'Let There Be Investigation' : SC Dismisses BJP Leader Shahnawaz Hussain's Plea Challenging Direction To Register FIR In Rape Case

The Supreme Court on Monday dismissed an SLP filed by BJP Leader Syed Shahnawaz Hussain in connection with an alleged 2018 rape case. Hussain had approached the top court challenging an order of the Delhi High Court directing registration of FIR against him.

The Supreme Court had earlier stayed all proceedings against him in the matter. However, during Monday's hearing, the bench comprising Justices S Ravindra Bhat and Dipankar Datta dismissed the SLP after hearing Senior Counsels Siddharth Luthra and Mukul Rohatgi, appearing for Hussain, in detail.    

Initially, the bench put to Mr. Luthra, "Your objection to this impugned order is mainly two fold:

1. She was against the brother.

2. She had filed an earlier application alleging that some acid was thrown against her. That application was dismissed. Review was also dismissed. Now after this, she says that the petitioner here called her for negotiation and committed rape."

The bench then remarked, "Now, till date her statement has not been recorded. 164 statement has not been recorded. You have got a stay right from the beginning. Now 156(3) order and the revision order are all consistently against you. Police is also showing a lot of interest. Without any investigation they are coming out with status reports. Tell us why should we interfere?" 

When Mr. Luthra responded by saying, "Let me give you an answer...a legal answer", the bench replied and remarked, "There is no need for an answer. It is quite evident to us."

Mr. Luthra proceeded and said, "These status reports are in the nature of ATR(Action Taken Reports) that the police has submitted before the Magistrate." He further argued, "It can’t be a situation where her relationship with my brother is leading me to multiple harassment. That is the nub of the matter. Knowing that she is coming after me, because I am in public life, I had first filed a complaint against her. She may have grievances against my brother, she may have whatever relationship with my brother, good, bad, is different. far as my brother is concerned, he is an adult. I cannot be put to trauma. It is for him to deal with it."

Mr. Luthra then informed the court, "...her counsel has been filing cases against me in different jurisdictions in his personal capacity. It’s a double whammy."

While showing several complaints that have been filed against the petitioner by the Counsel for the Respondent/Complainant in different jurisdictions, Luthra also showed that the counsel for the Complainant is a political person who is also a Congress leader who has been pursuing several cases in his personal capacity against the petitioner.

He said, "The lawyer is a political opponent. What could be more peculiar that the lawyer and the litigant have joined hands to persecute?"

The Bench did not merit the argument and remarked, "It is natural. If somebody is prosecuted by you, he will also go to someone who is your opponent. We can’t draw inferences."

Mr. Luthra further pointed out, "It is malafide. It is an absurdity."

The Bench remarked again, "This is not even a case where an FIR has been allowed to be lodged. Let it be investigated. There may not be nothing in it."

Mr. Luthra responded and said, "There will be consequences."

The Bench remarked, "What consequences. You are not being held guilty. You have all the remedy. We are applying the law as we see."

Mr. Luthra further argued, "In a matter of this nature where there is a past history where she has not succeeded, it is a repeat attempt."

Pointing towards the complaint filed by the complainant, Mr. Luthra submitted, "It says Complainant has gone to the police many times. Police has recorded the statement of the Complainant. Based on this you go for a direction under 156(3). I ask myself, while seeking a direction under 156(3) there must be a complaint filed with some authority. In this case there is no such complaint. The complaint they rely on should be on record because after all you are saying that the police is not acting and please issue directions under 156(3)."

The Bench remarked, "They rely on the complaint to the Police Commissioner."

The Bench further showed that the trial court has recorded in its findings that the status report of the police refers to the complaint received by the police from the Commissioner’s office. That is why she has approached under 156(3). "This means that there is compliance with the requirements under 154(3)", Justice Dipankar Datta who was on the bench, remarked. 

Justice Ravindra Bhat then remarked, "We take a case where all these political issues were not there. If your client was not a politician, in a simple case the victim has to run through so many loops. Even in Nirbhaya and the most acute case all these loops would be there."

When Mr. Luthra was presenting the trial court record, Justice Bhat remarked, "We have come to the trial court record even before the FIR is registered. This speaks volumes about this case. You are as powerful as he claims you are, let there be an investigation, let the matter proceed. If there is nothing then that will come out."

Senior Advocate Mukul Rohatgi appearing for the Petitioner also argued, "How many complaints would be filed? There are complaints after complaints. They have been investigated by the police. Not found to be substantial. How long will this continue on and on. After there is a report by the police that no allegations are substantiated and offence is not made out."

Pointing out that it was the petitioner who had first filed a complaint against the Respondent/Complainant, Mr. Rohatgi submitted, "Originally I filed a complaint against this complainant. That's the start. The start is not from that side. It is from my side. I filed two complaints as somebody is harassing me because of my position."

Rohatgi further pointed out the sequence of events and the string of complaints that were filed by the Complainant and her Counsel against the petitioner in several courts one after another despite the status report filed by the police.

Rohatgi argued, "At the relevant time of the alleged incident, call records shows I am near Rashtrapati Bhawan, Mandir Marg. She is in Dwarka. There is a total of 14 Kms distance from the alleged scene of offence."

Alleging malafide on the part of the Complainant, Mr. Rohatgi stated, “2021 petition before Patna Courts, Election Petition filed before the Election Commission of India, several complaints filed by the counsel in his personal capacity. In the face of all this, I want your lordships to see the status report of the police. It has been fully investigated.”

The Bench then inquired, "Did the police inform the complainant that there is no sufficient ground to investigate and proceed and not register an FIR?"

Rohatgi replied and said, "She has gone to the court on every occasion. The Court has rejected it. She went to the Commissioner. In 154 you have to first go to the authority. If the authority does not listen they go to the court."

The Bench remarked, "She first went to the police. Nothing happened. She went to the Commissioner. That's how the matter went to Mehrauli police station. Now the police has filed status report. For that you have to inform the Complainant. The provision requiring the police to inform the complainant before filing the status report is an important provision. Where did the police inform before filing the status report?"

"It's not that we are starting this from scratch. The HC has gone into all this record. Where is the 136 issue for us? You may be a victim but there is possibility of the reverse," Justice Bhat added. 

The Court then ordered, “Petition dismissed. We find no reason to interfere.”

Mr. Rohatgi also requested the court to make a finding in the order that this dismissal would not affect the petitioner’s right to challenge the FIR as and when it is registered.

The Bench remarked, “You have already done that without an FIR being registered. We will not say anything. Look at the number of hearings we have taken. You want to take your chance in law, you can take it. We find no reason to interfere. We have gone through the records. All remedies in law are open.”

“You have pursued this so bitterly for the last 2 years, where is the question of any remedy being precluded by this. There’s not one word on merits in the impugned order,” Justice Bhat remarked. 

Heated exchange of words between Complainant's Counsel, Complainant and Senior Advocate Mukul Rohatgi

Earlier during the hearing, Complainant's counsel interrupted Rohatgi while he was arguing and said that the petitioners counsels are lying before the court. He turned to Rohatgi and said, “You are lying.”

He later also said pointing towards Rohatgi, “Ye Jo Jhuth Bol Rahe Hair, Mai Pura Pulinda Khol Dunga Jhuth Ka” (I will open all the bundle of lies that he is speaking)

Rohatgi, angrily responded and said, "If this is the manner in which, my lords…Counsel can’t say like this. Do you have any manners? Don't interrupt like this."

The Bench also said, "We have to go by some discipline. Please keep quiet. Don't interrupt. Let him complete."

Later, the Complainant, who was also present before the court in person, interrupted Mr. Rohatgi and submitted, “Mai kuch bolna chahti hoon. Police ne koi sunwayi nahi ki” (I want to say something. The Police didn’t hear me out)

Rohatgi again, visibly frustrated, replied, "This cannot go on like this. Kindly put it on some other day."

The Bench again asked the complainant, "Please wait. When your turn comes we will ask you to speak."

At this point, Complainant interrupted again and alleged "Commissioner sahab mujhe blue film bhejte the and bulaate the milne. “Kya Police Meridian’s Sunegi” (The Police Commissioner used to send me blue films and call me. How is this Police going to listen to me)

Rohatgi had replied and said, "The SC can't be converted to this. We can’t go on like this. Please keep this on another day."

Background

A complaint was filed against BJP Leader, Syed Shahnawaz Hussain 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 Metropolitan Magistrate (MM). It was concluded that as per the inquiry, the allegations raised by the complainant were not found to be substantiated.

Here, Hussain had submitted 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.

An appeal was filed against the order of the Special Judge dismissing his revision petition against the orders of the MM and directing registration of FIR.

Delhi HC's Decision

The Delhi 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. The court had directed that the police, on completing investigation, will have to submit a report under Section 173 CrPC in the prescribed format. While noting the "complete reluctance" on the part of city police to register the FIR, Justice Asha Menon had directed the investigation in the matter to be completed and a detailed report under Section 173 CrPC to be submitted before the MM within a period of three months.

Hussain had moved to the Supreme Court against this Delhi High Court, stating that the registration of an FIR against him would ruin his reputation.

Case Title: Syed Shahnawaz Hussain v. State of NCT of Delhi And Anr. SLP(Crl) No. 7653/2022