Delhi High Court

Delhi High Court: In a case of allegations of rape and sexual assault leveled against the BJP leader Syed Shehanawaz Hussain (‘petitioner’), Asha Menon, J. upheld decisions of Metropolitan Magistrate and Special Judge further directing registration of FIR immediately and to submit the final report under Section 173 Criminal Procedure Code (‘CrPC’) and conduct the investigation accordingly, on finding glaring irregularities in the conduct of the police to register FIR.

Respondent 2 filed a complaint under Section 200 CrPC read with Section 190 CrPC alleging commission of offences under Section 376/328/120-B/206 Penal Code, 1860 (‘IPC’) by the petitioner. The complainant however filed an application under Section 156 (3) CrPC seeking directions to the police for registration of the FIR which was thereby granted. The grievance of the petitioner is that the Court directed for registration of the FIR inspite of the police filing an Action Taken Report (‘ATR’) before Metropolitan Magistrate (‘MM’) which concluded that as per the inquiry the allegations were found to be unsubstantiated.

Two applications were also disposed of grieving the petitioner as one sought for recording of the statement of complainant under Section 164 CrPC and other, for carrying out medical examination of the prosecutrix and the alleged accused. Assailing these orders, a revision petition was filed before Special Judge CBI by the petitioner, which was thereby dismissed. Aggrieved by these, present petition under Section 482 CrPC was filed.

The dismissal order which is impugned in the present petition is on the grounds that that the Criminal Amendment Act of 2013 had made it mandatory for the Police to record the statement of the victim under Section 164 CrPC in cases punishable under Section 376 IPC. Moreover, with regard to the registration of the FIR, the inquiry which had been made was only a preliminary inquiry and the MM had rightly not treated the ATR as a cancellation report. As registration of an FIR is only for a proper investigation of the matter and after detailed investigation, if the police still came to the conclusion that no offence was made out, it was not precluded from filing a cancellation report.

Counsel for petitioner Senior Advocate Mr Sidharth Luthra submitted that there is no complaint on record addressed to the SHO as the complaint was an undated complaint made directly to the Commissioner of Police and therefore, the complaint to the DCP did not meet the requirements under Section 154 CrPC and thus no order under Section 156 CrPC could have been issued.

The Court, however, noted that a person giving information to the officer in charge of the Police Station may do so orally or in writing and would obviously do so in their own words. It is only when the officer in charge decides to record the information that the police officer is to follow a format. In case the police officer declines to register the complaint, the complainant can send the substance of the information to a superior police officer under Section 154(3) CrPC. The law thus gives the complainant the right to approach a superior officer in case of the commission of a cognizable offence. Thus, the contention is absolutely untenable.

Senior Advocate Siddhartha Luthra further submitted that that MM as also the Special Judge had erred in not factoring in the ATR report while passing the impugned orders. The Court noted that the record discloses that the police did not file the ATR in terms of the directions of the MM but was titled as the ‘reply of complaint under Section 156(3) CrPC. However, it recorded that the allegations raised in the complaint have been found to be not substantiated but the directions of the court would be abided with.

The Court further noted that the recording of the statement of the prosecutrix on four occasions is referred to in the Status Report, but there is no explanation as to why the FIR was not lodged. The FIR only puts the machinery into operation. It is a foundation for investigation of the offence complained of. It is only after investigations that the police can come to the conclusion whether or not an offence had been committed and if so by whom.

The Court observed that in the present case, there seems to be a complete reluctance on the part of the police to even register an FIR. In the absence of the FIR, at best, the police could have, as correctly observed by the Special Judge, conducted only what is a preliminary inquiry. The very fact that it was only a reply that was filed by the police before the MM, sufficiently establishes that it was not a final report that was submitted by the police. The final report is required to be forwarded to the Magistrate empowered to take cognizance of the offence in a prescribed format under Section 173 (2) CrPC. There was no reason for the MM to have treated that reply as if it was a report under Section 173 CrPC, when the FIR itself was not registered.

Thus, the Court held that there is no perversity in the orders of the learned MM directing the registration of the FIR. There is also no error in the judgment of the learned Special Judge holding that the inquiry report being preliminary in nature cannot be considered as a cancellation report.

The Court further directed the police to conduct a complete investigation after registration of an FIR and submit a report under Section 173 CrPC in the prescribed format. It also directed the MM to proceed in accordance with law.

[Syed Shahnawaz Hussain v. State, 2022 SCC OnLine Del 2428, decided on 17-08-2022]

Advocates who appeared in this case :

For Petitioner- Mr. Siddharth Luthra and Ms. Geeta Luthra, Senior Advocates with Mr. Vineet Malhotra, Mr. Vikas Arora, Ms. Shivani Luthra Lohiya, Ms. Asmita, Ms. Apoorva Maheshwari and Mr. Vishal Gohsi, Advocates;

For respondent- Mr. Ritesh Kumar Bahri, APP for the State with Inspector Manoj Kumar and SI Eshter Dazi Duo Mr. Sanjiv Kumar Singh, Advocate, for the R-2.

*Arunima Bose, Editorial Assistant has put this report together.

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