The Delhi High Court has slammed the Delhi Police for its “complete reluctance” to even register an FIR against BJP leader Syed Shahnawaz Hussain and directed it to do so forthwith and complete the investigation into the allegations of rape against him within three months.
Upholding a 2018 lower court order directing the police to register an FIR against Hussain, Justice Asha Menon said the complaint sent by the victim to the commissioner of police in 2018 clearly disclosed the commission of the cognisable offence of rape “after administration of a stupefying substance” and when the complaint was forwarded to the station house officer, the officer was obligated under law to register the FIR.
“But admittedly, in the present case, till the filing of the complaint before the magistrate on 21st June 2018, the SHO, PS (police station) Mehrauli had done nothing. In fact, the status report filed before this court refers to the said complaint having been received at PS Mehrauli on 20th June, 2018 from the commissioner’s office. The police have a lot to explain for not having registered the FIR on the receipt of the forwarded complaint,” said the court in an order dated August 17.
It further said that the direction issued by the trial court for FIR registration can hardly be described as an “irregularity” and therefore calls for no interference. Justice Menon also said recording of the statement of prosecutrix on four occasions is referred to in the status report filed by the police but there is no explanation as to why the FIR was not lodged.
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“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,” reads the order.
Challenging the orders passed by the lower court for registration of FIR against him, Hussain had argued that the metropolitan magistrate had not disclosed reasons for directing registration of the FIR and that investigation by the police had “completely falsified” the woman’s case. Hussain had not moved from his residence after 9.15 pm and therefore could not have been in Chattarpur at 10.30 pm as alleged by the woman, his counsel argued before the court. Call detail records (CDRs) of the prosecutrix also disclosed that she had remained in Dwarka till 10.45 pm, the court was told. The police in its report had told the lower court that allegations raised by the complainant were not found to be substantiated.
Rejecting the argument that the police reply should have been treated as a report under Section 173 (2) CrPC by the lower court, Justice Menon said that FIR was a must before that and only upon conclusion of such investigation, the police could have submitted the final report. “Even where such a report is submitted to the magistrate, the magistrate is not bound to accept that report and can still determine the question whether or not to take cognisance and proceed with the matter,” said the court, adding even if the lower court was intended to treat the reply as a cancellation report, even then it would have had to issue a notice to the prosecutrix and give her the right to file a protest petition.
In June 2018, the woman had approached the trial court accusing Hussain of rape. She had alleged that in April he called her to a farmhouse and raped her after lacing her cold drink with a sedative.