AJAY RAJ SHARMA Vs. STATE

JUDGEMENT

(1.) This petition has been preferred by the Commissioner of Police (in short C.P.), Delhi,, whereby he has raised substantial question of law pertaining to the power of the Metropolitan Magistrate to transfer the case from one investigating agency to another investigating agency out of his own jurisdiction. Secondly whether by doing so he ex- ceeded his jurisdiction and authority under law?

(2.) In order to appreciate the points raised, we may have a quick glance lo the facts relevant for the determination of these questions.

(3.) Sharifa Shekh appeared in the Court of learned Metropolitan Magistrate on 15th October, 1999 and stated that she was victim of rape in the house where she was working as maid servant. Learned Additional Public Prosecutor (in short APP) opposed giving her custody to her previous employer, even sending to Nari Niketan was opposed. However, since her statement under Section 164 of the Code of Criminal Procedure was to be recorded she was ordered to be sent to Nari Niketan. It was directed by the learned Metropolitan Magistrate that relatives of Sharifa Shekh be found out from Murshidabad by sending wireless messages by'the 1.0. Case was adjourned to 22nd October, 1999. She had stated that she was raped by her employer on 14th October, 1999. On the basis of this complaint case was registered vide FIR No. 733/99 at Police Station Shalimar Bagh under Section 376/34 Indian Penal Code. On that date she slated before the Court that her parents and husband had died. Her husband died in an accident. Case was, thereafter, taken up on 25th October, 1999 when Sharifa Shekh was produced from Nari Niketan. From perusal of the file learned Metropolitan Magistrate found that two attempts were made to take custody of Sharifa Shekh. One by police Constable Ajay who made oral statement that he -wanted her custody and another by Sanjay @ Ashok resident of Amritsar claiming to be her husband. On this learned Metropolitan Magistrate observed that in the complaint the complainant had stated that she was an orphan and her husband has since died in an accident. On perusal of her statement learned Metropolitan Magistrate found that she was employed by Puja and her husband Sanjay @ Akash. Sanjay @ Akash raped her several times in his house, and thereafter, both accused Puja and Sanjay @ Akash put her to prostitution. She had told the police that she could identify those persons i.e. Puja and Sanjay @ Akash. In this background the learned Metropolitan Magistrate found that local police had not investigated the case properly. It had failed to call the prosecutrix to identify the accused persons who forcibly raped her nor got the place identified where she was raped. Efforts were not made by the Investigating Officer or the SHO, Police Station Shalimar Bagh to ascertain the facts on the point of rape even though the complaint was lodged as far back as on 15th October, 1999. The learned Metropolitan Magistrate found the altitude of police and in particular of the 1.0. very callous and inhuman because police neither arrested the accused persons nor indicated the steps taken in this regard. Moreover, no investigation had been done from 19th October to 25th October, 1999. It was in' this background that the learned Metropolitan Magistrate vide his order dated 25th October, 1999 directed the C.P. to transfer 'further' investigation to Deputy Commissioner of Police (Crime). Since the case was listed on 27th October, 1999 before another Metropolitan Magistrate for recording Sharifa's statement under Section 164, Cr.P.C. hence directions were also give to D.C.P. (Crime) to take steps.