Delhi District Court
Syed Shahnawaz Hussain vs State on 12 July, 2018
IN THE COURT OF SAVITA RAO, SPL. JUDGE, (PC ACT) CBI01,
(SOUTH) SAKET COURTS : NEW DELHI
Crl. Rev. No. : 258/2018
CC No. : 8566/2018
P.S. : Mehrauli
In the matter of :
Syed Shahnawaz Hussain
S/o Late Sh. Syed Nasir Hussain
R/o 7, Pandit Pant Marg
P.S. Parliament Street
New Delhi 110001
...... Petitioner
VERSUS
1. State
2. Punam Panday
D/o Late Sh. Janardhan Pandey
R/o Flat No. C115
Akash Ganga Society
Plot No. 17, Sector6, Dwarka
P.S. Sector - 9, Dwarka
New Delhi 110075
....... Respondents
Date of Filing : 09.07.2018
Date of Arguments : 12.07.2018
CR No. 258/18
Syed Shahnawaz Hussain Vs. State & Anr. 1/11
Date of Order : 12.07.2018
O R D E R
1. This is revision petition filed by petitioner aggrieved by the two orders of Ld. Trial court both dated 7.7.2018. The first order is with regard to issuance of directions for registration of FIR and the other order is for disposal of applications moved by complainant for recording of her statement u/s 164 Cr.P.C. and carrying out the medical examination of victim/complainant and accused .
2. In the complaint filed before Ld. Trial court alongwith application u/s 156 (3) Cr.P.C., the allegations levelled against the accused are pertaining to sexual assault upon the complainant and also preparation of the sexual video after intoxicating the complainant. Ld. Trial court observing that the registration of FIR is mandatory u/s 154 of the Code, if the information discloses commission of cognizable offence and also quoting the observation in Lalita Kumari Vs. Government of U.P. & Ors. W.P. Crl. No. 68/2008, directed for registration of FIR since in terms of the allegations in complaint, cognizable offence was made out.
3. Ld. Counsel for petitioner submitted that the order passed u/s 156 (3) Cr.P.C. is to show application of mind by the court as the orders are subject to judicial scrutiny and any order of the court is to pass the test of reasonability and legality. As submitted by counsel for petitioner, the CR No. 258/18 Syed Shahnawaz Hussain Vs. State & Anr. 2/11 impugned order suffers from complete non application of mind and does not even reflect that the status report filed by the police has been dealt with by Ld. MM. Ld. Counsel for petitioner placed reliance upon Priyanka Srivastava & Anr. Vs. State of U.P. & Ors. Crl. Appeal no. 781/2012, wherein it was observed that " an inquiry into the matter of such nature must be conducted by Magistrate before ordering investigation u/s 156 (3) Cr.P.C. and it is only when it is found utmost necessary, the investigation should be directed ".
4. Though it is correct that registration of FIR is mandatory u/s 154 of the Code if the information discloses commission of cognizable offence but at the same time it is also correct that while exercising jurisdiction u/s 156 (3) Cr.P.C., magistrate has to apply his mind. Reliance is placed upon Subhkaran Luharuka & Anr . Vs. State & Anr. 170 (2010) Delhi Law Times 516, it was observed that " whenever a magistrate is called upon to pass orders under section 156 (3) of the Code, at the outset, the magistrate should ensure that before coming to the court, the complainant did approach the police officer in charge of the police station having jurisdiction over the area for recording the information available with him disclosing the commission of a cognizable offence by the person/persons arrayed as an accused in the complainant. It should also be examined what action was taken by the SHO, or even by the senior officer of the police, when approached by the complainant under section 154 (3) of the code. The magistrate should then form his own opinion whether the facts mentioned in CR No. 258/18 Syed Shahnawaz Hussain Vs. State & Anr. 3/11 the complaint disclose commission of cognizable offences by the accused persons arrayed in the complaint which can be tried in his jurisdiction. He should also satisfy himself about the need for investigation by the police in the matter. A preliminary inquiry is permissible even by an SHO and if no such inquiry has been done by the SHO, then it is all the more necessary for the Magistrate to consider all these factors. For that purpose, the Magistrate must apply his mind and such application of mind should be reflected in the order passed by him".
5. The contention of Ld. Counsel for petitioner therefore finds substantiation from the authority (supra). Nevertheless Ld. Trial court has considered the allegations in the complaint and found the congnizable offence having been made out. The allegations per se though definitely point out towards the commission of cognizable offence and are serious in nature, however Ld. Counsel for petitioner sought reliance from Reply/ATR placed on record by the police and submitted that the detailed inquiry conducted by police and examination of complainant gave completely different version of the events. Call detail records of the complainant, of petitioner and of various personnel security officials provided by Delhi Police to petitioner were examined. The alleged offence had been committed at farm house. The CCTV footage installed at Roshan Tent House was also examined . Petitioner is senior leader and is having the Z security and even the PSO provided to the petitioner were also examined and ultimately it was CR No. 258/18 Syed Shahnawaz Hussain Vs. State & Anr. 4/11 concluded that the complainant and petitioner never met each other on the alleged date of offence and the petitioner did not even visit the alleged place of incident. Rather presence of petitioner was confirmed throughout the day at different places far away from the place of incident. It was also submitted that the complainant had been harassing and defaming the petitioner since long time and as such the petitioner had filed complaints with the police against the complainant.
6. Per contra, it was submitted by Ld. Counsel for complainant that complainant was in shock and in depression after the alleged date of incident and she lodged the complaint on 22.4.2018 with the police but no action was taken and thereafter complaint was lodged with the commissioner of Police dated 26.4.2018. It was also submitted that police wants to protect the accused and the entire inquiry seems to have been directed qua achieving the said motive. The video of prosecutrix which was prepared by accused is in possession of the accused/petitioner and police has made no comments on the said aspect in the report which cannot be recovered without the registration of FIR.
7. ATR/Reply to complaint u/s 156 (3) Cr.P.C. was filed by SHO concerned. Mention was made in the reply with regard to two statements of complainant having been recorded, in which complainant had given contradictory versions. As mentioned, all the relevant persons had been examined and their statements had been recorded, gist of which was placed CR No. 258/18 Syed Shahnawaz Hussain Vs. State & Anr. 5/11 on record. Statements of the persons recorded as per the reply were the Manager , Roshan Tent House, Employees at Roshan Tent House, Private Security Guards employed at the alleged place of incident , the owner of the said farm house and the statement of PSOs of the petitioners and of one Rajeev Rana who was friend of petitioner and had allegedly accompanied the complainant to the farm house at Chhatarpur i.e. the place of incident .
8. Ld. Special Prosecutor stated about the non receipt of any complaint dated 22.4.2018 though the complaint dated 26.4.2018, duly receipted was annexed to the complaint. Name of Rajeev Rana did not find any mention in the said complaint to police dated 26.4.2018 nor in the complaint filed before Ld. Trial court. Ld. Counsel for complainant submitted that police has manufactured the statements of complainant and this was the reason that the complainant was constrained to file the application before Ld. Trial court seeking issuance of directions to the police for getting the statement of complainant recorded u/s 164 Cr.P.C. As further mentioned in ATR/Reply, the call detail records of complainant, accused and police security unit of Delhi police provided to petitioner were also obtained . Tthe calls details of police security unit corresponded with the movement of accused/petitioner whereas the complainant remained continuously present at Dwarka till 10.44 p.m. , thereby CDR of complainant did not corroborate her allegations. Petitioner at the time of commission of alleged offence, in terms of statements recorded by police was at Amatra, Ashoka Hotel from where he CR No. 258/18 Syed Shahnawaz Hussain Vs. State & Anr. 6/11 returned to Pandit Pant Marg at about 9.15 p.m. .
9. Though the police seems to have conducted the detailed inquiry in obtaining the CDRs as well as the CCTV footage installed at Roshan Tent House were also inspected to verify the claim of complainant where the complainant was allegedly called by the petitioner in the morning, however there is no reference in the reply with regard to obtaining the CCTV footage installed at Amatra, Ashoka Hotel and of the Sharma Farm House , which could have been the crucial evidence to arrive at the correct conclusion.
10. The other contention of Ld. Counsel for petitioner relying upon Dr. Rajni Palriwala Vs. Dr. D. Mohan and Anr. in Crl. M.C. No. 6525/2006 was that even if no FIR is formally registered but a detailed investigation is carried out, then the report submitted should be treated as cancellation report.
11. As noted above, the detailed investigation seems to have not been carried out in the instant matter and merely the preliminary inquiry seems to have been conducted without even recording of the statement of complainant, her witnesses, if any , obtaining of CCTV footage of the place of incident and of the place of which petitioner is seeking alibi etc. , therefore there was no occasion for Ld. Trial court to treat the report as cancellation report. Nevertheless, registration of FIR is only for the purpose of proper investigation to be carried out. If after detailed investigation, police still comes to conclusion regarding 'no offence having been made out' , it is not precluded from filing the cancellation report.
CR No. 258/18Syed Shahnawaz Hussain Vs. State & Anr. 7/11
12. Not only the petitioner but Ld. Special Prosecutor is opposing the directions of Ld. Trial court for getting the statement of prosecutrix recorded u/s 164 Cr.P.C. and for conducting of medical examination . Ld. Public Prosecutor relied upon Joginder Nahak & Ors. Vs. State of Orissa & Ors. and Ajay Kumar Parmar Vs. State of Rajasthan to make out the submission that interpretation of section 164 (1) of the code does not empower the Magistrate to record the statement of person unsponsored by the investigating agency.
13. As already noted, in terms of the submission made on behalf of complainant, police has manufactured the statement of complainant which is contradictory to the contents of complaint and of the complaint lodged by her with the police, in which eventuality, it becomes all the more necessary for getting the statement recorded u/s 164 Cr.P.C. This court does not find any infirmity in the observation of Ld. Trial court that " SHO has decided the case already without even recording the statement of victim u/s 164 Cr.P.c. and that the non recording of her statement u/s 164 Cr.P.c. would go against the principles of natural justice and also that the inquiry conducted by the police officials cannot even begin without recording the statement of the victim and carrying out her medical examination especially in cases where allegations u/s 376 IPC are laid out. So the reply of the police officials to the applications that on the basis of inquiry conduct by them, no case is made out against the accused and therefore there is no reason to record the statement CR No. 258/18 Syed Shahnawaz Hussain Vs. State & Anr. 8/11 of complainant u/s 164 Cr.P.C. is baffling at the least ".
14. This court is also in humble disagreement with Ld. Public Prosecutor with regard to applicability of the judgments relied upon by him on the facts of the instant matter. In Jogendra Nahak & Ors. Vs. State of Orissa, the reference was to the recording of statement of witnesses and it was noted that for such witnesses , provisions are available in law that the accused can cite them as defence witnesses during trial or the court can be requested to summon them under section 311 Cr.P.C. When such remedies are available to witnesses (who may be sidelined by the investigating officers), there was no reason why the Magistrate should be burdened with the additional task of recording the statements of all and sundry who may knock at the door of the court with a request to record their statements u/s 164 of the Code. Apparently the above facts are not applicable to the facts of the instant case . Here statement u/s 164 Cr.P.C. which has been directed to be recorded by Ld. Trial court was of the victim and not of the other witnesses , who can be summoned u/s 311 of the Code or as defence witness. It rather becomes the paramount duty of the investigating agency itself to get the statement of victim recorded u/s 164 Cr.P.C. so that the substantial justice is done, principle of natural justice are followed as well as no accusing finger is pointed out towards the investigating agency itself for avoiding to get such statement recorded.
15. In Ajay Kumar Parmar Vs. State of Rajasthan , the magistrate had CR No. 258/18 Syed Shahnawaz Hussain Vs. State & Anr. 9/11 recorded statement u/s 164 Cr.P.C. without any attempt at identification by any court officer/lawyer/police or anybody else, therefore the statement recorded u/s 164 Cr.P.C. had been held to be not recorded correctly and not for the want of powers/jurisdiction with the Ld. Magistrate to record such statement.
16. It was submitted by Ld. Counsel for complainant that common people of India are still apprehensive of police; the working style of police has been condemned by the Supreme Court in rape cases where they are accused of biases, insensitivity, asking the prosecutrix to give up the case, exerting psychological pressure for effecting an answer, facilitating reconciliation between the attacker and the victim and in certain cases going to the extent of protecting the perpetrators. All these considerations regarding the difference in the approach of the Magistrate and a Police Officer in addressing rape cases led the legislators to incorporate the amendment in Cr.P.C. making it mandatory for the Magistrate to record the statement at the very first instance.
17. The criminal Amendment Act 2013, introduced provision 5 A (a) into the section 164 of Cr.P.C., making it mandatory for recording of statement of victim u/s 164 Cr.P.C. in cases punishable u/s 376 IPC . When an offence of rape is committed and the same is brought to the knowledge of the police officer, he is bound to take the victim to the nearest judicial magistrate for recording of her statement.
CR No. 258/18Syed Shahnawaz Hussain Vs. State & Anr. 10/11
18. It is surprising to note that despite the mandate having been casted upon the investigating agency to get the statement recorded u/s 164 Cr.P.C., it is the same agency who is opposing the said direction issued by Ld. Trial court.
19. Having discussed as above, no infirmity or illegality is found in the impugned orders passed by Ld. Trial court. Revision petition is accordingly dismissed. TCR alongwith copy of this order be sent to the trial court. Revision file be consigned to record room.
Digitally signed SAVITA by SAVITA RAO
RAO Date: 2018.07.12
17:40:30 +0530
Announced in the Open Court (Savita Rao)
Today on 12.07.2018 Spl. Judge (PC Act), CBI01(South)
Saket Courts : New Delhi
CR No. 258/18
Syed Shahnawaz Hussain Vs. State & Anr. 11/11