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STATE (GOVT OF NCT OF DELHI) ..... Petitioner
Through: Mr. Sidharth Luthra, Addl. Solicitor
General with Mr. Rajesh Mahajan, ASC for the State, Mr. P.K. Dubey, Adv., Mr. Aditya Singla Adv., Mr. Shiv Pande, Adv., Mr. Rajat Agnihotri, Advocate
Mr. Nitin Saluja, Adv., Ms. Nidhi Makhija, Advocate
Insp. Dinesh Kumar, IO Mr. Kunwarjeet Singh, Advocate for the
Complainant.
Through: Mr. U.U. Lalit, Senior Advocate with Ms. Meghna Sankhla, Adv. for R-1.
Mr. Kapil Sankhla, Adv. with Mr. Rajiv Sirohi, Adv., Mr. Irshaan Kakar, Adv. for R-2.
JUDGMENT
1. By virtue of this Petition under Section 482 of the Code of Criminal Procedure(the Code), the State seeks expunction of the 2013:DHC:3610 observation/remarks made by the learned Additional Sessions Judge(ASJ) in his order dated 10.05.2013 while ordering framing of the charge against the Respondents. It is averred that while framing charge against the Respondents, the learned ASJ while exercising jurisdiction under Section 227/228 of the Code was duty bound to examine the entire material before it and to opine as to the offences for which the charge is to be framed against the Respondents. It is stated that the issue of sexual exploitation was brought to the notice of the Trial Court by the learned Public Prosecutor who referred to the material as stated in para 4 of the Petition. The State is aggrieved by the observations made in paras 76, 80, 82 and 92 of the order dated 10.05.2013, which are extracted hereunder:
2. Notice of this Petition was issued to the Respondents; they preferred not to file any reply to the same.
3. I have heard Mr. Sidharth Luthra, learned Addl. Solicitor General for the State and Mr. U.U. Lalit, learned Senior Counsel on behalf of the first Respondent. No arguments have been advanced on behalf of the second Respondent.
4. It is urged by Mr. Sidharth Luthra that the scope of jurisdiction of the Court under Sections 227 and 228 of the Code was to take into consideration the record of the case and the documents submitted by the police therewith and after hearing the submissions of the parties to pass an order framing the charge if there was ground for presuming that the accused has committed an offence and to discharge them if there were no sufficient grounds for proceeding against them. The learned ASG urges that the Court can always order further investigation under Section 173(8) of the Code and it was not within the domain of the learned ASJ to reprimand the investigating agency without giving an opportunity to the State or calling for an explanation regarding any lapse in the investigation. The learned ASG very passionately contends that the investigating agency did whatever was in its power to collect all possible evidence in respect of the sexual exploitation of the deceased by examining all the family members and a number of colleagues of the deceased including Mandeep Singh, Dipak Jindal, Aditya Mangla, Ankit Ahluwalia and Rajiv Parashar. There could not be any direct evidence of the deceased’s sexual exploitation as only she could have stated about the same to her family members and colleagues, who would have stated so if the same had been disclosed by the deceased to them. The learned ASG submits that in the circumstances the adverse observations recorded against the investigating agency ought to be expunged. The learned ASG states that it is an admitted fact that Respondent No.2 was an influential person but the same would not necessarily mean that the investigating officer/officers had not carried out their job properly and effectively.
5. Mr. U.U. Lalit, learned Senior Counsel appearing on behalf of the first Respondent states that he has nothing to say with regard to the Petition. He, however, submits that the averments made in the Petition are contrary to the record inasmuch as in para 5 of the Petition it is stated that the issue of sexual exploitation was brought to the fore before the Trial Court by the learned Public Prosecutor who referred to the above material. The learned Senior Counsel urges that the averments made in para 5 of the Petition are factually incorrect which could be demonstrated from para 12 of the order dated 10.05.2013 wherein the Special Public Prosecutor has admitted that there is no direct allegation of sexual abuse of deceased by accused Gopal Goyal Kanda or her suicide was due to this sexual abuse. Mr. Lalit contends that Dr. P. Karunakaran, DCP(North-West) District was not personally present when the arguments were addressed and thus it is evident that the averments made by the State exhibits an act of irresponsibility on the part of a senior police officer.
6. I am in agreement with Mr. U.U. Lalit, the learned Senior Counsel that the averments made in para 5 of the Petition are contrary to para 12 of the order dated 10.05.2013. The affidavit in support of the Petition is sworn by Dr. P. Karunakaran who was not physically present in the Court and thus, such an averment could not have been made by him.
7. At the same time, the order dated 10.05.2013 does not reveal that the learned Special Public Prosecutor or even the Investigating Officer was confronted by the ASJ as to the investigation/lack of investigation in respect of the alleged sexual exploitation of the deceased or extradition of Chanshivroop. It has been pointed out by the learned ASG that efforts were made to examine all possible witnesses to collect the evidence but no direct evidence was forthcoming. Moreover, the language used by the learned ASJ that the investigation was stinking was not appropriate.
8. In the circumstances, the adverse observation of the Trial Court with regard to the lack of investigation on sexual exploitation and the fact that the investigating agency did not take any steps for extradition of Chanshivroop are ordered to be expunged.
9. The Petition is disposed of accordingly.
JUDGE JULY 25, 2013 pst