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Anil Khandekar vs State Of Uttar Pradesh on 27 February, 2023

Author: Anup Jairam Bhambhani

Bench: Anup Jairam Bhambhani

                          $~53

                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI

                          +      W.P.(CRL) 572/2023
                                 ANIL KHANDEKAR                                   ..... Petitioner
                                                 Through:        Mr. Sudhir Nandrajog, Senior
                                                                 Advocate with Mr. Manish Gandhi,
                                                                 Mr. Febin M. Varghese, Mr. Dhiraj
                                                                 Philip and Mr. Samuel David,
                                                                 Advocates.
                                              versus
                                 STATE OF UTTAR PRADESH             ..... Respondent
                                              Through:
                                 CORAM:
                                 HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
                                              ORDER

% 27.02.2023 CRL.M.A.5200/2023 Exemption granted, subject to just exceptions.

Let requisite compliances be made within 01 week. The application stands disposed of.

W.P.(CRL) 572/2023 By way of the present petition filed under Article 226 of the Constitution of India read with section 482 of the Code of Criminal Procedure 1973 („Cr.P.C.‟), the petitioner seeks quashing of an „undated‟ summons/notice which is stated to have been received by the petitioner on 16.02.2023, purportedly issued by the Investigating Officer, P.S. Kotwali under section 160 Cr.P.C. in connection with case FIR No. 224/2022 dated 15.04.2022 registered under sections 153- A/506/430/467/468 of the Indian Penal Code, 1860 („IPC‟) and Signature Not Verified Digitally Signed By:NEERAJ Signing Date:28.02.2023 W.P.(CRL) 572/2023 Page 1 of 5 11:48:55 sections 3/5(1) of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021 at P.S.: Kotwali, Fatehpur, Uttar Pradesh.

2. Mr. Sudhir Nandrajog, learned senior counsel appearing for the petitioner submits, that the petitioner is a Program Director of a society called „World Vision India‟ which is registered under the Tamil Nadu Societies Registration Act 1975, and has nothing to do with any church or other religious institution.

3. Senior counsel submits however, that the petitioner has received the subject notice purporting to be one under section 160 Cr.P.C., requiring the petitioner‟s personal appearance at P.S.: Kotwali, District Fatehpur, Uttar Pradesh on 22.02.2023 in connection with the subject FIR statedly "...to record your statement". The subject notice also calls upon the petitioner to "...bring all the records related to the case with you." Mr. Nandrajog submits, that though the petitioner has sent a reply to the said notice, the notice itself is bereft of any legal sanction or authority inasmuch as section 160 Cr.P.C. empowers a police officer investigating a case to call for the attendance onlyof "...any person being within the limits of his own or any adjoining station", who the police officer believes has information or is acquainted with the facts and circumstances of a given case.

4. Upon being queried, Mr. Nandrajog clarifies that in the event an I.O.

wants to call for the attendance of a person residing outside the jurisdiction specified in section 160 Cr.P.C., the I.O. is required to approach the local police within whose jurisdiction such person resides, and to take action in accordance with law, through such police station.

5. In fact, it is pointed-out that under the proviso to section 161 Cr.P.C., it is now also possible to record the statement of persons such as the petitioner by "audio-video electronic means".

6. It is submitted that in the present case, evidently the I.O. has required the personal presence of the petitioner, who is clearly beyond the limits of the I.O.‟s jurisdiction, which is impermissible in law. In support of this submission, senior counsel cites a recent judgment of a Co-ordinate Bench of this court in Jamshed Adil Khan & Anr. vs. Union Territory of Jammu and Kashmir and Anr. 1 in which, relying on earlier decisions of this court, the Co-ordinate Bench has opined that it is the unambiguous position that under section 160 Cr.P.C. the I.O. does not have the power to require the attendance of a person who is not within the limits of his own area or the area of any adjoining police station.

7. Mr. Nandrajog submits, that in response to an earlier communication dated 30.11.2022 received from the I.O./SHO, the society had in any case, duly furnished a response dated 05.12.2022, clarifying all that was asked in relation to the subject FIR, including clarifying that the society is engaged in work relating to the amelioration of the condition of impoverished children in India; and that the society in fact works in co-operation with the Central and several State Governments on several programs in different parts of the country; and also, that the society has nothing to do with the Evangelical Church of India or with any religious conversions that are alleged to have happened.

2022/DHC/002594 Signature Not Verified Digitally Signed By:NEERAJ Signing Date:28.02.2023 W.P.(CRL) 572/2023 Page 3 of 5 11:48:55

8. Mr. Nandrajog further points-out, that in what is a clear case of mala- fides, after the registration of the subject FIR on 15.04.2022, three other FIRs, all dated 23.01.2023, have also been registered in relation to the self-same alleged incident, at the same police station viz. P.S. Kotwali, naming one of the employees of the society.

9. Upon a prima-facie conspectus of the averments contained in the petition and the submissions made, issue notice.

10. Upon the petitioner taking requisite steps, let notice be sent to the respondent/State of Uttar Pradesh, through the S.H.O/P.S.: Kotwali, District : Fatehpur, Uttar Pradesh, by all permissible modes, returnable for the next date.

11. Let the notice indicate that reply to the petition be filed within 06 weeks of service; rejoinder thereto, if any, be filed within 04 weeks thereafter; with copies to the opposing counsel.

12. Re-notify on 17th July 2023.

CRL.M.A. 5199/2023 (seeking stay of notice)

13. In view of the above discussion, and in particular the plain language of section 160 Cr.P.C., as inter-alia interpreted by a Co-ordinate Benches of this court, the effect and operation of the aforementioned „undated‟ notice issued to the petitioner under section 160 Cr.P.C. is stayed, till the next date of hearing.

14. Furthermore, to ensure that the respondent, viz. S.H.O, P.S.: Kotwali, Fatehpur, Uttar Pradesh is duly communicated a copy of this order, it is directed that a copy of this order be forwarded by the Registry to the learned Additional Advocate General of the State of Uttar Pradesh in the Supreme Court, for onward transmission to the concerned S.H.O. Signature Not Verified Digitally Signed By:NEERAJ Signing Date:28.02.2023 W.P.(CRL) 572/2023 Page 4 of 5 11:48:55

15. A copy of this order be also forwarded to the S.H.O, P.S.: Parliament Street, New Delhi, within whose jurisdiction the petitioner resides, for information and necessary action, if required.

16. Re-notify on 17th July 2023.

ANUP JAIRAM BHAMBHANI, J FEBRUARY 27, 2023 ds Signature Not Verified Digitally Signed By:NEERAJ Signing Date:28.02.2023 W.P.(CRL) 572/2023 Page 5 of 5 11:48:55