New Delhi: Delhi High court has set aside a trial court order for the registration of an FIR against BJP minister Shahnawaz Hussain and his brother over several allegations of rape and directed consideration of the matter afresh by the lower court.
Opportunity to present the case
Justice Amit Mahajan said the trial court should have given the suspects an opportunity to present their case before rejecting a magisterial court’s order refusing to direct the registration of an FIR.
He has set aside the impugned judgment of 31.05.2022. In the present case, the complainant, who claimed to be running an NGO, alleged she was raped by Shahbaz Hussain, brother of Shahnawaz Hussain, and the latter asked her not to highlight the matter.
Hussain “promised to marry” the accused
The complainant claimed that although Shahbaz Hussain promised to marry her, she subsequently found he was already married.
It was also alleged that the complainant was pressurised to eat beef and change her religion and embrace Islam and that nikah was performed between the parties, after which Shahbaz Hussain pronounced talaq, talaq, talaq and ran away from the spot.
She claimed BJP leader Shahnawaz Hussain, a former union minister, allegedly conspired with Shahbaz and supported his brother in the commission of the offences.
The magisterial court had refused to order the registration of an FIR on the basis of the woman’s complaint, saying it did not disclose the commission of a cognizable offence.
Trial court’s revised plea
However, the trial court, in a revised plea, ordered the SHO of Mandir Marg police station to register an FIR under Sections 420 (Cheating and dishonestly inducing delivery of property), 376 (Punishment for rape), 295A (Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs), 493 (Cohabitation caused by a man deceitfully inducing a belief of lawful marriage) and 496 (Marriage ceremony fraudulently gone through without lawful marriage) of the Indian Penal Code.
Before the high court, the counsel for the petitioners argued that the allegations did not disclose commission of any cognizable offence and no notice was issued to them by the trial court while hearing a challenge to the magisterial court order.
It was said that if an order of the magistrate rejecting the application under Section 156(3) of the Criminal Procedure Code is assailed by way of a revision petition, the trial court should not upset the order without giving an opportunity to the party in whose favour the order under revision was passed.
The high court said some rights accrue either in favour of or against the parties once the magisterial court passes an order on a plea seeking registration of an FIR and such rights cannot be taken away in a challenge without there being the issuance of any notice or an opportunity of hearing to the party whose right is sought to be taken away.