Delhi High Court - Orders
Xxxxxxxxxxxx vs State Nct Of Delhi & Anr on 11 November, 2024
Author: Anup Jairam Bhambhani
Bench: Anup Jairam Bhambhani
$~81
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 8814/2024
XXXXXXXXXXXX .....Petitioner
Through: Mr. Tanmaya Mehta, Mr. Karan
Nagrath, Ms. Niharika Nagrath, Ms.
Rashmi Gogoi, Ms. Nupur Kumar,
Mr. Ambuj Tiwari, Mr. Yash Gaur,
Ms. Niharika Tanwar, Advocates.
versus
STATE NCT OF DELHI & ANR. .....Respondents
Through: Mr. Utkarsh, APP for the State with
SI Saveen Kharb, P.S.: IGI Airport.
CORAM:
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
ORDER
% 11.11.2024 CRL.M.A. 33702/2024 (exemption) Exemption granted, subject to just exceptions.
Let requisite compliances be made within 01 week. The application stands disposed of.
CRL.M.C. 8814/2024 & CRL.M.A. 33701/2024 (for stay) By way of the present petition filed under section 528 of the Bharatiya Nagarik Suraksha Sanhita 2023, the petitioner impugns 'order dated 06.11.2024' made by the learned Additional Chief Metropolitan Magistrate, Patiala House Courts, New Delhi in case FIR No.772/2023 dated 15.12.2023 registered under sections 323/509 of the Indian Penal Code, 1860 ('IPC') at P.S.: I.G.I Airport, Delhi, thereby purporting to stay the process issued under section 82 of the Code of Criminal Procedure 1973 ('Cr.P.C.') till the next date of This is a digitally signed order. CRL.M.C. 8814/2024 Page 1 of 5 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 22/11/2024 at 23:59:06 hearing; and then proceeding to list the matter on 27.11.2024. Furthermore, by way of the impugned order the learned ACMM also issues a 'robkar', that is to say information to the police at large, so that the process under section 82 of the Cr.P.C. is not executed.
2. Mr. Tanmaya Mehta, learned counsel appearing for the petitioner has handed-up a certified copy of the application 'seeking stay and cancellation of warrants issued under section 82 of the Cr.P.C.' against the accused/respondent No.2, on which order dated 06.11.2024 has been passed. The certified copy of the application is taken on record.
3. Learned counsel submits that it be noticed that order dated 06.11.2024 has been passed by filling-in certain details on a rubber stamp on the first page of the application, without any reference to any averments in the application, nor any reasoning nor basis for staying the process issued under section 82 of the Cr.P.C.
4. Mr. Mehta also points-out that it will be seen that the application is not even signed by the applicant, but only by his counsel, and may not have been supported by an affidavit either.
5. Counsel submits that on point of fact, the subject FIR was registered on 15.12.2023, on the petitioner's complaint, in which the petitioner had made allegations of certain sexual offences. The subject FIR was initially registered under sections 323/509 of the IPC, to which the offences under sections 376/506/354D(1)(ii) of the IPC were subsequently added.
6. Mr. Mehta submits that NBWs were issued against respondent No.2 vide order dated 10.04.2024, since as per the Investigating Officer This is a digitally signed order. CRL.M.C. 8814/2024 Page 2 of 5 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 22/11/2024 at 23:59:06 ('I.O.') herself, respondent No. 2 was not joining investigation and was away in Dubai.
7. It is submitted that in view of failure to procure respondent No.2's presence in court by way of NBWs, vide order dated 15.10.2024 the learned ACMM directed issuance of a proclamation against the accused under section 82 Cr.P.C., also recording that the accused was deliberately avoiding appearance before the I.O.
8. Thereafter however, Mr. Mehta points-out, that for reasons which are not discernible, by way of a cryptic order with only some particulars scribbled onto a rubber stamp, the process issued under section 82 of the Cr.P.C. has been stayed by the learned ACMM.
9. Issue notice.
10. Mr. Utkarsh, learned APP appears for the State on advance copy;
accepts notice; and seeks time to take instructions and file status report.
11. Let status report/reply be filed at least 03 days before the next date;
with copy to the opposing counsel.
12. Upon the petitioner taking steps, let notice be sent to the respondent No.2 by all permissible modes, returnable for the next date.
13. 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.
14. Learned APP submits that the present petition is not maintainable since the issuance of process under section 82 of the Cr.P.C. was only to secure the presence of accused/respondent No.2 before the I.O. and the matter is therefore between the court, the I.O., and the accused.
This is a digitally signed order. CRL.M.C. 8814/2024 Page 3 of 5The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 22/11/2024 at 23:59:07
15. In response to the preliminary objection, Mr. Mehta has drawn attention to a decision of this Bench in Saleem vs. State (NCT of Delhi) 1 , which was based on the verdict of the Supreme Court in Jagjeet Singh & Ors. vs. Ashish Mishra @ Monu & Anr.2, in which this court had reiterated that a victim has unbridled participatory rights at all stages of a criminal proceedings.
16. Mr. Mehta argues, that the petitioner is the complainant/victim and is therefore entitled to be heard by way of the present petition. He submits that other things apart, the perfunctory manner in which the impugned order dated 06.11.2024 has been passed by scribbling details on a rubber stamp, without the presence of the I.O. or the complainant; and bereft of any discussion or reasoning or even any reference to the averments in the application, which application was not even signed by respondent No.2, the matter requires consideration by this court.
17. On a prima-facie view of the matter, the submissions made on behalf of the petitioner are borne-out from the record. In the circumstances, order dated 06.11.2024 made by the learned ACMM staying the issuance of process under section 82 of the Cr.P.C. against respondent No.2 is stayed.
18. The court is informed that process under section 82 of the Cr.P.C. has already been issued and is now required to be executed. The I.O. is accordingly directed to execute the process, in accordance with law.
12023 SCC OnLine Del 2190 2 (2022) 9 SCC 321 at paras 22, 23 This is a digitally signed order. CRL.M.C. 8814/2024 Page 4 of 5 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 22/11/2024 at 23:59:07
19. Re-notify on 03rd February 2025.
ANUP JAIRAM BHAMBHANI, J NOVEMBER 11, 2024 ss This is a digitally signed order. CRL.M.C. 8814/2024 Page 5 of 5 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 22/11/2024 at 23:59:07