SMT. MONA PANWARversusTHE HONBLE HIGH COURT OF JUDICATURE AT ALLAHABAD THROUGH ITS REGISTRAR AND OTHERS

                     [2011) 2 S.C.R. 413


                   SMT. MONA PANWAR                              A
                              v.
    THE HON'BLE HIGH COURT OF JUDICATURE AT
 ALLAHABAD THROUGH ITS REGISTRAR AND OTHERS
          (Criminal Appeal No. 298 of 2011}
                                                                 B
                    FEBRUARY 02, 2011
        [J.M. PANCHAL AND H.L. GOKHALE, JJ.]

     Judicial restraint: Disparaging remarks normally should
not be made against the members of the lower judiciary - C
Higher courts should observe restraint - In the instant case,
application was filed u/s.156(3),Cr.P.C. by a woman alleging
that her father-in-law had committed rape on her and the
police had refused to register her FIR - Appellant-judicial
officer passeci an order registering her application uls. 156(3), D
Cr.P.C. as complaint and directing registry to present the file
before her for recording the statement of the complainant u/
$.200, Cr.P.C. - Single Judge of High Court held that the
appellant had done the gravest injustice to the complainant
and she being a lady magistrate ought to have thought about E
the nature of crime committed by the accused and the order
was passed ignoring all judicial disciplines and without
application of judicial mind - Appellant sought expunging of
remarks - Held: Disparaging remarks made by the Single
Judge of the High Court were not justified at all - While F
passing the order registering application u/s.156(3), Cr.P.C.
as complaint, the appellant had considered the report called
from the concerned police station wherein it was mentioned
that no case was registered on the basis of complaint - At the
time of filing of application before the appellant, the G
complainant had filed her own affidavit, copy of the application
sent by her to the Senior Superintendent of Police with its
postal registration and photocopy of the medical certificate -
If on a reading of a complaint, appellant found that the ·
                             413                                 H
    414     SUPREME COURT REPORTS                (2011] 2 S.C.R.

A a/legations therein disclosed cognizable offence and
  fo1warding of the complaint to the police for investigation ul
  s. 156(3), Cr. P. C. would not be conducive to justice then there
  was no error on her part in adopting the course suggested in
  s.200, Cr.P.C. - The judicial discretion exercised by appellant
B was in consonance with the scheme postulated by the Code
  and was neither arbitrary nor perverse - Disparaging remarks
  made by the Single Judge of the High Court quashed - Code
  of Criminal Procedure, 1973 - ss.156(3), 200.

C      Code of Criminal Procedure, 1973: s.156(3) - Power of
    Magistrate under - Discussed.

       The appellant was a member of judicial service of the
  State of Uttar Pradesh. An application under Section
  156(3), Cr.P .C. was filed by respondent no.3 before the
D appellant. The grievance of respondent no.3 was that her -
  father-in-law had committed rape on her and the police
  had refused to register her FIR. She had also filed an
  application before the Senior Superintendent of Police
  but he had also not taken any action, and, therefore, she
E filed the application under Section 156(3), Cr.P.C. before
  the appellant. In the application the details of the incident
  of rape were mentioned and prayer was made for
  direction to the Officer-in-charge of Police Station to
  register her complaint and investigate the case against
F the accused under Section 156(3), Cr.P.C.

       The appellant passed an order on August 1, 2009
  registering the application filed by complainant-
  respondent no. 3 under Section 156 (3), Cr.P.C. as
G complaint and directing the Registry to present the file
  before her on August 9, 2009 for recording the statement
  of the complainant under Section 200, Cr.P.C.

      Respondent No.3 filed the petition under Section 482
H Cr.P.C. for quashing the order dated August 1, 2009
  MONA PANWAR v. HIGH COURT OF JUDICATURE. 415
           AT ALLAHABAD & ORS.
   passed by the appellant and for direction to the police to A
  register FIR and to investigate the same as provided
  under Section 156(3), Cr.P.C. The Single Judge of the
  High Court was of the view that the appellant had done
  the gravest injustice to respondent No. 3 and the
  appellant being a lady magistrate ought to have thought B ·.
  about the outcome of ravishing the chastity of daughter-
  in-law by her father-in-law and the nature of crime
  committed by the accused. The Single ~udge noticed that
  the incident had occurred inside the room and there was
  no mention of any witness in application filed by the C
  respondent but in the order passed by the appellant it
  was noted that the victim was in the knowledge .of all the
  facts and that the witnesses were also known to her and
  that this indicated non-application of mind by the
  appellant. The Single Judge expressed the view that the D
  appellant had passed the order ignoring all judicial
  disciplines and had not at all applied her judicial mind and
  had only referred- to some of the judgments, of the
  AHahabad High Court, which were contrary to the opinion
  ex_pressed by the Apex Court rendered in many E
  decisions. The Single Judge set aside the order dated.
  August 1, 2009, passed by the appellant, and directed the
  appellant to decide the application of respondent no. 3
· within the ambit of her power under Section 156(3),
  Cr.P.C. and also directed her to pass order for F
  registration of FIR against the erring police officers, who
  had refused to register the FIR of respondent No. 3. The
  instant appeal was filed for expunging the remarks made
  by the Single Judge of the High Court.
                                                               G
      Disposing of the appeal, the Court
     HELD: 1. The reply affidavit filed by the Deputy
 Superintendant of Police stated inter alia that the office
 record maintained at the Police Station, Nakur or in the.
                                                              H
   416     SUPREME COURT REPORTS             [2011] 2 S.C.R.


A office of the Senior Superintendant of Police, Saharanpur
  did not disclose receipt of any complaint from
  respondent no. 3. It was mentioned therein that when the
  impugned judgment passed by the Single Judge of High
  Court was brought to the notice of the authorities
B concerned, an FIR was lodged at the Police Station,
  Nakur against accused and offence punishable under
  Section 376 IPC was registered. The reply proceeded to
  state that the Investigating Officer had recorded the
  statement of respondent no. 3 as well as that of her
C mother and the statement of her brother-in-law. But the
  mother and the brother-in-law had mentioned that they
  were not eye-witnesses to the incident. The reply
   mentioned that inquiries made by Investigating Officer
  with the neighbourers of the accused indicated that
D respondent no. 3 was a divorcee and was residing at her
   parents house from the date of divorce. As per the reply
   of Deputy Superintendant of Police almost all
   neighbourers had unanimously informed the
   Investigating Officer that respondent no. 3 was not seen
E at her husband's house on 17th, 18th and 19th June,
   2009 and thus the incident referred to by respondent no.
   3 in her complaint was found to be a concocted story. The
   reply further mentioned that the Investigating Officer had
   recorded the statement of doc~or wJio had medically
F examined respondent no. 3 and the doctor had
   categorically stated that medical examination of
   respondent no. 3 did not confirm allegation of rape made
   by her. In the reply it was stated that on completion of
   investigation, the Investigating Officer had closed the
G investigation and submitted the final. report as
   contemplated by Section 169, Cr.P.C. [Para 8] [426-F-H;
   427-A-E]
      2. Section 156(1); Cr.P.C. authorizes the police to
H investigate into a cognizable offence without requiring
                                                   I

 MONA PANWAR v. HIGH COURT OF JUDICATURE 417
          AT ALLAHABAD & ORS.
any sanction from a judicial authority. However, sub- A
section (3) of Section 156, Cr.P.C. provides that any
Magistrate empowered under Section 190, Cr.P.C. may
order such an investigation as mentioned in sub-section
 (1) of the said Section. Section 190, Cr.P.C. deals with
cognizance of offences by Magistrates and inter alia B
 provides that any Magistrate of the first class may take
cognizance of an offence (a) upon receiving a complaint
 of facts which constitute such offence, (b) upon a police
 report of such facts and (c) upon information received
from any person other than a police officer or upon his C
own knowledge that such offence has been committed.
 Neither Section 154 nor Section 156, Cr.P.C.
 contemplates any application to be made to the police
 under Section 156(3), Cr.P.C. When the complaint was
 presented before the appellant, the appellant had mainly D
two options available to her. One was to pass an order
as contemplated by Section 156(3), Cr.P.C. and second
one was to direct examination of the complainant upon
oath and the witnesses present, if any, as mentioned in
Section 200 and proceed further with the matter as E
provided by Section 202, Cr.P.C. An order made under
sub-section (3) of Section 156, Cr.P.C. is in the nature of
a pe-remptory reminder or intimation to the police to
exercise its plenary power of investigation under Section
156(1 ). Such an investigation embraces the entire F
continuous process which begins with the collection of
evidence under Section 156 and ends with the final report
either under Section 169 or submission of charge sheet
under Section 173, Cr.P.C. A Magistrate can under Section
190, Cr.P.C. before taking cognizance ask for G
investigation by the police under Section 156(3), Cr.P.C.
The Magistrate can also issue warrant for production,
before taking cognizance. If after cognizance has been
taken and the Magistrate wants any investigation, it will
                                                         H
   418    SUPREME COURT REPORTS             [2011] 2 S.C.R.


A be under Section 202, Cr.P.C. The phrase "taking
  cognizance of' means cognizance of offence and not of
  the offender. Taking cognizance does not involve any
  formal action or indeed action of any kind but occurs as
  soon as a Magistrate applies his mind to the suspected
B commission of an offence. Cognizance, therefore, takes
  place at a point when a Magistrate first takes judicial
  notice of an offence. This is the position whether the
  Magistrate takes cognizance of an offence on a complaint
  or on a police report or upon information of a person
C other than a police officer. Before the Magistrate can be
  said to have taken cognizance of an offence under
  Section 190(1)(b), Cr.P.C., he must have not only applied
  his mind to the contents of the complaint presented
  before him, but must have done so for the purpose of
D proceeding under Section 200 and the provisions
  following that Section. However, when the Magistrate had
  applied his mind only for ordering an investigation under
  Section 156(3), Cr.P.C. or issued a warrant for the
  purposes of investigation, he cannot be said to have
E taken cognizance of an offence. Taking cognizance is a
  different thing from initiation of the proceedings. One of
  the objects of examination of c.omplainant and his
  witnesses as mentioned in Section 200, Cr.P.C. is to
  ascertain whether there is prima facie case against the
F person accused of the offence in the complaint and.to
   prevent the issue of process on a complaint which is
  either false or vexatious or intended only to harass such
   person. Such examination is provided, therefore, to find
   out whether there is or not sufficient ground for
G proceeding further. [Para 9] [427-F-H; 428-A-H; 429-A-F]
      Guiab Chand v. State of U.P. 2002 Cr.L.J. 2907, Ram
  Babu Gupta v. State of U.P. 2001 (43) ACC 50, Chandrika
  Singh v. State of U.P. 2007 (50) ACC 777; Sukhwasi Slo
H Hulasi v. State of U.P. 2007 (59) ACC 739 - referred to.
  MONA PANWAR v. HIGH COURT OF JUDICATURE 419
           AT Ab:LAHABAD & ORS.
       3. From the order dated August 1, 2009, passed by A
  the appellant, it is evident that the appellant had called
  for report from the concerned police station and
  considered the said report wherein it was inter alia
  mentioned that no case was registered on the basis of
  the application made by respondent no. 3. Respondent B
  no.3 at the time of filing complaint before the appellant
  had filed her own affidavit, carbon copy of the application
  sent by her to the Senior Superintendent of Police, ·
  Saharanpur with its postal registration and photocopy of
  the medical certificate. Under the circumstances, the C
  appellant had exercised judicial discretion available to a
  Magistrate and directed that the application, which was
  submitted by respondent no.3 under Section 156(3),
  Cr.P.C. be registered as complaint and directed the
  Registry to present the said complaint before her on D
  August 28, 2009 for recording the statement of
  respondent no.3 under Section 200, Cr.P.C. The judicial
  discretion exercised by the appellant was in consonance
  with the scheme postulated by the Code. There is no
  material' on the record to indicate that~he judicial E
  discretion exercised by the appellant was either arbitrary
  or perverse. There was no occasion for the Single Judge
  of High Court to substitute the judicial discretion
  exercised by the appellant merely because another view
· was possible. The appellant was the responsible judicial . F
  officer and after assessing the material placed before him
  she had exercised the judicial discretion. In such
  circumstances, the High Court had no occasion to
  interfere with the discretion exercised judiciously in terms
  of the provisions of Code. Normally, an order under G
  Section 200, Cr.P.C. for examination of the complainant
  and his witnesses would not be passed because it
  consumes the valuable time of the Magistrate being
  vested in inquiring into the matter which primarily is the
                                                               H
    420    SUPREME COURT REPORTS              [2011) 2 S.C.R.


A duty of the police to investigate. However, the practice
  which has developed over the years is that examination
  of the complainant and his witnesses under Section 200, -
  Cr.P.C. would be directed by the Magistrate only when a
  case is found to be serious one and not as a matter of
B routine course. If on a reading of a complaint, the
  Magistrate finds that the allegations therein disclose a
  cognizable offence and forwarding of the complaint to the
  police for investigation under Section 156(3), Cr.P.C. will -
  not be conducive to justice, he will be justified in adopting
C the course suggested in Section 200, Cr.P.C. In the
  instant case, respondent no. 3 had averred in the
  application submitted before the appellant that the
  Officer-in-charge of the Nakur Police Station had refused
  to register her complaint against her father-in-law
D regarding alleged rape committed on her and that no
  action was taken by the Senior Superintendent of Police
  though necessary facts were brought to his notice.
  Under the circumstances, the judicial discretion exercised
  by the appellant, to proceed under Section 200, Cr.P.C.
E could not have been faulted with nor the appellant could
  have been subjected to severe criticism as was done by
  the Single Judge. There was no reason for the Single
  Judge of the High Court to record his serious displeasure
  against the order of the appellant which was challenged
F before him as an illegal order nor the Single Judge was
  justified in severely criticizing the conduct of the
  appellant as Judicial Magistrate because the application
  submitted by respondent no. 3 was ordered to be
  registered as a complaint and was not dismissed. Higher
G courts should observe restraint and disparaging remarks
  normally should not be made against the members of the
  lower judiciary. [Paras 10, 11) [429-F-H; 430-A-H; 431-A-
  H; 432-A]

H
       MONA PANWAR v. HIGH COURT OF JUDICATURE 421
                AT ALLAHABAD & ORS.
          lshwari Prasad Mishra v. Mohd. Isa (1963) 3 SCR 722;     A
     'K' a Judicial Officer v. Registrar General, High Court of
     Andhra Pradesh 2001 (3) SCC 54 - relied on.

          4. The record would show that the appellant had
     discharged her judicial duties to the best of her capacity. B
     To err is human. It is often said that a Judge, who has not
     committed an error, is yet to be born. Tl)is dictum applies
     to all the Judges at all levels from the lowest to the
     highest. The difference in views of the higher and the
     lower courts is purely a result of a difference in approach c
     and perception. But merely because there is difference
     in views, it does not necessarily establish that the lower
     courts are necessarily wrong and the higher courts are
     always right Therefore, there is need to adopt utmost
     judicial res_!raint against making the disparaging remarks D
     so far as members of lower judiciary are concerned. On
     the facts and in the circumstances of the case, the
     d!sparaging remarks made by the Single Judge of the
     High Court, were not justified at all. The disparaging
     temarks made by the Single Judge of the High Court are E
     ~et aside and quashed. [Paras 11, 12 and 13l [433-H; 434-
     A-:D; F-G)                                     \
           K.P. Tiwari vs. State of M.P. ~994 Supp. (1) SCC 540-
     .relied on.
                                                                   F
.i                       C.=se Law Reference:
         2002 Cr.L.J. 2907          Referred to ·       Para 4
         2001 (43) ACC 50           Referred to         Para 4
                                                                   G
         2007 (50) ACC 777          Referred to         Para 4
         2007 (59) ACC 739          Referred to         Para 4
         (1963) 3 SCR 722           Relied on           Para 11
         2001 (3) sec 54            Relied on           Para 11    H
    422      SUPREME COURT REPORTS                  [2011) 2 S.C.R.


A         1994 Supp. (1) SCC 540 Relied on              Para 11

        CRIMINAL APP ELLATE JURISDICITON : Criminal Appeal
    No. 298 of 2011.

      From the Judgment & Order dated 10.09.2009 of the High
B Court of at Allahabad in Criminal Miscellaneous Application No.
  21606 of 2009.

          Rakesh Dwivedi, Kavin Gulati, Rashmi Singh, T. Mahipal
    for the Appellant.
c      Ratnakar Dash, Rajeev Dubey, Ravi Prakash Mehrotra,
    Deepti R. Mehrotra, Kamlendra Mishra for the Respondents.

          The Judgment of the Court was delivered by

D         J.M. PANCHAL, J. 1. Leave granted.

         2. The present appeal is filed by the appellant, who is
  member of judicial service of the State of Uttar Pradesh, for
  expunging the remarks made by the learned Single Judge of
  the High Court of Judicature at Allahabad in Criminal Misc.
E Application No. 21606 of 2009 while setting aside order dated
  August 1, 2009, passed by the appellant in case No. nil of 2009
  titled as Shabnam vs. lrshad registering the application filed by
  the respondent No. 3 under Section 156(3) of the Code of
  Criminal Procedure ("Code" for short) as complaint and
F ~irecting the Registry to present the file before the appellant
  o'I:) August 9, 2009 f,or recording the statement of the
  co~nant, i.e., of Shabnam under Section 200 of the Code.

          3. The f~cts giving rise to the present appeal are as under:
G
         The respondent No. 3 is wife of one Mustqeem and resides
    at Village Sayyed Mazra, District Saharanpur with her husband
    and in-laws. It may be stated that the accused is her father-in-
    law. According to the respondent No. 3 her father-in-law had
    bad eye on her since her marriage. The case of the respondent
H
  MONA PANWAR v. HIGH COURT OF JUDICATURE                      423
    AT ALLAHABAD & ORS. [J.M. PANCHAL, J.]
   No. 3 was that in the intervening night of June 18/19, 2009 at      A
   about 3 O'clock she was all alone in her room as her husband
   had gone out and she was sleeping but the doors of the room
  were kept open due to heat. The allegation made by the
   respondent No. 3 is that lrshad, i.e., her father-in-law came
   inside her room, caught hold of her with bad intention, scratched   B
   her breasts, forcibly pushed cloth in her mouth and forcibly
   committed rape on her. The case of the respondent No. 3 was
   that though she offered resistance, lrshad did not pay any heed
   and committed rape on her. The allegation made by her was
   that because of the incident she became unconscious and in          c
   the morning she narrated the whole incident to her mother-in-
   law Bindi, but she advised her not to disclose the incident to
   anyone as it was amatter of reputation of the family. According
   to respondent No. 3 she telephoned her mother, who arrived
   at her in-laws' place along with Muneer, her brother-in-law, on
                                                                       0
   a motor cycle but lrshad in the meanwhile had fled away from
   the village. The case projected by the respondent No. 3 was
   that as her condition was deteriorating, she was got medically
 . examined in District hospital by her mother and thereafter she
   had gor.s to the Police Station, Nakur, but the police had          E
   refused to register her FIR. It was claimed by the respondent
   No. 3 that under the circumstances she had moved an
   application before the Senior Superintendent of Police,
  Saharanpui but he had also not taken any action and, therefore,
   she had filed an application under Section 156(3) of the Code
   before the learned j;Jdicial Magistrate II, Court No. 14,           F
   Saharanpur mentioning therein as to how the incident of rape
  with her had taken place and praying the learned Magistrate
- to direct the Officer-in-charge of Police Station, Nakur, to
   register her complaint and investigate the case against the
  acdu~ed under Section 156 (3) of the Code.                           G

     4. On receipt of the application the appellant called for
 report from the concerned police station. As per the report
 rec~ived no case was registered regarding the inciderit
 narrated by the respondent No. 3. The respondent No. 3 had            H
    424      SUPREME COURT REPORTS               [2011] 2 S.C.R.


A filed her own affidavit in support of the case pleaded in the
  application filed before the appellant and produced a carbon
  copy of the application sent by her to the Senior Superintendent
  of Police, Saharanpur with its postal registration as well as
  photocopy of medical certificate. The learned Magistrate
s perused the averments made by the respondent No. 3 in her
  application as well as documents annexed to the said
  application. The appellant was of the view that the respondent
  No. 3 was acquainted with the facts and circumstances of the
  case and was also familiar with the accused and knew the
c witnesses too. The appellant was of the view that the respondent
  No. 3 would be able to produce all the evidence herself. The
  appellant referred to the principles of law laid down by the
  Allahabad High Court in Guiab Chand vs. State of U.P. 2002
  Cr.L.J. 2907, Ram Babu Gupta vs. State of U.P. 2001 (43)
D ACC 50, Chandrika Singh vs. State of U.P. 2007 (50) ACC
   777 and Sukhwasi Slo Hu/asi vs. State of U.P. 2007 (59) ACC
   739 and after taking into consideration the principles laid down
   in the above referred to decisions the appellant was of the view
  that this was not a fit case to be referred to the police for
   investigation under Section 156(3) of the Code and, _
E therefore, directed that the application submitted by the
   respondent under Section 156(3) of the Code be registered as
   complaint and further ordered the Registry to present the file
   before her on August 28, 2009 for recording the statement of
   the respondent No. 3 i.e. the original complainant under Section
F 200 of the Code.

        5. Feeling aggrieved, the respondent No. 3 invoked
  jurisdiction of the High Court under Section 482 of the Code
  by filing Criminal Misc. Application No. 21606 of 2009 and
G prayed the High Court to quash the order dated August 1, 2009,
  passed by the appellant and to direct the police to register her
   F.l.R. filed against lrshad and to investigate the same as
  provided under Section 156(3) of the Code.

          6. The learned Single Judge of the High Court, who heard
H
   MONA PANWAR v. HIGH COURT OF JUDICATURE 425
     AT ALLAHABAD & ORS. [J.M. PANCHAL, J.]

  the matter, was of the view that the appellant had done the         A
  gravest injustice to the respondent No. 3. According to the
  learned Single Judge though the appellant is a lady Magistrate
  yet she coul9 not think about the outcome of ravishing the
  chastity of daughter-in-law by her father-in-law and the nature
  of crime committed by the accused. After going through the          8
  order .dated August 1, 2009, passed by the appellant, the
  learned Single Judge expressed the view that the order
  indicated total non-application of mind by the appellant. The
  learned Single Judge noticed that the incident had occurred
  inside the room in early hours of June 19, 2009 and there was       c
  no mention of any witness in application filed by the respondent
  but in the order passed by the appellant it was noted that the
  victim was in the knowledge of all the facts and that the
  witnesses were also known to her, which indicated non-
  application of mind by the appellant. The learned Single Judge      D
  while setting aside the order dated Au2ust 1, 2009, passed by
  the appellant, observed that the order was a blemish on justice
  meted out to a married lady who was ravished by her own
  father-in-law. The learned Single Judge expressed the view that
  the appellant had passed the order ignoring all judicial            E-
  disciplines and had not at all applied her judicial mind and had
  only referred to some of the judgments of the Allahabad High
  Court, which were contrary lo the opinion expressed by the
  Apex Court rendered in many decisions. After observing that
  a judicial order should be passed by applying judicial mind, the
  learned Single Judge severely criticized the conduct of the         F
  appellant and recorded his serious displeasure against the
  appellant for passing such type of illegal orders. The learned
, Single Judge further warned the appellant for future and
  cautioned the appellant to be careful in passing the judicial
  orders. The learned Single Judge observed that the appellant        G
  should have thought that the rape not only causes physical injury        I
  to the victim but also leaves scars on the mind of the victim for
  the whole life and implant the victim with such ignominy which
  is worse than her death. The learned Single Judge expressed
  the view that he was inclined to refer the matter to the            H
    426     SUPREME COURT REPORTS ·               [2011) 2 S.C.R.


A Administrative Committee for taking action against the
  appellant but refrained from doing so because the appellant is
  a young officer and has a long career to go. The learned Single
  .Judge by his judgment dated September 9, 2009 set aside the
  order dated August 1, 2009, passed by the appellant, and
s directed the appellant to decide the application of the
  respondent No. 3 within the ambit of her power under Section
  156(3) of the Code and also directed her to pass order for
  registration of FIR against the erring police officers, who had
  refused to register the FIR of the respondent No. 3. The learned
c Single Judge directed the Registry of the High Court to send a
   copy of his judgment to the appellant for her future guidance
  and also to the Senior Superintendent of Police, Saharanpur.
  As noted above, the disparaging remarks made by the learned
   Single Judge while setting aside the order passed by the
   appellant has given rise to the present appeal.
0
       7. This Court has heard the learned counsel for the
  appellant as well as the learned counsel for the State
  Government and the learned counsel representing the High
  Court of Judicature at Allahabad. The record shows that the
E Respondent No.3 i.e. the original complainant is duly served
  in the matter but she has neither appeared through a lawyer or
  in person nor has filed any reply in the matter. This Court has
  also considered the documents forming part of the present
  appeal.
F
        8. On receipt of notice issued by this Court, Mr. Anand
  Kumar, Deputy Superintendant of Police, Saharanpur, U.P. has
  filed reply affidavit mentioning inter alia that as per the office
  record maintained at the Police Station, Nakur or in the officer
G of the Senior Superintendant of Police, Saharanpur does not
  disclose receipt of any complaint from the Respondent No. 3.
  It is mentioned in the reply that when the impugned judgment
  dated September 10, 2009 passed by the learned Single Judge
  of High Court was brought to the notice of the authorities
  concerned a first information report was lodged at the Police
H
   MONA PANWAR v. HIGH COURT OF JUDICATURE 427
     AT ALLAHABAD & ORS. [J.M. PANCHAL, J.]
 Station, Nakur being FIR 36/2009 against accused lrshad and          A
 offence punishable under Section 376 IPC was registered. The
 reply proceeds to state that the Investigating Officer had
 recorded the statement of the Respondent No. 3 as well as that
 of her mother and the statement of her brother-in-law. But the
 mother and the brother-in-law had mentioned that they were not       B
 eye-witnesses to the.incident. The reply mentions that inquiries
 made by Investigating Officer with the neighbourers of the
 accused indicated that Respondent No. 3 was a divorcee and
 was residing at her parents house from the date of divorce. As
 per the reply of Deputy Superintendant of Police almost all          c
 neighbourers had unanimously informed the Investigating
 Officer that the Respondent No. 3 was not seen at her
 husband's hous~ on 17th, 18th and 19th June, 2009 and thus
 the incident referred to by Respondent No. 3 in her complaint
 was found to be a concocted story. The reply further mentions        D
 that the Investigating Officer had recorded the, statement of
 doctor who had medically examined the Respondent No. 3 and
 the doctor had categorically stated that medical examination
 of the Respondent No. 3 did not confirm allegation of rape
 made by her. What is relevant to notice is that in the reply it is
                                                                      E -
 stated that on completion of investigation the Investigating
 Officer had closed the investigation and submitted the final
 report as contemplated by Section 169 of the Code on
 December 18, 2009.

       9. Section 156(1) of the_ Code authorizes the police to        F
  investigate into a cognizable offence without requiring any
  sanction from a judicial authority. However, sub-section (3) of
~ Section 156 of the Code provides that any Magistrate
  empowered under Section 190 of the Code may order such
  an investigation as mentioned in sub-section (1) of the said        G
  Section. Section 190 of the Code deals with cognizance of
  offences by Magistrates and inter alia provides that any
  Magistrate of the first class may take cognizance of an offence
  (a) upon receiving a complaint of facts which constitute such
  offence, (b) upon a police report of such facts and (c) upon        H
                 \
    428      SUPREME COURT REPORTS                  [2011] 2 S.C.R.


A information received from any person other than a police officer
    or upc, 1 his own knowledge that such offence has been
    committed. Neither Section 154 nor Section 156 of the Code
    contemplates any application to be made to the police under
    Section 156(3) of the Code. What is provided in Section
B 156(1) of the Code is that any officer in charge of a police
    station may, without the order of a Magistrate, investigate any
    cognizable case which a Court having jurisdiction over the local
    area within the limits of such station would have power to inquiry
    into or try under the provisions of Chapter XIII. However, this
c . Court finds that in the present case it was alleged by the
    respondent No. 3 that she had filed complaint before police but
    according to her, the police officer in charge of the police
    station had refused to register her complaint and, therefore, she
    had made application to the Senior Superintendent of Police
    as required by Section 154(3) of .the Code, but of no avail.
0
    Therefore, the respondent No. 3 had approached the appellant,
    who was then discharging duties as Judicial Magistrate II, Court
    No. 14, Saharanpur. When the complaint was presented before
    the appellant, the appellant had mainly two options available
    to her. One was to pass an order as contemplated by Section
E 156(3) of the Code and second one was to direct examination
    of the complainant upon oath and the witnesses present, if any,
    as mentioned in Section 200 and proceed further with the
    matter as provided by Section 202 of the Code. An order made
    under sub-section (3) of Section 156 of the Code is in the nature
F of a peremptory reminder or intimation to the police to exercise
    its plenary power of investigation under Section 156(1). Such
    an investigation embraces the entire continuous process which
    begins with the collection of evidence under Section 156 and
    ends with the final report either under Section 169 or
G submission of charge sheet under Section 173 of the Code. A
    Magistrate can under Section 190 of the Code before taking
    cognizance ask for investigation by the police under Section
    156(3) of the Code. The Magistrate can also issue warrant for
    production, before taking cognizance. If after cognizance has
H been taken and the Magistrate wants any investigation, it-will
    MONA PANWAR v. HIGH COURT OF JUDICATURE 429
      AT ALLAHABAD & ORS. [J.M. PANCHAL, J.]
    be under Section 202 of the Code. The phrase "taking                A
    cognizance or means cognizance of offence and not of the
    offender. Taking cognizance does not involve any formal action
    or indeed action of any kind but occurs as soon as a Magistrate
    applies his mind to the suspected commission of an offence.
    Cognizance, therefore, takes place at a point when a                B
  · Magistrate first takes judicial notice of an offence. This is the
1
    positiQn whether the Magistrate takes cognizance of an offence
    on a complaint or on a police report or upon information of a
    person other than a police officer. Before the Magistrate can
    be said to have taken cognizance of an offence under Section        c
    190(1)(b) of the Code, he must have not only applied his mind
 1 to the contents of the complaint presented before him, but must

    have done so for the purpose of proceeding under Section 200
    and the provisions following that Section. However, when the
    Magistrate had applied his mind only for ordering an                D
    investigation under Section 156(3) of the Code or issued a
    warrant for the purposes of investigation, he cannot be said to
    have taken cognizance of an offence. Taking cognizance is a
    different thing from initiation of the proceedings. One of the
    objects of examination of complainant and his witnesses as
    mentioned in Section 200 of the Code is to ascertain whether        E
    there is prima facie case against the person accused of the
    offence in the complaint and to prevent the issue of process
    on a complaint which is either false or vexatious or intended
    only to harass such person. Such examination is provided,
    therefore, to find out whether there is or not sufficient ground    F
    for proceeding further.

       10. From the order dated August 1, 2009, passed by the
  appellant, it is evident that the appellant had called for report
  from the concerned police station and considered the said             G
  report wherein it was inter alia mentioned that no case was
  registered on the basis of the application made by the
  respondent No. 3. The respondent No. 3 at the time of filing
  complaint before the appellant had filed her own affidavit,
  carbon copy of the application sent by her to the Senior              H
   430      SUPREME COURT REPORTS                [2011] 2 S.C.R.

A Superintendent of Police, Saharanpur with its postal ..
  registration and photocopy of the medical certificate. Under the
  circumstances the appellant had exercised judicial discretion
  available to a Magistrate and directed that the application,
  which was submitted by the respondent No. 3 under Section
B 156(3) of the Code, be registered as complaint and directed
  the Registry to present the said complaint before her on August
  28, 2009 for recording the statement of the respondent No.3
  under Section 200 of the Code. The judicial discretion
  exercised by the appellant was in consonance with the scheme
c postulated by the Code. There is no material on the record to
  indicate that the judicial discretion exercised by the appellant
  was either arbitrary or perverse. There was no occasion for the
  learned Single Judge of High Court to substitute the judicial
  discretion exercised by the appellant merely because another
  view is possible. The appellant was the responsible judicial
0
  officer on the spot and after assessing the material placed
  before him he had exercised the judicial discretion. In such
  circumstances this Court is of the opinion that the High Court
  had no occasion to interfere with the discretion exercised
E judiciously' in terms of the provisions of Code. Normally, an
  order under Section 200 of the Code for examination of the
  complainant and his witnesses would not be passed because
  it consumes the valuable time of the Magistrate being vested
  in inquiring into the matter which primarily is the duty of the
  police to investigate. However, the practice which has
F developed over the years is that examination of the
  complainant and his witnesses under Section 200 of the Code
  would be directed by the Magistrate only when a case is found
  to be serious one and not as a matter of routine course. If on a
  reading of a complaint the Magistrate finds that the allegations
G therein disclose a cognizable offence and forwarding of the
  complaint to the police for investigation under Section 156(3)
  of the Code will not be conducive to justice, he will be justified
  in adopting the course suggested in Section 200 of the Code.
  Here, in this case the respondent No. 3 had averred in the
H applicaticn submitted before the appellant that the Officer-in-
   MONA PANWAR v. HIGH COURT OF JUDICATURE                      431
     AT ALLAHABAD & ORS. [J.M. PANCHAL, J.]
   charge of the Nakur Police Station had refused to register her A
   complaint against her father-in-law regarding alleged rape
   committed on her and that no action was taken by the Senior
   Superintendent of Police though necessary facts were brought ·
   to his notice. Under the circumstances, the judicial discretion
   exercised by the appellant, to proceed under Section 200 of B
 - the Code in the light of principles of law laid down by the
   Allahabad High Court in various reported decisions could not
   have been faulted with nor the appellant could have been
   subjected to severe criticism as was done by the learned
   Single Judge. There was no occasion for the learned Single c
   Judge to observe that the appellant, a Judicial Magistrate, had
   done the gravest injustice to the victim or that though the
   appellant is a lady Magistrate, yet she did not think about the
   outcome of ravishing the chastity of daughter-in-law by her
   father-in-law or the seriousness of the crime committed by the
                                                                        0
   ac::cused and the reason assigned by the learned Magistrate
1 -in not directing the police to register the FIR indicated total non-
. application of mind by the appellant and that the order dated
   August 1, 2009, passed by the appellant, was a blemish on the
   justice system. The learned Single Judge was not justified in
   concluding that the appellant as Judicial Magistrate had passed E
   the order dated August 1, 2009 ignoring all judicial disciplines
   or that the appellant had not at all applied her judicial mind and
   had only referred to some of the judgments of the Allahabad
   High Court, which were contrary to the opinion of the Apex Court
   rendered in many decisions. Tnere was no reason for the F
   learned Single Judge of the High Court to record his serious
   displeasure against the order of the appellant which was
   challenged before him as an illegal order nor the learned Single
   Judge was justified in severely criticizing the conduct of the
   appellant as Judicial Magistrate because the application G
   submitted by the respondent N. 3 was ordered to be registered
   as a complaint and was not dismissed.

      11. This Court has laid down in several reported decisions
 that higher courts should observe restraint and disparaging           H
                                                                        '
         432       SUPREME COURT REPORTS                    [2011] 2 S.C.R.


A remarks normally should not be rnade against the learned
  members of the lower judiciary. In lshwari Prasad Mishra vs.
  Mohd. Isa (1963) 3 SCR 722, a Three Judge Bench of this --
  Court has emphasized the need to adopt utmost judicial
  restraint against using strong language and imputation of
B motive against the lower judiciary by noticing that in such
  matters the concerned Judge has no remedy in law to vindicate
  his position. The law laid down by this Court in the matter of
  expunction of remarks where a subordinate Judge has been
  subjected to cii:.paraging and undeserved remarks by the
c superior Court, is well settled by this Court in the matter of 'K'
         a Judicial Officer Vs. Registrar General, High Court of Andhra
         Pradesh 2001 (3) SCC 54. In the said decision this Court has
         succinctly outlined the guidelines in this regard in paragraph 15
         of the said Judgment as under:
D              "........ The existence of power in higher echelons of judiciary
               to make observations even extending to criticism
               incorporated in judicial orders cannot be denied. However,
               the High Courts have to remember that criticisms and
               observations touching a subordinate judicial officer
E              incorporated in judicial pronouncements have their own
               mischievous infirmities. Firstly, the judicial officer is
               condemned unheard which is violative of principles of
               natural justice. A member of subordinate judiciary himself
               dispensing justice should not be denied this minimal
F              natural justice so as to shield against being condemned
               unheard. Secondly, the harm caused by such criticism or
               observation may be incapable of being undone. Such
    ·'
               criticism of the judicial officer contained in a judgment,
               reportable or not, is a pronouncement in the open and
G              therefore becomes public. Thirdly, human nature being
               what it is such criticism of a judicial officer contained in
               the judgment of a higher court gives the litigating party a
               sense of victory not only over his opponent but also over
               the Judge who had decided the case against him. This is
               subversive of judicial authority of the deciding Judge.
H
                                                              ,~




     MONA PANWAR v. HIGH COURT' OF JUDICATURE                      433
       AT ALLAHABAD & ORS. [J.M. PANCHAL, J.]
        Fourthly, seeking expunging of the observations by a             A
        judicial officer by filing an appeal or petition of his own
        reduces him to the status of a litigant arrayed as a party
        before the High Court or Supreme Court- a situation not
        very happy from the point of view of the functioning of the
        judicial system. And last but not the least, the possibility     B
        of a Siflgle or casual aberration- of an otherwise honest,
        upright and righteous Judge being caught unawares in the
         net of adverse observations cannot be ruled out. Such an
/
        incident would have a seriously demoralizing effe~t not only
        on him but also on his colleagues. If all this is avoidable      c
        why should it not be avoided?"
         However, this Court has further provided that the
1
    parameters outlined hereinbefore must not be understood as
    meaning that any conduct of a subordinate judicial office
    unbecoming of him and demanding a rebuff should be simply            D
    overlooked. This Court has outlined an alternate safer and
    advisable course of action in such a situation, that is of
    separately drawing up proceedings, inviting the attention of the
    Hon'ble Chief Justice to the facts describing the conduct of the
    subordinate Judge concerned by sending a confidential letter         E
    or note to the Chief Justice. The actions so taken would all be
    on the administrative side with the subordinate Judge
    concerned having an opportunity of clarifying his position and
    he would be provided the safeguard of not being condemned
    unheard, and if the decision be adverse to him, it being on the      F
    administrative side, he would have some remedy available to
    him under the law.
         Again, in K.P. Tiwari vs. State of M.P. 1994 Supp. (1) SCC
    540, this Court had to remind all concerned that using
    intemperate language and castigating strictures on the               G
    members of lower judiciary diminishes the image of judiciary
    in the eyes of public and, therefore, the higher courts should
    refrain from passing disparaging remarks against the
    members of the lower judiciary. The record would show that the
    appellant had discharged her judicial duties to the best of her      H
   434      SUPREME COURT REPORTS                 [2011] 2 S.C.R.


A capacity. To err is human. It is often said that a Judge, who has
  not committed an error, is yet to be born. This dictum applies
  to all the learned Judges at all levels from the lowest to the
  highest. The difference in views of the higher and the lower
  courts is purely a result of a difference in approach and
B perception. But merely because there is difference in views, it
  does not necessarily establish that the lower courts are
  necessarily wrong and the higher courts are always right.
  Therefore, this Court in several reported decision has
  emphasized the need to adopt utmost judicial restraint against
c making the disparaging remarks so far as members of lower
  judiciary are concerned.

        12. On the facts and in the circumstances of the case, this
  Court is of the opinion that the disparaging remarks referred
  to above, made by the learned Single Judge of the Allahabad
D High Court, were not justified at all and, therefore, the appeal
  will have to be accepted.
       13. For the foregoing reasons, the appeal succeeds. The
  disparaging remarks made by the learned Single Judge of the
E High Court of Judicature at Allahabad in Criminal Misc.
  Application No. 21606 of 2009, decided on September 9,
  2009, while setting aside order dated August 1, 2009, passed
  by the appellant in case No. nil of 2009 titled as Shabnam vs.
  lrshad directing that the application submitted by the
F respondent No. 3 be registered as complaint and ordering the
  Registry to present the same before her for recording statement
  of the respondent No. 3 under Section 200 of the Code, are
  hereby set aside and quashed. In this Appeal prayer is to
  expunge remarks made by the learned Single Judge of High
  Court against the Appellant. The other directions are not subject
G matter of challenge in the appeal, therefore, those directions
  are not interfered with.
         14. The appeal accordingly stands disposed of.

H D.G.                                       Appeal disposed of.