Delhi High Court Stays Trial Court Proceedings In FIR Registered Over Resistance To Demolition Drive In Shaheen Bagh

The Delhi High Court has stayed the trial court proceedings in relation to an FIR registered over demolition drive conducted by officials of South Delhi Municipal Corporation (SDMC) in city's Shaheen Bagh area in May this year. (FIR 182 of 2022 P.S. Shaheen Bagh)

A single judge bench comprising Justice Anu Malhotra stayed the trial court proceedings till October 19.

The development ensued in a plea filed by Aarfa Khanam, a lawyer by profession and one of the 12 accused in the FIR which was registered under Sections 186 (Obstructing public servant in discharge of public functions), 353 (Assault or criminal force to deter public servant from discharge of his duty) and 34 (Acts done by several persons in furtherance of common intention) of the Indian Penal Code, 1860.

Other accused in the FIR include Aam Aadmi Party (AAP) MLA Amanatullah Khan, Mohd. Hedayatullah, Parvez Alam Khan, Sakina Parveen, Ashu Khan, Mohd. Jabir, Abdul Wajid Khan, Shabeena Khan, Shazia Faizan, Babar Khan and Mohd. Kasim.

A complaint was received by police from SDMC's licensing officer on May 9 stating that an encroachment removal drive was fixed for the day on the main road Shaheen Bagh along with Jasola Canal to Kalindi Kunj Park.

It was alleged in the complaint that while the staff and police personnel were present at the site for carrying out the encroachment removal action, Okhla area's MLA from AAP, Amanatullah Khan, alongwith his supporters did not allow the field staff of SDMC in performing their duties.

It was alleged that after their resistance was witnessed by the police as well as media personnel present at the the site, a prayer was made to take appropriate legal action against the said persons for interfering in discharge of official duties by public servants.

On the basis of the complaint, the FIR in question was registered against the 12 accused persons.

One of the accused, Aarfa Khanam had moved the High Court challenging the summoning order dated August 1, 2022 passed by the ACMM and an order of the Special Judge dated September 8, 2022 dismissing the Revision Petition filed by Khanam against the summoning order. The plea also sought quashing of the chargesheet filed in the matter and any other proceedings emanating therefrom.

The plea averred that non-compliance of mandate of sec. 195 of CrPC has rendered the prosecution against Khanam as null and void ab-initio.

It is her case that the ACMM as well as the Special Judge failed to follow the decision of Delhi High Court in case titled Sachin & Ors v. State of NCT of Delhi wherein it was held that no court can take cognizance of an offence unless a complaint is made by the proper officer in the proper format as prescribed under sec. 195 of the Code.

"Breach of section 195 CRPC render the action void ab initio. Non-compliance of section 195 CRPC is a non-curable defect and renders the preceding void ab initio. That section 353 of IPC which has been invoked against the petitioner is in fact an extension of section 186 IPC and allegation with regard to the section 353 of IPC as contained in the impugned FIR really fall in the nature of an offence under section 186 IPC which itself is being rendered void in view of non-compliance of mandatory section of 195 of CRPC, thus no case is made out against the Petitioner herein," the plea reads.

While staying the trial court proceedings, the Court also sought response of the State within a period of three weeks.

"The matter is directed to be re-notified for 19.10.2022, till which date proceedings before the learned Trial Court are stayed," the Court ordered.

Case Title: AARFA KHANAM v. STATE OF NCT OF DELHI