Delhi HC quashes Magistrate’s order taking cognizance of Final Report in case registered against social activist Shabana Hashmi for involvement in protests against Citizen Amendment Act
Justice Navin Chawla [07-02-2024]

Read Order: SHABNAM HASHMI v. STATE OF NCT OF DELHI & ANR [DEL HC- CRL.M.C. 1741/2022]

Tulip Kanth

New Delhi, February 9, 2024: The Delhi High Court has come to the aid ofsocial activist Shabana Hashmi by quashing the Magistrate’s order taking cognizance of an offence under Section 188 of the CrPC against her for her involvement in anti-CAA protests in Delhi.

The criminal case had been registered on the charge- sheet filed against the petitioner under Section 188 of the Indian Penal Code, 1860 (IPC)stating that a video was being played on social media site Twitter in which the petitioner and others were seen protesting. The Duty Officerstated that he checked the said Tweets on Twitter and found that the same had been posted by a handle in the name of Shabnam Hashmi on 03.06.2020 containing a video made at DDA park in Dwarkain which 8 to 10 people were found walking with one banner against the Citizen Amendment Act (CAA). At the end of all these persons was the petitioner herein, found holding the banner. The petitioner is a social activist and the Twitter handle also belonged to her.

It was alleged that as all these persons had violated the Prohibitory Order issued under Section 144 of the CrPC by the Assistant Commissioner of Police, they had committed an offence under Section 188 of the IPC.

Upon investigation, a Final Report under Section 173 CrPC was filed before the Court of Metropolitan Magistrate and the Magistrate took cognizance vide the Impugned Order. The petitioner had approached the Delhi High Court by filing a petition under Section 482 of the Code of Criminal Procedure, 1973 praying for quashing of the order passed by the Metropolitan Magistratein this Criminal Caseand all consequential proceedings emanating therefrom.

It was the case of the petitioner that in terms of Section 195 CrPC, cognizance for an offence under Section 188 of the CrPC could be taken only on a complaint in writing of the Public Servant concerned or of some other Public Servant to whom he is administratively subordinate. Cognizance couldnotbe taken of the Final Report. It was further submitted that the Final Report contained a document purporting itself to be 'permission under Section 195 CrPC' issued by the ACP and the same could not be considered as a complaint u/s 195 CrPC. Therefore, it was argued that the Impugned Order taking cognizance on the Final Report was liable to be set aside.

On the contrary, the respondent submitted that the Metropolitan Magistrate could take cognizance not only of the Final Report, but also of the document attached thereto.

Referring to section 195 CrPC, the Bench opined that a Court can take cognizance of any offence punishable under Section 188 of the IPC only on the complaint in writing of the Public Servant concerned or some other Public Servant to whom he is administratively subordinate.

On completion of investigation, instead of filing a complaint in terms of Section 195 CrPC, the Final Report was filed before the Metropolitan Magistrate, and the Magistrate took cognizance of this Final Report. The same, according to the Bench, was clearly impermissible in terms of Section 195 CrPC. As per the Bench, the reliance of the prosecution on the “permission under Section 195 CrPC” issued by the ACP was also ill- founded.

The High Court observed that this document was not a Complaint as defined by Section 2(d) CrPC but it was in the nature of a permission given by the ACP for prosecution of the petitioner and for seeking exemption from his own personal appearance in the Court. Reliance was placed upon the judgment in Vasudev v. State, wherein it was held that the same does not satisfy the test of being a Complaint under Section 195 CrPC.

Lastly, observing that the challenge in this case was to the order passed by the Metropolitan Magistrate taking cognizance of the Final Report, which is not a complaint under Section 195 CrPC, the Bench allowed the appeal and quashed the Magistrate’s Order.