W.P.(CRL)/2574/2022 of GULSHAN Vs STATE AND ORS

IN THE HIGH COURT OF DELHI AT NEW DELHI

%Date of decision: 30.01.2024

+W.P.(CRL) 2574/2022

GULSHAN..... PetitionerThrough:Mr. Shahid Ali, Mr Sameer Tayyeb,Mr Monish Rais, Mr Rahil Maboodand Mr Shahrukh Khan, Advocates.Mr.Sanjay Abbot, Amicus Curae.Through:Mr. Shahid Ali, Mr Sameer Tayyeb,Mr Monish Rais, Mr Rahil Maboodand Mr Shahrukh Khan, Advocates.Mr.Sanjay Abbot, Amicus Curae.

versus

STATE AND ORS...... RespondentsThrough:Ms. Nandita Rao, ASC for State withMr. Amit Peswani, Advocate.SIDevendraSingh,PSJafrabad,Delhi.Through:Ms. Nandita Rao, ASC for State withMr. Amit Peswani, Advocate.SIDevendraSingh,PSJafrabad,Delhi.

Ms. Mrinal Elker Mazumdar, Ms.Aarushi Gupta, Advocates for R-4.Mr. Anil Mittal, Mr. Shaurya Mittaland Mr Atul Chauhan, Advocates forR-5.Aarushi Gupta, Advocates for R-4.Mr. Anil Mittal, Mr. Shaurya Mittaland Mr Atul Chauhan, Advocates forR-5.

Mr. Anupam S. Sharma, SPP for CBIalong with Mr Harpreet Kabi, MrPrakashDiran,MrRipuDamanSharmaandMrAbhishekBatra,Advocates for the CBI.along with Mr Harpreet Kabi, MrPrakashDiran,MrRipuDamanSharmaandMrAbhishekBatra,Advocates for the CBI.

CORAM:HON'BLE MR. JUSTICE AMIT BANSAL

AMIT BANSAL, J. (ORAL)

1.Mr. Sanjay Abbot, learned Amicus Curiae points out two inadvertent

errors in the order dated 18[th]December, 2023 passed by this Court.

A.He points out that in paragraph 4 of the said order, inadvertently awrong reference has been made to Section 174 of the ‘Indian PenalCode, 1860’ (IPC) whereas it should have been Section 174 of the‘Code of Criminal Procedure, 1973’ (CrPC).wrong reference has been made to Section 174 of the ‘Indian PenalCode, 1860’ (IPC) whereas it should have been Section 174 of the‘Code of Criminal Procedure, 1973’ (CrPC).

B.He further points out that in paragraph 9 his submission has beenwrongly recorded that, ‘State of Uttar Pradesh may be directed totransfer its investigation to Delhi Police’. He submits that thesubmission made by him was that ‘Delhi Police may be directed toregister an FIR’.wrongly recorded that, ‘State of Uttar Pradesh may be directed totransfer its investigation to Delhi Police’. He submits that thesubmission made by him was that ‘Delhi Police may be directed toregister an FIR’.

2.The order dated 18[th]December, 2023 is corrected in the aforesaid

terms.

3.Now I proceed to decide the writ petition on merits.

4.The present writ petition has been filed seeking the following relief:

“a. To issue Writ of Mandamus or any other kind of writ,order or directions and thereby directing the Respondent no 2to convert the GD entry no. 0020A dated 14.07.22, into an FIR/to register the fresh FIR and to investigate the incident/offenceof murder of son of petitioner as per law and further fordirecting the respondent no. 3 and 4 to transfer the 'ZERO FIR'No. 00/2022, P.S. Makronia, Distt. Sagar, Madhya PradeshU/s 174 Cr.P.C. to respondent no. 2.”order or directions and thereby directing the Respondent no 2to convert the GD entry no. 0020A dated 14.07.22, into an FIR/to register the fresh FIR and to investigate the incident/offenceof murder of son of petitioner as per law and further fordirecting the respondent no. 3 and 4 to transfer the 'ZERO FIR'No. 00/2022, P.S. Makronia, Distt. Sagar, Madhya PradeshU/s 174 Cr.P.C. to respondent no. 2.”

5.In the present case, notice was issued vide order dated 4[th]November,2022. Thereafter, vide order dated 6[th]December, 2023, the respondents no. 3(SHO, Police Station Jafrabad, Delhi), the respondent no.4 (SHO, PoliceStation Makronia, District Sagar, Madhya Pradesh) and the respondent no.5(SHO, Police Station Amjhara Ghati, District Lalitpur, Uttar Pradesh) weredirected to file their respective Status Reports. Further, taking into account

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the sensitivity of the case, Mr. Sanjay Abbot was appointed as AmicusCuriae to assist the Court. Submissions of counsels were heard on 18[th]December, 2023, 22[nd]December 2023 and on 30[th]January, 2024.

6.Briefly stated, the case set up in the petition is set out hereinafter:

6.1The Petitioner is the mother of the deceased, Asif (hereinafter referredas ‘petitioner’s son’). Petitioner’s son was running business with oneMonish and he was to be paid an amount of Rs.15,00,000/- from thesaid business by Monish. However, Monish had not paid the saidamount to the petitioner’s son even after several reminders.as ‘petitioner’s son’). Petitioner’s son was running business with oneMonish and he was to be paid an amount of Rs.15,00,000/- from thesaid business by Monish. However, Monish had not paid the saidamount to the petitioner’s son even after several reminders.

6.2On 11[th]July, 2022, petitioner’s son received phone call onpetitioner’s mobile number from the phone of Monish whereby thepetitioner’s son was asked to come with two pairs of clothes and abag. Monish further advised the petitioner’s son not to inform thepetitioner about this telephonic conversation.petitioner’s mobile number from the phone of Monish whereby thepetitioner’s son was asked to come with two pairs of clothes and abag. Monish further advised the petitioner’s son not to inform thepetitioner about this telephonic conversation.

6.3On the very next day i.e., 12[th]July, 2022, daughter of the petitionerreceived phone call from the mobile phone of Monish informing thatpetitioner’s son had met with an accident at District Sagar, MadhyaPradesh and he has been taken to hospital wherein he is gettingoperated.received phone call from the mobile phone of Monish informing thatpetitioner’s son had met with an accident at District Sagar, MadhyaPradesh and he has been taken to hospital wherein he is gettingoperated.

6.4Subsequently, on 13[th]July, 2022, the police officials from the DistrictSagar, Madhya Pradesh contacted the petitioner and informed thepetitioner that her son, Asif, had died in road accident.Sagar, Madhya Pradesh contacted the petitioner and informed thepetitioner that her son, Asif, had died in road accident.

6.5Post-mortem of petitioner’s son was conducted at SagarshreeHospital, District Sagar, Madhya Pradesh and thereafter police sentthe dead body to the petitioner at Delhi on 14[th]July, 2022.Hospital, District Sagar, Madhya Pradesh and thereafter police sentthe dead body to the petitioner at Delhi on 14[th]July, 2022.

6.6On arrival of the dead body of the petitioner’s son, PCR call was

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Digitally Signed By:DINESHKUMARSigning Date:02.02.202412:28:54

made to the respondent no.3 by the daughter of the petitioner. It wasintimated that petitioner’s son who had gone somewhere with hisfriends and had died. Thus, General Diary Entry bearing GDENo.0020A was registered by the respondent no.3. In this regard,statement of the father of the deceased was taken.

6.7However, no action was taken by the respondent no.3 stating that noincident had taken place in the jurisdiction of the Delhi. It was furtherstated that the death occurred in the jurisdiction of Madhya Pradeshand thus, the petitioner should register her complaint in the state ofMadhya Pradesh.

6.8Consequently, the petitioner along with her family travelled toMadhya Pradesh to enquire regarding the incident whereby thepetitioner discovered that based on the statement of Monish, ‘ZeroFIR’ bearing No.00/2022 dated 13[th]July, 2022 under Section 174 ofthe CrPC was registered at Police Station Makronia, District Sagar,Madhya Pradesh.

7.In order to get justice for her deceased son, the petitioner filedcomplaints against Monish, Parvez, Nadeem, Huma and Shareef before: (i)Commissioner of Police, Delhi and SHO, Jafrabad dated 30[th]August, 2022[Annexure-P7 (Colly)]; (ii) SSP, District Sagar, Madhya Pradesh dated 2[nd]September, 2022 [Annexure-P8 (Colly)]; and (iii) SSP, District Lalitpur,Uttar Pradesh dated 3[rd]September, 2022 [Annexure-P9 (Colly)]. However,no legal action has been taken against the accused persons.

8.In the Status Report filed on behalf of the respondent no.4, it has beenstated that during the course of investigation it was found that the place ofincident fell within the jurisdiction of Police Station Naarahat, District

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Lalitpur in the State of Uttar Pradesh. Thus, all the concerning case paperscame to be handed over to the respondent no.5.

9.As per the status report filed on behalf of the respondent no.5, an FIRbeing Crime Case No. 136/2022 under Section 279/337/338/304A of theIPC came to be registered at Police Station Narahat against the unknown busdriver on 16th December, 2022. It is stated that investigation in the aforesaidFIR is being conducted. It is further stated that an attempt is being made toascertain the whereabouts of the unknown offending bus and its driver.

10.Counsel for the petitioner submits that the complaint dated 30thAugust, 2022 was filed by the petitioner with the respondent no.2 and therespondent no.3 on the premise that Asif was murdered by Monish and hisfriends on account of the ongoing financial dispute. Thus, the respondentno.2 should register an FIR and carry out the investigation in this regard.

11.Learned Amicus Curiae appointed by this Court submits that in thepresent case, the concerned authority in the State of Madhya Pradesh hasalready closed the case, whereas the concerned authority in the State of UttarPradesh is investigating only the accident angle. Therefore, he submits thatthe respondents no.2 may be directed to register an FIR on the basis of thecomplaint filed by the petitioner.

12.Learned ASC, appearing on behalf of the State has placed reliance onthe judgment of the Supreme Court in T.T. Antony v. State of Kerala andOthers, 2001 SCC OnLine SC 805, to submit that another FIR in respect ofthe same cognizable offence or same occurrence giving rise to one or morecognizable offences cannot be registered.

13.I have heard the counsels for the parties and perused the material onrecord.

14.In the complaint dated 30th August, 2022, filed on behalf of thepetitioner, allegations have been made that the petitioner’s son did not die ofa road accident but was murdered by Monish and his other friends namelyParvez, Nadeem and Huma in connivance with each other.

15.As per the aforesaid complaint, the motive behind the killing was onaccount of the fact that Monish had to pay an amount of Rs.15 lakhs to thepetitioner’s son. Therefore, conspiracy was hatched to take the petitioner’sson out of Delhi and subsequently kill him. It is this aspect which is requiredto be investigated by the respondent no.2.

16.Further, as noted above, the FIR registered by the respondent no.5 isonly limited to offences under Sections 279/337/338/304A of the IPCrelating to the death of Asif on account of accident. The said FIR is notconcerned with the aspect of murder of the petitioner’s son by Monish andhis accomplices. Therefore, the judgement of T.T. Antony v. State of Kerala(supra), would not be relevant in the present case.

17.It is pertinent to note that the petitioner’s son (deceased) as well as allthe accused persons were residents of Delhi at the time of the incident andthe petitioner’s son was allegedly lured out of Delhi by the accused personsin order to kill him.

18.It is very unfortunate that neither an FIR has been registered nor anyinvestigation has been carried out by the respondent no.2 and the respondentno.3 despite the fact that the petitioner has lost her young son in tragiccircumstances, more than one and half years ago.

19.In view of the discussion above, this Court deems it appropriate toissue direction to the respondent no.2 to register an FIR on the basis of thecomplaint dated 30th August, 2022 filed by the petitioner i.e., Annexure-P7

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(Colly) and to investigate the case in accordance with the law.

20.Accordingly, the present petition is disposed of.

JANUARY 30 2024rt

AMIT BANSAL, J.

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