Mohd. Nayeem v. NGT of Delhi & Anr.

1. The petitioner, has preferred the present writ petition to seek thb quashing of FIR No.583/2016 dated 05.08.2016 under Section 365 IPG at Police Station — Khajuri Khas, District North-East, Delhi on the complaint ofrespondentNo.2/Mohd.Islam,who is the father ofthe so-called victim.'

2. The petitioner and his wife Gulafsa,are present. She is.the so-called victim in the crime. In support ofthis petition,the affidayit of.Gulafsa has been filed. 2017:DHC:8628

3. It appears that respondent No.2/ Mohd.Islam filed a Habeas Corpus petition being W!P.(Crl.)No.2367/2016, which came before the Court on ' 26.09.2016. The order dated 26.09.2016 records that Gulafsa stated that she desire to reside with her parents. The order also records that she stated that she,had been beaten up and tortured by the petitioner herein/ Mohd. Nayeem. The Court also recorded the understanding of the parties with regardtoretumofthejewellery and belongings ofGulafsa. ' >

4. Mr.Mahajan has tendered in Court the statement ofGulafsa recorded on 26.09.2016 before the Counsellor, CIC Rajinder Kaur. Mr. Mahajan submits that in her statement under Section 164 Cr.P.C., the prosecutrix Gulafsa has not supported the case of the prosecution with regard to her kidnapping. In her statement under oath, she stated that on 21.07.2016 at 10:00 a.m. in the morning, without informing anyone at home,she had left with the petitioner herein/ Mohd. Nayeem for Bulandshahar. At Bulandshahar,they had got married in Court. She further stated that Mohd.^ Nayeem had not done any wrong deed with her^ and thatshe had got married to Mohd.,Nayeem out ofher own free will. She also-stated that she wishes to reside with the petitioner/accused/Mohd.Nayeem. 5.. Learned counsel for the petitioner states that after this, petition was taken up by the Court on 22.09.2016 and notice issued, the petitioner was arrested by the I.O. on 27.09.2016 and he remained in judicial custody for about 17 days. He was released on bail on 14.10.2016. 6.. Gulafsa is present in Court today and she states that she has been living with the petitioner of her own ffqe will and accord, and that she wishes to reside with Mohd. Nayeem as his wife. She states that when the Habeas Corpus petition was taken up by the Division Bench on 26.09.2016, on persuasion of her parents - who desired that she should return to her parental home for some time to save their honour, she stated before the Court that she would go with them. She was not aware that the petitioner would be arrested and put behind the bars. She has stated that she has been living with the petitioner for the lasttwo months as his wife.

7. From the above, it appears that respondent No.2 and the police, particularly the I.O. concerned have abused the process oflaw and the I.O. has misused his authority in the present case to somehow frustrate the endeavour ofthe so-called victim Ms. Gulafsa from continuing her alliance with the petitioner. The endeavour appears to have been to scare the petitioner and the prosecutrix so that they end their relationship, and with that in mind,the I.O. proceeded to arrest the petitioner despite the fact that this quashing petition had been filed duly supported by the affidavit of Gulafsa. It is shocking that this being the position,the I.O. did not consider it necessary to first enquire from Gulafsa whether she had,indeed,filed the affidavit in support of the present petition seeking quashing of the FIR in question, and he straightaway proceeded to arrest the petitioner. Even ifthe I.O. is given the benefit of doubt on account ofthe recording made in the order dated 26.09.2016, the statement recorded by the Counsellor Rajinder Kaur on the same day, i.e. 26.09.2016 clearly shows that Gulafsa had stated that she had left with the petitioner ofher own free will and accord,though upon his persuasion. Nowhere Gulafsa stated that the petitioner had taken her away by use offorce orthrough misrepresentation.

8. The complainant,who is present in Court,states that he does not wish to pursue his complaint any further in view of the fact that his daughter Gulafsa left her parental home out ofher own free will and accord, and she has married to the petitioner and wishes to reside with him. -

9. The FIR in question and the proceedings arising therefrom are, accordingly,quashed. \

10. The other issue which remains is with regard to the infraction ofthe rightto life & liberty ofthe petitioner, on account ofhis wholly uncalled for arrest and confinement for about 17 days. The same has been done by the I.O. despite being aware ofthe entire factual background.

11. In these circumstances, I direct the Commissioner of Police to take appropriate disciplinary action against the I.O. in this case, namely SI Manish Tyagi, PS - Khajuri Khas. The I.O. is also subjected to costs of Rs.17,000/-, which shall be paid to the petitioner. The costs be paid within two weeks. Report with regard to the action taken against the I.O. shall be sent to this Court within two months.

12. List the matter for reporting compliance of the aforesaid order on II.04.2017.

VIPIN SANGHI,J JANUARY 04,2017 B.S. Rolielln Later on, the matter has been mentioned by Mr. Rahul Mehra, learned Standing Counsel(Crl.), GNCTD. He has urged that the I.O. in the case SI /'-ft' b. Manish Tyagi had acted bonafide, and it is on account of his inexperience and possible enthusiasm that he proceeded to arrestthe petitioner despite the aforesaid being the position. The I.O. is present in court and states that he had joined the service recently i.e. in the year2015 and he had proceeded to arrestthe petitioner on account of the statement made by the victim Gulafsa before the Division Bench in W.P. (Crl.) No. 2367/2016 on 26.09.2016. The I.O. and Mr. Mehra have pleaded for a lenient view being taken by this court against the I.O. The I.O. also has assured that he shall be more careful in future and shall not take such harsh and mindless actions,which may tantamount to abuse or misuse ofhis authority. The I.O. has been cautioned and warned and also advised to conduct himself in accordance with law and propriety. It has been emphasised to him that the image of the entire police force gets maligned on account of such like conduct. The I.O. has expressed his regret. In view of the aforesaid, while maintaining the direction imposing costs on the I.O. SI Mariish Tyagi, PS - Khajuri Khas, the direction requiring placing ofthe ease before the Commissioner ofPolice for taking disciplinary action against the I.O. is recalled. However,it is directed that a recordable warning may be made in the service book of SI Manish Tyagi, which is the bare minimum punishment that he could be subjected in the eireumstanees ofthe case. A copy of this order be, accordingly, communicated to the DCP concerned having jurisdiction over PS - Khajuri Khas and who may be responsible for recording the recordable warning in the service record ofthe I.O.,namely,SI Manish Tyagi. The matter need not be listed for compliance on 11.04.2017 and the same stands disposed of.

JANUARY 04,2017 PIN SANGHI,J