SIMARJEET SINGH BAINS V/S STATE OF PUNJAB AND ORS (2021)

SIMARJEET SINGH BAINS V/S STATE OF PUNJAB AND ORS

(2021)

Citation	CRM-M-26627-2021
Date of Judgement	23 July 2021
Court	High Court of Punjab and Haryana
Case Tye	Criminal
Appellant	Simarjeet Singh Bains
Respondent	State of Punjab and another
Bench	Justice Manjari Nehru Kaul
Referred	Sec 376, 354, 354-A, 506, 120-B IPC

FACTS OF THE CASE

The petitioner, who is also the accused Simarjeet Singh Bains was an MLA of the Punjab Constituency. A complaint was filed against the accused in consequence of a dispute where it is alleged that the respondent purchased a land of 75 sq. yards with the help of co-accused Sukhchain Singh for a sum of Rs 18 lakh. The co-accused also helped the respondent avail a loan of Rs 10 lakh from Vijaya Bank, Ludhiana Branch and misappropriated Rs 1.25 lakh out of such amount as a commission on the loan. After the unfortunate death of her husband, the respondent was unable to repay the loan amounts and defaulted on such loan availed. The bank took away the possession of the house and these events lead to the respondent approaching the petitioner, via co-accused, for aid and support. The petitioner called the respondent multiple times in the name of availing telephone services from the place of her employment.

Taking undue advantage of her vulnerable situation, the co-accused accompanied by the petitioner raped and violated her modesty on various occasions despite of her refusal. She was also threatened by the accused and co-accused to not reveal any such information or it would prove to be fatal. She however filed a complaint on 16.11.20 to the Commissioner of Police, Ludhiana with subsequent follow ups on 21.11.20 and 01.12.20 along with an application filed under Section 156(3) on 03.12.20. There was no action taken against such complaint and so the respondent approached the court under Section 482 of CrPc with the plea:

1. To protect her life and liberty
2. To register the FIR under Section 376 and 120-B of IPC
3. To take action against harassment by the petition by calling her repeatedly to Police Lines, Ludhiana i.e office of complainant

The JM1C, upon request of the respondent had issued the notice to present a status report and held that there was no existence of any bias in the investigating agency and this was challenged by the respondent in the court of Assistant Sessions Judge, Ludhiana who set aside the previously passed order of JM1C. The court of ASJ passed an order regarding the same and directed the SHO, Ludhiana to file a criminal case and begin investigation. A prima facie case was instituted based on the allegations of repeated sexual assault, harassment, criminal intimidation and destruction of evidence and a cognizable case was made respectively. 

The petitioner seeks to quash the order passed by the Assistant Sessions Judge, Ludhina on 07.06.21 and set aside the order of Additional Chief Judicial Magistrate, Ludiana dated 07.07.21 on instituting a criminal case against the petitioner.

ISSUES OF THE CASE

The court laid down specific consideration to be noted in the case:

1. Whether discretion of the Magistrate to call for a report under Section 202 instead of directing for investigation under Section 156(3) is controllable?
2. Whether in the course of investigation under Section 202, the police office is entitled to arrest the accused?
3. Whether in the present case the Magistrate erred in seeking report instead of directing and investigation?

ARGUMENTS BY THE PARTIES

The learned counsel of the petition put forth the contention that the complaint was issued after the order of motion was passed by the court and thus, it displayed “judicial impropriety”. They went on to support their means by a hypothetical situation concerning the provision of Anticipatory bail under Section 438/ 439 of CrPc. The hypothetical situation put before the court was in regards to “parallel remedy”. He then cited the case of Ramdev Food Products Pvt. Ltd vs State of Gujarat and M/s. Sujan Multiports Ltd vs State of Haryana. Subsequently, they also raised questions on the issues framed by the court. They argued in the court that the ACJM went beyond their powers while ordering a custodial interrogation. 

The counsel of the state reiterated that there was no illegality of “impropriety” by the ACJM and stated that the petition was filed as an abuse of the process of law. They emphasized on the fact that the provisions of Section 156(30) of CrPc are for the pre-cognizable instances and are to be exercised only by a Magistrate. He further laid down the facts that the complainant had previously approached the investigating agency for help but to no avail she had registered a complaint under Section 156(3) as an alternative remedy. The counsel added that there had been no concealment of facts on their behalf and everything was detailed about the petition filed before the High court. They further pointed out that there had been a prima facie case based upon the essential ingredients and the police had been under bias of the position of the accused. They supported their argument citing the judgement of the case of M/s Skipper Beverages Pvt Ltd vs State in Delhi High Court and Jaganhath Verma & Others vs State of Uttar Pradesh.

JUDGEMENT PASSED BY THE COURT

The court carefully scrutinized all the contentions and questions laid down by both the parties and passed their judgement on the same. It was laid down that it is essential for the court to keep a check on the practices of the Police as power of arrest or investigation is not mechanical in nature. The mind and matter are applied depending upon the circumstances of each case. The court here cited the case of  Anil Kumar vs A.K. Aiyappa.

Focusing on the other contention, the court held that power conferred under Section 202 is of a distinct nature and carries a limited purpose. They, added under the provision of Section 156(3), are applied only after application of mind by the Magistrate. It is stated that the directions are issued after ascertaining the cognizance, availability of evidence and interest of justice. Coming onto the last contention, the court held negative towards the view of choosing between Section 202 and 156(3). This decision was upheld by the High Court as well. The Magistrate has not found essential evidence against the accused to proceed criminally, hence the suit is of civil nature and of forged partnership. The court justified by adding that a civil action may also give rise to criminal liability however that must be judicially acknowledged. 

The court relied on the judgement in Ramdev’s case, upheld by the Supreme Court, that under Section 156(3) the Magistrate has power to call for registration of FIR if there exists a prima facie case. The court delved into the powers of the Magistrate under the provision and cited judgments given by the Apex Court- Sakiri Vasu vs State of U.P. “Section 156(3) is wide enough to include all powers in a Magistrate which are necessary ..” The court put emphasis on the ‘doctrine of implied power’ and set aside the contention of ‘judicial impropriety’ raised by the counsel of the petitioner. 

The court finally held that there existed no illegality in the orders passed by the ASJ and ACJM, Ludhiana and dismissed the petition.

REFRENCES USED

Indiankanoon.org

Manupatra.com

This article is written by Ravishma Sharma, a student at Vivekananda Institute of Professional Studies, 4^th Year, an Intern at Legal Vidhya.