Police Reluctant To Even Register An FIR- Delhi HC Orders Registration Of FIR Against BJP Leader Shahnawaz Hussain In Rape Case

The Delhi High Court has ordered registration of FIR against BJP leader Syed Shahnawaz Hussain on a woman's complaint alleging rape. The Court has also directed the police to complete the investigation within 3 months.

Aggrieved by the Delhi High Court's Order directing the registration of FIR, Syed Shahnawaz Hussain has approached the Apex Court. The Supreme Court has agreed to list the matter for next week.

The Delhi High Court's Bench of Justice Asha Menon dismissed the petition filed by Shahnawaz Hussain against the order of the Special Judge dismissing the revision petition filed by him against the orders of the Metropolitan Magistrate (MM) directing registration of FIR against him.

Justice Asha Menon noticed a complete reluctance on the part of the police to even register an FIR in the present case.

The facts of this case are that, in 2018, a woman had filed a complaint alleging the commission of offences under Section 376, 328,120B, 506 of the Indian Penal Code (IPC) by Syed Shahnawaz Hussain. Along with the said complaint, she also filed an application under Section 156(3) Code of Criminal Procedure (CrPc.) seeking directions to the Police for the registration of an FIR against him for the commission of the said offences.

The report filed by the police concluded that the allegations raised by the complainant were not found to be substantiated.

It was contended by Shahnawaz Hussain that despite the receipt of this report, the MM directed the registration of an FIR following the decision of the Supreme Court in Lalita Kumari vs. Government of Uttar Pradesh.

On the same day, two other applications were also disposed of, one seeking the recording of the statement of the complainant under Section 164 Cr.P.C. and the other for carrying out the medical examination of the prosecutrix and the alleged accused.

The appeal against these orders were dismissed by the Special Judge.

Aggrieved, Hussain approached Delhi High Court.

Senior Advocate Siddharth Luthra, appeared for the petitioner-Hussain whereas APP Ritesh Kumar Bahri represented the state. Advocate Sanjiv Kumar Singh appeared for the prosecutrix.

The main thrust of the arguments of the senior counsel for the petitioner-Hussain was that the provisions of Section 154(1) Cr.P.C. have not been complied with and without such compliance, no order under Section 156(3) Cr.P.C. could have been issued. Section 154 provides that the information of cognizable offences is to be given to the police and if given orally to an officer in charge of a police station, it is to be reduced into writing by such officer. The submission of the senior counsel was that the undated complaint to the Commissioner of Police would not suffice as action under Section 154(1) Cr.P.C.

The Court noted that the law gives the complainant the right to approach a superior officer in case of the commission of a cognizable offence.

The Court observed that "In fact, this complaint the respondent no.2 sent to the Commissioner of Police clearly discloses the commission of the cognizable offence of rape after administration of a stupefying substance and when this complaint was forwarded to the concerned SHO, the SHO was obligated under law to register the FIR as re-affirmed by the Supreme Court in Lalita Kumari (supra) and subsequent cases."

The Court further observed that the recording of the statement of the prosecutrix on four occasions was referred to in the Status Report filed before it, but there was 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. In the present case, there seems to be a complete reluctance on the part of the police to even register an FIR.", the Court noted.

On the nature of the report that was submitted to the MM by the police, the Court observed that only a reply was filed by the police before the MM, which established that it was not a final report that was submitted by the police.

Therefore, the Court held that there was no reason for the MM to have treated that reply as if it was a report under Section 173 Cr.P.C. when the FIR itself was not registered.

"There is thus 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 held.

The Court directed completion of the investigation and submission of a detailed report under Section 173 Cr.P.C. to MM within three months.

"The police after registration of an FIR and conducting a complete investigation will have to submit a report under Section 173 Cr.P.C. in the prescribed format. The learned MM would, no doubt, proceed in accordance with law to determine whether to accept the final report to either proceed with the case by taking cognizance or by holding that no case was disclosed and cancel the F.I.R after granting a hearing to the complainant in accordance with law.", the Court concluded.

Cause Title- Syed Shahnawaz Hussain v. The State & Anr.

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