Delhi High Court
Neelu Shrivastava vs State & Ors on 30 November, 2021
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 30th NOVEMBER, 2021
IN THE MATTER OF:
+ W.P.(CRL) 481/2020
NEELU SHRIVASTAVA ..... Petitioner
Through: Mr. R.N. Dubey, Mr. Vinay Sharma,
Advocates
versus
STATE & ORS ..... Respondents
Through: Ms. Richa Kapoor, ASC for the State
with Ms. Shivani Sharma and
Ms.Surabhi Katyal, Advocates
Inspector Arun Kumar, SHO/P.S.
GTB Enclave.
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
SUBRAMONIUM PRASAD, J.
1. This writ petition under Article 226/227 of the Constitution of India
has been filed with the following prayers:-
"(i) Issue a writ mandamus of direction of the order of
like nature, thereby directing the respondents no. 2 & 3
to restore the investigation of the case FIR
No.0003/2019 P.S. GTB Enclave by passing the
appropriate action for illegal transfer of the above said
case to the respondents no. 4& 5 by the respondent
no.2.
(ii) Issue a writ mandamus of direction of the order of
like nature, thereby calling the explanation from the
Respondents no. 2 & 3 for non registration of the
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F.I.R. under sections
313/328/307/201/342/330/420/468/323/120B IPC
apart from the Sections in which the FIR has been
registered.
(iii) direct the SHO P.S. GTB Enclave to continue the
investigation of the above said case within the
jurisdiction of the above said case within the
jurisdiction of P.S. GTB Enclave, to restore the
investigation with Respondent No.3, registering the
FIR with P.S. GTB Enclave, withdrawing the FIR from
P.S. Indrapuram, Ghaziabad under the appropriate
provisions to ensure the prompt, fair and effective
investigation to ensure the fair and effective trial.
(iv) Issue direction to the Respondent NO. 2 to 5
ensure the security the security to the life of the
Petitioner and her mother and sister from the accused
person in appropriate manner.
(v) Pass any other relief which this Hon'ble Court may
deem fit and proper under the facts and circumstances
of the present case."
2. The facts, in brief, leading to the instant writ petition are as follows:
i. It is stated that on 23.07.2019, the Petitioner filed an FIR
disclosing an allegation of sexual assault against her that had taken
place from 2008 to 2019 at various places, including at GTB Enclave,
New Delhi.
ii. It is stated that the Petitioner herein had registered a complaint
regarding crime of fraud, forgery and conspiracy towards forging
marriage certificates, committing rape, getting an abortion done by
the accused who forced the Petitioner to ingest poisonous products,
and attempted murder.
iii. It is stated that in 2008, the petitioner was living in Lajpat
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Nagar, Ghaziabad, along with her parents when one of the accused
Ajay Shrivastava, who was her aunt‟s son, forcefully initiated
physical relationship with her. It is stated that initially on account of
their familiar relationship, the Petitioner did not take any legal action
against him. However, despite knowing that the Petitioner was his
sister, Ajay tortured her physically, mentally and ruined her entire
career. It is stated that when Ajay‟s mother went to live at the
Petitioner‟s Kanpur residential address, Ajay raped the petitioner for
the first time.
iv. It is stated that when the Petitioner insisted on registering a
police complaint against Ajay and his family, then Ajay, and co-
accused Anil (brother of Ajay), with the help of their sister, Seema
(also a co-accused) poured kerosene on the Petitioner and set her on
fire. However, when they realised that the same could lead to the
Petitioner‟s death, they put off the fire. However, burn marks as a
result of this incident are still present on the internal and external
organs of the Petitioner‟s body. It is stated that the Petitioner was
also threatened by Anil, who informed her that he had political
connections and if she tried to register a police complaint, they would
not let her remain alive.
v. It is stated that Anil as well as the wife of Ajay (Garima)
threatened the Petitioner and told her that she would have to remain
as mistress/wife of Ajay forever and would have to satisfy his lust.
vi. It is stated that as a result of the mental torture that was
inflicted on the Petitioner, she was unable to register a complaint to
the police immediately. It is stated that when the Petitioner was living
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alone in Indrapuram, Ghaziabad, U.P. in 2011, Ajay found her
address and started telling people that she was his wife. Further, he
also consistently raped her and threatened her with a revolver and a
knife. It is stated that in February 2011, the Petitioner became
pregnant, and when Anil and Seema found out, they forcibly made
the Petitioner ingest abortion pills and got her foetus aborted in April
2011.
vii. It is stated that in order to prevent the Petitioner from initiating
legal action, Ajay took the Petitioner to G.T. Road, Arya Samaj,
Mandir in October 2011, and forged documents to showcase that he
and the Petitioner were married. However, it is stated that Ajay,
without informing the Petitioner, had married someone else on
30.06.2011.
viii. It is stated that the threats continued and during a long period of
time, Ajay would constantly keep the Petitioner as a hostage at their
rented house at Indrapuram to satisfy his lust. It is stated that in July
2013, the Petitioner became pregnant again and Ajay forcefully made
the Petitioner abort the child by giving her medicines.
ix. It is stated that when the Petitioner‟s father became aware of
the events that had happened to the Petitioner, he died of shock in
November 2013. It is stated that during this time, Ajay along with
the help of his wife took the Petitioner to Kanpur and raped her while
his wife made a video of the same.
x. It is stated that the accused Ajay, Anil and Seema and the wife
of the accused, all compelled the petitioner to behave like a prostitute
and continuously threatened to kill her if she ever complained to the
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police. It is stated that Ajay, with the help of his wife, would portray
to society that the Petitioner was his wife and would take her to
various places like Kanpur, Indrapuram, Delhi and Rajasthan, and
raped her. Further, it is stated that they would make audio
recordings, video recordings, and these documents are available with
the Petitioner as evidence. It is stated that Ajay, and his wife and
Seema have destroyed all the evidence that was available with the
Petitioner, including the mobile phone which has been allegedly
broken by Ajay.
xi. It is stated that the petitioner was taken to GTB Enclave in
Delhi and kept at the house of an acquaintance where he would rape
her continuously for days.
xii. It is stated that besides these incidents, Ajay threatened the
Petitioner and took her to Mathura, Vrindavan where, in the entry
book, the Petitioner was mentioned as his wife. It is stated that they
stayed there for two days and made physical relations. It is stated that
the Petitioner believes that her life is in complete danger which is
why she approached Police Station GTB Enclave for registration of a
FIR under the appropriate provisions of the Indian Penal Code
against the four accused.
xiii. It is stated that in pursuance of this complaint dated 23.07.2019,
the Petitioner approached Police Station GTB Enclave to register the
FIR, but the police did not register FIR and she moved the Court of
learned Metropolitan Magistrate by way of an application under
Section 156(3) CrPC.
xiv. The learned Metropolitan Magistrate directed the SHO to file
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an action taken report as a result of which the Petitioner was then
taken for a medical examination. It is stated that after getting the
medical examination done, the Police Station GTB Enclave
registered FIR bearing No.3/2019 dated 21.08.2019 under Sections
354, 376, 506 IPC. It is stated that in response to the application
under Section 156(3) CrPC that had been filed by the Petitioner, the
Police Station GTB Enclave stated that the case had been registered
vide „Zero FIR‟ and the investigation had been transferred to Police
Station Indrapuram, Ghaziabad, Uttar Pradesh.
xv. Reply dated 11.09.2019 in response to the application under
Section 156(3) CrPC was filed. It is stated that in the reply that the
police had submitted that the offence had occurred in various places
in U.P., and one incident was mentioned to have happened in Delhi at
GTB Enclave at the house of the relative of the complainant.
xvi. It is stated that despite admission that one incidence had
occurred within jurisdiction of GTB Enclave, Respondents No. 2 and
3 transferred the case to the Respondents No.4 and 5. It is stated that
subsequently, the Petitioner moved an application before the
concerned learned Metropolitan Magistrate on 12.09.2019 referring
to the applicability of Section 178(d) Cr.P.C. seeking action for
intentional non-registration of FIR and also calling for an explanation
for unlawful transfer of the investigation despite having jurisdiction
over the matter.
xvii. It is stated that despite another application dated 12.09.2019
preferred by the Petitioner seeking preservation of evidence and
recording of the statement of the prosecutrix, Police Station GTB
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Enclave did not make any endeavour to collect the evidence, preserve
it or take the statement of the Petitioner, and rather chose to transfer
the matter to the Respondents No.2 and 5. It is stated that the learned
Metropolitan Magistrate vide Order dated 12.09.2019 called for the
report from DCP Shahdara seeking an explanation for the transfer of
the investigation despite admission that one incident had taken place
within the jurisdiction of Police Station GTB Enclave.
xviii. It is stated that at the next hearing, DCP Shahdara submitted a
report stating that as the time, date, place had not been explicitly
mentioned by the Petitioner, the FIR could not be registered by
Police Station GTB Enclave. Further, it was also contended that the
Petitioner herein had not mentioned allegation of sexual assault in the
GTB Enclave area during her counselling before the NGO Counsellor
as well as her MLC before the doctor. It was submitted by DCP
Shahdara that during the medical examination, the Petitioner had
disclosed that the sexual intercourse had taken place in Indrapuram,
Ghaziabad, U.P., and that an FIR No.199/2019 had already been
registered at Police Station Indrapuram on 12.09.2019 under Sections
354, 376, 506 IPC.
xix. It is stated that the grievances of the Petitioner remain unsolved
and the Petitioner has been subjected to a lot of threats from the
accused due to which she has approached this Court seeking the
aforementioned prayers.
3. Mr. R N Dubey, learned Counsel for the Petitioner, submits that
despite the Petitioner having filed application for appropriate directions
before the learned Trial Court, there has been a consistent adjournment of
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the matter and the grievances of the Petitioner remain unsolved. Further, no
proper reply has been furnished by Respondent No.2 to justify the reason for
transfer of the investigation in violation of Section 178(d) Cr.P.C. as well as
no explanation has been given for non-registration of FIR under the Sections
stated in the application as well as the complaint dated 23.07.2019.
4. Learned Counsel for the Petitioner submits that from the date of
registration of the FIR, the Petitioner had been receiving regular threats from
the accused and such threats put the life of the Petitioner in danger. He
further submits that the Police Station GTB Enclave, despite being legally
under the obligation to conduct the investigation effectively, has unlawfully
transferred the investigation to Respondent Nos.4 and 5. He submits that
Respondent Nos.4 and 5, apart from registering the FIR under Sections 354,
376, 506 IPC, have not progressed forward with the investigation and that
no officers of Respondent Nos.2 to 5 have explained to the Court as to why
an FIR has not been registered under the relevant provisions of IPC.
5. The learned Counsel for the Petitioner submits that the learned Trial
Court kept the matter pending without passing any appropriate order,
thereby affecting the right to free and fair trial of the petitioner. Further, he
submits that as a result of the constant threats from the accused, it has
become difficult for the Petitioner to pursue the case. Mr. Dubey further
submits that Respondent Nos.2 to 5 have not addressed the seriousness of
the matter as to how the accused persons have spoiled the life of the
Petitioner, and have committed heinous offences and are now threatening
the Petitioner against taking appropriate actions.
6. Mr. Dubey, learned Counsel appearing for the Petitioner, relies upon
the judgment of the Supreme Court in Rupali Devi v. State of Uttar Pradesh
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& Ors., (2019) 5 SCC 384, stating that Respondent Nos.2 and 3 were
obligated to register an FIR under the relevant provisions of the IPC so as to
ensure an impartial investigation, thereby securing the life of the petitioner
and her family members.
7. Per contra, at the outset, Ms. Richa Kapoor, learned ASC, submits
that a similar petition had been filed before the learned Metropolitan
Magistrate, Karkardooma Courts and that during the course of the hearing
before the learned Metropolitan Magistrate, the Trial Court had disposed of
the matter vide order dated 23.03.2021 wherein it had held that as per the
directions of the Delhi High Court in Kirti Vashisht v. State & Ors.,
CRL.M.C.5933/2019, the Court was not empowered to direct Police Station
GTB Enclave to conduct a parallel investigation or to transfer the
investigation from Police Station Ind irapuram to Police Station GTB
Enclave. The learned Trial Court had further referred to Satvinder Kaur v.
State (Govt. of NCT of Delhi) & Anr., (1999) 8 SCC 728 wherein the
Supreme Court stated that at the stage of investigation, a criminal court
could not have intervened into the territorial jurisdiction of the Police to
investigate a case. Accordingly, the learned Trial Court noted that the
Petitioner resided in Indirapuram, Ghaziabad, U.P. and not in Delhi, and,
therefore, the investigation would be conducted by Police Station
Indirapuram, and the complainant/Petitioner herein would have to approach
the criminal court at Indirapuram, Ghaziabad for appropriate orders.
8. Ms. Kapoor further states that the complaint which had been sent by
the Petitioner via Speed Post dated 26.07.2019 had been marked to the
concerned IO for further necessary action. She submits that when the
Petitioner was contacted and asked to join the inquiry, the Petitioner did not
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respond to the calls and, to the request for inquiry, she stated that she was
not feeling well and she would contact the Investigating Officer after
recovery. Further, the Investigating Officer had also visited the house of the
Petitioner, but the same was found locked. She further submits that during
the medical examination, the Petitioner had informed the doctor that the last
sexual relationship had taken place on 08.07.2019 in Indirapuram,
Ghaziabad, U.P.
9. The learned ASC submits that despite the Petitioner stating that she
had been sexually assaulted at GTB Enclave, she neither provided the
address nor identified the place within the jurisdiction of Police Station GTB
Enclave. Further, she did not even provide any time or date of the sexual
assault. As a result of this, Police Station GTB Enclave registered a 'Zero
FIR' being FIR No.3/2019 dated 21.08.2019 for offences under Sections
354, 376, 506 IPC. She submits that the same was transferred to Police
Station Indirapuram, Ghaziabad through Superintendant of Police for
registration of the case and subsequently FIR No.1999/2019 dated
12.09.2019 was registered at Police Station Ind irapuram, Ghaziabad, U.P.
10. Heard Mr. R.N. Dubey, learned Counsel for the Petitioner, Ms. Richa
Kapoor, learned ASC for the State, and perused the material on record.
11. Before delving into the issue at hand, it is pertinent to first note what
exactly constitutes a 'Zero FIR'. As per Section 154 CrPC, if any
information relating to the commission of any cognizable offence is received
by a Police Station, the Police is duty bound to register the FIR. However, if
the crime does not occur within the jurisdiction of the said Police Station,
then after registration of the 'Zero FIR', the same has to be transferred to the
concerned Police Station where the offence has indeed been committed.
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Therefore, the place of crime and jurisdiction of the police station becomes
irrelevant when a cognizable offence is disclosed, and the police station is
obligated to instantly transfer the pertinent documents over to the police
station vested with the jurisdiction which numbers the FIR and begins the
investigation.
12. The provision of 'Zero FIR' came up as a recommendation in the
Justice Verma Committee Report, in the new Criminal Law (Amendment)
Act, 2013, after the horrendous Nirbhaya rape and murder case which took
place in December 2012. The provision states : "A zero FIR can be filed by
the victim, irrespective of their residence or place of occurrence of crime".
In Lalita Kumar v. Govt. of U.P. & Ors., AIR 2014 SC 187, the Supreme
Court also laid down that if a complaint is related to a cognizable offence, it
is clear that as per Section 154 Cr.P.C., there has to be a mandatory
registration of FIR.
13. The Supreme Court in State of Haryana & Ors. v. Bhajan Lal & Ors.,
1992 Supp (1) SCC 335 while delving into the intricacies of the mandatory
nature of Section 154 CrPC, observed as under :
" 31. At the stage of registration of a crime or a case
on the basis of the information disclosing a cognizable
offence in compliance with the mandate of Section
154(1) of the Code, the concerned police officer cannot
embark upon an enquiry as to whether the information,
laid by the informant is reliable and genuine or
otherwise and refuse to register a case on the ground
that the information is not reliable or credible. On the
other hand, the officer in charge of a police station is
statutorily obliged to register a case and then to
proceed with the investigation if he has reason to
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suspect the commission of an offence which he is
empowered under Section 156 of the Code to
investigate, subject to the proviso to Section 157. (As
we have proposed to make a detailed discussion about
the power of a police officer in the field of investigation
of a cognizable offence within the ambit of Sections
156 and 157 of the Code in the ensuing part of this
judgment, we do not propose to deal with those
sections in extenso in the present context.) In case, an
officer in charge of a police station refuses to exercise
the jurisdiction vested in him and to register a case on
the information of a cognizable offence reported and
thereby violates the statutory duty cast upon him, the
person aggrieved by such refusal can send the
substance of the information in writing and by post to
the Superintendent of Police concerned who if satisfied
that the information forwarded to him discloses a
cognizable offence, should either investigate the case
himself or direct an investigation to be made by any
police officer subordinate to him in the manner
provided by sub-section (3) of Section 154 of the Code.
32. Be it noted that in Section 154(1) of the Code, the
legislature in its collective wisdom has carefully and
cautiously used the expression "information" without
qualifying the same as in Section 41(1)(a) or (g) of the
Code wherein the expressions, "reasonable
complaint" and "credible information" are used.
Evidently, the non-qualification of the word
"information" in Section 154(1) unlike in Section
41(1)(a) and (g) of the Code may be for the reason that
the police officer should not refuse to record an
information relating to the commission of a cognizable
offence and to register a case thereon on the ground
that he is not satisfied with the reasonableness or
credibility of the information. In other words,
„reasonableness‟ or „credibility‟ of the said
information is not a condition precedent for
registration of a case. A comparison of the present
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Section 154 with those of the earlier Codes will
indicate that the legislature had purposely thought it fit
to employ only the word "information" without
qualifying the said word. Section 139 of the Code of
Criminal Procedure of 1861 (Act 25 of 1861) passed
by the Legislative Council of India read that „every
complaint or information‟ preferred to an officer in
charge of a police station should be reduced into
writing which provision was subsequently modified by
Section 112 of the Code of 1872 (Act 10 of 1872) which
thereafter read that „every complaint‟ preferred to an
officer in charge of a police station shall be reduced in
writing. The word „complaint‟ which occurred in
previous two Codes of 1861 and 1872 was deleted and
in that place the word „information‟ was used in the
Codes of 1882 and 1898 which word is now used in
Sections 154, 155, 157 and 190(c) of the present Code
of 1973 (Act 2 of 1974). An overall reading of all the
Codes makes it clear that the condition which is sine
qua non for recording a first information report is that
there must be an information and that information
must disclose a cognizable offence.
33. It is, therefore, manifestly clear that if any
information disclosing a cognizable offence is laid
before an officer in charge of a police station satisfying
the requirements of Section 154(1) of the Code, the
said police officer has no other option except to enter
the substance thereof in the prescribed form, that is to
say, to register a case on the basis of such
information."
14. From a combined reading of the provision and the precedents, it can
be stated that the only difference between 'FIR' and 'Zero FIR' is that an FIR
is registered where the incident has occurred within the jurisdiction of a
particular Police Station, and a zero FIR can be lodged at any Police Station
irrespective of where the incident has taken place. A zero FIR is admittedly
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more efficient and is meant to provide quick redressal to the victim so that
timely action can be taken after registration of the FIR. A glance through
Circular 15/2019 by the Office of the Commissioner of Police, Delhi, dated
20.12.2019, issued in pursuance of instructions given by the Delhi High
Court in Kirti Vashisht v. State of NCT of Delhi & Ors., [Writ Petition
(Crl.) No. 5933/2019], also stipulates the directions that are to be follwed
with regard to a "Zero FIR".
15. In the instant case, a perusal of the material on record showcases that
one of the incidents of forceful sexual assault had taken place in the GTB
Enclave area. As a corollary, the Police Station GTB Enclave was obligated
to register an FIR and not a "Zero FIR", and not delve into whether the
Petitioner resided in the city or what was the specific time, date and place of
the alleged incident. By embarking on the journey of trying to get the
investigation transferred to Ghaziabad, U.P., Police Station GTB Enclave
has displayed a failure in dispensation of their obligation to take into
account the seriousness and gravity of the offence that has been disclosed by
the Petitioner in the complaint. This Court finds it unfortunate that
institutions that are supposed to protect the life and liberty of common
citizens are quick to shirk their responsibilities. This invariably weakens the
trust of common citizens that is imposed in these investigative agencies.
16. This Court finds it irrelevant that the Petitioner is not a resident of
Delhi. It is of the opinion that the mere disclosure that one of the incidents
had taken place within the vicinity of Police Station GTB Enclave was
sufficient for an FIR to be registered at that Police Station, and not a Zero
FIR as was done in the instance case. Failure to register a regular FIR costs
precious time that could be utilised in conducting the investigation and can
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also lead to destruction of important evidence.
17. With regard to the Order dated 20.03.2021, rendered by the Ld. Trial
Court, this Court notes that the same has not been assailed in the present
petition. Nevertheless, it is of the opinion that the Order of the Trial Court
was given after the case had been transferred to Police Station, Indirapuram,
Ghaziabad, and therefore, the Ld. Trial Court did not err in holding that it
was not empowered to direct PS GTB Enclave to conduct a parallel
investigation or to transfer the investigation from PS Indirapuram to PS
GTB Enclave. However, as the instant petition has been filed under Section
482 Cr.P.C., the High Court has the inherent power to take the necessary
action as sought for in this petition and direct for the registration of the FIR
at PS GTB Enclave.
18. Accordingly, this Court finds strength in the contentions of the
Petitioner herein, and is inclined to direct the respondents to register a
regular FIR instead of a zero FIR and conduct investigation. Thereafter,
consequently, Respondents No.4 & 5 are directed to hand-over the
documents related to FIR No.199/2019 dated 12.09.2019 registered at Police
Station Indirapuram under Sections 354/376/506 IPC to Respondents No.2
& 3 for conducting investigation.
19. The petition is disposed of with these observations, along with
pending applications.
SUBRAMONIUM PRASAD, J
NOVEMBER 30, 2021
hsk
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