delhi high court

Delhi High Court: A petition was filed under Section 482 of the Code of Criminal Procedure, 1973 (‘CrPC’), seeking to quash/set aside an order dated 30-11-2022, passed by Additional Sessions Judge in a case registered for the offence punishable under Section 376 of the Penal Code, 1860 (‘IPC’). Swarana Kanta Sharma, J., issued directions for ensuring communication as mandated by Section 173(2)(ii) CrPC because a ‘may’ should not remain ‘may’ forever despite the earlier part of statute using the word “shall” conveying the intent of the legislature.

An FIR was registered on 13-11-2019 on the basis of the complaint filed by the petitioner wherein she had alleged that the accused had established physical relations with her several times at various places on the false pretext of marriage. As per the statement of the petitioner, the accused had approached her for friendship in March 2015, after which, they used to meet with each other, and the accused had proposed to her for marriage. Thereafter, the accused demanded a sum of Rs. 25 lakhs from the mother of the petitioner as dowry to marry her which she had agreed to pay after selling her shop, but the shop was later demolished by MCD. The accused had met the petitioner various times after this and had established physical relations with her on the false pretext of marriage but had married some other girl without informing the petitioner.

Thereafter, when the petitioner confronted the accused, she was threatened by the uncle of the accused. On these allegations, the present FIR was registered. During the investigation, a medical examination of the petitioner was conducted, and the accused was arrested on 13-11-2019. Later, the accused was enlarged on bail by the Trial Court vide order dated 30-11-2019. The charge sheet in the present case was filed after investigation on 15-01-2020, and charges were framed by the Trial Court vide order dated 04-02-2020 under Sections 376(2)(n)/420 of IPC against the accused and under Section 506 of IPC against the uncle of the accused. An application under Section 173(8) of CrPC was filed by the complainant for further investigation in the case, which was dismissed vide the impugned order passed by the Trial Court.

It was the grievance of the petitioner that she was not informed about the filing of the chargesheet as per the mandate of Section 173(2)(ii) of CrPC and there was a lapse on the part of the investigating officer as he was duty-bound to communicate the same to her. However, it was stated by the investigating officer that the petitioner/complainant was duly informed about the filing of the chargesheet whereas the petitioner denied that she was informed and therefore, stated that since she was not informed about the filing of the charge-sheet, she only came to know about the filing of chargesheet through CWC after the charges were framed. Thus, it was her case that the additional evidence that was to be collected by the investigating officer as conveyed by the petitioner was not incorporated in the chargesheet.

The Court noted that in view of the fact that the investigating officer had already mentioned in the chargesheet that he would be filing a supplementary chargesheet in case additional facts are placed on record, read with the accompanying circumstance that the investigating officer did not inform the complainant about the filing of the chargesheet, therefore to ensure fair trial to reach the truth of the matter, the Court deemed it appropriate to allow the prayer of the petitioner to further investigate the case only to the extent of four fresh incidents that the complainant wants to be brought on record.

The Court observed that in Section 173(2)(ii), the legislature has used the word ‘shall’ in respect of duty of the officer-in-charge of police station to communicate about the action taken by him, which clearly conveys the intent of legislature that it is utmost essential on the part of investigating agency to intimate the complainant about the completion of investigation. However, the same provision also mentions that such communication shall be made in the manner as ‘may’ be prescribed by the State Government. To add to this, the State Government has not notified any procedure/mode/ manner in which such communications are to be made.

The Court further noted that as per general rules of interpretation of statutes, the use of the word “may” ordinarily mean that the legislature intends that the provision be construed as directory, and the word “shall” suggests that the provision be taken as mandatory or obligatory. But, whether a statute/provision is mandatory, or directory would ultimately depend on the scope and object of the enactment and the intent of the legislature. A significant lapse arises when what the investigating officer/officer in charge of police station is unequivocally mandated to do, is not being done appropriately due to the absence of notification from the State Government regarding the specific mode and manner by which the officer concerned will make such communication. This Court also notes that since the term used in the provision for prescribing mode/manner of communication is “may”, it was not mandatory, rather directory for the State Government to comply with the same. However, despite the fact that the Code of Criminal Procedure was enacted in the year 1973, no rules in this regard have been notified till date.

Thus, while it is not mandatory for the State Government to notify the manner in which communication is to be made as per language used in Section 173(2), the absence of such procedure prescribed by the State Government will undoubtedly result in inconvenient consequences, and ineffective implementation of the provision under Section 173(2)(ii). Furthermore, the mandatory aspect of the provision which necessitates the officer to provide information about the completion of the investigation to the complainant, will, in a way, become redundant if the second part i.e. notifying the mode/manner of communication remains unenforceable.

The Court issued directions as follows:

  1. The Government of NCT of Delhi shall issue a notification as per Section 173(2)(ii) CrPC, thereby prescribing the mode and way communications as per Section 173(2)(ii) CrPC are to be made, to ensure that object and intent of such provision is not defeated in absence of such notification. Such a notification may be issued within a period of three months from the date of this order.

  2. In this digital age, communication as mandated by Section 173(2)(ii) of CrPC may be done using electronic means. Such a direct and immediate mode of communication can eliminate delays associated with traditional methods, ensuring that the first informant/complainant is informed in a timely manner. It shall also make it convenient on the part of the officer concerned to complete the communication, while also ensuring that it timely reaches the first informant.

[P v State of NCT of Delhi, 2023 SCC OnLine Del 5796, decided on 29-08-2023]

Advocates who appeared in this case :

Mr. Kunal Kalra, Mr. Ankit Bhutani & Mr. Daman Yadav, Advocates for petitioner

Mr. Naresh Kumar Chahar, APP for State with Inspector Manmeet Singh, PS Khyala, Inspector Ashok Kr. & SI Harsh Kumar, PS Nabi Karim, Advocates for State

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