Delhi High Court sets aside Trial Court's order to register FIR against BJP’s Shahnawaz Hussain, his brother in alleged rape case

The Delhi High Court last week set aside an order passed by the Patiala House Court on May 31, 2022, directing the Delhi Police to register FIR against Bhartiya Janta Party (BJP) leader Syed Shahnawaz Hussain and his brother Shahbaz Hussain in an alleged 2018 rape case.

While setting aside the order, the bench of Justice Amit Mahajan noted that Shahnawaz Hussain and his brother Shahbaz Hussain were not heard by the Sessions Court of Patiala House Court, Delhi while directing the registration of FIR under various provisions of the Indian Penal Code. The two brothers were registered under Sections 420, 376, 295A, 493, 496, 506, 509, 511, and 120B of the IPC.

The single-judge bench set aside the trial court’s judgment dated May 31, 2022, wherein the Sessions Court Judge refused to direct the Delhi police to register an FIR in the case, and remanded it back to the concerned Additional Sessions Judge (ASJ) for consideration afresh. It noted that the Metropolitan Magistrate (MM), Patiala House Court on June 26, 2018, in an application filed by the complainant woman under Section 156(3) of CrPC had refused to direct Delhi police to register an FIR.

The court also noted that later, the Sessions Judge with the impugned order of May 2022, setting aside the MM’s order had directed the SHO Mandir Marg to register the FIR in the case.

The complainant’s case is that she was running an NGO, where she met Shahbaz, who introduced himself as the brother of Shehnawaaz Hussain, a member of Parliament, by which she was highly impressed. Thereafter, they developed intimacy and Shahbaz promised that he would marry her and allegedly raped her. Later, she found out he was already married and was a father of two children.

The complainant alleged that Shahnawaz “pacified her” and explained to her that marriage with his brother (Shahbaz) would come to fruition as he was a “Muslim” and was allowed to have four wives. He also asked her not to highlight the matter, raised a hue and cry as it would be detrimental to both. She also alleged that Shahbaz married her in presence of a Maulvi in 2017, but later she discovered that a fake marriage certificate was issued. Thereafter, she filed two complaints on September 21, 2017, and December 19, 2017, but no action was taken by the police.

Counsel appearing for the two brothers contended that the Sessions Court had committed an error in directing the SHO to register the FIR and that the ASJ misinterpreted and misconducted the judgment passed in the Lalita Kumari case, by the Apex Court. He also contended that the right of the accused to be heard does not accrue in favor of the accused prior to the filing of the FIR and that an order under Sections 397 and 401 can be issued without the accused being heard.

The single-judge bench opined, “The right of the suspect / accused to be heard in a revision petition filed by the complainant against the dismissal of application under Section 156(3) CrPC is no longer res interga and would be squarely covered by the judgment passed by the Hon’ble Apex Court Manharibhai Muljibhai Kakadia And Another (supra).”

The court stated that there is no doubt that the suspect is not a person who is aggrieved enough to be entitled to a hearing at the stage of considering an application under Section 156(3) CrPC. “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”, it added.

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

Justice Mahajan also stated that it is clear that no order to the prejudice of an accused or any other person can be made by a court while exercising the powers of a revisional court unless the accused or other person has been given an opportunity to be heard. Accordingly, the single-judge bench set aside the impugned order, granting liberty to the parties to approach the concerned court for fixing a date for a hearing.

It is to be noted that in August 2022, Justice Asha Menon ordered the registration of an FIR against BJP Leader Syed Shahnawaz Hussain in a 2018 rape case. The court had passed the order while hearing a plea 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 the registration of FIR.

Case Title: Syed Shahbaz Hussain & Anr. v. Govt. of NCT of Delhi & Anr.

Statue: The Indian Penal Code; The Code of Criminal Procedure