Brother of Syed Shahnawaz Hussain is married to the complainant
In P (Complainant) vs. State of NCT of Delhi and Syed Shahnawaz Hussain (2024), Justice Neena Bansal Krishna of of Delhi High Court observed: "“Innocent until proven guilty” coupled with the rigorous standard of "establishing guilt beyond a reasonable doubt,” forms the foundational tenet of our criminal justice administration. The acquittal of guilty individuals, while regrettable, is a lesser evil compared to the horror of condemning the blameless. When the delicate scales of justice are tipped with utmost care, “protecting” will always weigh more than “punishing”" in a case pertaining to offences under Sections 376/328/506 of Indian Penal Code 1860, against Syed Shahnawaz Hussain, the respondent no. 2, the former Member of Parliament. The judgement was delivered on August 2, 2024.
Section 376 deals with punishment for sexual assault. The relevant part of the section reads: "1 (a) whoever, except in the cases provided for by sub-section (2) commits sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to 10 years and shall also be liable to fine. (b) If the sexual assault is committed by a person in a position of trust or authority towards the complainant or by a near relative of the complainant, he/she shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to life imprisonment and shall also be liable to fine."
Section 328 deals with the offence of causing hurt by means of poison, etc., with intent to commit and offence" It reads: "Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
Section 506 deals with the punishment for criminal intimidation. It reads: "Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.—And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or [imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
It was alleged by the lady complainant that on April 12, 2018 during the BJP dharna in Delhi, the lady received a call from Syed Shahnawaz Hussain to meet him at Roshan Tent House, New Khanna Market, Lodhi Colony, New Delhi at about 06:00 P.M., to accompany him to his Farmhouse in Chhatarpur where his brother and his brother‟s wife, Mrs. Lama Hussain would also be present, to sort out the ongoing difference/issues between her and his brother Shri Syed Shabbaz Hussain. Allegedly, when she reached the Farmhouse along with Hussain, she was asked by him to switch off her mobile phone. Thereafter, Hussain gave her some eatables and cold drinks, on consumption of which she lost her consciousness. Taking advantage of the situation, he raped her till late night. He then threatened to tarnish her image by circulating her explicit/sexual videos recorded by him and even threatened to kill her and her family members. The complainant reported the incident through the complaint dated April 22, 2018 to Station House Officer, Police Station Mehrauli, New Delhi and the Deputy Commissioner of Police, South Delhi as well as Complaint dated April 26, 2018 to Commissioner of Police, whereby she sought registration of an FIR under Section 376/328/506 of IPC 1860, against Hussain.
Despite several calls on Number 100 and Number 112 to Delhi Police and being called to the Police Station several times, no FIR was registered against Hussain. All her complaints to Police (Vigilance Department) at Barakhamba Road, Delhi and also to Deputy Commissioner of Police, Commissioner, did not result in any action either against Hussain or against the Police Officers involved in protecting him.
Subsequently, a Complaint was filed under Section 156 (3) Criminal Procedure Code (Cr.P.C.), 1973 read with Section 200 Cr.P.C. before the Metropolitan Magistrate, Saket Court, Delhi. After consideration of the allegations made by the complainant, the Metropolitan Magistrate finding that the allegations in the Complaint disclosed commission of cognizable offence, following the decision of the Supreme Court in the case of Lalita Kumari vs. Government of U.P. & Ors (2008), directed the registration of FIR vide order dated July 7, 2018. The Metropolitan Magistrate directed the recording of statement under Section 164 of Cr.P.C and for the medical examination of victim/complainant and Hussain, the accused. Despite the order, no FIR was registered by the Station House Officer, Police Station, Mehrauli. The police continued to protect the accused, who was also able to commit theft of documents from the Saket Court, in connivance with the police officials.
Hussain challenged the order dated July 7, 2018 before the Session Court, Saket Court, Delhi on July 9, 2018 through his revision petition. The Court of Special Judge (PC Act), CBI-01 (South), Saket Courts, New Delhi dismissed the Revision Petition by order dated July 12, 2018. He approached the High Court by filing a quashing petition under Section 482 Cr.P.C. but was dismissed on August 17, 2022 by Justice Asha Menon in CRLMC No. 3456/2018. This case was filed and registered on August 18, 2022 in the Supreme
Court and verified on August 20, 2022. It was decided by Justices S.
Ravindra Bhat and Dipankar Datta. The apex Court was not inclined to interfere with the order and judgment passed by the High Court. It dismissed special leave petition of Syed Shahnawaz Hussain by its order dated January 16, 2023. The order dated July 7, 2018 of Metropolitan Magistrate, Saket Court directing registration of FIR was upheld.
The High Court's order records that the complainant was pressurized her to compromise with the accused. The police persons had also threatened and pressurized the witnesses of complainant. Several witnesses were also beaten mercilessly by the Police. This is supported by Sangeeta Singh, the witness who has filed a criminal complaint against the Mehrauli Police/SHO/Investigating Officer and other accused persons which is pending in the Saket Court, Delhi. It also recorded that the Investigating Officer/SHO Police Station Mehrauli, under the undue influence of the Hussain, tried to save him from this case and filed the false Report/Cancellation Report dated April 25, 2023 in the FIR No. 85/2023 before the Metropolitan Magistrate, Saket Court, Delhi.
A Protest Petition was filed by the complainant against the Cancellation Report dated April 25, 2023 before the Additional Chief Metropolitan Magistrate, Rouse Avenue Court, Delhi. The Court through its order dated October 10, 2023 allowed the protest petition filed by the complainant and rejected the Cancellation Report filed by the Investigating Agency. Additional Chief Metropolitan Magistrate cognizance took cognizance under Sections 376/328/506 of IPC, 1860 thereby summoning the accused person to face trial for the offences. Notably, Additional Chief Metropolitan Magistrate referred to the judgments in the case of Phool Singh vs. The State of M.P., decided vide Crl. Appeal No. 1520/2021 by the Apex Court vide Judgment dated 01.12.2021, Santhosh Moolya & Anr. vs. State of Karnataka, Criminal Appeal No. 479/2009 and Ganesan vs. State (Represented by its Inspector of Police), Criminal Appeal No. 680/2020, wherein it has been observed that the sole testimony of the victim or prosecutrix, if reliable, is sufficient to convict an accused and it requires no corroboration.
The order of the Additional Chief Metropolitan Magistrate was challenged by Hussain in a Criminal Revision Petition the Session Court, Rouse Avenue Court, New Delhi. The Additional Sessions Judge, Special Judge, Rouse Avenue Courts set aside the Summoning Order dated October 10, 2023 of Additional Chief Metropolitan Magistrate through its order dated December 16, 2023. Additional Sessions Judge observed that there is no quarrel with the proposition of law that the sole testimony of the prosecutrix, if reliable, can be sufficient to convict the accused, but the entire focus of all the judgments of the Apex Court is on the reliability of the testimony.
The lady petitioner, the complainant challenged this order in the High Court. She contended that the Hussain has concealed material facts and did not place on record the orders of the High Court and Supreme Court because through those Orders, his petitions, which were essentially on the same grounds, had already been dismissed. She further averred that it is a settled law that in the rape case, the conviction can be done on the basis of medical evidence and also the statement under Section 164 Cr.P.C. The Additional Sessions Judge, Special Judge, Rouse Avenue Courts, failed to appreciate that the statement of the victim under Section 164 Cr.P.C. and medical report of the victim which support the prosecution case and make it a fit case for summoning the accused and to proceed with the trial for offences made out. The present Revision Petition was filed to challenge the legality, correctness and propriety of the order dated December 16, 2023 passed by the Additional Sessions Judge in accepting the Cancellation Report.
In its judgement the High Court has recorded that "the alleged incident was of 12.04 2018 while the complaint has been made on 22.04.2018 i.e., after about ten days" after she could gather courage to make the complaint despite this "the FIR got registered only by the intervention of the Court right upto the Apex Court" when Hussain did not find any favour. The FIR No. 85/2023 was eventually registered "after about five years" in regard to the alleged incident of April 12, 2018.
The High Court observed that the "sole testimony of the prosecutrix can be the basis of conviction but has a caveat that it must be of sterling quality and absolutely reliable. To ascertain the credibility and reliability of the testimony of the prosecutrix, the surrounding circumstances as deciphered during investigation, also require equal consideration." It grappled with the question as to "whether the evidence collected by the Investigating Officer shakes the credibility of the testimony and creates a grave suspicion that the alleged offences could not possibly have occurred."
The judgment concluded:"the overwhelming independent ocular, documentary and scientific evidence collected during the investigations, whereby the presence of the respondent no.2 and complainant on the date of the alleged incident at the place of alleged incident i.e. Sharma Farmhouse is completely ruled out, the possibility of the commission of alleged offence is rendered zilch. Hence, conclusion of the learned Additional Sessions Judge in accepting the Cancellation Report has to be upheld. In view of the foregoing discussions, there is no infirmity in the impugned Order dated 16.12.2023 and the Revision Petition is hereby dismissed."
Unanswered India Gate Question
"India Gate" is mentioned on five occasions in the judgment.
Notably, the complainant's submission stating that "IO/Police SHO Police Station Mehrauli, has intentionally not produced the CDR Report/CCTV footage of India Gate which is important evidence to prosecute respondent No. 2" which Special Judge has failed to appreciate is recorded in paragraph 21 of the judgement, has not been disputed. At paragraph 72 of the judgement which provides details about the "Additional Contentions of the Petitioner", it is recorded that "The complainant in the Petition has raised a ground that the IO/SHO Police Station Mehrauli has not produced the CDR report/CCTV Footage of India Gate which is important evidence to corroborate that after the incident, she was abandoned at India Gate, in the middle of the night after the incident."
The judgement of Justice Neena Bansal Krishna reproduces the response of the I.O. at paragraph 73-74 without engaging with it.
The text with regard to I.O's submission reads: "The I.O. in the Cancellation Report has explained this aspect by stating that the CDR records of her mobile phone, which was with her, clearly reflect that her presence at India Gate has not been confirmed by the location charts. She was seen to be present at various places in Dwarka on the date of the incident and at even the alleged time of incident which is 10:00 PM to 10:30 P.M., her Cell-ID location is of Sector 22, Dwarka at 22:31:42 hrs. In light of the above discussion, when it is evident that the complainant was at different places in Dwarka throughout the day and when the mobile number has not been denied by the complainant, there arises no question that the CDR of the mobile phone would incorrectly reflect her location, since a person cannot be present at two locations at one time, the CCTV footage of India Gate would not be of any assistance in the present case. Further, even if the CCTV would have reflected her presence at India Gate, it could not have provided any assistance in proving the alleged incident of rape or commission of the alleged offence."
This does not seem to answer the India Gate question by any stretch of imagination. Will this question be examined when there is an appeal against the High Court's judgement?
Influence of High Court's observation on Sayed Sahahbaz Hussain and his wife on pending case before Additional Sessions Judge, Patiala House Courts, Delhi
In paragraph 65-70 of the judgement records that it was also the claim of the petitioner that Sayed Sahahbaz Hussain, brother of Syed Shahnawaz Hussain had also raped her in the year 2013 in regard to which she had met the Syed Shahnawaz Hussain, who was a Member of Parliament at that time. The complainant/prosecutrix even approached the Delhi Commission for Women in the year 2016 with the above allegation of rape by the brother of Syed Shahnawaz Hussain, the respondent No. 2 and she had also alleged that she was forcibly made to convert her religion by signing papers of conversion and even a fake Nikahnama in the name of complainant/prosecutrix and Syed Shahbaz Hussain, was prepared. She stated by her that in regard to the said incident involving the brother of the respondent No. 2, she had made a complaint under Section 156(3) of Cr.P.C. for registration of an FIR, though it was dismissed by the learned Metropolitan Magistrate. It was subsequently allowed by the Additional Sessions Judge in revision, but since the same was done with issuing notice to Syed Shahnawaz Hussain, respondent No. 2, the High Court set the order aside and remanded it back which is pending adjudication before Additional Sessions Judge, Patiala House Courts, Delhi.
The judgement also records that Syed Shahbaz Hussain, disclosed that the complainant/petitioner had sought his help for some NGO work which he had given her and she had visited his house on few occasions, but suddenly she started posting some objectionable posts on social media about him and blackmailing him for money and fraud and also extended threats to implicate him in false rape case. She even started pressuring him to divorce his wife and to marry her. When he refused to accede to her illegal demands, she made a complaint in Women Commission, Delhi making false allegations of rape against him on the pretext of marriage and forcible conversion etc. He denied having any relationship with the complainant/petitioner. He also disclosed to the Investigating Officer that under the pressure and threats and on a promise made by the complainant/prosecutrix to withdraw her complaints against him, he agreed to marry her and they both got married on January 10, 2017, but she continued to blackmail and threaten him and even visited his house on various occasions and created scene, resulting in filing of different complaints in the local Police Station and registration of some FIRs against her at Police Station Sarita Vihar and Jamia Nagar. He also stated about continuous extension of threats and the cross complaints given or filed by them against each other to different authorities. The statement of Lama Hussain, wife of the respondent No. 2 also deposed and gave the statement on similar lines.
Delhi High Court's observation on Sayed Sahahbaz Hussain and his wife, the complainant is germane to the case pending before Additional Sessions Judge, Patiala House Courts, Delhi.
Link between property dispute
and allegations of sexual assault?
The reference to property dispute in the context of allegations of
sexual assault by the lady complainant finds passing reference in the
judgement. The relationship between the possibility of property dispute
and allegations of the assault has not be examined at any stage of the judicial process.
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