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Synopsis

The Delhi High Court on Wednesday ordered the registration of an FIR against BJP Leader Syed Shahnawaz Hussain in a 2018 rape case.

The court was hearing a petition filed by Hussain challenging the trial court’s judgment dated July 12, 2018, wherein the Special Judge dismissed the revision petition filed against the orders of the Metropolitan Magistrate directing registration of FIR.

While dismissing the petition, Justice Asha Menon ordered the investigation to be completed and a detailed report be submitted to the Metropolitan Magistrate (MM) as per Section 173 of CrPC within three months.

A complaint was filed on June 21, 2018, against Hussain alleging commission of offences under Sections 376, 328, 120B, 506 of the Indian Penal Code (IPC), along with it, the complainant filed an application under Section 156(3) CrPC seeking directions to the Police for registration of an FIR.

On July 4, 2018, an Action Taken Report (ATR) was filed by the police concluding that the allegations raised by the complainant were not substantiated by the investigation.

Hussain’s contention is that despite receiving the ATR, the MM directed the registration of FIR on July 7, 2018. The Special Judge upheld the order, noting that the Criminal Amendment Act of 2013 made it mandatory for police to record the victim's statements in rape cases. Moreover, when it came to the registration of the FIR it was concluded that the investigation was done and the MM did not treat the ATR as a cancellation.

Justice Menon observed that "in the present case, there seemed to be a complete reluctance on the part of the police to even register an FIR and in absence of the FIR, the police could have conducted only a preliminary investigation, as correctly observed by the Special Judge. The mere fact that the police only filed a reply before the MM establishes that it was not a final report that was submitted by the police".

Court further added that the final report is to be submitted to the Magistrate empowered to take cognizance of the offence, and there was no reason for MM to treat that response as if it was a report under S.173 CrPC when the FIR had not been registered.

Court also noted that the FIR only puts the machinery into operation and serves as the foundation for an investigation into the alleged offence. Only after conducting investigations can the police determine whether or not an offence was committed and, if so, by whom, Court said.

Court, therefore, directed, “After registering an FIR and conducting a thorough investigation, the police must submit a report in the prescribed format under Section 173 of CrPC.”

“The MM would proceed in accordance with the law to determine whether to accept the final report to either proceed with the case by taking cognizance or to hold that no case was disclosed and cancel the FIR after granting the complainant a hearing in accordance with law”, the court added.

Case Title: Syed Shahnawaz Hussain v. The State & Anr.