
work as household apart from doing her training. It is further submitted
that the petitioner completed her training and got a job in Govt. Medical
College Jammu in the year 2013 against the post of Multipurpose Health
Worker on contractual basis, however, in the year 2014 the respondent
No.2 suffered some bleeding problem and the petitioner being an
employee in Medical Department was requested by respondent Nos.3
and 4 to seek appointment from Dr. Sanjeev Bhat and on examination of
respondent No.2, the petitioner came to know that the respondent No.2 is
suffering from BSD which had turned very serious because of non-
treatment at an early stage. It has been further stated in the complaint that
the Doctor Sanjeev Bhat advised the respondent No. 2 to take medical
treatment and it was also advised to have regular check-up. The
respondent No.2 many a times fell unconscious and respondent Nos. 3
4 always requested the petitioner to give breathing from mouth to mouth
to respondent No. 2. In the complaint it was further stated that
respondent Nos.3 4 exploited the sentiments of petitioner by saying
that the life of respondent No.2 is very short and now the petitioner has
to take care of respondent No.2. It was pleaded in the complaint that the
petitioner was also forced to accompany respondent No.2 to the doctors
and to the utter surprise of the petitioner the
respondent Nos.3 4 revealed on 9th November, 2014 that the
respondent No. 2 has fallen in love with the petitioner and now cannot
live without her love and affection. It is stated that respondent Nos.3 4
exploited the petitioner to such an extent that the petitioner was requested
to give company to respondent No.2 in the night hours also. The
respondent No.2 forcibly and without the consent of the petitioner had

CRMC No.469/2018 Page 2 of 13
sexual intercourse with her and thereafter the things became
so worst that whenever the petitioner was on her duty the respondent
No.2 used to call her on the pretext that he is not feeling well and the
petitioner sensing medical problem of the respondent No.2 used to rush
at the residence i.e. JDA-22 New Rehari, Jammu of the respondents, after
availing leave and on arrival used to find respondents 2 to 4 sitting
together. The respondent No.2 on the pretext of taking medicines used to
take the petitioner in the room in presence
of respondents 3 4 and exploit the petitioner by resorting to forcible
sexual intercourse. The petitioner objected many a times, but the
respondent Nos.3 4 consoled the petitioner that the petitioner can only
save the life of respondent No.2. It was further pleaded in the complaint
that the things and circumstances had gone beyond the control of the
petitioner, because the petitioner had been exploited by respondents 2 to
4 to have sexual intercourse without her consent so many times, that the
petitioner thought of committing suicide and on 02.09.2016, the
petitioner perturbed by the sexual exploitation by respondent Nos.2 to 4
left the rented house and went to end her life at Akhnoor, but the
respondent Nos.2 to 4 sensing some adverse circumstances followed the
petitioner and in order to overcome any criminal proceedings against
them from the petitioner again exploited her and got an agreement of
marriage between the petitioner and respondent No. 2 totally against the
consent of petitioner. The agreement was executed on 08.09.2016
against the consent of the petitioner because the respondents got the
agreement executed only to safeguard themselves from criminal
proceedings. It was further pleaded in the complaint that she has been
forced to undergo sexual intercourse without her consent by the accused
persons and they have committed offence under Section 376/34 RPC
with the petitioner. The petitioner further pleaded in the complaint that
the petitioner even went to the police, but nothing was done because the

CRMC No.469/2018 Page 3 of 13
respondent Nos.2 to 4 were very influential and high headed persons and
police was hand in glove with respondents. Further, respondent Nos.3
4 managed an accommodation at New Plot Tali Morh Jammu just to
show that the petitioner is no more tenant of respondent Nos.3 4. It is
stated that respondent No.2 exploited the petitioner even at rented
accommodation at New Plot Jammu number of times by committing
sexual assault without her consent. The petitioner pleaded in the
complaint that the petitioner approached the concerned Superintendent of
Police Jammu, number of times, who failed to take cognizance of the
case. It is stated that the complaint was filed in the Court of Chief
Judicial Magistrate, Jammu which was further transferred to the Court of
3rd Additional Munsiff (JMIC) Jammu for further adjudication. The
learned 3rd Additional Munsiff Jammu on 24.04.2018 passed an order
which is not only illegal, but is contrary to the provisions of law. The
learned 3rd Additional Munsiff Jammu dismissed the complaint on the
ground that power under Section 156 (3) Cr.P.C. cannot be exercised
because a matrimonial dispute under Section 13 of Hindu Marriage Act
is pending before the Matrimonial Court, Jammu between the parties and
the parents of respondent No.2 has already executed deed of
disinheritance in respect of respondent No. 2. The Court below has also
rejected the complaint on the ground that the police has already acted
upon and as per police report no offence is made out against the
respondent Nos.2 to 4, as such, no direction can be issued to the police to
investigate the matters under section 156 (3) of Cr P.C.

3. Through the instant petition, petitioner seeks quashing of the impugned
order dated 17 05.2018 on the following grounds:-

(i) That the impugned order is illegal, contrary to facts and
circumstances of the case and is unsustainable in the eye of law, as
such need to be quashed.

CRMC No.469/2018 Page 4 of 13

(ii) That the learned Magistrate has not appreciated the law governing
the subject as the petitioner had made all out efforts before the
concerned police to take cognizance of the matter, but since the
police failed to take cognizance;

(iii)That the learned Magistrate has committed illegalityby
entertaining the report of the police submitted in response to order
dated 24.04.2018 passed by the learned Magistrate because in terms
of order dated 24.04.2018 only factual report was to be verified
from the conceded Police Station as to whether the petitioner prior
to approaching the Magistrate for invoking power under Section
156 (3) Cr. P.C has approached the police or not. The learned
Magistrate has erred in accepting the report of police because the
accused persons were provided ample opportunity to put their
defence by the police which is not permissible and the material
according to the choice of accused personswas submitted to the
learned Magistrate which wassufficient to prejudice the mind of the
learnedMagistrate that no case is made out; that the police
travelledbeyond the scope of the order passed by the
learnedMagistrate dated 24.04.2018. and even after passing of
order dated 24.04.2018 neither the statement of petitioner was
recorded by SHO Police Station, Pacca Danga, Jammu nor In-
charge Police Post Rehari nor any investigation was carried out.

(iv) That the learned Magistrate has also committedillegality by saying
that there is delay in lodging thecomplaint, but fact still remains
that the commissionof offence under section 376 RPC is a recurring
causeof action particularly when the accused persons played fraud
and misrepresentation on the petitionerjust to get rid of her,
because as on date also theaccused No. 2 is in-connivance with
accused Nos. 34 has gone in hibernation and is not traceable; that
thelearned Magistrate wrongly interpreted the missingreport
lodged by the petitioner with the in-charge police post Rehari and
has also misinterpreted thependency of a divorce petition in the
family court atJammu filed at the behest of respondent/accused No.
2, which clearly indicates that the respondent No, 2 to 4
hadinvolved the petitioner in the marriage tie just to get rid of the
rigor of offence committed upon the personof the petitioner under
Section 376 RPC.

4. Objections have been filed by respondent Nos.2 to 4. The stand taken in
the objections is that the petition of the petitioner is liable to be dismissed
on the ground that she has intentionally and deliberately suppressed true
and material facts from the Court. In the objections it has been averred
that the respondent no.2 vide marriage agreement dated 08.09.2016 has
solemnized marriage with the petitioner as per Hindu Rites and Customs.
At the time of marriage the petitioner herein was 38 years of age and the

CRMC No.469/2018 Page 5 of 13
respondent no.2 was only 26 years old. It is further stated that in the said
agreement the petitioner has submitted/admitted that she was a Hindu
Virgin 38 years old girl. The said marriage agreement was also registered
by the Notary Public, Jammu in front of two independent witnesses who
are the close relatives of the petitioner (i.e. brother and sister). It is
further averred that respondent no.2 and petitioner have also performed
marriage as per Hindu rites and customs at Arya Samaj Mandir
Dayanand Marg, Jammu on 14.10.2016 and in this regard a certificate
was also issued in their favour. Further, the said marriage
between the respondent no. 2 petitioner was a love marriage and has
been solemnized against the wishes of respondent Nos.3 4 due to
which the respondent no.3 executed a deed of disinheritance on
28.10.2016 whereby the respondent no.3 disinherited respondent no.2
from all of his moveable as well as immoveable properties. Thereafter
the respondent no.2 and petitioner started living at House No.288, Puran
Nagar New Plots, Jammu. Soon after the marriage the behavior and
attitude of the petitioner towards the respondent no.2 was not good due to
which the parties get separated from each other on 28.01.2018 because of
a scuffle and the respondent no.2 left the house. Thereafter,the petitioner
lodged a missing report before Police Post Rehari and in the month of
February, 2018 the respondent no.2 came back and the police had called
his parents and the petitioner in the police post and during this period the
parents of the respondent no.2 submitted that the respondent no.2 has
already been disinherited and he can live anywhere he wants to live and
thereafter the case was closed. Being not satisfied with the same, the
petitioner has also filed petition under Section 9 of Hindu Marriage Act
on 06.03.2018 wherein she gave her residential address at H.No. 288
Puran Nagar New Plots, Jammu and seeks restitution of conjugal rights
before the Court of Ld. Additional District, Judge (Matrimonial Cases)
Jammu. The said petition was decided on 17.05.2018 on the ground that

CRMC No.469/2018 Page 6 of 13
the petitioner herein was not interested to press the same and same was,
accordingly, dismissed as withdrawn by the petitioner on her own. It is
further submitted that in the said petition filed under Section 9 of Hindu
Marriage, Act in para no.3 she had stated that she was virgin at the time
of her marriage and when nothing has been received in shape of relief
from the Court of Ld Additional District Judge, Matrimonial Cases,
Jammu, the petitioner here in just to defame and harass respondents by
concealing the fact of pendency of petition mentioned above, filed an
application under Section 156 (3) Cr.P.C seeking direction to Police of
Police Station, Pacca Danga to lodge an FIR against the respondents
under Sections 376, 109 read with Section 34 and 120-B RPC. In the said
complaint the petitioner has mentioned her address as Kulwanta
Ramnagar,Udhampur at present Jammu. The said complaint of the
petitioner was decided on 17.05.2018 by the Court of Ld 3rd Additional
Munsiff (JMIC) Jammu. In the said order the court of Ld 3rd Additional
Munsiff (JMIC), Jammu clearly stated that the petitioner has suppressed
material facts from this court and has not approached to this court with
clean hands. Further, the learned Court has also stated that the dispute is
a matrimonial one and complainant instead of resorting to the available
legal recourse has misused the process of the court by invoking the
provisions of section 156(3) Cr.P.C. Further, when the learned court
rejected the complaint, the petitioner has also withdrawn the petition
under Section 9 on the same very date i.e. 17.05.2018. Further the
petitioner herein just to defame the respondents and their family
members has also posted defamatory posts on social sites and she always
threatened the respondents of dire consequences due to which the
respondent no. 4 has also filed a complaint against petitioner under
Section 156 (3) Cr.P.C. before the court of Judicial Magistrate 1st Class,
Jammu in which the learned court vide its order dated 19.07.2018
directed the SHO Police Station, Pacca Danga to file compliance report

CRMC No.469/2018 Page 7 of 13
by enquiring the matter. It is also stated that the petition of the petitioner
is further liable to be dismissed on the ground that before filing
complaint under Section 156 (3) the petitioner has not followed the
provisions of Section 154 Cr.P.C., and all the facts narrated above, have
been concealed by the petitioner in all her proceeding including the
instant one which clearly shows that the petitioner just to take revenge
from the respondents has filed the instant petition.

5. In support of his contention, learned counsel for the petitioner relies upon
the decisions of the Hon’ble Supreme Court reported in case titled Lalita
Kumari vs. Govt. of U.P. and ors. reported in 2008 (7) SCC 164; and
Mrs. Priyanka Srivastava and anr. vs. State of U.P. and ors, reported
in (2015) 6 SCC 287.

6. I have considered the rival contentions. From the perusal of documents
annexed with the petition, it is evident that petitioner filed a criminal
complaint against respondents for offences u/s 376/109/34/120-B RPC
before JMIC on the same averments which have been mentioned in this
petition.

7. On 24.04.20018 JMIC Jammu (3rd Additional Munsiff) passed an
order thereby directing SHO P/S Pacca Danga to file status report, as
JMIC was of the view that complainant has already filed a complaint
before Police Post Rehari and SP, Jammu. The concerned SHO P/S
Pacca Danga filed status report; JMIC after going through status report
dismissed the complaint and refused to pass any order on said complaint
on 17.05.2018.

8. The operative part of order dated 17.05.2018 passed by 3 rd Additional
Munisff (JMIC) Jammu reads as under:

CRMC No.469/2018 Page 8 of 13

“In the case in hand, it is alleged by the complainant that she has been
subjected to forcible sexual intercourse by accused no. 1 since 2014
without her consent and when she decided to end her life by
committing suicide she was exploited emotionally by accused no: 2
and 3 and was forced to enter into wedlock of marriage with accused
no: 1 in November 2016 and the accused no: 1 kept on exploiting the
complainant to forcible sexual intercourse eve after marriage.
This Court has directed the P/P Rehari Jammu to file a status report
regarding the complaint filed by the complainant. The status report
was filed by the concerned Police authorities and perusal of the same
reveals that in 2008 the complainant was undergoing training at
GMC Jammu and had taken the room from the accused persons on
rent @ 2400/- per month at New Rehari. In the year 2013, the
complainant got a job at GMC Bakshi Nagar Jammu and was about
to shift but in 2014, the accused no: 1 got critically ill and the
complainant helped him in getting the treatment and during this they
fell in love with each other. The Complainant and accused no: 1
revealed about their love affair to accused no. 2 and 3 and requested
them for marriage who refused and then on 2-9-2016, the
complainant threatened them to commit suicide. The parents of
accused no: 1 tried to make her understand but she didn’t agree and
accused no. 1 and complainant against the wishes of his parents told
them that they will marry each other and left the lhouse of accused
no. 2 and shifted to a rented accommodation at Puran Nagar H. no:
286 New Plot Jammu and started living there. Both accused no: 1 and
complainant did enter into an agreement in the Court and on 14-10-
2016 both got married at Arya Samaj Mandir in which parents of the
complainant were present but accused no: 1 parent were not aware of
it. The accused no: 2 disinherited the accused no: 1 because of his
marriage with the complainant. The complainant and accused no: 1
after this started living together and stayed together till 28-01-2018
and then because of scuffles the accused no: 1 left the house at Puran
Nagar New Plot. The complainant on her own tried to locate him and
in the month of February, 2018 the accused no: 1 came back. The
police called upon the parents of accused no. 1 and the complainant in
the police post and after the close report they all went back. It was
submitted by accused no. 2 that he has disinherited the accused no. 1
and they can live anywhere as per their choice. A case between the
complainant and the accused no: 1 u/s 13 HM Act is pending before
the Court of Add. District Matrimonial. Since 28-01-2018, the
complainant and the accused no: 1 are living separately It is
submitted that apart from missing report the police have not received
any application from the complainant at Police Post Rehari.
In the case in hand, there are certain things which cast doubt on the
veracity of the assertions leveled by the applicant against the non-
applicants/accused and has to be looked into before passing any
directions u/s 156(3) Cr.PC:

CRMC No.469/2018 Page 9 of 13

1. Perusal of the complaint reveals that she has been subjected to
forcible sexual intercourse by accused no: 1 since 2014 till 2016 but
she never reported the same to any one and in the year 2018 of all a
sudden she has resorted to the provisions of section 156(3) Cr.PC by
filing the present application. No logical and reasonable explanation
of delay/laches has been given by the applicant in the present
application in not approaching the Court for the redressal of her
grievance.

2. The applicant has suppressed material facts from this Court and
has not approached this Court with clean hands. It can be elucidated
from the status report that the complainant and accused no: 1 have
done marriage against the wish of accused no:2and 3 and have
accordingly shifted to new rented accommodation at Puran Nagar
New Plot Jammu and thereafter because of some scuffle the accused
no: 1 left the said house and to this extent, the complainant has lodged
a missing report of accused no: 1 at Police Post Rehari, Jammu. Even
it is not disclosed by the complainant that a petition u/s 13 Hindu
Marriage Act is pending adjudication before the Matrimonial Court
Jammu between the complainant and the accused no: 1. Thus, by
filing the present application the applicant has abused the process of
the Court by concealment of material facts.

3. In the matrimonial dispute between the parties, an aggrieved
person/complainant instead of restoring to the available legal
resources have misused the process of the Court by invoking the
provisions of section 156(3) Cr.PC. In the case in hand, there is a
matrimonial dispute between the parties and the Police have already
acted and has filed status report stating therein that no offence us
376/34 RPC is made out against the accused persons. The import of
section 156 (3) Cr.PC is to put Police into motion and if
because of the inaction of the Police the aggrieved person has
suffered, the Court can direct the Police to investigate the matter if it
discloses the commission of cognizable offence. If the Police has
already acted upon, and as per Police report no offence is made out
against the accused persons, no direction can be passed to the Police
to investigate the matter u/s 156(3) Cr.PC

Accordingly, in my considered opinion, no directions can be passed
u/s 156(3) Cr.PC to the Police to investigate the matter and as such,
the present application being devoid of any merit is dismissed.
Consigned to records after its due compilation u/r.”

9. From the bare perusal of impugned order of JMIC, it is evident that
JMIC has dismissed the complaint and refused to take cognizance or
sending the complaint to police under section 156(3 )Cr.P.C., on the
ground that there appears to be matrimonial dispute between the parties
and wife/complainant instead of restoring to the available legal recourse

CRMC No.469/2018 Page 10 of 13
has filed present complaint by misusing the process of the Court by
invoking the provisions of section 156(3) Cr.P.C. JMIC has further held
that Police has already acted on complaint filed by complainant and
found no offence us 376/34 RPC was made out against the accused
persons.

10. Criminal law is now well established that if a private complaint is given
to the Magistrate, he has the power to take cognizance of a private
complaint under the provisions of clause Section 190 of the Criminal
Procedure Code.

“190. Cognizance of offences by Magistrates.– (1) Except as
hereinafter provided any Chef Judicial Magistrate and any other
Judicial Magistrate specifically empowered in this behalf may take
cognizance of any offence–

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer,
or upon his own knowledge, that such offence has been committed.

11. As is seen from above, Section 190 Cr.P.C. lays down as to how
cognizance of offences can be taken by Magistrates. It is by taking
cognizance of an offence that the court machinery is set in motion in
respect of criminal cases. Cognizance of an offence can be taken in one
of the three ways mentioned in Section 190 Cr.P.C.:

(1) On the basis of a complaint;

(2) On the basis of a police report under Section 173 Cr.P.C. (which
may be a charge sheet or, in fact, even a closure report);

(3) On the basis of the Magistrate’s own knowledge or information
received from any person other than a police officer.

12. Thus, if a complaint is received by the Magistrate, the power to take
cognizance on the basis of such complaint is under Section 190 of

CRMC No.469/2018 Page 11 of 13
Cr.P.C. However, further action on such complaint has to be taken under
Sections 200-204 of Cr.P.C. Under Section 200 Cr.P.C., the Magistrate is
required to record the statement of the complainant on oath, and also of
other witnesses, if present. The objective sought to be achieved by
Section 200 is that a large number of complaints are filed by private
individuals, many of which may be frivolous complaints. Therefore, it is
considered necessary to verify the details of such complaints by
examining the complainant on oath under Section 200 of Cr.P.C. In
certain complaint cases, action may have to be taken by the Magistrate
under the provisions of Section 202 Cr.P.C., i.e., an inquiry by the
Magistrate himself or an investigation by police, etc. After these steps, if
the Magistrate does not find sufficient ground to proceed further, he may
dismiss the complaint under Section 203 of Cr.P.C.; on the other hand, if
he finds sufficient ground to proceed, he may issue process under Section
204 of Cr.P.C.

13. Magistrate has also option to direct police to conduct investigation in
terms of section 156(3) Cr.P.C., which is called pre cognizance stage.
But in any case, Magistrate has to apply judicial mind before proceeding
ahead as to whether allegations leveled shows cognizable offence and
also to find out truthfulness of allegations. Magistrate in order to satisfy
himself with regard to truthfulness of allegations may conduct inquiry or
call for report from police, if he comes to conclusion that police had
already conducted some sort of investigation on same allegations.

14. Calling a person to stand criminal proceeding on frivolous or vexatious
allegations, amount to violation of his fundamental right.

15. Supreme Court of India in M/s Pepsi Foods Ltd. Anr. vs Special
Judicial Magistrate Ors., reported in 1998 (0) SCC (Cri) 1400, it is
held as under:-

CRMC No.469/2018 Page 12 of 13

“Summoning of an accused in a criminal case is a serious matter.
Criminal law cannot be set into motion as a matter of course. it is not
that the complainant has to bring only two witnesses to support his
allegations in the complaint to have the criminal law set into motion.
The order of the magistrate summoning the accused must reflect that
he has applied his mind to the facts of the case and the law applicable
thereto. He has to examine the nature of allegations made in the
complaint and the evidence both oral and documentary in support
thereof and would that be sufficient for the complainant to succeed in
bringing charge home to the accused. It is not that the Magistrate is a
silent spectator at the time of recording of preliminary evidence
before summoning of the accused. Magistrate has to carefully
scrutinize the evidence brought on record and may even himself put
questions to the complainant and his witnesses to elicit answers to
find out the truthfulness of the allegations or otherwise and then
examine if any offence is prima facie committed by all or any of the
accused.”

16. In present case, after going through the circumstances of the case and
order of JMIC, Jammu, I am of the considered opinion that order of
Magisterate is correct and does not suffer from any infirmity of law. This
petition is dismissed accordingly.

(Sanjay Kumar Gupta)
Judge
Jammu
28.12.2018
Bir

CRMC No.469/2018 Page 13 of 13

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