Delhi High Court
Anil Kumar vs State & Ors on 13 August, 2020
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 04.08.2020
Pronounced on: 13.08.2020
+ CRL.M.C. 1516/2020
ANIL KUMAR ..... Petitioner
Through Mr. Samrat Nigam, Adv.
versus
STATE & ORS ..... Respondents
Through Mr. Amit Chadha, APP for State
ACP Manmohan WSI Sangeeta Malik
PS Shalimar Bagh.
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
JUDGMENT
1. Vide the present petition, petitioner has prayed as under:-
i. Summon the Detail Action Taken Report and Status Report of
the case FIR no. 78/2020, U/s 376(D)/ 354/354-A/341/323/34
IPC & 3 of SC/ST Act immediately;
ii. Summon the copies of Roznamcha-B (Daily Dairy Register (of
Police Station Shalimar Bagh, Delhi from 25.02.2020 to
10.03.2020 and to preserve the same for further reference;
iii. Summon the Public Facilitation Desk Register (Public Help
Register) Dairy Dispatch Register of Police Station Shalimar
Bagh, Delhi from 25.02.2020 to 10.03.2020 and preserve the
same for further reference;
iv. Summon the Entire Case Diary of Case FIR No. 0078/2020,
under Section 376(D)/354/354-A/341/323/34 IPC & 3 of SC/ST
Act, Police Station Shalimar Bagh which is now being
investigated by IO/ACP Sanjay Kumar Sharma, DIU/NW/PS-
Maurya Enclave, Delhi and pass the directions to attest the
same along with pagination by the Hon'ble Court concerned;
v. Pass the directions to the IO/ACP to preserve all the CCTV
Footage of all cameras installed at Police Station-Shalimar
Bagh, Delhi from 7 am of 04.03.2020 to 6 pm of 24.03.2020
and CCTV Footage of all the cameras installed BJRM,
Hospital Jahangir Puri, Delhi of 03.03.2020 and if same have
been destroyed then the same must be retrieved and same be
preserved for further reference;
vi. Pass the directions to the IO/ACP to collect Call Detail Record
and their locations from 25.02.2020 to 30.02.2020 of
SHO/Inspector Rajinder Singh (Mob. No. 8750870226 & all
other phone numbers being used by him), ACP Krishan Gopal
Tyagi (Mob. No. 8750870206 & all other phone numbers being
used by him), SI Pradeep (Mob. No. 9718445544,
7015651591& all other phone numbers being used by him) P.S.
Shalimar Bagh, SI Suresh Pal (Mob. No. 9810278183 & all
other phone numbers being used by him), P.S. Shalimar Bagh,
Delhi, ASI Shiv Hari (9968890145 & all the phone numbers
being used by him), P.S. Shalimar Bagh, Manisha (Mob. No.
9540752224 & all other phone numbers being used by her)
wife of Lt. Shri Deepak Kumar resident of H. No. 206, New-
Police Colony, Near Kela Godawn, Shalimar Bagh, Delhi-88,
Inspector Ramakant Mishra and his wife Rajini (Mob. No.
9953840606 & all other phone numbers being used by them),
H. No. 206, New-Police Colony, Near Kela Godawn, Shalimar
Bagh, Delhi-88 and all the phone numbers of accused persons
of FIR No. 78/2020, U/s 376(D)/354-A/341/323/34 IPC & 3 of
SC/ST Act, P.S. Shalimar Bagh, Delhi and same may be
preserved for further reference; and
vii. Monitor the investigation of present case.
2. It is pertinent to mention here that for the same relief, under section
156(3) Cr.P.C., the petitioner approached the Registry of Rohini Courts,
Delhi, however, due to lockdown, work of Courts below has been
suspended, the Registry of said court denied to accept the same. Hence, the
present petition.
3. The brief facts of the case are that the brutal incident is of 03.03.2020
when the petitioner, his wife, two minor school going children and
unmarried young sister-in-law- namely Ms. 'K' were restrained, threatened
to kill and brutally beaten by approximately 10 persons with dandas, bricks,
fist blows, kicks, iron rod, etc. Moreover, caste based derogatory remarks
(petitioner being from Scheduled Caste Category) were passed, clothes of
Ms. 'K' were torn and was fingered etc. Accordingly, calls were made by
the petitioner and his sister-in-law at the 100 no. (Police Control Room) and
the PCR as well as local police arrived at the spot and had taken the
petitioner, his wife, children and sister-in-law to the BJRM Hospital,
Jahangir Puri, Delhi but it was surprised and shock to them that they were
restrained in Police Station Shalimar Bagh, Delhi deliberately and
intentionally and misbehaved, threatened and beaten by one ASI Shiv Hari
just with the mala fide intention to delay the MLCs but when the petitioner
made another calls at the PCR then only they were taken to the above
mentioned Hospital. Meanwhile one friend and his wife namely Shri Sanjay
and Mrs. Kajal also arrived in the police station and the said persons are also
the witnesses of this kind of act, conduct and behaviour of the said police
officer and other incidents which happened on the very next day. Afterward,
again the said police officer i.e. ASI Shiv Hari came there and influenced the
doctors not to examine them medically. The said police officer again
misbehaved with petitioner, his wife, children and sister-in-law, threatened,
abused in filthy language and passed caste based derogatory remarks.
Thereafter, the petitioner, his wife, minor children, sister-in-law were left in
the said hospital and further directed them to come to the police station
themselves in the e-rickshaw. Shri Sanjay and his wife Mrs. Kajal also
remained present in the hospital at that time.
4. On reaching Police Station, the petitioner made a complaint and
handed over the same to the Duty Officer as per the direction of the police
officers. The said complaint was registered as DD No. 64-B, dated
03.03.2020 at 9.30 pm with the said police station and copy of the same was
given to the petitioner and further the petitioner, his wife, children, sister-in-
law, friend and his wife were directed to leave the police station with the
assurance to take appropriate legal action. Thereafter, based upon said
complaint, FIR No. 78/2020, U/s 323/341/354//354-A/354-B/34 IPC got
registered with the Police Station-Shalimar Bagh, Delhi after a lapse of
about 6 hours for the reason best known to the police officers only.
5. Learned counsel appearing on behalf of petitioner submitted that the
contents of the FIR clearly falling under the ambit of Section
376(D)/307/308/354A/354/354-B/323/341/506/34 IPC & 3 of SC/ST Act &
25/54/59 Arms Act but the local police in collusion with the accused persons
did not mention the proper sections in the FIR in question deliberately and
intentionally. However, even the FIR under sections 341/354/354-A/354-
B/34 IPC and 3 of SC/ST Act are concerned, same are non-bailable and
cognizable in nature but local police did not arrest the accused persons
rather left them to hatch one after another conspiracy to implicate the
petitioner and his family members into the false and frivolous cases.
Accordingly, the local police in connivance of accused persons in a planned
manner implicated the petitioner, his wife and minor child Master Harshit
Kumar, a student of 12th class whose exams of board were going on in a
false and frivolous case bearing FIR No. 77/2020, U/s 307/34 IPC, Police
Station-Shalimar Bagh, Delhi based upon concocted story just with the
intention to help the accused persons so that the petitioner and his family
couldn't pursue his case.
6. It is submitted that the conspiracy hatched by the local police in
connivance of accused persons of the present FIR could be gauged through
the very facts as on 04.03.2020, the petitioner, his wife and two minor
children namely Master Harshit and Master Mitul were abducted from their
house at about 8 am forcefully and illegally and further detained in the said
Police Station till evening and they have been implicated in case FIR No.
77/2020, under Section-307/34 IPC, P.S. Shalimar Bagh, Delhi. The mala
fide intention of the local police could also be gauged as the son of the
petitioner namely Master Harshit was produced before the JJB, Mukheerji
Nagar, Delhi at about 5 pm so that his bail could not be filed and his entire
career be spoiled as it was well within the knowledge of the local police that
his exams of 12th standard were going on. Further, the petitioner and his wife
were produced before the Court of Ms. Supreet Kaur, Ld. Duty MM at the
resident of the said Judge in connection with FIR No. 0077/2020, U/s
307/34 IPC & 25/27/54/59 Arms Act, Police Station-Shalimar Bagh, Delhi
at about 8 pm where their bail application under Section 437 of Cr.P.C. filed
and the Court has been pleased to grant interim bail of one day to the wife to
the petitioner with the directions to appear before the concerned Court at 2
pm on the next day i.e. 05.03.2020, whereas, the petitioner was sent to JC
for one day with the direction to produce him before the Court concerned on
the next day only. Accordingly, on 05.03.2020, the wife of the petitioner
appeared before the Court of Shri Virender Singh, Ld. MM, Rohini Courts,
Delhi and the petitioner was produced from JC and said Court has been
pleased to grant the regular bail to the wife of the petitioner but the
petitioner was sent to JC as his bail application not maintainable because the
said Court was not having power to grant bail under Section 437 of Cr.P.C.
to the petitioner.
7. Thereafter, on 06.03.2020 the bail application under Section 439
Cr.P.C. of the petitioner was moved before the Court of District & Session
Court, Rohini Courts, Delhi which came to be listed on 07.03.2020 where
the petitioner come to know that the local police in connivance of the
accused persons hatched another conspiracy and got registered another FIR
No. 81/2020, under Section-376/354-B/354/323/506/34 IPC & PS-Shalimar
Bagh on 05.03.2020 at 06.50 pm on the same cause of action solely with the
purpose and intention to spoil the life and career of the petitioner and his
family members and to keep them under such circumstances so that the
petitioner and his family members could not pursue case FIR No. 78/2020,
under Section 354/341/323/34 & 3 of SC & ST Act.
8. Further conspiracy hatched by the local police in connivance of
accused persons could further be gauged through the very facts as the said
W/Ct. Manisha (complainant in aforementioned FIR No.81/2020) along
with other persons are accused in said FIR No.78/2020 and were to be
arrested immediately but instead arresting the said lady and other accused
persons, the local police called her in the police station to implicate the
petitioner and his family member in another case purely based upon false
and frivolous facts and circumstances just with the intention to keep the
petitioner and his family members behind the bars so that they could not
pursue their case.
9. Learned counsel submitted that when the petitioner was in jail then
the case FIR No.77/2020 and 81/2020 were transferred to the DIU/NW, PS
Maurya Enclave and case FIR No.78/2020 was transferred to ACP Vijay
Kumar, Model Town, Delhi who did a detail investigation of the present
case and the said IO/ACP also produced the sister-in-law namely Ms.K and
wife Ms.Anchal before the courts where their statements under section 164
Cr.P.C. were recorded and thereafter sections 376(D)/354/354-A/341/323/34
IPC & 3 of SC/ST Act were added.
10. Further submitted that at last the Court of Shri Bhupinder Singh,
learned ASJ, Rohini Courts, Delhi has been pleased to grant bail to the
petitioner in case FIR No.77/2020 and 81/2020 and was released from jail.
Thereafter, the petitioner made a detail complaint to the various authorities.
The petitioner also made a request to the IO/ACP Vijay Kumar to collect the
CCTV footage, CDRs of accused persons and some police personnel
immediately and to preserve the same but said request is still pending at the
mercy of the police officers.
11. Learned counsel submitted that to the shock and dismay of the
petitioner/complainant, all of sudden, the investigation of the present case
was transferred by respondent no.3 to IO/ACP Sanjay Kumar Sharma,
Maurya Enclave, Delhi without any cause and reason. In fact, the IO/ACP
Sanjay Kumar Sharma is the close friend and relative of the accused persons
and SHO/ Inspector Rajinder Singh and ACP Krishan Gopal Tyagi who in
fact would work as a puppet. The only purpose of transferring the
investigation of the present case from IO/ACP Ajay Kumar to IO/ACP
Sanjay Kumar Sharma is solely with the intention to give favour to the
accused persons. Accordingly, the IO/ACP Sanjay Kumar Sharma has
started to harass and torture the petitioner and other public witnesses on one
pretext or other by misusing his powers.
12. Moreover, the collusion of IO/ACP Sanjay Kumar Sharma along with
the accused persons could be gauged as just after transferring of the
investigation of the present to the said IO/ACP all the accused persons have
come back at their homes and roaming in the society and creating pressure
upon the petitioner and his family members to settle the matter otherwise
they must be ready to face the consequences. Thus, the IO/ACP Sanjay
Kumar Sharma is highly biased and conducting unfair investigation in the
present case and helping the accused persons by one way or the other.
Hence, the indulgence of this court is very essential at this point of time.
13. On the other hand, learned APP appeared on behalf of the respondents
submitted that on the basis of statement of petitioner/complainant Anil
Kumar, the present case vide FIR No. 78/20, u/s 323/341/354A/354B/34
IPC & 3 SC/ST Act was registered at Police Station Shalimar Bagh, Delhi.
In his statement, petitioner stated that on 03.03.2020, two boys namely Ritik
@ Mintu and Aman wrongful restrained his wife Anchal and his son Mitul
Kumar and starting throwing water balloons using abusive language. His
wife informed his elder son namely Harshit Kumar, who informed him. He
alongwith his son and sister-in-law Kashish reached the spot and found the
balloons on the possession of Ritik and Aman. In the meantime, a group of
some women and men came there and surrounded them wrongfully and
started beating and threatened them of dire consequences. Mohit was having
stick (danda) and his father namely Jagdev Shukla was having iron rod. A
friend of Mohit namely Vaishkh also reached there and joined the unlawful
assembly and started pelting bricks on them. Mohit, his father, Mitul, Aman
and Vaishkh pull down his wife and sister-in-law on road and started
molesting her by putting hands on their breast and he also tore their clothes.
On instigating, Mohit, his father and Mintu inserted finger into the vagina of
his sister-in-law by calling their cast and threatened to burn her after
committing rape. Accordingly, the present case was registered and
investigation was taken up by ACP/Shalimar Bagh.
14. Further submitted that on 03.03.2020 petitioner Anil Kumar as well as
other victims namely Anchal, Harshit, Mitul and Ms.'K' were got medically
examined from BJRM Hospital Jahangir Puri, Delhi. On 07.03.2020 on the
directions of senior officers, the present case was marked to ACP/Model
Town for further investigation. On 11.03.2020, statement of victim Ms.'K'
u/s 164 Cr.P.C. got recorded and she re-affirmed as stated in her statement
under section 161 Cr.P.C. On the same day, i.e. 11.03.2020 victim Ms.'K'
was got medically examined from Baba Saheb Ambedkar Hospital, Rohini,
Delhi vide MLC No.2138/20. During her medical examination, she refused
to undergo her internal examination.
15. Thereafter, on 12.03.2020 statement of victim Anchal u/s 164 Cr.P.C.
was got recorded wherein she supported the version of complainant and
victim Ms.'K'. The clothes of victim Ms.'K' were taken into police
possession and seized. Blood sample of said victim was collected from Baba
Saheb Ambedkar Hospital, Sector 6, Rohini, Delhi. Statement of Nisha
Khanna was recorded u/s 161 Cr.P.C. and PCR Form were collected.
16. On 16.03.2020 exhibits of the case i.e. clothes and blood sample of
victim Ms.'K' were got deposited in FSL Rohini Delhi. Result of the same is
still awaited. Thereafter, on 19.03.2020 statement of eye-witnesses namely
Sunil Sharma and Kirpal Singh Bedi were recorded u/s 161 Cr.P.C. wherein
they corroborated the version of complainant. On 20.03.2020 final result on
MLC vide No. 184026 in respect of complainant Anil Kumar was obtained.
The Doctor opined injury as simple. Final result on MLC No. 184028 in
respect of Ms.'K' and MLC No.184029 in respect of Anchal, were also
obtained and concerned Doctor opined "Patient did not get gynea
examination done. So, no gynea opinion can be submitted." CCTV footage
from BJRM Hospital of dated 03.03.2020 was obtained. On 07.05.2020 on
the directions of senior officers the present case was transferred to DIU/NW
for further investigation and the same was marked to ACP Sanjay Sharma.
17. Learned APP further submitted that during investigation in the public
colony, independent witnesses were examined and their statement u/s 161
Cr.P.C. were recorded wherein they stated that on 03.03.2020 a quarrel took
place between first party complainant Anil Kumar, his family members and
second party Rajni, Manisha, Aman, Mohit and Vaishkh and during that
quarrel Harshit (son of present petitioner) stabbed Mohit Shukla with a
knife. Certified CDR of Mobile Numbers 9818786823, 9811266171 of eye-
witnesses Sunil Sharma and Kirpal Singh, who had recorded their statement
161 Cr.P.C. in FIR No.78/2019 were obtained. As per the record, location of
Mobile number of Sunil Sharma was found at H.No.672, Gall No.9,
Chander Shekhar Marg Shalimar, Village ND-88 at the time of incident.
Location of mobile number of Kirpal Singh was found at Balaji Plaza plot
no.26, community center K.P. Block Pitampura Delhi-34 at the time of
incident.
18. Further submitted that during investigation, eye-witnesses Sunil
Sharma stated in his statement that on 03.03.2020, he along with Mukesh,
Saddam and Arvind was playing cricket at Mote Wala Bagh near Police
Colony Shalimar Bagh, Delhi. On that day, he along with Mukesh, Saddam
and Arvind went to Police Colony Shalimar Bagh, Delhi, thus, he was
present in police colony at the time of incident. Thereafter, statements of
Saddam, Mukesh and Arvind were also recorded wherein they stated that
they were not playing cricket with Sunil Sharma on 03.03.2020 at Mote
Wala Bagh near Police Colony, Shalimar Bagh, Delhi.
19. Learned APP submitted that during investigation, ASI Shiv Hari was
examined who stated that on 03.03.2020, he was present at Police Station
Shalimar Bagh and petitioner was very aggressive and he misbehaved with
the staff of Police Station Shalimar Bagh and also misbehaved with him in
BJRM Hospital. Accordingly, lodged a DD entry in this regard.
20. Again, on the directions of senior officers, on 19.06.2020
investigation of the case was assigned to the ACP, Public Grievance Cell,
North-West, Delhi, for further investigation. During investigation CCTV
Footage of dated 03.03.2020 at 12:00 midnight to 25.03.2020 12:00
midnight of Police Station Shalimar Bagh Delhi was collected through
Installation Engineer of Innovative View Company Windsor IT Park, A-1,
4th Floor Tower-B, Sector 125, Expressway Noida (UP) and the same was
seized through seizure memo and the said CCTV footage was also
preserved.
21. Further, on 01.07.2020, a letter was sent to SHO/Shalimar Bagh
directing him to preserve Roznamcha 'B' and Public Facilitation Help
Register from 25.02.2020 to 10.03.2020. Case Diaries of this case have
already been submitted before concerned DCP/NW. CCTV footage of
Police Station Shalimar Bagh Delhi from 03.03.2020 12:00 midnight to
25.03.2020 12:00 midnight has already been collected and got preserved.
22. Learned APP argued that the directions which the petitioner has
sought in the present case under section 482 Cr.P.C. are legally not
maintainable, as he should have approached the Trial Court first for the
same relief in view of judgment of Sakiri Vasu vs. State of U.P. [Appeal
(Crl.) 168/2007] rendered by the Hon'ble Supreme Court of India, the
relevant paras are reproduced for ready reference:
26. If a person has a grievance that his FIR has not been
registered by the police station his first remedy is to
approach the Superintendent of Police under Section
154(3) Cr.P.C. or other police officer referred to in
Section 36 Cr.P.C. If despite approaching the
Superintendent of Police or the officer referred to in
Section 36 his grievance still persists, then he can
approach a Magistrate under Section 156(3) Cr.P.C.
instead of rushing to the High Court by way of a writ
petition or a petition under Section 482 Cr.P.C.
Moreover he has a further remedy of filing a criminal
complaint under Section 200 Cr.P.C. Why then should
writ petitions or Section 482 petitions be entertained
when there are so many alternative remedies?
27. As we have already observed above, the Magistrate
has very wide powers to direct registration of an FIR and
to ensure a proper investigation, and for this purpose he
can monitor the investigation to ensure that the
investigation is done properly (though he cannot
investigate himself). The High Court should discourage
the practice of filing a writ petition or petition under
Section 482 Cr.P.C. simply because a person has a
grievance that his FIR has not been registered by the
police, or after being registered, proper investigation has
not been done by the police. For this grievance, the
remedy lies under Sections 36 and 154(3) before the
concerned police officers, and if that is of no avail, under
Section 156(3) Cr.P.C. before the Magistrate or by filing
a criminal complaint under Section 200 Cr.P.C. and not
by filing a writ petition or a petition under Section 482
Cr.P.C.
28. It is true that alternative remedy is not an absolute
bar to a writ petition, but it is equally well settled that if
there is an alternative remedy the High Court should not
ordinarily interfere.
29. In Union of India vs. Prakash P. Hinduja and
another 2003 (6) SCC 195 (vide para 13), it has been
observed by this Court that a Magistrate cannot interfere
with the investigation by the police. However, in our
opinion, the ratio of this decision would only apply when
a proper investigation is being done by the police. If the
Magistrate on an application under Section 156(3)
Cr.P.C. is satisfied that proper investigation has not been
done, or is not being done by the officer-in-charge of the
concerned police station, he can certainly direct the
officer in charge of the police station to make a proper
investigation and can further monitor the same (though
he should not himself investigate)."
23. However, the directions issued by this Court vide order dated
19.06.2020 have already been complied with.
24. I have heard learned counsel for the parties at length and perused the
material available on record.
25. The learned APP has raised an issue that the petitioner, instead of
approaching the Trial Court, has taken the shelter of this Court under section
482 Cr.P.C., thus the petition is not maintainable. However, fact is that
petitioner firstly approached the Court below but Registry of Rohini Court
refused to accept petition under Section 156(3) Cr.P.C. due to suspension of
work in present situation of COVID-19. No doubt, petitioner would have
waited till the Trial Courts start functioning but by that time, prayer made in
the present petition would become infructuous, thus, in my considered view,
the present petition is maintainable under section 482 Cr.P.C.
26. In detailed Status Report filed on behalf of the respondent, it has not
explained as to why the statement of either petitioner or his family members
were not recorded by the IO or any other police officer on 03.03.2020 after
coming from hospital and why the petitioner was asked to give his
complaint in his own handwriting which later on got registered as DD
No.64-B dated 03.03.2020 at 09:30 pm. It is not explained as to why the
complaint of petitioner vide DD No.64-B dated 03.03.2020 at 09:30 pm kept
pending till 02:40 am of 04.03.2020 and why the FIR was not registered
based upon the said complaint immediately and the said DD No.64-B got
changed to 5A as the same is being reflected by FIR No.78/2020.
Moreover, failed to explain as to why FIR No.77/2020 got assigned DD
No.4A despite of alleged information was received in the said police station
at 02:40 am on 04.03.2020, prior of registration of FIR No.78/2020 based
upon DD No.4A which in fact was DD No.64-B dated 03.03.2020 at 09:30
pm.
27. It is pertinent to mention here that for implicating the petitioner and
his family members who belongs to scheduled caste category by registering
FIR No.81/2020 under sections 376/323/341/34 IPC, PS Shalimar Bagh
Delhi on 05.03.2020 after a delay of 2 days which seems to be false and
frivolous under the circumstances when the wife of the petitioner was
granted interim bail by learned Duty MM at 08:30 pm on 03.03.2020 and
further regular bail on 04.03.2020 by learned MM and the minor son of the
petitioner namely Master Harshit, a student of 12th standard whose board
examinations were going on who was also granted bail on 04.04.2020 and
thereafter on 16.03.2020, bail was granted to the petitioner by the District &
Sessions Court.
28. From the facts narrated in the petition and status report filed by the
respondents and material on record, FIR No.81/2020 is simply a counter
blast to the complaint DD No.64-B dated 03.03.2020 at 09:30 pm and seems
to be the result of conspiracy hatched by accused persons in collusion with
local police and in fact the petitioner and his family members are victim at
the hands of local police and other senior officers.
29. It is important to mention here that the Status Report has not
explained as to why FIR No.81/2020 under sections 376/341/323/34 IPC
was registered by the local police despite the fact that cross FIR No.77/2020
based upon the same cause of action was already registered and arrested the
petitioner on 05.03.2020 who was in jail in FIR No.77/2020. Moreover, the
contents of FIR No.77/2020 are even not whispering about a single content
enshrined in FIR No.81/2020.
30. There is also no explanation as to why the Roznamcha-A could not be
preserved in a situation where the Roznamcha-B and Register of Help Desk
for the mentioned dates and time could be preserved.
31. Further, it has not explained as to why the local police has not taken
the cognizance of complaint vide DD No.64-B dated 03.03.2020 at 09:30
pm despite contents of which clearly invoking sections 376(D)/354/354-
A/354-B/323/341/506/509/34 IPC and section 3 of SC/ST Act which are
cognizable and non-bailable in nature and even proper Sections of IPC are
not reflecting in FIR No.78/2020, however, added thereafter. Moreover, it
has not explained as to why the CDR of Rohit Shukla has not been obtained
whereas it is a matter of fact and record that Rohit Shukla @ Ramanand
Tiwari is the same person mentioned in the statement of Ms.'K', Anchal and
other witnesses.
32. The Status Report also failed to explain from where Mukesh, Saddam
and Arvind have come into picture whereas it is a matter of fact and record
that the statement given by eye witness Sunil Sharma nowhere whispered
the name and their role in his statement which was written by Sunil Sharma
in his own hand writing as per the directions of IO/ACP.
33. The law has been laid down by the Hon'ble Supreme Court in
Criminal Appeal No.1287/2008 [arising out of SLP(Criminal) No.987/2007]
case titled as "Swaran Singh & Ors. vs. State through Standing Counsel &
Anr.: (2008) 8 SCC 435" whereby held as under:
"8. It may be noted that the trial has still to be held and
the appellants will have an opportunity of establishing
their innocence in the trial. At this stage all that the High
Court can see in the petition under Section 482 Cr.P.C.
or in a writ petition, is whether on a perusal of the FIR,
treating the allegations to be correct, a criminal offence
is prima facie made out or not or whether there is any
statutory bar vide Indian Oil Corporation vs. NEPC
India Ltd. (2006) 6 SCC 736 (vide para 12), State of
Orissa vs. Saroj Kumar Sahoo (2005) 13 SCC 540 (vide
paras 9 and 10), etc. At this stage the correctness or
otherwise of the allegations in the FIR has not to be seen
by the High Court, and that will be seen at the trial. It has
to be seen whether on a perusal of the FIR a prima facie
offence is made out or not."
34. It is matter of record, despite contents of rape and other offences,
section 376 IPC and other provisions of law not mentioned in the FIR
No.78/2020. However, added only after statement of prosecutrix recorded
under section 164 Cr.P.C. Whereas, in FIR No.81/2020 registered against
the petitioner, much later, on 05.03.2020, section 376 IPC has been added
before recording of statement under section 164 Cr.P.C.
35. It is also matter of record that petitioner, his wife and son were
arrested in FIR No.77/2020 and not arrested the alleged accused in FIR
No.78/2020. It is not in dispute that arrest is not mandatory but, two
parameters, one for petitioner and his family members and other/different
parameter for the accused in the present case. Thus, there is height of
discrimination and misuse of power malafidely while dealing the cases in
FIRs mentioned above.
36. It is not out of place to observe that the SHO, Shalimar Bagh and IOs
of the cases discussed above, have not diligently, fairly and impartially
worked as Police officers instead worked as Trial Court, whether case is
made out or not.
37. In view of above discussions and the material on record, while
exercising powers under Section 482 Cr.P.C., I hereby issue directions as
under:
i. Regarding the issue that Jagdev Shukla, Rohit Shukla @
Ramanand Tiwari, Mohit Shukla etc. have encroached the police
land and built house in police colony, despite they are neither
employees of Delhi Police nor land allotted to them, petitioner is
at liberty to file proper petition, as per law, against above-named
persons.
ii. SHO/IO of the case FIR No.78/2020 is directed to preserve
ROJNAMCHA-A of 03.03.2020 and place on record along with
report under section 173 Cr.P.C.
iii. SHO/IO is directed to place on record Trial Court Record, the
material seized during investigation for fair trial.
iv. Further directed to preserve and place on record the CDR of
Rohit Shukla @ Ramanand Tiwari.
v. The Commissioner of Police, Delhi is directed to initiate
departmental enquiry, against the SHO/ respondent no.6 and
respondent nos.4 & 5/IOs and ACPs , who have not played fair
role while dealing the present FIR, as discussed above, as per
law.
38. In view of above directions, the present petition is disposed of along
with pending application, if any.
39. Copy of this order be transmitted to the Commissioner of Police,
Delhi, SHO, PS Shalimar Bagh, Delhi and present IO/ACP for information
and necessary compliance.
40. This Court hereby make it clear that the Trial Court shall not get
influenced by the observations made while passing this order.
41. It is also made clear that this order shall not create any embargo on
filing any petition before the Trial Court as per law.
42. The order be uploaded on the website forthwith. Copy of the order be
also forwarded to the learned counsel through email.
(SURESH KUMAR KAIT)
JUDGE
AUGUST 13, 2020
ab
