$~30. * + IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision:
07. 10.2016 % W.P.(CRL) 2973/2016 and CRL.M.A. 15935/2016 MATLOOB RANA & ORS ........ Petitioner
s Through: Mr. Arvind Kumar Shukla & Ms.Shweta Rani, Advocates. versus STATE NCT OF DELHI & ANR ........ RESPONDENTS
Through: Ms. Kamna Vohra, ASC along with Inspector Baduruddin Khan, PS-Nand Nagri, for the State. CORAM: HON'BLE MR. JUSTICE VIPIN SANGHI VIPIN SANGHI, J.
(OPEN COURT) 1. The petitioners have preferred the present writ petition to seek the quashing of FIR No.913/2015 dated 08.09.2015 under Section 147/148/149/186/353/332/341/379/ 427/109/114 IPC and section 3/ 4 of Delhi Prevention of Defacement of Public Property Act, 2007 registered at PS Nand Nagri, Delhi. W.P.(CRL) 2973/2016 Page 1 of 8 2. The case of the petitioners is that on 07.09.2015, a young man Shahanawaz died due to merciless beating by police officer at Nand Nagri area. The said incident stunned the public at large, which exposed the inhuman behaviour of the police. When the wife of the deceased as well as his family members along with the well wishers approached the police to register a FIR against the delinquent police officers, they were threatened with dire consequences. The wife of the deceased and his family members along with other people in the locality protested against the inhuman act of the police and demanded registration of FIR against the errant police officers. Consequently, the said errant police officers, on the basis of false statement of Assistant Sub Inspector (Devi Ram) registered the aforesaid FIR against the petitioners.
3. The petitioners have set out the respective background from which they come.... Petitioner
no.1 is stated to be a senior correspondent, who had gone to the police station and GTB hospital to cover the story regarding the custodial death of Shahanawaz. He states that he was not available at the place where the incident is alleged to have taken place, but the errant police officers have, with the sole intention to stop the petitioner from unearthing their brutal act of custodial death, named him in the FIR. The petitioner alleges that the police officers are harbouring enmity against the said petitioner, and have falsely implicated him.
no.2 claims that he is a soft spoken person and is a follower of Gandhism. He is a social worker and is a resident of Nand Nagri police station area. On various occasions, he has complained against the inhuman and rude attitude of the police towards the local residents and consequently, W.P.(CRL) 2973/2016 Page 2 of 8 the police personnel are inimical towards him.
no.3 is the real cousin brother of the deceased and a chronic patient of Asthma since 2005. On account of his illness, he is unable to do heavy work and running, and as such he remains at home. After the brutal killing of the deceased by the erring police officials, the petitioner no.3 went to the police station and met the senior police officers and demanded legal action against the erring police officials, whereafter he came back to his home to rest. Later on, he learnt that the wife of the deceased protested against the illegal acts of the police officials. He claimed that he was at his residence at the time of the incident, but the local police officers have falsely implicated him to pressurise him not to demand legal action against the erring police officials.
6. The petitioners claim that there is not enough material to prove that at the time of the alleged incident, as narrated in the FIR, the petitioners were present at the place of occurrence.
7. Ms. Vohra, who appears on advance notice for the State, submits that the present petition is not maintainable, since the earlier writ petition being W.P.(Crl.) No.226/2015 preferred by the petitioners to seek the same relief had been withdrawn by them unconditionally on 09.10.2015.
8. Ms. Vohra submits that the petitioners are seeking the quashing of FIR in question by raising their defence on merits, and the challenge to the FIR in question and the proceedings arising therefrom is not premised on the principles set out by the Supreme Court in State of Haryana & Ors. v. Ch. Bhajan Lal & Ors., 1992 Supp. (1) SCC335 W.P.(CRL) 2973/2016 Page 3 of 8 9. Upon the counsel for the petitioner being questioned with regard to the maintainability of the writ petition in view of the unconditional withdrawal of the earlier writ petition filed by them for the same relief, learned counsel for the petitioner submits that when the said petition was withdrawn, the petitioners had also simultaneously preferred their respective applications to seek anticipatory bail under Section 438 Cr PC, which had been allowed on the same day. Learned counsel for the petitioner submits that on that day, the Court was of the opinion that since they had been granted the relief of anticipatory bail, they may not press their petition for quashing and the same may be filed later. Consequently, the writ petition seeking quashing of the FIR was withdrawn.
10. I do not find any merit in this submission of counsel for the petitioners. The order dated 09.10.2015 passed in W.P.(Crl.) No.2261/2015, whereby the petitioners sought the quashing of FIR in question on merits, reads as follows: “Ms. Sweta Rani, learned counsel appearing on behalf of the petitioners seeks leave to withdraw the present writ petition. Leave granted. The present writ petition is dismissed as withdrawn and disposed of accordingly”.
11. The order does not suggest that the petitioners sought leave to re-file the same later on, or that such leave was granted by the Court. The withdrawal of the writ petition was unconditional by the petitioners. If the Court had been inclined to entertain the earlier writ petition, it would have W.P.(CRL) 2973/2016 Page 4 of 8 proceeded to issue notice to the State and called for a reply. It does not stand to reason that even though Court was so inclined, the petitioners were asked to withdraw the writ petition and re-file the same later on. There would have been no purpose of permitting the re-filing of the petition later since the same could have been entertained at that stage itself, if any of the grounds set out in Bhajan Lal (supra) were made out.
12. The explanation furnished by counsel for the petitioners is merely an ipsi dixi of the petitioners and nothing more, and cannot be accepted since it is contrary to the record. Pertinently, the petitioners did not prefer any application to seek modification/ correction of the order dated 09.10.2015 by claiming that the Court had failed to preserve the rights of the petitioners to re-file the petition at a subsequent stage. It appears to the Court that the petitioners are only resorting to bench hutting and the present petition has been filed by the petitioners with a view to try their luck once again, since the roster/ assignment of work has undergone a change since the withdrawal of the earlier writ petition on 09.10.2015. Such practice by a petitioner has to be deprecated, and it tantamounts to abuse of process of the Court.
13. Even otherwise, the petitioners have no case on merits. On a plain reading of the FIR in question, it cannot be said that even if the allegations made against the petitioners therein are believed to be true, no offence is made out against them. I may set out the relevant extract from the FIR in question, which, on its plain reading shows that there are specific allegations against the petitioners. The relevant extract from the FIR reads as follows: W.P.(CRL) 2973/2016 Page 5 of 8 “… … today I, ASI D.D. No.85 B, on receiving the information of blockage of the road by stone, I ASI along with CT Krishna Pal No.2053/NE went to the spot at Red Light Point Gagan Cinema, wherein people were gathered in huge number on the road, who were raising the slogans and due to which the traffic was standstill, the protesters kept big stones on the road at various places, due to which vehicles were not able to move on the road, ERV57and PCR car – 58 were available on the spot who were making efforts to clear the traffic by making the people understand … …” “…. …. the crowd being more furious started raising the slogans and started blaming the police and administration for the death of Shahanawaz. The infuriated crowd get entered into clashes with PCR van B-35 and started pelting the stone, a stone hit on the forehead of B-35 Gunman Ct. Rajender No.2086/PCR, due to which he got injured and to save his life, he ran away by jumping the wall of the petrol pump, during his mobile fall down, which was picked by some unknown persons of the crowd. Injured Ct. Rajender was taken to GTB Hospital for treatment by ERY57 B24, B25, B27, B28, B29, B30, B33, B7, B6, HRD1 reached the place of occurrence along with police staff, the crowd was increasing in large number. All the efforts to calm down the crowd were getting failed, the uncontrolled crowd of approximately 600 to 700 people pelted stones on police vehicle and other vehicles, heavily, wherein (3) D.T.C Low Floor Bus (1) DL1C-1064 (2) DL1C9605(3) DL1C-9735 were passing through the red light of Gagan Cinema got damages heavily. Apart from Ct. Rajender Kumar, Ct Krishna Pal 2053/NE, Ct Raj Kumar 1940/NE, Ct Rajkumar 1540/NE, Ct Sonu 1928/NE, Ct Sanchit 1392/NE/ Ct Sanjeev 1891/NE, Ct. Kalidas 1532/NE, Ct Neeraj 1800/NE, Ct. Suraj 3441/NE, Ct Deepak 1651/NE, Head Ct Kamar Abbas, ASI Pramod Tyagi and Shri Sandeep Lamba ACP/Gokulpuri W.P.(CRL) 2973/2016 Page 6 of 8 received injuries also and were taking to GTB hospital for treatment with the help of staff. On finding no way to calm down the crowd and when even warning giving to crowds got failed, on the order of the senior officers to disperse the crowd light police force was used and tear gas was also used. After lot of efforts the mob and riotous were under controlled and on being inquired, I came to know that to disperse the protestors, the force of SHO Harsh Vihar used 14 tear gas shells, HRD-1 used 6 tear gas shells and 1 tear gas grenade and HRD-11 used 10 tear gas and 1 tear gas grenade that the names of the females who were instigating the crowd and pelting stones are – 1. Leela Singh w/o Santram, r/o D-3/357 Nandnagri, Delhi North East, Delhi, India, 2. Vidhya, w/o Rajesh, r/o B-4/445 Nand Nagri, Delhi North East, Delhi, India, 3. Mamta, w/o Shahanawaz, r/o Meet Nagar, Delhi, North East, India, 4. Sunita w/o Radheshyam r/o C-1/423, Nand Nagri, Delhi North East, Delhi. The names and addresss of the persons who were pelting stones at the time of strike, controlled by SHO Nand Nagri along with HRD-1 and HRD-II and other police staff are 1. Niranjan, s/o Lukmann, r/o E-4/291, Nand Nagri, Delhi North East, Delhi, India aged 38 years 2. Raju, s/o Kahniya Lal, r/o B-2131, Nand Nagri, Delhi North East, Delhi, India aged 38 years 3. Imran, s/o Samsuddin, r/o vill. Pasonda, Shahiabad, UP Ghaziabad, Uttar Pradesh, India aged 23 years 4. Sarif, s/o Rahish, r/o Vill Pasonda, Shahiabad, UP, Ghaziabad, Uttar Pradesh, India aged 19 years 5. Salim Khan s/o Jamil Khan, r/o H-315, Sunder Nagri, Delhi, North East, Delhi, India aged 54 years 6. Mohd. Shakil s/o Haji Akhatar, r/o O-396 Sunder Nagri, Delhi, North East Delhi, India aged 42 years, 7. Tahir s/o Ileas, r/ O-493, Sunder Nagri, Delhi North East, Delhi, India aged 54 years and apart from these persons the officers and staff present on the spot, at the time of trying to come down the furious mob, has noted the name of few W.P.(CRL) 2973/2016 Page 7 of 8 persons who were present among the protestors are
Matbul Raja, 2 F.Z. Wala Salim 3. Julfikar Green City, 4. Sahid Light Wala 5. Firoz 6. Rahul Telecom Wala 7. Pappu Kabadi 8. Iliyas 9. Nanhe 10. Jittu 11. Sanjay 12. Aslam s/o Iqbal 13. Deepak 14. Mukesh 15. Imamuddin 16. Vedpal 17. Diblu 18. Pawan 19. Pradeep 20. Aslam 21. Goldi 22. Kalu 23. Harun 24. Mehboob 25. Vipin 26. Jarnel 27. Aslam. In the aforesaid circumstance offence is found to be made u/s 147/148/149/196/ 353/332/341/379/427/
Delhi Prevention of Defacement of Public Property Act, 2007 .... ...”.
14. The submission of the petitioners that neither of them were present at the place of the incident when the same took place is their respective defence, and cannot form the basis of a quashing petition. Consequently, the writ petition is dismissed, however, in the circumstances, with costs of Rs.5,000/- per petitioner. Costs be deposited with Prime Minister’s National Relief Fund within two weeks. OCTOBER07 2016 sr VIPIN SANGHI, J W.P.(CRL) 2973/2016 Page 8 of 8