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PoliticsIndiaWhy Delhi High Court refused to quash FIR of rape against Shahnawaz...

Why Delhi High Court refused to quash FIR of rape against Shahnawaz Hussain

Shahnawaz Hussain has moved the Supreme Court, soon after the Delhi High Court ordered the police to file an FIR against him in connection with a 2018 rape case, challenging the high court’s order. The highest court has listed the matter for urgent hearing. Chief Justice of India (CJI) NV Ramana said the Supreme Court would hear the matter next week.

In January 2018, a Delhi-based had filed this petition in the lower court to file an FIR against Hussain. She alleged that the BJP leader had raped her and threatened to kill her. In June 2018, the woman had approached the trial court, alleging that he had called her to a farmhouse in April and raped her after lacing her cold drink with a sedative.

A senior lawyer said if an FIR were registered, the petition would become infructuous, adding that Hussain had a 30-year-long career in politics and this would destroy his reputation.

The Delhi High Court had dismissed Hussain's plea and ordered the police to file an FIR against the leader who was once a rare Muslim face of the BJP. The high court gave the police a period of three months to complete the investigation.

Delhi High Court slams police

The Delhi High Court said after looking at the complaint that it was evident that the police were reluctant to file an FIR in the case. The court said the lower court had rejected the police argument and observed that the woman's complaint made a case for a cognisable offence.

Justice Asha Menon of the high court said the complaint sent by the to the commissioner of police in 2018 clearly disclosed the commission of the cognisable offence of rape “after administration of a stupefying substance” and when the complaint was forwarded to the station house officer, the officer was obligated under law to register the FIR. “But admittedly, in the present case, till the filing of the complaint before the magistrate on 21 June 2018, the SHO, PS (police station) Mehrauli had done nothing. In fact, the status report filed before this court refers to the said complaint having been received at PS Mehrauli on 20 June 2018 from the commissioner’s office. The police have a lot to explain for not having registered the FIR on the receipt of the forwarded complaint,” said the court in an order dated 17 August.

The high court said that the direction issued by the trial court for FIR registration can hardly be described as an “irregularity” and therefore calls for no interference. Justice Menon also said recording of the statement of the prosecutrix on four occasions is referred to in the status report filed by the police but there is no explanation as to why the FIR was not lodged.

"The FIR only puts the machinery into operation. It is a foundation for 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," reads the high court order.

Challenging the lower court order to register an FIR against him, Hussain had argued that the metropolitan magistrate had not disclosed reasons for directing registration of the FIR and that by the police had “completely falsified” the ’s case. Hussain had not moved from his residence after 9.15 PM and therefore could not have been in Chattarpur at 10.30 PM as alleged by the woman, his counsel argued before the court. Call detail records (CDRs) of the prosecutrix also disclosed that she had remained in Dwarka till 10.45 PM, the court was told. The police in its report had told the lower court that allegations of the complainant were not found to be substantiated.

Rejecting the argument that the police reply should have been treated as a report under Section 173 (2) CrPC by the lower court, Justice Menon said that FIR was a must before that and only upon conclusion of such investigation, the police could have submitted the report. “Even where such a report is submitted to the magistrate, the magistrate is not bound to accept that report and can still determine the question whether or not to take cognisance and proceed with the matter,” said the court, adding that even if the lower court was intended to treat the reply as a cancellation report, even then it would have had to issue a notice to the prosecutrix and give her the right to file a protest petition.

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