Holding

When a complaint discloses a cognizable offence on a bare reading and material evidence is in the possession of the accused, the magistrate’s duty under Section 156(3) CrPC is to direct a police investigation, not to treat the matter as a mere complaint.

Summary

The appellant, a yoga instructor, alleged that the Vice‑Chancellor of her institute sexually harassed her in March 2019 and repeatedly complained to the police, which failed to register an FIR. She then approached a Judicial Magistrate First Class (JMFC) under Section 156(3) of the CrPC, seeking a police investigation; the JMFC, however, treated the matter as a complaint and ordered her to give statements under Sections 200 and 202, declining to direct a police probe. The appellant challenged this order via a Section 482 petition, but the High Court upheld the JMFC’s discretion, interpreting the word “may” in Section 156(3) as allowing the magistrate to forgo directing an investigation. On appeal, the Supreme Court held that when a cognizable offence is prima facie disclosed and material evidence (CCTV DVRs) is in the possession of the accused, the magistrate’s discretion must be exercised to order a police investigation, not to bypass it. The Court set aside the High Court’s judgment, directing the JMFC to order a police investigation under Section 156(3), to be supervised by a senior woman officer, and reiterated the need for sensitivity in cases of sexual harassment. The appeal was allowed.

Issues considered

The scope and discretion of a magistrate under Section 156(3) CrPC when a cognizable offence is prima facie disclosed.
Whether a magistrate can treat a complaint under Section 156(3) as a mere complaint case and direct examination under Sections 200 and 202 without ordering police investigation.
The duty of police to register an FIR upon receipt of a complaint disclosing a cognizable offence.
The necessity of police investigation when documentary evidence is in the possession of the accused.

Legislation cited

Code of Criminal Procedure, 1973s. 154, s. 154(3), s. 156(3), s. 173, s. 190(1)(b), s. 200, s. 202, s. 327, s. 36
Sexual Harassment of Women at Workplace (Prevention, Protection and Redressal) Act, 2013

Subjects

Section 156(3) CrPCPolice investigationFIR registrationSexual harassmentMagistrate discretionCCTV evidenceVictim sensitivityCriminal Procedure CodeSexual Harassment of Women at Workplace Act

Judgment

[2022] 18 S.C.R. 163 163

XYZ A
v.
STATE OF MADHYA PRADESH & ORS
(Criminal Appeal No 1184 of 2022)
AUGUST 05, 2022 B
[DR. DHANANJAYA Y CHANDRACHUD AND
J.B. PARDIWALA, JJ.]
Criminal Procedure Code, 1973 – s.156(3) – “may” –
Commission of cognizable offence alleged, need for police
C
investigation – Exercise of jurisdiction u/s.156(3) – Sexual
harassment alleged by appellant against second respondent (Vice-
Chancellor of the Institute at the material time) – No action having
been taken by Police on her complaint, the appellant eventually,
moved the Judicial Magistrate First Class (JMFC) u/s.156(3) – JMFC
though concluded that, prima facie, “occurrence of the offence by D
the accused persons” was “shown”, however, held that the case
could be decided without collecting evidence from the police and it
did not appear just and proper to act on the case filed on behalf of
the appellant u/s.156(3) – JMFC proceeded to treat the complaint
as a complaint – Appellant filed application u/s.482, CrPC –
E
Dismissed by High Court – On appeal, held: It is true that the use
of the word “may” implies that the Magistrate has discretion in
directing the police to investigate or proceeding with the case as a
complaint case – But this discretion cannot be exercised arbitrarily
and must be guided by judicial reasoning – In the present case, the
appellant had also sought the production of DVRs containing the F
audio-video recording of the CCTV footage of the second
respondent’s chamber – As a matter of fact, the Institute itself had
addressed communications to him directing the production of the
recordings, noting that these recordings were handed over on his
oral direction by the then Registrar of the Institute as he was the
G
Vice-Chancellor – Due to the lack of response despite multiple
attempts, the Institute even filed a complaint for registering an FIR
against the second respondent for theft of the DVRs – Therefore, in
such cases, where not only does the Magistrate find the commission

H
163
164 SUPREME COURT REPORTS [2022] 18 S.C.R.

A of a cognizable offence alleged on a prima facie reading of the
complaint but also such facts are brought to the Magistrate’s notice
which clearly indicate the need for police investigation, the
discretion granted in s.156(3) can only be read as it being the
Magistrate’s duty to order the police to investigate – In cases such
as the present, wherein, there is alleged to be documentary or other
B
evidence in the physical possession of the accused or other
individuals which the police would be best placed to investigate
and retrieve using its powers under the CrPC, the matter ought to
be sent to the police for investigation – JMFC ought to have
exercised jurisdiction u/s.156(3) to direct the police to investigate –
C Discretion conferred upon the Magistrate by s.156(3) must be
exercised in a judicious manner – Impugned judgement of High
Court set aside – JMFC Gwalior shall in terms of the observations
contained, order an investigation by the police u/s.156(3) – Sexual
Harassment of Women at Workplace (Prevention, Protection and
Redressal) Act 2013 – Crime Against Women.
D
FIR – Sexual harassment alleged by appellant – No action
taken by Police on her complaint – Held: Whether or not the offence
complained of is made out is to be determined at the stage of
investigation and / or trial – If, after conducting the investigation,
the police find that no offence is made out, they may file a B Report
E u/s.173 CrPC – However, it is not open to them to decline to register
an FIR – The law in this regard is clear- police officers cannot
exercise any discretion when they receive a complaint which discloses
the commission of a cognizable offence – Crime Against Women.
Code of Criminal Procedure, 1973 – s.156(3) – Discretion
F granted to a Magistrate vis-à-vis the exercise of powers u/s.156(3)
– Discussed.
Crime Against Women – Duty of courts dealing with
complainants of sexual harassment and sexual assault in a sensitive
manner, reiterated – Duty and responsibility of trial courts to deal
G with the aggrieved persons before them in appropriate manner,
enumerated.
Lalita Kumari v Government of Uttar Pradesh (2014) 2
SCC 1 : [2013] 14 SCR 713 – followed.

H
XYZ v. STATE OF MADHYA PRADESH & ORS 165

Sakiri Vasu v. State of U.P (2008) 2 SCC 409 : [2007] A
12 SCR 1100; Srinivas Gundluri v. SEPCO Electric
Power Construction Corpn. (2010) 8 SCC 206 : [2010]
9 SCR 278; Aparna Bhat v State of Madhya Pradesh
2021 SCC OnLine SC 230; State of Maharashtra v.
Bandu @ Daulat (2018) 11 SCC 163; Smruti Tukaram
B
Badade v. State of Maharashtra 2022 SCC OnLine SC
78 – relied on.
Virender v State of NCT of Delhi 2009 SCC OnLine
Del 3083 – approved.
Case Law Reference C
[2013] 14 SCR 713 followed Para 15
[2007] 12 SCR 1100 relied on Para 20
[2010] 9 SCR 278 relied on Para 21
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal D
No. 1184 of 2022.
From the Judgment and Order dated 06.01.2022 of the High Court
of Madhya Pradesh Bench at Gwalior in M. Cr. C. No.63392 of 2021.
Ms. Anitha Shenoy, Sr. Adv., Ms. Sweta Rani, Anant Agarwal,
Advs. for the Appllant. E

R. Basant, Sr. Adv., Siddhartha Sharma, Shashank Singh, Anupam
Chaudhary, Ujjaval Kumar, Mohd. Asad Khan, Varun Singh, Santosh
Kumar Shukla, Manoj Kumar, Abhay Singh, Ms. Ankita Agarwal,
Kaustubh Shukla, Gopal Jha, Umesh Kumar Yadav, Shreyash Bhardwaj,
Advs. for the Respondents. F

The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
1. Leave granted.
G
2. This appeal arises from a judgment of a Single Judge dated 6
January 2022 at the Gwalior Bench of the High Court of Madhya
Pradesh, dismissing an application under Section 482 of the Code of
Criminal Procedure 1973.1
1
“CrPC”
H
166 SUPREME COURT REPORTS [2022] 18 S.C.R.

A 3. The appellant is working as a yoga instructor at Lakshmibai
National Institute of Physical Education, Gwalior.2 The second respondent
was, at the material time, the Vice-Chancellor of the Institute. The
appellant alleges that in March 2019, the second respondent touched her
inappropriately at the Institute, upon which she disengaged herself and
shouted at him. On 14 October 2019, she lodged a complaint at Police
B
Station Gole Ka Mandir, Gwalior. Apprehending that the police had not
taken any action, she furnished a complaint to the Superintendent of
Police, City Centre, Gwalior on 15 October 2019. Finding that no action
had been taken on her complaint, the appellant submitted another
complaint to the Superintendent of Police on 18 February 2020 and to
C both the Superintendent as well as at the PS Gole Ka Mandir again on
24 February 2020. Eventually, the appellant moved the Judicial Magistrate
First Class,3 Gwalior under Section 156(3) of the CrPC. On 26 February
2020, the JMFC directed the police to file a status report. It appears that
the proceedings before the JMFC were delayed due to the onset of the
Covid-19 pandemic.
D
4. In the meantime, the appellant moved the High Court of Madhya
Pradesh in a writ petition under Article 226 of the Constitution with the
grievance that no inquiry was being conducted into her allegations, which
were to be enquired into under the provisions of the Sexual Harassment
of Women at Workplace (Prevention, Protection and Redressal) Act
E 2013.
5. An Internal Complaints Committee4 was constituted on 29 May
2020, with the approval of the Ministry of Youth Affairs and Sports. The
report of the ICC dated 21 September 2020 found that the allegations
which were levelled against the second respondent stood established. A
F dissenting note was submitted by one of the five members of the ICC.
The second respondent has, this Court is informed, lodged an appeal
against the findings of the ICC.
6. On 11 November 2020, the then Vice-Chancellor of the Institute
addressed a communication to the second respondent stating that the
G DVRs containing an audio-video recording for the months of August
and September 2019 of the CCTV cameras installed in the chamber of
the Vice-Chancellor had been handed over to him in a sealed packet,
2
“Institute”
3
“JMFC”
4
H “ICC”
XYZ v. STATE OF MADHYA PRADESH & ORS 167
[DR. DHANANJAYA Y CHANDRACHUD, J.]

according to the then in-charge Registrar, in terms of the oral direction A
of the second respondent. The second respondent was directed to make
available the sealed packet containing the DVRs of the audio-video
recording for the months of August and September 2019.
7. On 21 December 2020, the JMFC directed that a status report
be sought from the concerned Police Station and that a letter be issued B
to the Station In-charge for that purpose. On 8 July 2021, a status report
was filed by the officer in-charge, Police Station Gole Ka Mandir, District
Gwalior before the JMFC, noting that during the course of the
investigation, the statements of the complainant and the accused persons
were recorded “wherein from the entire investigation, departmental
proceedings was conducted against the complainant...due to departmental C
deficiencies and the occurrence of any offence was not found”.
8. On 23 July 2021, a communication was addressed by the in-
charge Vice-Chancellor to the second respondent once again reiterating
the demand for the DVRs of the CCTV cameras placed in his office,
which were stated to have been handed over to him by the in-charge D
Registrar.
9. On 16 August 2021, the station in-charge of the Police Station
informed the JMFC that the investigation in the matter had not been
completed and that time should be granted for submitting a further status
report. A reminder was addressed by the JMFC to the station in-charge E
of the Police Station to submit a status report before the Court by 9
September 2021. Thereafter, a letter dated 11 September 2021 was
addressed by the JMFC to the Superintendent of Police, seeking a
direction to the station in-charge to submit a report by 20 September
2021. On 20 September 2021, the JMFC recorded that the status report F
had been received and accordingly, the proceedings were posted for
hearing the arguments of the applicant on 22 October 2021.
10. On 29 October 2021, the in-charge Vice-Chancellor at the
Institute addressed a communication to the station in-charge of the Police
Station alleging that a sealed packet of the DVRs had been handed over G
to the second respondent, the then Vice-Chancellor, on his oral directions
and that despite communications for producing the DVRs, they have not
been made available. The communication noted that the DVRs of the
audio-video recording had been sought time and again by the appellant

H
168 SUPREME COURT REPORTS [2022] 18 S.C.R.

A and were found to be unavailable at the Institute, having been
unauthorizedly removed in an act of theft.
11. By an order dated 2 November 2021, the JMFC found that
the appellant had filed a complaint alleging that the second respondent,
who was the Vice-Chancellor of the Institute, had been sexually harassing
B her and, that she had been threatened with discharge from service on
having refused his demands. The complainant narrated that in order to
damage her records, other officers of the Institute, namely, the Head of
the Department, a teacher and the Registrar, conspired with the second
respondent by fabricating documents. In this backdrop, the JMFC
observed:
C
“The serious allegations have been made against the
accused persons by the complainant, from perusal of
the documents in this regard, statements of the
complainant are found satisfactory. Though an enquiry
report has been submitted by the Police Station, Gole
D Ka Mandir, wherein it has been mentioned during the
course of investigation of the complaint, in the statements
of the complainant recorded, the complainant has alleged
about fabricating and tampering with her rightful
documents as also putting pressure upon her as well as
E creating illegal compulsion upon the complainant by the
accused persons Indi Bora, Payal Das, Vivek Pandey,
Col. Janak Singh Shekhawat and Dilip Dureha, due to
getting leave as also touching with bad intention by
accused Dilip Dureha previously lodging a complaint in
the Police Station, Gola Ka Mandir against the aforesaid
F accused persons and the Writ Petition No. 5625/2020,
stated to be pending before the Hon’ble High Court. In
the status report, it has also been mentioned that
previously itself, a complaint was lodged by the
complainant in the Police Station Gola Ka Mandir in the
G aforesaid regard, which was investigated by the Sub
Inspector, Rashmi Bhadoria. During the course of
investigation, statements of the complainant and the
accused were recorded, wherein from the entire
investigation, departmental proceedings against the

H
XYZ v. STATE OF MADHYA PRADESH & ORS 169
[DR. DHANANJAYA Y CHANDRACHUD, J.]

complainant due departmental deficiencies, and A
occurrence of any incident or offence were not found.
In the case, merely on the basis of the evidences
collected through the court, the case may be adjudicated.
From the facts stated by the complainant in the complaint,
prima facie, occurrence of the offence by the accused
B
persons are shown. In this regard, it is possible that the
case can be decided without collecting the evidences
from the police. In these circumstances, it does not
appear just and proper to act upon the case filed on
behalf of the complainant under section 156(3) Cr.P.C.,
The complaint filed on behalf of the complainant under C
section 156(3) Cr.P.C. will be treated as complaint case
and if so desired, the complainant may present her
statements against the accused persons under sections
200 and 202 Cr.P.C. Thereafter, registration will be
considered.
D
The case is fixed for further action.
The case may be put up for further action on 13.12.21.”
12. By the above order, the JMFC came to the conclusion that,
prima facie, “occurrence of the offence by the accused persons” was
“shown”. Nonetheless, the JMFC held that the case could be decided E
without collecting evidence from the police and it did not appear just
and proper to act on the case filed on behalf of the appellant under
Section 156(3) CrPC. The JMFC proceeded to treat the complaint as a
complaint case by granting liberty to the appellant to be present for the
recording of her statements under Sections 200 and 202 CrPC. F
13. The order of the JMFC was questioned by the appellant under
Section 482 CrPC. By an order dated 6 January 2022, a Single Judge of
the High Court dismissed the application. The High Court held that the
JMFC was not under an obligation to direct the police to register the FIR
and the use of the expression “may” in Section 156(3) CrPC indicated G
that the JMFC had the discretion to direct the complainant to examine
witnesses under Sections 200 and 202 CrPC, instead of directing an
investigation under Section 156(3). The High Court also held that if the
JMFC decided to proceed by examining witnesses under Sections 200
and 202 of CrPC, she would still have the option of seeking an
H
170 SUPREME COURT REPORTS [2022] 18 S.C.R.

A investigation by the police, at that stage, by directing an inquiry under
Section 202.
14. We have heard Ms Anitha Shenoy, senior counsel appearing
on behalf of the appellant, Mr R Basant, senior counsel appearing on
behalf of the second respondent, Mr Abhay Singh, counsel appearing on
B behalf of the third to sixth respondents and Mr Gopal Jha, counsel
appearing on behalf of the State.
15. First, we find it appropriate to reiterate the duty of police to
register an FIR whenever a cognizable offence is made out in a complaint.
A Constitution Bench of this Court in Lalita Kumari v Government
C of Uttar Pradesh5 has laid out the position of law as summarized in the
following extract of the decision:
“119. Therefore, in view of various counterclaims
regarding registration or non-registration, what is
necessary is only that the information given to the police
D must disclose the commission of a cognizable offence.
In such a situation, registration of an FIR is mandatory.
However, if no cognizable offence is made out in the
information given, then the FIR need not be registered
immediately and perhaps the police can conduct a sort
of preliminary verification or inquiry for the limited
E purpose of ascertaining as to whether a cognizable
offence has been committed. But, if the information
given clearly mentions the commission of a cognizable
offence, there is no other option but to register an FIR
forthwith. Other considerations are not relevant at the
F stage of registration of FIR, such as, whether the
information is falsely given, whether the information is
genuine, whether the information is credible, etc. These
are the issues that have to be verified during the
investigation of the FIR. At the stage of registration of
FIR, what is to be seen is merely whether the information
G given ex facie discloses the commission of a cognizable
offence. If, after investigation, the information given is
found to be false, there is always an option to prosecute
the complainant for filing a false FIR.”

5
(2014) 2 SCC 1
H
XYZ v. STATE OF MADHYA PRADESH & ORS 171
[DR. DHANANJAYA Y CHANDRACHUD, J.]

16. We cannot help but note that the police’s inaction in this case A
is most unfortunate. It is every police officer’s bounden duty to carry
out his or her functions in a public-spirited manner. The police must be
cognizant of the fact that they are usually the first point of contact for a
victim of a crime or a complainant. They must abide by the law and
enable the smooth registration of an FIR. Needless to say, they must
B
treat all members of the public in a fair and impartial manner. This is all
the more essential in cases of sexual harassment or violence, where
victims (who are usually women) face great societal stigma when they
attempt to file a complaint. It is no secret that women’s families often do
not approve of initiating criminal proceedings in cases of sexual
harassment. Various quarters of society attempt to persuade the survivor C
not to register a complaint or initiate other formal proceedings, and they
often succeed. Finally, visiting the police station and interacting with
police officers can be an intimidating experience for many. This discomfort
is often compounded if the reason for visiting the police station is to
complain of a sexual offence.
D
17. This being the case, the police ought not to create yet another
obstacle by declining to register an FIR despite receiving a complaint
regarding sexual harassment. Rather, they should put the complainant at
ease and try to create an atmosphere free from fear. They ought to be
sensitive to her mental state and the fact that she may have recently
been subjected to a traumatic experience. E

18. Whether or not the offence complained of is made out is to be
determined at the stage of investigation and / or trial. If, after conducting
the investigation, the police find that no offence is made out, they may
file a B Report under Section 173 CrPC. However, it is not open to them
to decline to register an FIR. The law in this regard is clear - police F
officers cannot exercise any discretion when they receive a complaint
which discloses the commission of a cognizable offence.
19. Second, we deal with the issue of the discretion granted to a
Magistrate vis-a-vis the exercise of powers under Section 156(3) CrPC.
On this issue, the High Court has held that the JMFC was not under an G
obligation to direct the police to register the FIR and the use of the
expression “may” in Section 156(3) CrPC indicated that the JMFC had
the discretion to direct the complainant to examine witnesses under
Sections 200 and 202 CrPC, instead of directing an investigation under
Section 156(3). H
172 SUPREME COURT REPORTS [2022] 18 S.C.R.

A 20. A division bench of this Court in Sakiri Vasu v. State of U.P.6
expounded upon the Magistrate’s powers under Section 156(3) of the
CrPC. In this decision, the Court noted:
11. In this connection we would like to state that if a
person has a grievance that the police station is not
B registering his FIR under Section 154 CrPC, then he
can approach the Superintendent of Police under Section
154(3) CrPC by an application in writing. Even if that
does not yield any satisfactory result in the sense that
either the FIR is still not registered, or that even after
registering it no proper investigation is held, it is open to
C the aggrieved person to file an application under Section
156(3) CrPC before the learned Magistrate concerned.
If such an application under Section 156(3) is filed
before the Magistrate, the Magistrate can direct
the FIR to be registered and also can direct a
D proper investigation to be made, in a case where,
according to the aggrieved person, no proper
investigation was made. The Magistrate can also
under the same provision monitor the
investigation to ensure a proper investigation.
E …
13. The same view was taken by this Court in Dilawar Singh v.
State of Delhi3 (JT vide para 17). We would further clarify that even if
an FIR has been registered and even if the police has made the
investigation, or is actually making the investigation, which the aggrieved
F person feels is not proper, such a person can approach the Magistrate
under Section 156(3) CrPC, and if the Magistrate is satisfied he can
order a proper investigation and take other suitable steps and pass such
order(s) as he thinks necessary for ensuring a proper investigation. All
these powers a Magistrate enjoys under Section 156(3) CrPC.

G …
15. Section 156(3) provides for a check by the Magistrate
on the police performing its duties under Chapter XII
CrPC. In cases where the Magistrate finds that
the police has not done its duty of investigating
6
(2008) 2 SCC 409
H
XYZ v. STATE OF MADHYA PRADESH & ORS 173
[DR. DHANANJAYA Y CHANDRACHUD, J.]

the case at all, or has not done it satisfactorily, he A
can issue a direction to the police to do the
investigation properly, and can monitor the same.
…
17. In our opinion Section 156(3) CrPC is wide enough
to include all such powers in a Magistrate which are B
necessary for ensuring a proper investigation, and it
includes the power to order registration of an FIR and
of ordering a proper investigation if the Magistrate is
satisfied that a proper investigation has not been done,
or is not being done by the police. Section 156(3) CrPC, C
though briefly worded, in our opinion, is very wide and
it will include all such incidental powers as are necessary
for ensuring a proper investigation.
…
26. If a person has a grievance that his FIR has not D
been registered by the police station his first remedy is
to approach the Superintendent of Police under Section
154(3) CrPC or other police officer referred to in Section
36 CrPC. If despite approaching the Superintendent of
Police or the officer referred to in Section 36 his E
grievance still persists, then he can approach a
Magistrate under Section 156(3) CrPC instead of rushing
to the High Court by way of a writ petition or a petition
under Section 482 CrPC. Moreover, he has a further
remedy of filing a criminal complaint under Section 200
CrPC. Why then should writ petitions or Section 482 F
petitions be entertained when there are so many
alternative remedies?
(emphasis supplied)
21. It is clear from the above extract that the Magistrate has wide
G
powers under Section 156(3) which ought to be exercised towards
meeting the ends of justice. A two-judge Bench of this Court in Srinivas
Gundluri v. SEPCO Electric Power Construction Corpn.,7 further
clarified the powers of a Magistrate and held that whenever a cognizable
7
(2010) 8 SCC 206 H
174 SUPREME COURT REPORTS [2022] 18 S.C.R.

A offence is made out on the bare reading of complaint, the Magistrate
may direct police to investigate:
23. To make it clear and in respect of doubt raised by
Mr Singhvi to proceed under Section 156(3) of the Code,
what is required is a bare reading of the complaint and
B if it discloses a cognizable offence, then the Magistrate
instead of applying his mind to the complaint for deciding
whether or not there is sufficient ground for proceeding,
may direct the police for investigation. In the case on
hand, the learned Single Judge and the Division Bench
of the High Court rightly pointed out that the Magistrate
C did not apply his mind to the complaint for deciding
whether or not there is sufficient ground for proceeding
and, therefore, we are of the view that the Magistrate
has not committed any illegality in directing the police
for investigation. In the facts and circumstances, it cannot
D be said that while directing the police to register FIR,
the Magistrate has committed any illegality. As a matter
of fact, even after receipt of such report, the Magistrate
under Section 190(1)(b) may or may not take cognizance
of offence. In other words, he is not bound to take
cognizance upon submission of the police report by the
E investigating officer, hence, by directing the police to
file charge-sheet or final report and to hold investigation
with a particular result cannot be construed that the
Magistrate has exceeded his power as provided in sub-
section (3) of Section 156.
F 22. In the present case, the narration of facts makes it clear that
upon the invocation of the jurisdiction of the Magistrate under Section
156(3) of CrPC, the JMFC came to the conclusion that serious allegations
had been levelled against the accused by the appellant and, that, from a
perusal of the documents in this regard, the statements of the complainant
G were satisfactory. After taking note of the fact that the police had at an
earlier stage reported that the occurrence of an incident or offence was
not found, the JMFC opined that, from the facts which were set out by
the complainant in the complaint, prima facie, the occurrence of an
offence was shown.

H
XYZ v. STATE OF MADHYA PRADESH & ORS 175
[DR. DHANANJAYA Y CHANDRACHUD, J.]

23. It is true that the use of the word “may” implies that the A
Magistrate has discretion in directing the police to investigate or
proceeding with the case as a complaint case. But this discretion cannot
be exercised arbitrarily and must be guided by judicial reasoning. An
important fact to take note of, which ought to have been, but has not
been considered by either the Trial Court or the High Court, is that the
B
appellant had sought the production of DVRs containing the audio-video
recording of the CCTV footage of the then Vice-Chancellor’s (i.e., the
second respondent) chamber . As a matter of fact, the Institute itself
had addressed communications to the second respondent directing the
production of the recordings, noting that these recordings had been handed
over on his oral direction by the then Registrar of the Institute as he was C
the Vice-Chancellor. Due to the lack of response despite multiple attempts,
the Institute had even filed a complaint with PS Gole Ka Mandir on 29
October 2021 for registering an FIR against the second respondent for
theft of the DVRs.
24. Therefore, in such cases, where not only does the Magistrate D
find the commission of a cognizable offence alleged on a prima facie
reading of the complaint but also such facts are brought to the Magistrate’s
notice which clearly indicate the need for police investigation, the
discretion granted in Section 156(3) can only be read as it being the
Magistrate’s duty to order the police to investigate. In cases such as the
present, wherein, there is alleged to be documentary or other evidence E
in the physical possession of the accused or other individuals which the
police would be best placed to investigate and retrieve using its powers
under the CrPC, the matter ought to be sent to the police for investigation.
25. Especially in cases alleging sexual harassment, sexual assault
or any similar criminal allegation wherein the victim has possibly already F
been traumatized, the Courts should not further burden the complainant
and should press upon the police to investigate. Due regard must be had
to the fact that it is not possible for the complainant to retrieve important
evidence regarding her complaint. It may not be possible to arrive at the
truth of the matter in the absence of such evidence. The complainant G
would then be required to prove her case without being able to bring
relevant evidence (which is potentially of great probative value) on record,
which would be unjust.
26. In this backdrop, we are clearly of the view that the JMFC
ought to have exercised jurisdiction under Section 156(3) of CrPC to H
direct the police to investigate.
176 SUPREME COURT REPORTS [2022] 18 S.C.R.

A 27. At this stage, the Court is not called upon to decide upon the
veracity of the allegations in the complaint, save and except to underscore
the importance of an investigation by the police in a matter where the
CCTV footage (or other evidence) is not under the possession or control
of the appellant, but to be inquired into in the course of an investigation
by the police. The discretion which has been conferred upon the
B
Magistrate by Section 156(3) CrPC, must be exercised in a judicious
manner.
28. In the facts of the present case and bearing in mind the position
of law which has been laid down by this Court, recourse to the jurisdiction
under Section 156(3) CrPC was warranted.
C
29. For the above reasons, we are inclined to set aside the
impugned judgement of the High Court and to direct that the JMFC
Gwalior shall, in terms of the observations contained above, order an
investigation by the police under Section 156(3) CrPC. Having regard to
all the facts and circumstances, including the need for a fair investigation,
D we direct that the investigation shall be supervised by a woman officer
not below the rank of Superintendent of Police to be nominated by the
DIG of the zone concerned. The judgement of the High Court dated 6
January 2022 shall accordingly stand set aside. The directions which
have been issued by the JMFC to the effect that the complaint could be
E treated as a complaint case shall accordingly, to that extent, stand set
aside and be substituted in terms of the directions which have been
issued above.
30. Finally, we wish to once again reiterate the importance of
courts dealing with complainants of sexual harassment and sexual assault
F in a sensitive manner. It is important for all courts to remain cognizant of
the fact that the legal process tends to be even more onerous for
complainants who are potentially dealing with trauma and societal shame
due to the unwarranted stigma attached to victims of sexual harassment
and assault. At this juncture, especially in cases where the police fails to
address the grievance of such complainants, the Courts have an important
G responsibility. As the Delhi High Court held in Virender v State of NCT
of Delhi,8 courts have to remain alive to both treating the victim sensitively
while also discharging the onerous task of ensuring that the complete
truth is brought on record so as to facilitate adjudication and answering

8
2009 SCC OnLine Del 3083
H
XYZ v. STATE OF MADHYA PRADESH & ORS 177
[DR. DHANANJAYA Y CHANDRACHUD, J.]

the basic question regarding the complicity of the accused in the A
commission of the offence. In that case, the High Court held that:
22. It is to be noted that the embarrassment, and
reservations of those concerned with the proceedings
including the prosecutrix, witnesses, counsel may result
in a camouflage of the trauma of the victim’s B
experience. The judge has to be conscious of these
factors and rise above any such reservations to ensure
that they do not cloud the real facts and the actions
which are attributable to the accused persons. The trial
courts must be alive to the onerous responsibility
which rests on their shoulders and be sensitive in C
cases involving sexual abuse.
(emphasis supplied)
31. While the Delhi High Court made these observations while
dealing with a case of rape, courts must remain alive to their duty to D
treat victims sensitively in cases alleging all forms of sexual harassment
and sexual assault. The Courts must try to ensure that the process of
attempting to bring alleged perpetrators to justice is not onerous for the
victims. Aggrieved persons should not have to run from pillar to post for
the mere registration of a complaint and initiation of investigation especially
when a cognizable offence is prima facie made out in their complaint. E

32. In Aparna Bhat v State of Madhya Pradesh,9 a two-judge
Bench of this Court took note of the “entrenched paternalistic and
misogynistic attitudes that are regrettably reflected at times in judicial
orders and judgments.” In that case, Justice S. Ravindra Bhat observed
and we reiterate: F
31. The role of all courts is to make sure that the survivor
can rely on their impartiality and neutrality, at every stage
in a criminal proceeding, where she is the survivor and
an aggrieved party. Even an indirect undermining of this
responsibility cast upon the court, by permitting discursive G
formations on behalf of the accused, that seek to diminish
his agency, or underplay his role as an active participant
(or perpetrator) of the crime, could in many cases, shake

9
2021 SCC OnLine SC 230
H
178 SUPREME COURT REPORTS [2022] 18 S.C.R.

A the confidence of the rape survivor (or accuser of the
crime) in the impartiality of the court. The current attitude
regarding crimes against women typically is that “grave”
offences like rape are not tolerable and offenders must
be punished. This, however, only takes into consideration
rape and other serious forms of gender-based physical
B
violence. The challenges Indian women face are
formidable : they include a misogynistic society with
entrenched cultural values and beliefs, bias (often sub-
conscious) about the stereotypical role of women, social
and political structures that are heavily male-centric, most
C often legal enforcement structures that either cannot
cope with, or are unwilling to take strict and timely
measures. Therefore, reinforcement of this stereotype,
in court utterances or orders, through considerations
which are extraneous to the case, would impact fairness.
D …
43. The instances spelt out in the present judgment are
only illustrations; the idea is that the greatest extent of
sensitivity is to be displayed in the judicial approach,
language and reasoning adopted by the judge. Even a
E solitary instance of such order or utterance in court,
reflects adversely on the entire judicial system of the
country, undermining the guarantee to fair justice to all,
and especially to victims of sexual violence (of any kind
from the most aggravated to the so-called minor
offences).
F
33. The legislature has, at places, moulded criminal procedure to
enable victims of sexual crimes to seek justice. This has been done in
recognition of the gravity of sexual crimes and the need to handle such
cases in an appropriately sensitive manner. For instance, Section 327
CrPC provides for in camera trials to be conducted with respect to
G offences punishable under Sections 376, 376A, 376B, 376C or 376D of
the Indian Penal Code 1860.
34. This Court, too, has had its role to play in ensuring that justice
does not remain inaccessible. In State of Maharashtra v. Bandu @

H
XYZ v. STATE OF MADHYA PRADESH & ORS 179
[DR. DHANANJAYA Y CHANDRACHUD, J.]

Daulat,10 this Court directed that special centres be set up in each state A
in order to facilitate depositions by vulnerable witnesses, including victims
of sexual offences. In Smruti Tukaram Badade v. State of
Maharashtra,11 a two judge bench of this Court (of which one of us,
Dr. DY Chandrachud, J. was a part) supplemented the directions issued
in Bandu @ Daulat (supra) with respect to setting up such special
B
centres.
35. It is the duty and responsibility of trial courts to deal with the
aggrieved persons before them in an appropriate manner, by:
a. Allowing proceedings to be conducted in camera, where
appropriate, either under Section 327 CrPC or when the case C
otherwise involves the aggrieved person (or other witness)
testifying as to their experience of sexual harassment / violence;
b. Allowing the installation of a screen to ensure that the aggrieved
woman does not have to see the accused while testifying or in
the alternative, directing the accused to leave the room while D
the aggrieved woman’s testimony is being recorded;
c. Ensuring that the counsel for the accused conducts the cross-
examination of the aggrieved woman in a respectful fashion
and without asking inappropriate questions, especially regarding
the sexual history of the aggrieved woman. Cross-examination E
may also be conducted such that the counsel for the accused
submits her questions to the court, who then poses them to the
aggrieved woman;
d. Completing cross-examination in one sitting, as far as possible.
36. Before closing, it is necessary to clarify that this Court has not F
expressed any opinion on the allegations which have been levelled in the
complaint. It is for the investigating officer to investigate those allegations
in accordance with law.
37. The appeal shall stand allowed in the above terms.
38. Pending application, if any, stands disposed of. G

Divya Pandey and Anurag Bhaskar Appeal allowed.
(Assisted by : Priyanshu Agarwal, LCRA)

10
(2018) 11 SCC 163
11
2022 SCC OnLine SC 78 H