Breather for Shahnawaz Hussain as Supreme Court stays Delhi HC order on lodging FIR against BJP leader in rape case

In a big relief for Shahnawaz Hussain, the Supreme Court on Monday ordered stay on a Delhi High Court order directing lodging of FIR against BJP leader on a woman’s complaint alleging rape.

A bench headed by Justice U U Lalit issued notice and sought responses, including from the Delhi government, on Hussain's plea and posted it for hearing in the third week of September.

The high court on August 17 had dismissed Hussain's plea challenging a trial court order directing the Delhi Police to register an FIR against him, saying there was no perversity in the 2018 order, and vacated its earlier interim order staying the operation.

While noting that there was a complete reluctance on the part of the police to even register an FIR, Justice Asha Menon said there was no perversity in the 2018 trial order directing the registration of the FIR and vacated the interim orders of the court staying its operation.

A Delhi-based woman had moved the lower court seeking registration of an FIR against Hussain on her allegation of rape.

In its order, the high court said that while reference is made in the police status report to the recording of the statement of the prosecutrix on four occasions, there was no explanation as to why the FIR was not lodged.

"The FIR only puts the machinery into operation. It is a foundation for investigation of the offence complained of. It is only after investigations that the police can come to the conclusion whether or not an offence had been committed and if so by whom. In the present case, there seems to be a complete reluctance on the part of the police to even register an FIR," said the court.

A magisterial court had on July 7, 2018, ordered registration of an FIR against Hussain, saying a cognizable offence was made out in the complaint of the woman. This was challenged by the BJP leader before a sessions court which dismissed his plea.

On July 13, 2018, the high court had passed an interim order staying the trial court order which directed the Delhi Police to register the FIR. It had then issued notice on the politician's plea and sought the response of the woman and the police.

Hussain challenged the trial court order on grounds that in spite of the police stand that its inquiry revealed that the allegations raised by the complainant were not found to be substantiated, the lower court directed the registration of an FIR.

The prosecution said that in the light of the directions issued by the Supreme Court in Lalita Kumari case, the FIR had to be registered and there was no infirmity in the order favouring its registration.