As regards the association, alliance and close family relations
of the complainant in FIR No.76 dated 1903.2018 with a senior police
officer who was the then Special Director of CBI, it appears to the Court
that all the allegations are mere assumption and not substantiated by any
material on record. The petitioner has drawn attention of the Court towards
two e-mails addressed to Ram Gopal Garg, the then ACB, CBI, Chandigarh
(rggarg@yahoo.com) and the copy of the same was addressed to head of
CBI at Chandigarh on official email address – hobacchg@cbi.gov.in as well
as to Tajinder Ludhra, the then IGP and Rakesh Asthana on email address
spl.dir@gov.in. These documents by any stretch of imagination, cannot be
said to be any connecting evidence substantiating the close family relations
or influence of the Special Director, CBI in the investigation conducted by
the police. The petitioner has also failed to mention the role of any police
official in hampering with the fair investigation conducted in the aforesaid
FIR or any role of any police official in lodging FIR No.75 dated
21.09.2020 under Sections 419, 420 IPC at Police Station, Sector 19,
Chandigarh.
As regards, the alleged proximity of a senior police official and
his wife with the complainant in FIR No.76 dated 19.03.2018, the same
have not been substantiated by way of any cogent proof. Even otherwise, if
a person appears in the friend list of a Facebook page of any public servant,
it cannot be assumed that an official shall favour such a person in an illegal
manner and maneuver investigation of a crime. It is indeed intriguing as to
how the petitioner gained access to the Facebook account of this police
official. Facebook accounts are privy to the account holder and the
petitioner must be put to strict proof as to how has he been able to access
the facebook account of a police official and where from he obtained the
facebook conversations Annexures P-1 and P-2.
The high ranking police officer who has never remained posted
in Chandigarh and having graduated with the husband of complainant from
same university/college in the year 1982 would not necessarily lead to any
inference that he was instrumental in getting the investigation conducted in
a biased manner. It appears to the Court that name of this officer has been
unnecessarily dragged into the litigation for ulterior motive with a view to
put pressure upon the Chandigarh police to act according to petitioner’s
whims.
The so-called officer, Mr. Asthana, never remained posted in
Chandigarh and the other high rank officer Tajinder Luthra was transferred
way back in 2018 from Chandigarh police and particularly in case of Mr.
Asthana, it can be said beyond doubt that he is not even remotely connected
with the affairs of Chandigarh Police.
The power of transferring an investigation must be in rare and
exceptional cases where the court finds it necessary in order to do justice
between the parties and to instil confidence in the public mind, or where
investigation by the State police lacks credibility and it is necessary for
having a fair, honest and complete investigation, and particularly, when it is
imperative to retain public confidence in the impartial working of the Stae
agencies. Under no circumstances, should the court make any expression of
its opinion on merit relating to any accusation against any individual. The
aforesaid view has been taken from judgment dated 21.08, 2013 rendered by
the Apex Court in Criminal Appeal No.1167 of 2013 titled ‘Prof. K.V.
Rajendran vs. Superintendent of Police, CBCID South Zone, Chennai
& others’.
It is settled law that an accused does not have the right to
determine the prosecuting agency of its own choice. The Hon’ble Supreme
Court in the case of Romila Thapar v. Union of India, (2018) 10 SCC 753,
held that the accused “does not have a say in the matter of appointment of
investigating agency”. The Hon’ble Supreme Court further held that “the
consistent view of this Court is that the accused cannot ask for changing the
investigating agency or to do investigation in a particular manner
including for court- monitored investigation.”
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Decided on: 26.11.2020
Civil Writ Petition No.16659 of 2020
Dr. Mohit Dhawan Vs U.T. Chandigarh & others
CORAM: HON'BLE MR. JUSTICE SANT PARKASH
On 01.09.2020, the following order was passed by this Court,
elaborating the facts as well as contentions of learned counsel for the
parties:-
“The instant petition has been preferred under Article
226/227 of the Constitution of India, for issuance of a writ in
the nature of certiorari, for transfer of investigation in case FIR
No.0075 dated 21.09.2020 under Sections 419, 420 IPC,
registered at Police Station, Sector 19, Chandigarh, outside the
jurisdiction of Chandigarh Police or any other competent
agency.
Learned counsel for the petitioner submits that petitioner
is a Post Graduate Dentist (MDS) by profession in the field of
Prosthodontics and Implantology from Pt. B.D. Sharma
University of Health Sciences, Rohtak. The petitioner is
practicing under the name and style of ‘Avance Dental Care’ in
Chandigarh and is a privileged member of International Team
for Implantology (IT) with several awards and recognitions to
his credit.
Learned counsel submits that the petitioner is a victim of
malice, vendetta and extortion, unleashed by Rakesh Asthana,
former Special Director, CBI, at the instance of his close
associate Ms. Gertrude D’Souza.
Learned counsel further contends that on 30.06.2017,
Ms. Gertrude D’Souza, resident of 195, Walnut Hill Road,
Bethel, CT 06801, USA contracted the petitioner’s clinic via E-
mail showing interest in getting dental implants/treatment
estimates. Pursuant to reply to the e-mail, Ms. Gertrude
D’Souza arrived in Delhi on 09.08.2007 (SIC 09.08.2017)
alongwith another patient Ms. Laura Glowacki and was
operated on 12.08.2017 for dental implants. On 13.08.2017, the
complainant evaded the payment for treatment by mentioning
her strong alliance, association and close family relation with
Rakesh Ashana, the then Special Director of CBI. However,she
gave two cheques on 16.08.2017; one amounting to `
7,13,437/- out of ` 8,28,437/-; another for amount of `
6,13,423/- on behalf of Ms. Laura Glowacki, out of total
amount of ` 6,58,273/-.
On 30.10.2017, petitioner was taken to the office of DSP
€ Satish Kumar at Police Station, Sector 26, Chandigarh and
was asked to pay ` 50 lac to settle the dispute with
complainant, without there being any deficiency of service of
any kind on the part of petitioner. The petitioner was served
summon/notices on 08.11.2017, 02.01.2018, 07.02.2018 and
12.03.2018 to join investigation without there being any FIR
against him.
On 30.01.2018, Ms. Gertrude D’Souza sent an e-mail to
CBI and police authorities of Chandigarh insisting upon getting
a payment of at least ` 5 lac from the petitioner. On
19.02.2018, complainant filed another complaint by email,
addressed to Inspector General of Police, Chandigarh at the
official email address of the then IGP, Tajinder Luthra, ip-
chd@nic.in and Raksh Asthana, the then Director, CBI, at his
official email, spl.dir@ci.gov.in.
Learned counsel contends that on 19.03.2018, a false and
frivolous FIR (No.0076 under Sections 420, 467, 468, 471 IPC,
Police Station, Sector 19, Chandigarh) was registered against
the petitioner at the instance of Ms. Gertrude D’Zouza, based
upon complaint dated 29.01.2018.
The petitioner filed a complaint bearing No.73 dated
17.10.2018 before the ‘Police Complaints Authority, U.T.
Chandigarh’ headed by Justice M.S. Chauhan (Retd.), bringing
out the illegitimate acts and undue pressure being put at the
instance of Rakesh Asthana and CBI officials, for extorting
money from the petitioner. The aforesaid Authority issued an
order dated 18.12.2019 directing the police authorities to
produce complaints dated 31.10.2017, 08.02.2018 and
19.02.2018 alongwith inquiry report and other documents but
the police authorities refused to produce the same.
Accordingly, the matter was referred to Administrator, UT,
Chandigarh vide order dated 21.01.2020. Finally, Justice M.S.
Chauhan (Retd.) resigned as Chairman of Police Complaints
Authority, Union Territory, Chandigarh on 04.03.2020.
Learned counsel contends that petitioner filed another
complaint dated 18.09.2019 to SSP Chandigarh for harassment,
extortion, fabrication of documents, corruption and serious
abuse of official position. The petitioner also filed a petition
under Section 156 (3) Cr.P.C. in the court of Judicial
Magistrate First Class, Chandigarh on 01.11.2019, against SSP,
SHO, Police Station, Sector 19, Chandigarh, for lodging an FIR
and investigate the allegations raised by the petitioner. The said
court vide its order dated 25.11.2019 directed the police to file
status report which was filed on 30.01.2020.
According to learned counsel for the petitioner, the
complaint on the basis of which present case bearing FIR
No.75 dated 21.09.2020 has been registered, was earlier
ordered to be filed as per the order of the competent authority,
and registration of the instant FIR on that complaint is nothing
but a gross abuse of the process of law.
Learned counsel has further urged that when the
grievance of the petitioner was not redressed, and feeling
frustrated and anguished, he moved complaints to various
authorities bringing out unfair, unjust, arbitrary and unlawful
acts of the respondents. The registration of the present FIR is a
counterblast to his complaint(s) with a view to compel and
pressurize the petitioner to withdraw those complaints.
Shri Charanjit Singh Bakhshi, Additional Public
Prosecutor, on behalf of respondent Nos.1 to 3 has vehemently
argued that the present petitioner while concealing the material
facts and without waiting for the decision on his application for
seeking the blanket interim bail, and further without waiting for
the order on his application for transfer of the case from the
court of Shri Rajesh Sharma, Additional District & Sessions
Judge, Chandigarh to some other court, has approached this
Court under Article 226/227 of the Constitution. It is nextly
contended that since the petitioner has not come before this
Court with clean hands, the petition deserves to be dismissed at
the very outset.
It is further contended by him that all the allegations
levelled in the present petition pertains to FIR No.78 of 2018
and the present FIR is the result of threadbare investigation.
Taking serious note of the allegations levelled in the petition, it
is submitted that the matter is being investigated in a fair and
just manner, and there is no need for transfer of the same.”
Thereafter, the case was adjourned to 26.10.2020 with a
direction to the respondents for not initiating any coercive steps in the
present FIR No.75 dated 21.09.2020.
Pursuant to the order, written submissions dated 30.10.2020
have been filed on behalf of respondent Nos.1 to 3, in counter of which,
replication has also been filed by the petitioner.
Heard learned counsel for the parties and record perused.
Respondents have denied that the petitioner is a victim of any
malice, vendetta and extortion unleashed by any police official, earlier
working in CBI or in the Chandigarh Police. It is revealed that Rakesh
Ashtana, IPS, never remained posted at Chandigarh and Tajinder Luthra
was transferred to Delhi as back as in June 2018, thus, there is no question
of these high ranking officers to undue influence the Chandigarh Police.
Moreover, the petitioner has not substantiated the allegation of giving
threats and harming him in any manner by any police official or any one
else.
A perusal of reply/written submissions on behalf of the
respondents reveals that the petitioner has attached only one complaint
(Annexure P-15) in which he has, for the first time, named the police
officials which is dated 18.09.2019. It is noteworthy that this complaint
pertains to a subject matter which is related with FIR No.76 dated
19.03.2018 under Sections 420, 467, 468, 471 IPC, registered at Police
Station, Sector-19, Chandigarh (Annexure P-7). The complaint, Annexure
P-15, was investigated under the cover of FIR No.76 dated 19.03.2018 and
the allegations levelled in Annexure P-15 were found to be false. This fact
has specifically been mentioned in the challan filed by the Chandigarh
police before the trial court in FIR No.76 dated 19.03.2018. A copy of the
said report under Section 173 (2) Cr.P.C. is attached herewith as Annexure
R-5.
It would be essential to mention here that the first complaint
received by the Chandigarh police by the complainant in FIR No.76 dated
19.03.2018 under Sections 420, 467, 468, 471 IPC at Police Station Sector
19, Chandigarh, was on 31.10.2017 at Complaint Tracking System. As a
counterblast, the petitioner made a complaint against the complainant in the
said FIR which is dated 07.02.2018 bearing Reference No.PW201801989
attached herewith as Annexure R-6. A perusal of this complaint reveals that
the petitioner has levelled allegations that the complainant in FIR No.76
dated 19.03.2018 and her husband have personal relations with DIG as well
as some DSPs of Chandigarh Police and CBI personnels. The petitioner has
also stated that on 06.02.2018, the complainant in FIR No.76 dated
19.03.2018 had telephonically threatened him that in case the treatment
amount given by her is not refunded, then, she would harass the petitioner.
This complaint was investigated but the petitioner failed to provide any
telephone number from which the threat was issued to him and this fact is
also recorded in the Challan filed in FIR No.76 dated 19.03.2018 under
Section 420, 467, 468, 471 IPC, at Police Station Sector 19, Chandigarh.
The relevant extract from the said challan is reproduced hereunder:
“25. The accused Dr. Mohit Dhawan had also filed
complaints bearing reference number PW201918352,
PW201801989, PW201916182, PW201817362, etc. In these
complaints, the accused Dr. Mohit Dhawan had levelled
allegations against the present complainant, her husband,
Abdul Mannan, Sh. Sushil Kumar, some police officials and
others. These complaints have been thoroughly
investigated/enquired and no truth has been found therein.
Accordingly, these complaints have been filed since they are
dehors any truth.”
The petitioner has not supplied any email or communication
prior to the complaint filed by the complainant in FIR No.76 dated
19.03.2018 to the effect that any demand was ever made by the petitioner
for seeking payment of any balance amount. The petitioner has deliberately concealed the other complaints filed by him against the complainant in FIR
No.76 dated 19.03.2018. He made as many as four complaints. While
Complaint bearing No.PW201918352 is on record as Annexure P-15, copies
of the remaining complaints bearing reference numbers PW201817362 and
PW201916182 are attached as Annexure R-7 and Annexure R-8. A perusal
of both these complaints would reveal that he had nowhere named any
senior police official or his/their role in allegedly threatening him or
maneuvring the investigation of FIR No.76 dated 19.03.2018. Both these
complaints had been investigated and were found to be false and this fact
has also been specifically recorded in the challan filed in FIR No.76 dated
19.03.2018 (Annexure R-5).
As regards the association, alliance and close family relations
of the complainant in FIR No.76 dated 1903.2018 with a senior police
officer who was the then Special Director of CBI, it appears to the Court
that all the allegations are mere assumption and not substantiated by any
material on record. The petitioner has drawn attention of the Court towards
two e-mails addressed to Ram Gopal Garg, the then ACB, CBI, Chandigarh
(rggarg@yahoo.com) and the copy of the same was addressed to head of
CBI at Chandigarh on official email address – hobacchg@cbi.gov.in as well
as to Tajinder Ludhra, the then IGP and Rakesh Asthana on email address
spl.dir@gov.in. These documents by any stretch of imagination, cannot be
said to be any connecting evidence substantiating the close family relations
or influence of the Special Director, CBI in the investigation conducted by
the police. The petitioner has also failed to mention the role of any police
official in hampering with the fair investigation conducted in the aforesaid
FIR or any role of any police official in lodging FIR No.75 dated
21.09.2020 under Sections 419, 420 IPC at Police Station, Sector 19,
Chandigarh.
As regards, the alleged proximity of a senior police official and
his wife with the complainant in FIR No.76 dated 19.03.2018, the same
have not been substantiated by way of any cogent proof. Even otherwise, if
a person appears in the friend list of a Facebook page of any public servant,
it cannot be assumed that an official shall favour such a person in an illegal
manner and maneuver investigation of a crime. It is indeed intriguing as to
how the petitioner gained access to the Facebook account of this police
official. Facebook accounts are privy to the account holder and the
petitioner must be put to strict proof as to how has he been able to access
the facebook account of a police official and where from he obtained the
facebook conversations Annexures P-1 and P-2.
The high ranking police officer who has never remained posted
in Chandigarh and having graduated with the husband of complainant from
same university/college in the year 1982 would not necessarily lead to any
inference that he was instrumental in getting the investigation conducted in
a biased manner. It appears to the Court that name of this officer has been
unnecessarily dragged into the litigation for ulterior motive with a view to
put pressure upon the Chandigarh police to act according to petitioner’s
whims.
From the sequence of events, it is evident on the face of it that
the petitioner wanted to return a finding in his favour since he had preferred
two petitions under Section 156(3) Cr.P.C. against certain police officers
and others at Chandigarh which are pending adjudication in the Court of JMIC, Chandigarh.
On a query put by the Court, learned counsel for the petitioner
has tried to establish a link between the complainants of the two FIRs. The
petitioner has placed on record the transcripts of telephonic conversations
and an affidavit of Alfredo Ralph Raihone (Annexure P-39) to show that the
second complaint has been manipulated by complainant of previous FIR
being FIR No.76 dated 19.03.2018 and thus, whole of the investigation is
tainted from its inception. Even this submission is totally mis-placed and
misconceived. Concededly, the telephonic conversation has been placed on
record and the affidavit of Alfredo Ralph Raihone is also on the file but it
cannot be assumed that the complainant of previous FIR ever influenced the
complainant of present case in getting the FIR registered against the present
petitioner. From the transcripts, it can be gathered that the complainant in
FIR No.76 dated 19.03.2018 was narrating her tale of woes to the other copatient
who had also got dental implant done from the hospital/clinic of the
petitioner. Both of them were aggrieved by the services rendered by the
petitioner and feeling themselves cheated at the hands of the petitioner, they
approached the police authorities in getting the matter investigated. If
glanced through the entire transcription and affidavit of Alfredo Ralph
Raihone, there is no connection of Mr. Asthana or any other Chandigarh
police officer by name which could fortify the claim of the petitioner that
the investigation was being influenced or was being conducted in a biased
manner. The so-called officer, Mr. Asthana, never remained posted in
Chandigarh and the other high rank officer Tajinder Luthra was transferred
way back in 2018 from Chandigarh police and particularly in case of Mr.
Asthana, it can be said beyond doubt that he is not even remotely connected
with the affairs of Chandigarh Police.
The power of transferring an investigation must be in rare and
exceptional cases where the court finds it necessary in order to do justice
between the parties and to instil confidence in the public mind, or where
investigation by the State police lacks credibility and it is necessary for
having a fair, honest and complete investigation, and particularly, when it is
imperative to retain public confidence in the impartial working of the Stae
agencies. Under no circumstances, should the court make any expression of
its opinion on merit relating to any accusation against any individual. The
aforesaid view has been taken from judgment dated 21.08, 2013 rendered by
the Apex Court in Criminal Appeal No.1167 of 2013 titled ‘Prof. K.V.
Rajendran vs. Superintendent of Police, CBCID South Zone, Chennai
& others’.
It is settled law that an accused does not have the right to
determine the prosecuting agency of its own choice. The Hon’ble Supreme
Court in the case of Romila Thapar v. Union of India, (2018) 10 SCC 753,
held that the accused “does not have a say in the matter of appointment of
investigating agency”. The Hon’ble Supreme Court further held that “the
consistent view of this Court is that the accused cannot ask for changing the
investigating agency or to do investigation in a particular manner
including for court- monitored investigation.”
The Hon’ble Supreme Court in the latest pronouncement, in the
case of Arnab Goswami v. Union of India and Ors., Writ Petition (Crl.)
No.130 of 2020, decided on May 19, 2020 (reported as 2020 AIR SC 2386)
has held that:
“38. The principle of law that emerges from the precedents of
this Court is that the power to transfer an investigation must
be used “sparingly” and only “in exceptional
circumstances”...”
The law laid down on the subject of transfer of investigation by
the Hon’ble Supreme Court is amply clear and the Court while exercising its
power under Article 226 must be circumspect and exercise its power under
exceptional circumstances.
Now coming to the present case as to whether exceptional
circumstances exist for transferring of the investigation.
In short, the sum and substance of the allegations which have
been levelled by the petitioner is that Rakesh Asthana, the then Special
Director, CBI and his friend/ associate, Tajinder Luthra, the then IGP,
Chandigarh have influenced the administrative authorities of U.T.
Chandigarh and have got registered a false FIR i.e. FIR No.76 dated
19.03.2018 against the Petitioner at the behest of Ms. Gertrude D’ Souza,
with an intention to extort money from the Petitioner.
Given the above allegations regarding registration of a false
FIR No. 76 dated 19.03.2018, the petitioner has stated that another false FIR
i.e. FIR No.75 dated 21.09.2020 has been registered against him and the
same has also been done in connivance with Ms. Gertrude D’ Souza, Mr.
Rakesh Asthana and Mr. Tajinder Luthra. In support of the said allegation,
the petitioner in its replication, placed on record transcripts of Ms. Gertrude
D’ Souza with other patients, to illustrate how Ms. Gertrude D’ Souza has
been trying to instigate other patients to register cases against the Petitioner.
No allegation has been made against Ms. Enid Nayabundi (complainant of
FIR No.75 dated 21.09.2020) and as to how this person is in any manner connected with the either Rakesh Asthana, Tajinder Luthra or the
Chandigarh Police and/or is in any manner trying to influence the
investigation. The transcripts placed on record by the petitioner do not
make out a case with respect to any outside influence which is being made
on the police authorities or for that matter, any mala fide exercise of power
by the police authorities. There is nothing on record to suggest that there has
been any undue influence being made upon the police officials or that the
police officials have been acting in excess of their powers or with any
mala fide intention. No material has been put on record to show that there
has been any bias or prejudice caused to the Petitioner.
Moreover, the petitioner, in the instant case, has sought transfer
of investigation of FIR No.75 dated 21.09.2020, which has been registered
after more than 2 years of registration of the FIR No.76 dated 19.03.2018.
No relief has been sought regarding FIR no. 76 dated 19.03.2018 for which
challan/police report under Section 173 Cr.P.C. has been filed.
While this Court has not been called upon to determine on
transfer of investigation of FIR No.76 dated 19.03.2018, but due to the
emphasis laid down by the petitioner about the circumstances leading to
filing of the said FIR, it would be pertinent to add that the allegations which
have been levelled by the petitioner against the exercise of influence by
Rakesh Asthana and Tajinder Luthra for registration of FIR No.76 dated
19.03.2018, do not find favour with this Court. Sending of complaints by
way of emails to the officials on their personal email IDs or having them as
friends on social media do not give rise to any presumption of mala fide.
In light of the clear law laid down by the Hon’ble Supreme
Court and the factual circumstances, this Court does not find the present
case to be a fit case for exercise of its power under Article 226.
It would not be out of place to mention that the petitioner also
seeks an all-encompassing relief against registration of any FIR(s),
inasmuch as it has prayed that “directions be issued to the respondents to
issue an advance notice of one week to the petitioner in case any such or
similar FIR is registered against the petitioner by Chandigarh Police
before arresting him.”. The said prayer of the petitioner also deserves to be
declined as he cannot be permitted to seek a blanket protection from this
Court. There are alternative remedies which are available to an accused
person under law and it is always open for the petitioner to avail those
remedies, instead of knocking the doors of this Court under Article 226.
It is however pertinent to add that this Court is not expressing
any opinion on the merits of the case.
Dismissed.
(Sant Parkash)
Judge
26.11.2020
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