Full Text
HIGH COURT OF DELHI
Date of order: 16th October, 2024
MISS G. .....Petitioner
Through: Mr. Akshit Gadhok, Mr. Asghar Khana, Mr. Abdul Tahir Khana and
Mr. Anubhav Agarwal, Advocates
Through: Mr. Anand V. Khatri, ASC for State
CHANDRA DHARI SINGH, J (Oral)
ORDER
1. The instant petition under Article 226 of the Constitution of India (“Constitution” hereinafter) read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 has been filed on behalf of the petitioner seeking the following reliefs: “i. Allow the present petition and issue a writ, order and direction in the nature of writ/direction/order of mandamus to the Respondents to initiate stringent action against the accused in FIR No. 92/2023, P.S, CR Park, Delhi. And/or; ii. Pass any other or further order(s) as deemed fit and appropriate in the facts and circumstances of the case.”
2. The brief facts that led to the filing of the instant petition are as follows:
(i) The petitioner got married to her husband (“accused” hereinafter) on 30th November, 2021 at JW Marriot, Aerocity, New Delhi, according to Hindu rites and rituals in presence of their family and relatives.
(ii) Pursuant to the aforesaid, due to temperamental issues between the wedded couple, various altercations took place wherein it is alleged that the accused and his family subjected the petitioner to cruelty and dowry demands on several instances.
(iii) Subsequently, the petitioner filed a complaint dated 6th
December, 2022 against her husband and her in-laws before the CAW Cell, Sriniwaspuri, Delhi, as a result of which, an FIR bearing no. 92/2023 dated 1st March, 2023 was lodged at Police Station - C.R Park, Delhi for the offences punishable under Sections 498A/406/34 of the Indian Penal Code, 1860 (“IPC” hereinafter). Thereafter, a chargesheet against the accused husband under Sections 498A/406/377/506/509/34 of the IPC was also filed on the same day.
(iv) It is alleged by the petitioner that despite such serious allegations, the accused was not asked to join the investigation and no notice under Section 41A of the Code of Criminal Procedure, 1973 (“Cr.P.C” hereinafter) was issued to him by the police.
(v) Being aggrieved by the inaction of the police, the petitioner has filed the present petition seeking directions of this Court in the nature of Mandamus to direct the respondents to initiate stringent action against the accused husband mentioned in the aforesaid FIR.
3. Learned counsel appearing on behalf of the petitioner submitted that the petitioner herein is a victim of atrocities and criminal acts committed by the accused and his family including a serious offence under Section 377 of the IPC committed by the accused, therefore, an urgent intervention of this Court is required to direct the police to take strict actions against the accused.
4. It is submitted that the petitioner has suffered serious mental agony, harassment and anxiety due to the acts of cruelty committed by the accused and his family including dowry demands and violence.
5. It is submitted that despite incurring a huge expense of Rs. 1,90,79,500/- by the petitioner’s family towards their marriage, the accused and his family have caused physical and mental torture, harassment and inhumane behaviour to the petitioner on account of bringing insufficient dowry, as a repercussion of which, the petitioner was compelled to leave the company of the accused as well as her matrimonial home.
6. It is further submitted that the police has failed to take any action against the accused as he was not served with a notice under Section 41A of the Cr.P.C and he was not asked to join the investigation. It is submitted that the present petition has been filed due the aforesaid inaction of the police.
7. It is submitted that the custodial interrogation of the accused is warranted for the adjudication of such serious allegations as no arrest was made before the filing of the chargesheet.
8. It is also submitted that in view of the fact that the offences for which the accused has been charged with are punishable with imprisonment of seven years or more, the decision rendered by the Hon’ble Supreme Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, is inapplicable to the present case.
9. It is submitted that the indulgence of this Court is warranted for directing the respondents to take stringent action against the present accused as the offences are serious in nature.
10. Therefore, in view of the foregoing submissions, it is prayed that the instant petition may be allowed and a writ of mandamus may be issued to direct the concerned police station to take stringent action against the accused husband mentioned in the present FIR.
11. Per Contra, learned ASC appearing for the State vehemently opposed the instant petition submitting to the effect that appropriate steps have been already taken against the accused.
12. It is submitted that on the basis of the investigation conducted in the present FIR, a chargesheet under the aforementioned provisions of the penal code was prepared and filed against the accused persons.
13. It is further submitted that a notice under Section 41A has been issued to the father in-law as well as the mother-in-law of the petitioner and the investigation is being proceeded with under its natural course.
14. Therefore, it is prayed that that the instant writ petition may be dismissed being bereft of any merits.
15. Heard learned counsel for the parties and perused the contents of the instant petition.
16. It is the case of the petitioner that despite the fact that she has been subjected to serious offences punishable under Sections 498A, 406, 377, 354A and 34 of the IPC, the accused husband was not asked to join the investigation as no notice under Section 41A of the Cr.P.C was served to him.
17. In rival submissions, the learned ASC has contended that the FIR and appropriate steps towards investigation have been duly taken by the police as chargesheet have been filed in the present matter, therefore, the instant petition may be dismissed being devoid of any merits.
18. Before delving into the merits if the instant matter, this Court deems it apposite to discuss the law with regard to the scope of interference of a High Court under Article 226 of the Constitution with the process of investigation by the investigating agency, i.e., the police herein.
19. It is a settled law that a writ petition under Article 226 of the Constitution is maintainable in cases of violation of fundamental rights and/or principles of natural justice. Moreover, the scope of interference of a Writ Court is warranted where an order or proceeding has been carried out without jurisdiction. Therefore, unless gross misuse of power has been established, intervention of a High Court under a writ jurisdiction is unwarranted.
20. The Hon’ble Supreme Court in Divine Retreat Centre v. State of Kerala, (2008) 3 SCC 542, has clarified the settled position of law with regard to the scope, and ambit of interference of High Court qua investigation, the relevant extract has been reproduced herein below:
21. It was also held in the aforesaid judgment that a High Court, under its writ jurisdiction, may interfere with the investigation only in the rarest of the rare cases where abuse of power qua investigation and/or non-compliance of provisions of the Cr.P.C have been duly established. However, even in such cases, a High Court cannot direct the police as to how the investigation is to be conducted. The said finding of the Hon’ble Court has been reproduced as follows:
an aggrieved person if the High Court is convinced that the power of investigation has been exercised by an investigating officer mala fide. That power is to be exercised in the rarest of the rare case where a clear case of abuse of power and noncompliance with the provisions falling under Chapter XII of the Code is clearly made out requiring the interference of the High Court. But even in such cases, the High Court cannot direct the police as to how the investigation is to be conducted but can always insist for the observance of process as provided for in the Code.”
22. Therefore, the aforesaid judgment directs that no writ petitions may be entertained to pass directions qua investigation and the informant/complainant’s remedy lies under Sections 190 and 200 of Cr.P.C. The said provisions of the code provides the complainant with the relief to approach the Magistrate having jurisdiction to take cognizance of the offence, on the basis of which, the concerned Magistrate upon his prima facie satisfaction, is empowered to take cognizance of the same and direct the concerned police to investigate and submit a report of the alleged offence.
23. Moreover, the Hon’ble Supreme Court in Manohar Lal Sharma v. Principal Secy., (2014) 2 SCC 532, has held that a Court’s supervision in conducting an investigation/inquiry is not the ordinary practice of law in view of the fact that in cases where a superior Court monitors an investigation, the trial will become farce. Therefore, it was held in the aforesaid judgment that the code does not facilitate intervention of any Court with the investigation process and the same is warranted only in rare and compelling circumstances to ensure fair and time-bound investigation.
24. Therefore, this Court is of the view that the jurisdiction under Article 226 of the Constitution shall be exercised sparingly, carefully and cautiously. In view of the same, it is observed that the direction to the respondents to take a stringent action on the basis of a writ petition is impermissible in terms of the law laid down by the Hon’ble Supreme Court in the aforesaid judgment and such a direction to the police to take stringent action against the accused might set a wrong precedent.
25. In the instant case, it is observed by this Court that pursuant to the complaint dated 6th December, 2022 filed by the petitioner before the concerned CAW, against the accused persons, i.e., her husband and his family, an FIR no. 92 of 2023 was lodged on 1st March, 2023 at Police Station C.R Park for offences punishable under Sections 498A, 406 and 34 of the IPC, pursuant to which, a chargesheet under Sections 498A, 406, 377, 506, 509, 34 of the IPC was filed on the basis of investigation conducted against the accused husband, and it is also observed that the in-laws have already been bound down under Section 41A of the Cr.P.C.
26. Moreover, it is observed that during the course of investigation, the petitioner has leveled allegations of unnatural sex against her husband and harassment against her father-in-law, on the basis of which, offences under Sections 377 and 354A were also added. Further, the petitioner was sent to AIIMS hospital where her medical examination was conducted vide MLC dated 18th March, 2023. It is also pertinent to note that a petition under Section 125 of the DV Act has been filed by the petitioner seeking maintenance and the same is pending.
27. In view of the aforesaid facts and circumstances and as per the law settled in the aforesaid judicial dicta, this Court is of the considered view that a High Court cannot intervene with the procedural aspect of an investigation of a case.
28. Furthermore, a Writ Court is bound to intervene with the procedure of the investigation by directing the investigating agency to assure proper course of action, only in cases wherein blatant misuse of power has been established and a breach of the investigation procedure has been committed by the concerned authority, causing violation of the fundamental rights of the aggrieved party.
29. Thus, the petitioner has failed to make out a case on merits for interference of this Court in issuing directions to respondents to take a stringent action against the accused, and in view of the same, this Court, under its writ jurisdiction does not find it appropriate to direct the police to conduct investigation in terms of the contentions of the petitioner as no abuse of power has been established herein. Further, this Court observes that the petitioner been not been able to show that the concerned investigating agency has violated the procedural law, nor has the petitioner shown as to how her fundamental rights or principles of natural justice have been infringed.
30. In view of the same, this Court finds that the petitioner has failed to show on record any necessity for issuance of directions of this Court to the police as to how the investigation shall be proceeded in the present matter as there is no defect or illegality in the investigation procedure that merits intervention of this Court. Thus, this Court finds that the petitioner has filed the instant petition without sufficient cause as there is no establishment of misuse of power by the investigating agency.
31. Therefore, this Court is of the considered view that no ground has been made out before this Court for the exercise of its writ jurisdiction under Article 226 of the Constitution as there are no cogent reasons to intervene unnecessarily in the investigation of the present FIR at this stage.
32. Accordingly, the instant writ petition along with pending application stands dismissed.
33. The order be uploaded on the website forthwith.