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Chief magistrate dismisses Somnath Bharti cop-FIR cases; Deepak Khosla to refile nearly identical petition before magistrate

The counsel of former Aam Aadmi Party (AAP) Delhi law minister Somnath Bharti, Deepak Khosla, will appeal to the high court against the dismissal of Bharti’s plea to register a First Information Report (FIR) against police officers.

Khosla will also continue to fight in his criminal defamation complaint against a magistrate who was initially hearing Bharti’s case, which was also dismissed by Additional Chief Metropolitan Magistrate Tarun Yogesh yesterday.

IANS reported that Yogesh said: “In the present facts and circumstances filing of chargesheet by investigating agency, any allegation of unfair or bias investigation cannot be separated from the discharge of official duty by investigating officer.”

Yogesh also held in paragraph 18 of its order (full copy of both orders below):

Adv. Sh Deepak Khosla for complainant, during his submissions upon application filed U/s 156 (3) Cr.P.C has himself stated that except for offence U/s 218 IPC other offences U/s 211, 217, 219 & 220 IPC are non-cognizable in nature.

Therefore, in the absence of any averment regarding framing of incorrect record or writing by public servant with intent to save person from punishment or property from forfeiture, mere allegation about filing of chargesheet by investigating agency upon false averments / allegations and misrepresentations is not sufficient for directing registration of FIR against erring police officials and other unknown persons of political parties. Application U/s 156(3) Cr.P.C is hence dismissed.

Khosla, however, claimed that this averment was in fact present in the original petition, and commented in an email to Legally India: “As regards refusal to issue a direction to register an FIR in Somnath Bharti’s case, the Court has, in para 18 of the order, indicated its […] inability to read the font-size 14 Cambria type of the complaint, wherein Mr Bharti has categorically averred alleged exactly what the Court is saying that he has not averred, and which inability to ‘see’ his averment is the sole basis for its refusal.”

“Mr Bharti is taking that order to the High Court, and as there are 18 other complainants, the 2nd complainant will file a pretty-much identical complaint[Tuesday], with the only difference being that the averment that the Court allegedly missed ‘seeing’ will now be almost as a masthead of the complaint, and in one part of the complaint, it shall be also printed in red and bold,” he added.

Defamation: Question of sanction

Khosla, who had complained to Delhi high court chief justice (CJ) G Rohini against metropolitan magistrate Niti Phutela’s recusal and the transfer of his case to another judge, filed a criminal defamation case against Phutela the next day in the Saket district court, asking for Rs 50 crore in damages.

While Yogesh declined to act on that complaint, Khosla commented: “He’s not dismissed the defamation complaint against MM Ms Phutela on merits. He’s only alluded to the need for sanction for her prosecution under Section 197 CrPC. So, without prejudice to the position that this view is wholly untenable in law (as she, as per definitive pronouncements of the SC, was not acting in discharge of her official duty), we will apply for sanction, and the Govt has 3 months to respond, after which it will be deemed granted.

“Simultaneously, I am taking this matter to the high court in writ jurisdiction, because this order is wholly perverse, also because he has not dealt with the 1934 judgement I had given him that rests squarely on the point.”

Somnath Bharti / Deepak Khosla vs Magistrates by legallyindia

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