"Complete Reluctance On Police's Part": Delhi High Court Orders FIR Against BJP Leader Syed Shahnawaz Hussain In Rape Case

The Delhi High Court has ordered registration of FIR against BJP leader Syed Shahnawaz Hussain in an alleged 2018 rape case observing that there was a complete reluctance on the part of city police to register the same.

Justice Asha Menon directed that the investigation in the matter be completed and a detailed report under Section 173 CrPC be submitted before the MM within a period of three months.

The Court dismissed the petition filed by the former Union Minister challenging the order of the Special Judge dated July 12, 2018 which had dismissed his revision petition against the orders of the Metropolitan Magistrate directing registration of FIR.

A complaint against Hussain was filed in June 2018, alleging commission of offences under Sections 376, 328, 120B and 506 IPC. The complainant later filed an application under Section 156(3) CrPC, seeking directions to the city Police for the registration of FIR.

An action taken report (ATR) was filed by the city Police on 4th July, 2018 before the MM concluding that as per the inquiry, the allegations raised by the complainant were not found to be substantiated.

It was Hussain's case that despite the receipt of ATR, the MM directed registration of an FIR. This order was upheld by the Special Judge which observed that the Criminal Amendment Act of 2013 had made it mandatory for the Police to record the statement of the victim in rape cases. Moreover, with regard to the registration of the FIR, it was concluded that the inquiry which had been made was only a preliminary inquiry and the MM had rightly not treated the ATR as a cancellation report.

In appeal, the High Court observed that the complaint sent to the Commissioner of Police clearly disclosed the commission of the cognizable offence of rape after administration of a "stupefying substance". It also said that when the complaint was forwarded to the SHO, he was obligated under law to register the FIR.

"In the present case, there seems to be a complete reluctance on the part of the police to even register an FIR. In the absence of the FIR, at best, the police could have, as correctly observed by the learned Special Judge, conducted only what is a preliminary inquiry. The very fact that it was only a reply that was filed by the police before the learned MM, sufficiently establishes that it was not a final report that was submitted by the police," the Court said.

It added "The FIR only puts the machinery into operation. It is a foundation for investigation of the offence complained of. It is only after investigations that the police can come to the conclusion whether or not an offence had been committed and if so by whom."

The Court directed that the police, on completing investigation, will have to submit a report under Section 173 CrPC in the prescribed format.

It added that the MM would proceed in accordance with law to determine whether to accept the final report to either proceed with the case by taking cognizance or by holding that no case was disclosed and cancel the FI.R after granting a hearing to the complainant in accordance with law.

Case Title: SYED SHAHNAWAZ HUSSAIN v. THE STATE & ANR.

Citation: 2022 LiveLaw (Del) 785

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