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2023 DIGILAW 173 (UTT)

Kusumben Patel v. State of Uttarakhand

2023-02-13

SANJAYA KUMAR MISHRA

body2023
JUDGMENT : Sanjaya Kumar Mishra, J. By filing of this writ petition, the petitioner being an accused in FIR No. 310 of 2020, which was originally registered under Sections 376, 506 and 34 of the Indian Penal Code, 1860, (hereinafter referred to as “the Penal Code” for brevity) against one Dr. Pranav Pandya and Smt. Shailbala Pandya at Police Station Kotwali Nagar, Haridwar, Uttarakhand, in which a final report was filed by the Investigating Officer. However, the learned Magistrate, in seisen, did not accept the same and directed further investigation, which led to filing a charge sheet against seven other persons under Sections 323, 365, 368, 195, 504 and 120B. However, charge sheet has yet not been filed against the present petitioner and the investigation is still open as against her (She is a citizen of United States of America). 2. The petitioner has prayed that an impartial investigation may be conducted by independent agency, preferably the Central Bureau of Investigation (hereinafter referred to as “CBI” for brevity) and also issue a mandamus directing that no coercive steps against her shall be taken in pursuance to the FIR referred to above. 3. The facts of the case, at this stage, as borne out from the records as well as the submissions made by the learned counsel are depicted chronologically as follows: On 05.05.2020 an FIR was lodged under Sections 376, 506 and 34 of the Penal Code at the behest of the alleged victim was registered in a Police Station at Delhi which was transferred to Haridwar Police Station on 09.05.2020 and the FIR was registered as FIR N0. 310 of 2020 on 23.06.2020. On the petition filed by the one Vivek Shukla in PIL No. 97 of 2020, this Court passed an order for police protection to the victim (whose name has been withheld). On 27.05.2020 the statement of the prosecutrix was recorded under Section 161 of Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code” for brevity). On 02.06.2020, the statement of the victim (Respondent NO.4) was recorded under Section 164 of the Code. In both the statements recorded under Section 161 and 164 of the Code, the prosecutrix supported the allegations made in the FIR. On 02.06.2020, the statement of the victim (Respondent NO.4) was recorded under Section 164 of the Code. In both the statements recorded under Section 161 and 164 of the Code, the prosecutrix supported the allegations made in the FIR. On 16.10.2020, Final Report bearing No. 01 of 2020 dated 10.10.2021 was filed before the learned Chief Judicial Magistrate, Haridwar, inter alia, stating that no concrete evidence was found from the allegations levelled by the victim could be ascertained. The petitioner claims that such filing of the Final Report/Closer Report is in violation of several principles of investigation and clear ignorance of the statement under Section 161 and 164 of the Code. On filing of the Final Report, the learned Chief Judicial Magistrate, Haridwar issued notice to the victim/complainant. The victim appeared before the Court and stated that she is satisfied with the Final Report. On 06.02.2021 an affidavit was filed by the prosecutrix before the learned Chief Judicial Magistrate, Haridwar, by taking a stand that she has not been raped or violated. On 24.07.2021 and 17.08.2021, two additional affidavits were filed before the learned Chief Judicial Magistrate, Haridwar stating further that she stated that the accused persons, who have already been charge sheeted in the meantime, and the present petitioner forced her, abducted her and her mother to give a statement against the accused in that case alleging the offence of rape and offence of molestation. On 08.09.2021 the learned Chief Judicial Magistrate, Haridwar did not accept the Final Report and directed for further investigation. That order has not been challenged by anybody. The prosecution filed charge sheet on 21.05.2022 and 22.07.2022 against seven persons who had already appeared before the learned Magistrate and charges have been framed. However, the investigation of the case against the present petitioner is still continuing. 4. The learned counsel for the petitioner would submit that in this case the Investigating Agency has not acted fairly and that she is a citizen of United States of America and, therefore, she cannot be roped into this case where there is no sufficient material to establish prima facie that she has in fact entered into a conspiracy with other accused persons and motivated the prosecutrix to file a false FIR against the originally named accused persons. The learned counsel for the petitioner would submit that this case manifestly shows that the Investigating Agency has not acted fairly. The learned counsel for the petitioner would submit that this case manifestly shows that the Investigating Agency has not acted fairly. The case should be handed over to the CBI for appropriate independent investigation. 5. Learned counsel for the petitioner would rely upon the judgment of the Constitution Bench of the Hon’ble Supreme Court in the case of State of West Bengal and others VS. Committee for Protection Democratic Rights, West Bengal and others (2010) 3 SCC 571 . He would rely upon the observations made by the Hon’ble Supreme Court in paragraph 70 to the effect that the extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise CBI would be flooded with a large number of cases and with its limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigation. 6. Learned counsel for the petitioner would submit that not only the petitioner has no confidence in the investigating agency but also this case of national and international ramification and, therefore, it should be handed over to CBI. 7. The learned counsel for the State as well as the learned counsel for the victim would submit that this case doesn’t fall within the parameters laid down by the Hon’ble Supreme Court in the aforesaid Constitution Bench judgment and the entire judgment should be taken into consideration before passing an order. In the aforesaid case of State of West Bengal and others VS. Committee for Protection Democratic Rights, West Bengal and others (supra), the Supreme Court has considered the legality of the order passed by the High Court in handing over the investigation of the case, in which the State police has a right to investigate to any central police agency and the requirement of such orders. We have already relied upon the aforesaid case in the case of Ashutosh Negi and others vs. State of Uttarakhand and others in Writ Petition (Criminal) No. 1974 of 2022 and have come to the conclusion in para 16, 17 and 18 as hereunder:- 16. We have already relied upon the aforesaid case in the case of Ashutosh Negi and others vs. State of Uttarakhand and others in Writ Petition (Criminal) No. 1974 of 2022 and have come to the conclusion in para 16, 17 and 18 as hereunder:- 16. Before taking up the case on merit, it is proper on our part to take into consideration the various judgments rendered by Hon’ble Supreme Court in similar cases. The Constitution Bench of the Hon’ble Supreme Court in the case of State of West Bengal and others Vs. Committee for Protection Democratic Rights, West Bengal, (2010) 3 SCC 571 , has examined the legality of the order passed by High Court in handing over the investigation of the case involving the offences under Sections 148, 149, 448, 436, 364, 302, 201 of the Penal Code read with Sections 25/27 of the Arms Act, 1959 and Section 9-B of the Explosives Act, 1884, in which on political rivalry several persons were killed by some miscreants persons numbering 50-60 on 04.01.2001. After taking into consideration various aspects, the Constitution Bench of the Hon’ble Supreme Court has held that in the final analysis direction of the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the 11 Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, the Suprme Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly. However, before parting with the judgment the Hon’ble Supreme Court has further held that it deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise. The very plenitude of the power under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigation. 17. Similar view has been taken by the Hon’ble Supreme Court in the case of Sakiri Vasu Vs. State of Uttar Pradesh and others, (2008) 2 SCC 409 , wherein the Hon’ble Supreme Court in paragraph 10 of the said judgment has held that it has been held by this Court in CBI v. Rajesh Gandhi (1996) 11 SCC 253 that no one can 12 insist that an offence be investigated by a particular agency. We fully agree with the view in the aforesaid decision. An aggrieved person can only claim that the offence he alleges be investigated properly, but he has no right to claim that it be investigated by any particular agency of his choice. 18. In paragraph 33 of the said judgment, the Hon’ble Supreme Court has held that in the case of Secy., Minor Irrigation & Rural Engg. Services, U.P. v. Sahngoo Ram Arya (2002) 5 SCC 521 , the Supreme Court observed that although the High Court has power to order a CBI inquiry, that power should only be exercised if the High Court after considering the material on record comes to a conclusion that such material discloses prima facie a case calling for investigation by CBI or by any other similar agency. A CBI inquiry cannot be ordered as a matter of routine or merely because the party makes some allegation. 8. Thus, it is clear that it is the right of a State Police or Civil Police to investigate any crime allegedly committed for the offences punishable under the Penal Code. However, in appropriate cases the Court has jurisdiction under Article 226 of Constitution of India to direct the CBI to take the investigation of the case. Though, the Supreme Court has not given an exhaustive list, the following are the cases where the case can be handed over to the investigating agency. They are as follows: i. An order directing the CBI to investigate a criminal case is not granted on mere asking. The Court should be cautious and circumspect in such case. Only in rare and exceptional case such order should be passed ii. To provide credibility and instill confidence in the investigation. iii. Where the incident may have national and international ramifications. iv. Where such an order may be necessary for doing complete justice and enforcing the fundamental rights. 9. Taking one by one the aforesaid three considerations, this Court comes to the conclusion that the expression “to provide credibility and instill confidence in the investigation,” the Supreme Court meant confidence of the people, not the confidence of a single party or an accused or a victim. So only because the petitioner is not satisfied with the investigation of the case, the case cannot be handed over to the CBI to instill confidence in her. 10. The learned counsel for the petitioner would also submits that in this case national and international ramifications by using the words “national or international ramifications”, the Supreme Court apparently kept in mind that in cases crime(s) allegedly committed by the accused, effect a large number of persons involving the territories of different States and the FIR is lodged in one State, the State Police may not having the necessary wherewithal’s or jurisdiction investigate the other such States case should be transferred to the Central Police Agency. The cases involving international relations where the crime affects several person who are residents of different countries which cannot be properly and effectively investigated by the Municipal Police or the State Police, should be handed over the Central Police Organization. In this case, this Court doesn’t see find any national and international ramifications. 11. The cases involving international relations where the crime affects several person who are residents of different countries which cannot be properly and effectively investigated by the Municipal Police or the State Police, should be handed over the Central Police Organization. In this case, this Court doesn’t see find any national and international ramifications. 11. In that view of the matter, this Court comes to the conclusion that this is not an exceptional case where the investigation should be handed over to the Central Investigating Agency. Hence there are no merits in the writ petition, therefore, the same is dismissed.