The severity of the crime and specific allegations against the accused influenced the court's decision to issue warrants at the first instance.

JUDGMENT

Talwant Singh, J. The petitioner has filed the present petition under Section 482 Cr.P.C. for setting aside the order dated 03.12.2021 passed by the learned District and Session Judge, Dwarka dismissing the Criminal Revision No. 134/2021, which was filed by the present petitioner.

1.1. In the said petition before learned District and Sessions Judge, the present petitioner had challenged the order dated 04.09.2021, 09.09.2021, 14.09.2021 and 20.09.2021 passed by the learned MM, Dwarka in case FIR No. 311/2021, PS Baba Haridas Nagar, Dwarka under Section 760/328/307/420/506/34 IPC. By first three orders, the Trial Court had ordered issuance of warrants against the petitioner to procure his presence before it and vide order dated 20.09.2021, proceedings under Section 82 Cr.P.C. were commenced. The learned District & Sessions Judge vide order dated 03.12.2021 has dismissed the revision petition No. 134/2021 and the above orders passed by the learned MM were upheld.

1.2. The case of the prosecution in brief is that as per the prosecutrix on 02.04.2021, she was called by the main accused in this case Mr. Sunil Kumar, in his clinic for giving her payment. When she arrived there, she was given some intoxicating substance in cold drink and thereafter she fell unconscious. At around 11 p.m. she regained consciousness and she was told by Sunil Kumar and the present petitioner that they had committed rape on her and they had also made a video of her and if she would make hue and cry, then they would circulate the said video. Moreover, she was allegedly thrashed and injuries were caused on her person.

1.3. As per the petitioner, on 05.07.2021, that is almost after two months of the incident, the complainant had given a false and frivolous complaint to the police on which FIR No. 311/2021, under Sections 376D/328/307/420/506/34 IPC came to be registered at Baba Haridas Nagar, Dwarka. It is further stated that the main accused has already given a police complaint against the complainant for extortion and other related offences as the complainant threatened to implicate him in a false complaint, in case her demands were not met. The present petitioner was just a casual friend of the main accused; he had never seen the complainant nor knew her and she cannot even identify him. The petitioner is a police official and he was stated to be on his duty at the date and time of the incident and his presence at the place of incident is highly improbable. So, he is falsely implicated in the present case.

1.4. In the order dated 06.07.2021, the learned Magistrate noticed that one more accused, namely, Shivam was required to be arrested along with the petitioner in this Case. However, Shivam was not arrested. Statement of victim was recorded under Section 164 Cr.P.C. on 13.07.2021, in which she had mentioned the name of Shivam apart from the petitioner and main accused. The CDR details and mobile location towers of the Petitioner could easily prove that he was falsely implicated in this case and at the time of incidence he was not there.

1.5. On 03.09.2021, the charge-sheet against the main accused was filed and further investigation was stated to be going on against the present petitioner. During the course of investigation, nothing substantial was found against the petitioner which could result into his immediate arrest. On 04.09.2021, the learned Magistrate took cognizance of the charge-sheet against the main accused and the petitioner but no cognizance was taken against Shivam. Non-bailable warrants were issued against the present petitioner straight away without issuing notice and summons against the petitioner.

1.6. As per petitioner, the said act of the learned MM is against the rule of natural law as well as the judicial precedents. The court should not compel arrest of the accused if he was not arrested by the IO in the present case; the issuance of NBW was against the rule and spirit of section 87 of the Cr.P.C. and the said order passe