It is true that the prescribed and appropriate
recourse for the appellant would have been to submit a
Protest Petition against the chargesheet filed by the
Investigating Officer, in which the second respondent was
not put up for trial for offences under Sections 376, 417
and 420 of IPC. The appellant, instead, moved an
application captioned as “under Section 173(8) of
Cr.P.C.” The averments made in that application reveal
that the appellant protested against deletion of charges
under Sections 376, 417 and 420 of IPC and she made an
endeavour to bring on record the material which would
prima facie establish the commission of these offences.
We fail to understand what prevented the Magistrate from
treating that application purportedly filed under Section
173(8) of Cr.P.C. as a Protest Petition and then decide
the same on merits. A technicality like the caption of
the application/petition could not be an impediment to
consider the substance thereof and then determine whether
or not the matter required further investigation so as to
find out the prima facie element of offences under
Sections 376, 417 and 420 of the IPC. Such a permissible
procedural recourse has been unfortunately overlooked by
the High Court as well. {Para 9}
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.562 OF 2024
(Arising out of SLP(Criminal) No . 11685/202 2 )
XXX Vs THE STATE
Dated: February 02, 2024.
1. The Registry is directed to amend the memo of
parties. The description of the petitioner be shown as
“XXX”. This order shall be released with the necessary
correction as directed above.
2. Leave granted.
3. The appellant is aggrieved at the order dated
14.12.2020 of the Judicial Magistrate-II, Puducherry,
which has been further upheld by the High Court of
Judicature at Madras vide impugned order dated
20.10.2021. Vide these orders, the application moved by
the appellant seeking further investigation under Section
173(8) of the Code of Criminal Procedure, 1973 (in short,
Cr.P.C.), on the ground that a part of the vital material
to substantiate the allegations of commission of offences
under Sections 376, 417 and 420 of the Indian Penal Code,
1860 (in short, IPC) was not collected by the
Investigating Agency, was turned down by the Trial
Magistrate and that order has been affirmed by the High
Court.
4. The appellant lodged FIR No.09/2014 on 04.08.2014,
under Section 417, 376, 420, 354A, 506(i) read with
Section 34 of IPC and Section 66A of the Information
Technology Act, 2000 at Police Station CB CID. She
alleged that after completing her B.Tech at Pondicherry
Engineering College in 2004, she got married in September
2005. However, the marriage was dissolved by a decree of
divorce in May, 2006. At that time, the appellant was
pregnant and she gave birth to a girl child on
09.02.2007. Thereafter, she started working as a Lecturer
at the Rajiv Gandhi Engineering College. Her hard work
and commitment helped her rise to the rank of Associate
Professor at Dr. Paula Engineering College. In the course
of time she met respondent no.2, who subsequently
professed his love for her. Some ceremonies were alleged
to have been performed on 13.09.2012 at Pollachi, whereby
respondent no.2 pretended to have married the appellant.
They started living together as husband and wife. During
this time the appellant got pregnant twice, but was asked
to abort the foetus in June, 2013 and May, 2014
respectively. Soon thereafter, respondent no.2 allegedly
stopped meeting the appellant, thus, prompting her to
lodge the FIR on 04.08.2014.
5. It appears that after investigation, a chargesheet
under Sections 354A and 506 of IPC was filed. Instead of
filing a Protest Petition against the dropping of certain
charges by the Investigating Agency, the appellant was
advised to move an application under Section 173(8) of
Cr.P.C., in which she averred that there was ample
material to establish the performance of marriage between
her and respondent no.2 and/or that they had been staying
together as husband and wife. It was specifically pointed
out that respondent no.2 was already married to one Ms.
Meena and, thus, was ineligible to marry the appellant
during the subsistence of his first marriage.
6. The Judicial Magistrate, vide impugned order dated
14.12.2020, declined to entertain the appellant’s
application under Section 173(8) of Cr.P.C. She then
approached the High Court and vide the impugned order,
her Criminal Revision was summarily dismissed on the
ground that the recourse under Section 173(8) of Cr.P.C.
was not available/attracted.
7. The aggrieved appellant is before us. The office
report suggests that respondent no.2 has been duly
served; however, he has not entered appearance.
8. We have heard learned counsel for the appellant as
well as the learned State counsel and perused the record.
9. It is true that the prescribed and appropriate
recourse for the appellant would have been to submit a
Protest Petition against the chargesheet filed by the
Investigating Officer, in which the second respondent was
not put up for trial for offences under Sections 376, 417
and 420 of IPC. The appellant, instead, moved an
application captioned as “under Section 173(8) of
Cr.P.C.” The averments made in that application reveal
that the appellant protested against deletion of charges
under Sections 376, 417 and 420 of IPC and she made an
endeavour to bring on record the material which would
prima facie establish the commission of these offences.
We fail to understand what prevented the Magistrate from
treating that application purportedly filed under Section
173(8) of Cr.P.C. as a Protest Petition and then decide
the same on merits. A technicality like the caption of
the application/petition could not be an impediment to
consider the substance thereof and then determine whether
or not the matter required further investigation so as to
find out the prima facie element of offences under
Sections 376, 417 and 420 of the IPC. Such a permissible
procedural recourse has been unfortunately overlooked by
the High Court as well.
10. We may hasten to add here that the accused is a
police officer. The allegation of undue influence and/or
unintended favour towards him by the Investigating
Officer cannot be brushed aside lightly. It is the
bounden duty of every Court of law that injustice
wherever visible must be hammered and the voice of a
victim of the crime is dispassionately heard. The
appellant in her application has stated that: (i)
respondent no.2 was already married to Ms. Meena, and
was, thus, disqualified to perform the second marriage;
(ii) he being a Government officer, his second marriage
during the subsistence of the first marriage would have
been a misconduct under the Conduct Rules; and (iii) that
the first chargesheet itself suggested that the appellant
and respondent no.2 had been living together and were in
physical relationship. If that is so, the Investigating
Agency ought to have further probed as to whether they
have been cohabitating pursuant to the so-called marriage
performed on 13.09.2012 and/or it was merely a consensual
live-in relationship. Similarly, the Investigating
Officer does not appear to have taken any pains to visit
the hospital/medical clinics to verify whether the
appellant underwent abortion twice. We are not sure
whether the statements of the persons living in the
neighbourhood were recorded or not to find out whether
the appellant and respondent no.2 had been living
together at the Jayaveran House on Vattavalam Road,
Thiruannamalai District, as husband and wife. All these
facts will have a material bearing on the determination
by the Trial Court as to whether a prima facie case under
Sections 376, 417 and 420 of IPC is made out or not.
11. That being so, it was a fit case where the learned
5
Judicial Magistrate ought to have invoked his power under
Section 173(8) of Cr.P.C. and directed the Investigating
Officer to further investigate such serious allegations.
The denial of further investigation has led to gross
injustice to the appellant.
12. Consequently, the appeal is allowed. The impugned
orders dated 14.12.2020 and 20.10.2021 are set aside. The
application moved by the appellant before the Trial Court
is treated as Protest Petition and the same is allowed.
As a result thereto, the Investigating Agency is directed
to hold further investigation to find out whether or not
offences under Sections 376, 417 and 420 of IPC are made
out against respondent no.2.
13. Owing to the status of the accused, the State of
Pondicherry is directed to constitute a Special
Investigation Team to be headed by a directly recruited
woman IPS Officer along with two officers in the rank of
DYSP and Inspector of Police. If a woman IPS Officer is
not available in the State cadre, then any one of the
officers in the rank of DYSP or Inspector must
necessarily be a woman. The further investigation shall
be completed by SIT within three months.
14. The Trial Court shall proceed thereafter in
accordance with the law.
15. It is clarified that we have not expressed any
opinion on the merits of the charges levelled by the
6
appellant against respondent no.2 regarding commission of
offences under Sections 376, 417 and 420 of IPC.
16. Ordered accordingly.
...................J.
(SURYA KANT)
...................J.
(K.V. VISWANATHAN)
New Delhi;
February 02, 2024
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