Delhi High Court Sets Aside Order Directing Registration Of FIR Against BJP Leader Shahnawaz Hussain, His Brother In Alleged Rape Case

The Delhi High Court has set aside a trial court order directing registration of FIR against BJP leader Syed Shahnawaz Hussain and his brother in an alleged rape case.

The woman had alleged that Hussain’s brother Shahbaz Hussain raped on her on the false pretext of marriage in 2017 whereas the BJP leader asked her to not highlight the matter and raise a hue and cry.

While the Metropolitan Magistrate had refused to direct the police to register an FIR, an Additional Sessions Judge of Patiala House Court in criminal revision on May 31 last year observed that the complaint lodged by the woman disclosed cognizable offence by Shahbaz Hussain and directed the Delhi Police to register FIR against him and the BJP leader.

Setting aside the order, Justice Amit Mahajan remanded the matter back to the court for a fresh decision after giving an opportunity of hearing to Hussain and his brother. The court was hearing the plea moved by Shahbaz Hussain and Shahnawaz Hussain challenging the order passed by the Additional Sessions Judge.

Vide the impugned order, the ASJ had set aside the order passed by the MM and directed the SHO of Mandir Marg police station to register an FIR under sections 420, 376, 295A, 493, 496, 506, 509, 511 and 120B of the Indian Penal Code, 1860.

It was the complainant’s case that Shahbaz Hussain met her in connection with an NGO that was being run by her, and introduced himself as the brother of the BJP leader. She was highly impressed and mesmerised by Shahbaz and developed intimacy with him as he promised that he would marry her, according to her complaint.

She alleged that she was raped by Shahbaz Hussain, who promised that he would marry her after she protested. Later, she found out that he was already married and had two children.

She alleged that she visited the house of Shahnawaz Hussain seeking his support, however, he “pacified her” and asked her to not highlight the matter and raise a hue and cry as it would be detrimental to both parties.

She also alleged Shahbaz Hussain married her in presence of a Maulvi in January 2017 but she later discovered that the Maulavi issued a fake marriage certificate. She filed two complaints on September 21, 2017 and December 19, 2017, however, no action was taken by the police.

The counsel appearing for the petitioners submitted that the sessions court had committed an error in directing the SHO to register the FIR and that the ASJ had misinterpreted and misconstrued the judgment passed in Lalita Kumari case.

It was also submitted that no notice was issued by the ASJ in the criminal revision petition filed by the complainant. It was thus contended that had an opportunity of hearing been granted to the petitioners, they would have placed the law and the facts in the correct perspective before the court.

Justice Mahajan observed that at the stage of considering an application under section 156(3) of CrPC, the suspect is not a person who is aggrieved so as to be entitled for any hearing.

“The suspect has no locus standi to appear and participate at the stage when the Court is considering if the registration of the FIR is to be ordered or not. Furthermore, the Police is not obliged to hear the suspect at the stage of registering FIR,” the court said.

However, it added: “Once an order is passed, some rights accrue either in favour of, or against the parties. Such rights cannot be taken away in a challenge made against the order without there being issuance of any notice or an opportunity of hearing, to the party whose right is now sought to be taken away.”

Accordingly, the court set aside the impugned order while granting liberty to the parties to approach the concerned court for fixing a date of hearing.

In August last year, the High Court had ordered registration of FIR against Shahnawaz Hussain in a different case alleging that he committed rape on a woman.  The BJP leader’s SLP against the High Court’s decision was dismissed earlier this year by the Supreme Court.

Title: Syed Shahbaz Hussain & Anr v. State

Citation: 2023 LiveLaw (Del) 205