MS Archana Sharma v. The State and Ors.

(d) Corruption cases

ARORA (e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

120.7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.

120.8. Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.” x. The Petitioner submits that the call log / CDR in charge sheet is fabricated, doctored, tampered and false. She states Respondent No.8- 9 under the supervision of Respondent no.6 failed to collect the mobile phone of the Respondent No.2. She further states that the Respondent no.8 - 9 under the supervision of Respondent no.6 knowingly declined to seize the official desktop assigned to Petitioner, laptop to Respondent no. 2 - 3 and 10 containing the emails. xi. She states that the instant case is an apt example of irresponsible investigation and intentional mischief to withhold material evidence from the court.

ARORA xii. The Petitioner has also placed reliance on the Hon‟ble Supreme Court‟s judgment in Vinay Tyagi v. Irshad Ali Alias Deepak &Ors. 2013 (5) SCC 762 wherein it is held as under:

xiii. The Petitioner states that there have been major loopholes in the shoddy investigation as notice to the star witness was not served to join investigation, CDRs submitted are forged, doctored, incomplete and unverified. The original CDR should have been obtained from Respondent No. 10. She states the attendance portal data of the complainant to substantiate the said allegation is missing in the chargesheet. She states the Investigating Officer did not examine the CDR of mobile number of Respondent No.2. Even Respondent No.8 has not physically examined the address of Respondent No. 2. xiv. Regarding prayer „c‟ and „d‟, the petitioner submits that further investigation will unravel the truth.

5. Respondent No. 3 i.e. Subir Hazra was the head of department under whose supervision the petitioner was directly working. Since there is a prayer seeking arrest of Respondent No.3, the Respondent No.3 has filed a detailed counter affidavit stating: i) The First complaint was filed by the Petitioner on05.01.2012 to Mr. P S Nair, the then CEO of Respondent No. 10. The only averment made in this complaint in relation to the Respondent No.3 was that he asked the Petitioner "to go and meet Mr. L. Samanta" (Respondent No.2). The learned counsel for respondent 3 states that Mr. Samanta was the HR head and any decisions related to transfers, appointments and performances would only be dealt by an HR head. He states there is no reference to any sexual misconduct and harassment by the Respondent No. 3 in this complaint. ii) He states thatthe ICC committee formed on 30.03.2012 conducted a fair inquiry into the matter and it is stated that as per report, the Petitioner “added a significant twist to the tale by stating that Mr. Lalitendu was using Mr. Subir as a tool to achieve his objects and that Mr. Subir never intended any wrong/bad intentions.” He states that this was the version of the Petitioner in her statement where she stated that the Respondent No.3 had no bad intentions and never intended any wrong and that he was being used as a tool. iii) After three months of this report, on 06.06.2012, the Petitioner tendered her second complaint, and it was made to the Ministry of Home Affairs. In this entire complaint, the Petitioner made no complaints about any sort of sexual misconduct against the Respondent No.3. iv) The complaint of the Petitioner was investigated by WSI, Bimla Devi of the Delhi Police who conducted another enquiry and tendered a report dated 07.11.2012 stating that the Petitioner earlier attempted to ARORA evade the enquiry and thereafter joined the same accompanied by a lawyer. The report states that she did not cooperate and the lawyer accompanying her intervened unnecessarily and tried to mislead the enquiry. The enquiry officer thus found the case to false and baseless. However, it is mentioned that even in the course of this enquiry the petitioner wanted the case registered only against Mr. Lalitendu Samanta (Respondent No.2) and not Respondent No.3. v) The Petitioner filed a civil suit on 20.12.2012 for damages against her employer and others including the Respondent No.3 where she claimed Rs. 40 lacs as damagesrevealing her ulterior motives. The Petitioner made the Enquiry committee also a co-defendant and made serious allegations against it. Nearly three years after her first complaint, the Petitioner gave a written complaint to the police which was replete with improvisations favouring her case. However, even at this stage there were no direct allegations against the Respondent No.3. However, the Petitioner twisted the tale by alleging that the Respondent No.3 being a close friend of Mr. Lalitendu (Respondent No. 2) acted at his behest. The learned counsel states that the same is factually incorrect and the two were at best, colleagues in the same office working in different departments. He submits that an employee in any organization is bound to know the HR head and that would not render them friends let alone close friends. vi) The Petitioner filed an application under section 156(3) on 04.04.2015 before the Patiala House Courts where she made yet another set of allegations improving upon her case. The petitionerimproved her allegations to the extent of saying that "the accused No.1 took the assistance of accused No.2 for achieving their ulterior motives." This was a major improvement upon her previous version where she had ARORA been insisting that the accused No. 2 i.e. the Respondent No.3 was merely a tool with no bad intentions of his own. vii) The Petitioner tendered her second complaint on 17.08.2016 to the DCP making more improvements in her allegations against the Respondent Nos.[2] and 3.The Petitioner for the first-time added expressions like outraging the modesty, stalking, sexual harassment, defamation, criminal intimidation, targeting, chasing, physical contacts, passing sexually coloured remarks, innuendo etc. without giving any specifics at all. viii) A detailed report/ ATR was submitted by the ACP/HQ/IGI to the Hon'ble court in the 156(3) proceedings on 31.08.2016 wherein it was concluded by the investigating agency that the “statement given by the complainant seems to be an afterthought.” It was further stated that none of the witnesses supported the case of the Petitioner. ix) On 15.12.2017,the Hon'ble court of ACMM-01/PHC/New Delhi passed directions for registration of an FIR on the complaint of the Petitioner. The learned counsel states that at every stage the Petitioner not only got a hearing and enquiry but also got a complete redressal of her grievances. x) On 19.06.2018, the IO issued a notice dated 16.06.2018 under section

91 CrPC to the Petitioner to submit the phone which she claimed contained the recordings of Respondent No. 2 which were referred to in her complaint. However, the petitioner chose to make yet another set of complaints about another officer of her employer instead of supplying the desired article. Furthermore, in her reply, the petitioner sought to dictate detailed directions to the police authority as to the manner in which they should investigate as also the list of witness they were "required" to investigate.

ARORA xi) On 18.09.2018,the Petitioner gave yet another complaint to the police in as much as a new improved complaint was tendered to the Commissioner of Police, Delhi. In this complaint, the Petitioner yet again made allegations, and this time against the senior officials of Delhi Police at the level of DCP. It is thus clear that every person and/or official who did not and does not act as per the orders of the Petitioner has earned her ire and a successive complaint. This goes to show the petitioner has made a mockery of the entire investigating agency and misused the process of law. xii) The learned counsel for Respondent No.3 submits that even as per the ATR submitted by the Police before the Registration of FIR, the Petitioner has admitted that she has no grievances against the Respondent No. 3 and she wants the case to be registered against Respondent No. 2. It also reveals that the Petitioner did not cooperate with the Police Officials and joined the enquiry with a lawyer. When the Petitioner was called for giving her statement, she categorically refused to give statement and said that she would submit her statement later. This clearly shows that the allegations traversed against the Respondent No. 3 are well-designed and afterthought and made with an intent to falsely implicate the Respondent No.3. Therefore, the instant Petition is liable to be dismissed with exemplary cost.

6. Respondent No. 10 i.e., M/s GMR DIAL has filed a counter affidavit and argued as under: i) Ithas been embroiled in the matter unnecessarily. This is evident from the fact that the Respondent No. 10 was not made a party to the application under Section 156(3) Cr.P.C preferred by the Petitioner for registration of the FIR, nor was the Respondent No. 10 arraigned as an ARORA accused in the FIR. The Respondent No. 10 also believes that itis not an accused in the charge-sheet as no notice has been served upon it. In fact, the Respondent No. 10 was not even arrayed as a party in the previous similar writ petition bearing W.P. (Crl.) 112/2019 that stands disposed of vide order dated 17.12.2020 by this Hon‟ble Court. ii) Respondent No. 10 has been made a party in the present petition without any rhyme or reason with the sole intention to malign the reputation and damage the goodwill of the Respondent No. 10. iii) The learned counsel for Respondent No.10 submits that Respondent No. 10 ought to be deleted from the memo of parties as no role has been ascribed to Respondent No.10. iv) Respondent No.10 also states that the present writ petition is not maintainable and deserves to be dismissed for three reasons: a. The Petitioner has sought by way of this writ petition to carry out the criminal proceedings in a particular manner. It is settled law that the scope or the manner of the investigation or criminal proceedings cannot be guided by the whims of a complainant or controlled or scuttled by such a writ remedy. b. Powers of judicial review under Article 226, Constitution of India for transferring investigation of a criminal case to a Central Agency ought tobe exercised with great caution which must be exercised sparingly,cautiously and in exceptional situations, guiding principles for which arewell settled. The present litigation which is a complete abuse of theprocess of this Court has no national or international ramifications.Neither does it have any complex issue incapable of being investigatedby the Investigating Agency, nor is it a case which is being investigatedby more than one investigating agency. Thus, the present case fails tosatisfy any of the criteria that is a pre-requisite for ARORA transfer ofinvestigation to the CBI. Respondent No. 10 has relied on judgments viz., Arnab Ranjan Goswami v Union of India &Ors., 2020 SCC OnLine SC 462; State of West Bengal v Committee for Protection of Democratic Rights, West Bengal, (2010) 3 SCC 571; P. Chidambaram v Directorate ofEnforcement, (2019) 9 SCC 24; Bimal Gurung v. Union of India, (2018) 15 SCC 480; Ravi MV v. Amruthur Police, 2018 SCC OnLine Kar 2221 in favour of this claim. c. The present writ petition is also hit by principled of res judicata as a similar writ petition agitating similar issues with respect to the same criminal case wasdisposed of by this Hon‟ble Court vide order dated 17.12.2020 in Writ Petition (Crl.) No. 112 of 2019 titled as “Archana Sharma v. State &Ors.” It is settled law that an issue or a point decided and having attainedfinality, should not be allowed to be re-opened and re-agitated all overagain.

7. Respondent No. 2 has argued as under: i) RespondentNo.2 states that the present writ petition is not maintainable as it is barred by doctrine of res judicata. The relief of transfer of investigation to CBI sought by the Petitioner herein was an issue before this Hon'ble Court in WP(Crl.) No.112/2019 and the same stood concluded on merits vide order dated 17.12.2020. Thus, the Petitioner herein is estopped under law to agitate the said issue in a subsequent proceeding before the same Court. ii) Once the issue regarding transfer of investigation to CBI stood decidedvide order dated 17.12.2020, it is not open to any of the parties to re-litigate the same issue in the same court. Thus, the aforesaid issue cannot be a subject matter of litigation in the present proceeding ARORA on identical facts and figures. The principle of finality in the present case gathers utmost significance. iii) The other relief sought by the Petitioner against the Respondent No.2 is for arrest of accused persons. The learned counsel for Respondent No.2 states that power to arrest the accused persons rests with the Police during the stage of investigation and is over upon presentation of the charge-sheet and framing of charges. Thus, the prayer of the Petitioner herein is bereft of any merits. iv) He further states that subsequent to filing of charge-sheet and framing of charges, an accused who is admitted to regular bail (which in this case is true for Respondent Nos. 2 and 3 who are both on bail) can be arrested only after cancellation of bail by the Ld. Court that granted the bail either on such application moved by the prosecution or the complainant alleging violation of conditions of bail or by the higher Court of Law on a challenge by the prosecution or the victim. None of the parameters as afore-stated are fulfilled in the present case for grant of relief to the Petitioner herein. Thus, the prayer to arrest Respondent No.2 is not maintainable. v) On merits, the respondent No.2 has denied all allegations made against him.

8. Respondents No. 1 and 4 to 9 have made the following arguments: i) At the outset, respondent Nos. 1, 4-9 have relied upon the Doctrine of Res Judicatawith regard to prayer „a‟. ii) With regard to prayer „b‟ i.e., for arrest of Respondent Nos. 2 and 3, itis respectfully submitted that the investigation of the casehas already been concluded after collecting all relevantevidence and charge-sheet of the case has already beenfiled before the Ld. Court. In case, the petitioner has anygrievance with the investigation of the case, it is ARORA open to herto approach the concerned trial court in accordance withlaw. Hence, the present prayer is not maintainable beforethe Hon‟ble High Court of Delhi. In any case, directions forarrest cannot be sought by way of a writ petition. iii) Regarding prayer „c‟ for recommending Central VigilanceCommission and Commissioner of Police to takeaction against the named DCP‟s and IO‟s, it is submitted that the allegations levelled by the petitioner are false and baseless. The complaints of the petitioner were properly enquired into and appropriate reports were filed before the concerned Court. No negligence or dereliction of duty on the part of any police officer as alleged has come on record. Furthermore, adjudication of said prayer involves disputed questions of fact, which cannot be agitated by way of a writ petition. iv) With regard to prayer „d‟ for imposition of cost, it is submitted that the said prayer cannot be summarily adjudicated in present proceedings particularly when the Trial is yet to take place to ascertain the truth or falsity of the case. v) Last prayer is to direct the Investigating Agency to seize the Official Desktop of the Petitioner, laptop of Respondent 2 & 3 in custody of Respondent No. 10. Regarding this, it was submitted that if the petitioner has any grievance with the investigation of the case, it is open to her to approach the concerned trial court in accordance with law. This aspect of further investigation, as stated above, has already been adjudicated in WP (Crl) 112/2019. ANALYSIS:

9. I have heard learned counsel for the parties and the petitioner in person.

10. The Petitioner had filed a similar writ petition being Writ Petition (Crl.) NO. 112 of 2019 titled „Archana Sharma v. State &Ors’., before this Hon‟ble Court agitating similar issues with respect to the same cause of action. The petition was disposed of vide order dated 17.12.2020.

11. The similarityin the earlier writ petition bearing WP (Crl.) 112/2019 and the present writ petitionis apparent from the following table: “ Prayer in Writ Petition (Crl.) No. 112 of 2019 Prayer in the present writ petition A) Issue an appropriate directions / Writ to transfer the investigation in fir no.80/2018, u/s 509, registered at IGI Airport Police Station, New Delhi, from the hands of respondents no.1 to CBI as concerned Police Officer at IGI Airport Police Station not performing their duties and Contempt of Hon'ble Apex Court in Lalita Kumari vs. State of U.P. 2012; B) To issue direction to FSL for expeditious disposal of pending examinations of Audio CD preferably within 4 weeks of the orders of this Hon’ble Court. a) Allow the present Petition and issue writ of mandamus or any other appropriate writ for giving directions to the Respondent No. 1 to transfer the further investigation of FIR No. 80/2018 registered U/s. 509/34 IPC at P.S. IGI Airport to Central Bureau of Investigation from Respondent No.1; b) Direct the concerned agency to arrest/ detain the Respondent No. 2 and 3 immediately for further investigation; ARORA C) To issue a Writ in the nature of Mandamus directing the Hon’ble Patiala House Court to expeditiously conduct the trial proceedings in the long pending complaint filed by the Petitioner/Complainant and pass appropriate orders within 6 months. D) Pass such other order or orders as are deemed fit and necessary in the interests of justice. c) Recommend Central Vigilance Commission and Commissioner of Police to take serious and effective action against the named DCPs and IOs who neglected the complaint ofPetitioner to register as FIR and they made Petitioner to run from Pillar to Post for bringing criminal case into motion being recalcitrant, guilty of negligence not one but more than thrice, dereliction of duties, destruction of material evidence and failed to perform their duties which will send a strong message to entire Police Force that Law is above all and Judiciary is here to protect the justice; d) Impose heavy cost upon the Respondent No.1, 4 to[9] for contempt of the Hon'ble Apex Court's directions in Lalita Kumari vs. State of U.P., for realization of their fault and by this way a message would travel among the police officers not to be adamant and detrimental in case of ARORA

12. Prayer „a‟ in both the petitions is identical.

13. The present Petition being W.P. (Crl) 36/2021 attracts the Doctrine of Res Judicata as a similar writ petition based on similar issues and almost identical set of allegations has been disposed of by this Hon‟ble Court vide order dated 17.12.2020 in Writ Petition (Crl.) No. 112 of 2019.

14. An issue or a point decided and having attained finality cannot be allowed to be re-opened and re-agitated all over again.

15. Doctrine of Res Judicata was founded upon the consideration of public policy to provide certainty to litigations. The principle refers to the theory that a person should not be permitted to re-litigate the same issue for a second time against the same person, on the same set of facts, which has been tried and duly determined on merits by a Competent Court of law.

16. Reliance in this regard is placed on the judgment of Canara Bank v. N.G. Subbaraya Setty & Anr.

CIVIL APPEAL NO.4233 OF 2018 where the Apex Court recorded as under:

cognizable offence; e) Direct the investigating Agency to seize the Official Desktop of thePetitioner, laptop of Respondent 2 & 3 in custody of Respondent NO. 10; ARORA fundamental in our legal system that there be an end to all litigation, this being the public policy of Indian law. The obverse side of this doctrine is that, when applicable, if it is not given full effect to, an abuse of process of the Court takes place.….”

17. A perusal of the table belowshows similarity in the grounds of the present writ petition and earlier writ petition being W.P. (Crl.) 112/2019. Grounds in Writ Petition (Crl.) No. 112 of 2019 Grounds in the present writ petition

Respondent No.1, 4- 9, issued notice to Respondent No.2- 3 to join investigation however, Respondent no.2 & 3 sought time to participate and same was granted by the investigating agency as the Respondent No.2 - 3 being influential under shadow of RESPONDENT NO. 10 holding the relations with ministers, leaders and bureaucrats imparted brotherly treatment and hence are privileged roaming scot free even after being an offender.

FIR and further delayin filing charge sheet clearly indicates that Police itself is instrumental indestruction of evidence in the form of call log / CDR and protection of the Accused. Both accused are roaming scot free who have acquired ample opportunity and time to influence to destroy/ manipulate/ fabricate essential/ crucial material evidence and witnesses.

18. In Writ Petition (Crl.) 112/2019, this courtvide order dated 17.12.2020 has observed as under: “The prayer clause in relation thereto a submission has been made by the petitioner in person that the investigation that has been conducted has not been conducted properly and that further investigation is required. Apparently, in relation thereto, it would be open to the petitioner to seek redressal in accordance with law. In as much as the averments in the instant petition sought transfer of investigation in relation to FIR No.80/2018, Police Station IGI Airport under Section 509 read with 34 of the Indian Penal Code, 1860, qua which the investigation now already stands concluded by institution of the charge sheet. …… As regards the prayer that has been made on behalf of the petitioner seeing further investigation, it would be open to the petitioner seeking redressal in accordance with law.”

19. This court in W.P. (Crl.) 112/2019 vide order 17.12.2020 did not accede to the prayer seeking transfer of investigation to CBI. The same cannot be reagitated before this court in a fresh writ petition.

20. In terms of the liberty granted vide order dated 17.12.2020, the petitioner has the option to approach the learned MM seeking further investigation/ re-investigation and if and when approached, the MM shall adjudicate upon the same in accordance with law. However, this court in the same order has rejected the prayer for transfer of investigation to CBI noting that not cause prejudice to the caseof the prosecution.” ARORA investigation is complete and chargesheet has been filed. Hence, the said prayer cannot be reagitated.

21. Even on merits, transfer of investigation is a serious affair. The Hon‟ble Supreme Court in a recent judgment of Himanshu Kumar And Others v. State Of Chhattisgarh And Others WRIT PETITION (CRIMINAL) NO. 103 OF 2009has outlined the parameters for transferring investigation to CBI wherein the relevant paras read as under:

22. An order for transferring investigation to CBI cannot be passed merely because the litigant feels she is being unfairly prejudiced as the decision is not in her favour. There is nothing placed on record that has shaken the conscience of this court with respect to the investigation conducted by the police.

23. I am satisfied with the investigation carried out in FIR 80/2018 for which the chargesheet has already been filed. The concerned authorities have dealt with each and every allegation of the petitioner in a fair and just manner.

24. Vide order dated 17.12.2020, this Court permitted the petitioner to take appropriate remedies as far as prayer seeking further investigation is concerned. The appropriate remedy is not to file another Writ Petition on the same cause of action but to approach the Magistrate in accordance with the CrPC and make out a case on facts and law before the Magistrate for further investigation.

25. It is settled law that power to order further investigation rests with the Magistrate as has been held by the Apex Court in Vinubhai Haribhai Malviya & Ors v. State of Gujarat & Anr2019 SCC OnLine SC 1346. The court hereheld that the correct course of action is to approach the Magistrate under section 156(3) CrPC who can order further investigation under section 173(8) CrPC even post-cognizance until trial commences. The relevant para of the three-judge bench judgment reads as under:

26. The petitioner has relied on the aforesaid judgment in her pleadings, however, she, herself, has bypassed the procedure mandated in law.

27. The Petitioner‟s conduct indicates interference in the investigation process. The same is contrary to the ruling of the Supreme Court in P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24 where it is observed as under:

28. Additionally, further investigation of the case after filing of the charge sheet is a matter which entirely falls within the domain of the Investigating Agency and the competent court of law and for which provisions have been provided under the CrPC. The procedures prescribed under the said Code are to be followed scrupulously and no person has a right to seek further investigation in a case as a matter of right especially after filing of the charge sheet.

29. Hence, prayer „a‟ is barred by res judicata. I further proceed to deal with the other prayers of the petitioner.

30. Prayer „b‟ of the present writ petition reads as under: “b) Direct the concerned agency to arrest/detain the Respondent No.2 ARORA and 3 immediately for further investigation;”

31. As regards prayer (b), the chargesheet has been filed and charges have been framed against the Respondents upon completion of the investigation by IGI Airport Police. Respondent No.2 and 3 have been granted bail. As per the FIR and chargesheet, Respondent No. 2 and 3are charged for offence under section 509 IPC, which is a bailable offence.

32. This Court in the present writ petition cannot cancel the bail and/or direct arrest of Respondent Nos. 2 and 3 in view of chargesheet having been filed and bail having been granted by the competent court.

33. Prayer „c‟ of the present writ petition reads as under: “c) Recommend Central Vigilance Commission and Commissioner of Police to take serious and effective action against the named DCPs and IOs who neglected the complaint of Petitioner to register as FIR and they made Petitioner to run from Pillar to Post for bringing criminal case into motion being recalcitrant, guilty of negligence not one but more than thrice, dereliction of duties, destruction of material evidence and failed to perform their duties which will send a strong message to entire Police Force that Law is above all and Judiciary is here to protect the justice;”

34. I am of the view that there is no dereliction of duties by Respondent Nos. 4 to 9, who are all police officials. The Respondent Nos. 4 to 9 have investigated the allegations of the petitioner, filed regular status reports and also filed the chargesheet after conducting investigation.

35. The Apex Court in Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage (2016) 6 SCC 277 has held as under: ARORA

36. Petitioner relies upon the judgment of Lalita Kumari (supra) which lays down the guidelines for registration of FIR. In the present case, FIR has already been registered and thus, the judgment of Lalita Kumari (supra) is distinguishable in the facts of the present case.

37. In view of the above, prayer „c‟ is declined.

38. As regards prayer „d‟ of the petition, it reads as under: “d) Impose heavy cost upon the Respondent No.1, 4 to 9 for contempt of the Hon'ble Apex Court's directions in Lalita Kumari vs. State of U.P, for realization of their fault and by this way a message would travel among the police officers not to be adamant and detrimental in case of cognizable offence;”

39. As already observed, I am of the view there is no dereliction of duty on the part of Respondent Nos. 4 to 9. Therefore, prayer „d‟ is infructuous and declined.

40. As regards prayer „e‟ of the petition, it reads as under: “e) Direct the investigating Agency to seize the Official Desktop of the Petitioner, laptop of Respondent 2 & 3 in custody of Respondent no. 10;” ARORA

41. This relief can only be granted to the petitioner if and when further investigation is ordered by the Magistrate according to the procedures prescribed in CrPC. Invoking writ jurisdiction of this court to seek the above-mentioned relief is not in accordance with the correct procedure when effective remedies for the same are available with the petitioner under the CrPC.

42. Hence, the present Writ Petition is dismissed.

43. The documents handed over are taken on record.