Delhi High Court
Xxx vs State & Anr. on 29 November, 2019
$~63
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 29.11.2019
+ CRL.M.C. 6127/2019 & CRL. M.As.41496-97/2019
XXX ..... Petitioner
Through Mr. Suhail Malik, Mr. Vikas Malik,
Mr. Imraj Rautela & Mr. Ankit
Prakash, Advs
versus
STATE & ANR. ..... Respondents
Through Mr. Panna Lal Sharma, APP for State
Mr. Sameer Sharma, Addl. DCP/West
Insp.Vijender Singh, SHO Hari Nagar
SI Shrikrishna, PS Hari Nagar
Mr. Krishan Kumar, Mr. S P Nangia
& Mr. RCS Bhedoria, Advs. for
complainant
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
J U D G M E N T (ORAL)
CRL.M.A. 41498/2019
1. Allowed, subject to all just exceptions.
2. Application stands disposed of.
CRL.M.C. 6127/2019
3. By way of the present petition, the petitioner seeks the following
prayers:-
(i) To set aside the order dated 22.10.2019 passed by the learned
Additional Sessions Judge (Pilot Court), West, Tis Hazari
Courts, Delhi in Bail Appln. No.3612 to the extent it directs
registration of F.I.R against the petitioner;
(ii) To direct the learned Additional Sessions Judge 04 (West), Tis
Hazari Courts, Delhi to dispose of the third application of the
respondent No. 2 bearing number 4124 seeking anticipatory
bail on its own merits and in ignorance of the impugned
observations made in order dated 22.10.2019; &
(iii) To transfer the investigation of F.I.R. No.414/2019 dated
registered at Police Station, Hari Nagar for the offences
punishable under Sections 376 of the IPC to an officer of the
rank of A.C.P or above in Crime Branch or the Special Cell of
Delhi Police.
4. The petitioner is a prosecutrix in F.I.R. No.414/2019 registered at
Police Station, Hari Nagar for the offences punishable under Sections
376/506/509 IPC for the alleged offences from 19.03.2018 to 30.04.2019
and is materially aggrieved by the order dated 22.10.2019 passed by learned
Addl. Sessions Judge (Pilot Court), West, Tis Hazari Courts, Delhi
exceeding its mandate under Section 438 Cr.P.C. whereby, the Sessions
Judge has been pleased to erroneously order F.I.R. against the petitioner for
committing the offence of "extortion" on the basis of a complaint dated
18.09.2019 filed by the accused/ respondent No.2.
5. The factual matrix leading to filing of the present petition is that on
30.08.2019, the petitioner filed an F.I.R. under Sections 376/506/509 IPC
against the respondent No. 2 for developing sexual relations with her on the
false pretext of marriage and taking her objectionable pictures and videos
against her consent and sometimes through use of force. The said F.I.R. was
registered after a delay of 18 days, that too only after the petitioner visited
senior officials of the district including the DCP. Even after the indulgence
of the DCP, a case under diluted provisions of Law was registered as
Section 67-A of the Information Technology Act, 2000 was neither invoked
nor was the investigation carried out from that perspective. On 12.09.2019,
the first application filed by respondent No.2 under Section 438 Cr.P.C.
seeking anticipatory bail was dismissed by the learned Sessions Judge
thereby holding that custodial interrogation is imperative for the recovery of
objectionable photos and videos, in possession of the respondent No. 2. On
18.09.2019, respondent No. 2 filed a criminal complaint against the
petitioner accusing her of attempting to extort Rs. 25,00,000/- from him on
29.08.2019. The said incident of 29.08.2019, supposedly captured in an
audio recording, does not find any mention in the first application dated
11.09.2019 and the same is an afterthought of respondent No. 2, only to arm
twist the entire case and put pressure on the petitioner to resile from her
charge. The entire conversation in the alleged audio recording is glaringly
scripted with 3 out of 2 voices being that of respondent No. 2 and his uncle.
The third voice is alleged to be that of the previous counsel of the petitioner,
which appears to be morphed and/ or motivated, as the petitioner never
issued any such instruction to her counsel. The petitioner never participated
in the alleged meeting, which is itself evident from the recording. On
30.09.2019, respondent No. 2 filed second application under Section 438
Cr.P.C. seeking anticipatory bail. During the course of hearing, respondent
No. 2 heavily relied on the audio recording and his counter allegations
against the petitioner, whereafter the court granted him interim protection till
09.10.2019. The court also directed the Investigating Officer of the case to
verify the audio recording and submit a report on the next date. On
02.10.2019, respondent No.2 joined investigation and on 09.10.2019,
submitted her report in compliance of the order-dated 30.09.2019 and the
matter was adjourned to 22.10.2019 and the interim protection was also
extended till then. On 22.10.2019, the learned Sessions Judge vide the
impugned order directed the SHO Police Station, Hari Nagar to register FIR
against the petitioner for extortion, without even appreciating that the I.O
while conducting this misadventure did not even bother to summon the
persons alleged to be involved in the conversation or collect their voice
samples. The learned Sessions Judge failed to appreciate that the alleged
audio recording has not even been verified by the FSL. The Learned
Sessions Judge did not pay attention on the aspect of territorial jurisdictional
as the alleged incident is stated to be that of Punjabi Bagh (West), which
does not come under the jurisdiction of Police Station Hari Nagar. The
learned Sessions Judge had no territorial jurisdiction over the place of
occurrence of the attempted crime. The learned Judge vide the same
impugned order dismissed the bail application of respondent No. 2 holding
that there is no change in circumstances since 12.09.2019 and that the
objectionable videos and photographs are yet to be recovered from his
possession. On 22.10.2019, respondent No. 2 was directed by the IO to join
the investigation, however, he failed to show up. On 23.10.2019, IO of the
case filed an interim charge-sheet in the matter and also sought issuance of
non-bailable warrants against respondent No. 2. The learned Metropolitan
Magistrate-09 (West), Tis Hazari Courts was pleased to issue non-bailable
warrants against respondent No.2 for his production on 14.11.2019. On
19.11.2019, while the non-bailable warrants were still in force, respondent
No. 2 filed third application under Section 438 Cr.P.C seeking anticipatory
bail and was again successful in obtaining an interim protection till
05.12.2019 through this non-speaking order, despite the fact that non-
bailable warrants were in force on that day and circumstances were
stationary since vide the previous application, the respondent no.2 was on
interim protection till 22.10.2019.
6. Be that as it may, Mr. Sameer Sharma, Addl. DCP (West) is
personally present in Court and has verified from the P.S. Janakpuri that a
complaint was received in the said police station on 16.08.2019 from
respondent no.2 which was registered as DD No.100A, wherein, it is stated
that "he met Ms. X, more than a year ago through his company and she used
to do anchoring for his events. Being very professional and friendly with
her, they parted ways as things were not going well. After few months, she
again started calling him and coming to his office without any reason and
used to harass him and his staff. She used to book events on different rates,
charging higher amounts from his staff and she used to threaten that she
would ruin his image, if he doesn't listen to her. She also used to call many
of his friends and industry people, fabricating stories and killing his
professional reputation and harass and threaten him by saying that "main
to ladki hu, kuch bhi kar sakti hu" (I am a girl, can do anything)".
7. The Addl. DCP has verified that no FIR was lodged on the basis of
said complaint dated 16.08.2019 of respondent no.2 against the petitioner.
8. It is pertinent to mention here that petitioner lodged complaint at P.S.
Hari Nagar on 30.08.2019 which culminated into F.I.R. bearing
No.414/2019, wherein the petitioner made allegations of rape against
respondent No. 2.
9. It is not disputed that respondent no.2 is on interim bail granted by the
Sessions Court till date. Had the Police Station - Janak Puri lodged the FIR
on the complaint of respondent no.2 dated 16.08.2019 received vide DD
No.100-A, there was no occasion for the petitioner to make complaint
against respondent no.2 which culminated into FIR No.414/2019.
10. It is pertinent to mention here that the present matter was heard briefly
before lunch and since there was no clarity forthcoming on the issue from
the learned APP, the DCP concerned was directed to appear in the post
lunch session.
11. The issue raised by the petitioner is that the Sessions Court has no
power to direct a police station to register an F.I.R. However, without going
into the issue raised by the petitioner, the fact is that on complaint dated
18.09.2019 at P.S. Hari Nagar, on being transferred to concerned P.S.
Punjabi Bagh, F.I.R. no.671/2019 has been lodged for the offences
punishable under Section 385 IPC.
12. On receipt of a complaint/ information, either oral or in writing, a
Police Station is empowered to register F.I.R., if the offence mentioned in
the complaint is a cognizable offence. Further, for the said purpose of
registering an FIR of a cognizable offence, no permission is required from
any organ of the state machinery, judicial or administrative.
13. Since in the present case, though belatedly, F.I.R. has been registered,
as mentioned above, the instant petition has become infructuous.
14. However, in view of the facts and circumstances of this case, as
discussed above, I hereby direct the Commissioner of Police, Delhi to
initiate departmental action against the then SHO, PS - Janak Puri and the
IO, who dealt with the complaint and did not register F.I.R. on receipt of
complaint dated 16.08.2019 vide DD No.100A, and take further action, if
required, as per law.
15. It is not disputed that if the complaint is received of any cognizable
offence at a Police Station and the offence was not committed within its
jurisdiction, the Police Station is duty bound to register a 'Zero F.I.R.' and
thereafter, transfer it to the concerned Police Station. However, this has not
happened in the present case due to which the petitioner made complaint of
sexual harassment against respondent no.2 which culminated into F.I.R.
bearing no.414/2019, as mentioned above.
16. Accordingly, I direct that the inquiry of the complaints made by the
petitioner and respondent no.2, be assigned to an officer of the Crime
Branch, who shall not be below the rank of DCP. Further, after inquiry, the
said official shall issue instructions to the concerned Police Station to take
further action in the matter, as per law.
17. Since the charge sheet has already been filed in F.I.R.No.414/2019, if
the facts come otherwise, the police officials concerned are directed to file
supplementary charge sheet and/or take action as per law.
18. I further make it clear that no coercive steps shall be taken by the
police either against the petitioner or against the respondent no.2, till the
DCP, Crime Branch comes to the conclusion as to who is the actual culprit
in the present matter.
19. At this stage, learned counsel for the petitioner submits that the said
complaint was lodged by the petitioner against respondent no.2 on
12.08.2019 and the F.I.R. was registered on the basis of the same on
30.08.2019. He further submits that petitioner met the DCP with her uncle
Mr. Kanwaljit Singh on 15.08.2019, at his office, but FIR was registered on
30.08.2019.
20. Accordingly, DCP Crime Branch shall look into this fact as well.
21. Order dasti under the signatures of the Court Master.
22. In view of the above directions, the petition is disposed of.
(SURESH KUMAR KAIT)
JUDGE
NOVEMBER 29, 2019
sm
