ABCD versus UNION OF INDIA & ORS. on 10 December 2019

1. This writ petition has been filed by the petitioner[1] above-namedseeking following directions:

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“I. Writ of Mandamus to the extent that the investigation arisingout of FIR No.58/2018 U/S 376,328,506 & 509 IPC 1860, betransferred from Delhi Police to an independent Central Agency.

II. Writ of Mandamus to State of West Bengal to suspend theaccused (Respondent No.7) herein and initiate departmentalCproceedings against him and direct him not to influence the witnessof this crime to ensure free and fair investigation.

III. Order the transfer of the investigation arising out of FIRNo.256/2018 dated 03.06.2018 under Section 384, 389, 34 IPCregistered at Basirhat PS, West Bengal to a Central Agency andDtill then stay the investigation.

IV. Direct the Investigating Agency to immediately collect CallDetail Records (CDR) of the mobile numbers and confiscate thetwo mobile phones of the accused and to retrieve the CCTVfootage of Lalit Hotel on 27.01.2018 to 29.01.2018 of the lobby,Erestaurant and room number 2603 where the accused took thepetitioner to commit the offence of rape.

V. Order protection to the petitioner and her family members.

VI. Any other order or directions to secure justice to the petitionerwhich this court may deem fit and proper.”

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2. FIR No.58 of 2018 filed by the petitioner with Police StationBarakhambha Road, New Delhi alleged:

That the petitioner and Respondent No.7 herein (an IPS Officer)became friends through exchanges on Facebook and startedmeeting each other. There were talks of marriage. On 28.01.2018,GRespondent No.7 had come to Delhi and was putting up at HotelLalit. After having spent the entire day with Respondent No.7,

1 In terms of Section 228A of the Indian Penal Code, 1860, the Identity of theHPetitioner is not being disclosed.

the petitioner went to the room of Respondent No.7 where heoffered some chocolates to her. She fell quite dizzy after she hadthe chocolates. Taking advantage of her situation Respondent No.7made physical advances and had sexual intercourse with her.Thereafter for some time, there were discussions between thefamilies to carry forward their relationship to the next level ofmarriage but Respondent No.7 abruptly told the petitioner on10.02.2018 that there could be no relationship between them.Alleging that Respondent No.7 had taken undue advantage of hersituation and had forcible intercourse with her on 28.01.2018 saidFIR was filed on 26.05.2018.

3. On or about 03.06.2018, FIR No.256 of 2018 was filed by themother of Respondent No.7 submitting that the petitioner and her familymembers had been pressurising the family of Respondent No.7 to pay tothem a sum of Rs.15 lakhs failing which they were threatened with filingof cases with allegations of rape and other criminal cases againstRespondent No.7. It was alleged that succumbing to the pressure soexerted, a sum of Rs.5 lakhs was paid to the brother of the petitioner on04.02.2018 and the rest of the amount was to be paid within three months.FIR, thus alleged commission of offences punishable under Sections384, 389 read with 34 IPC[2].

4. It must be stated that protection under Section 438 of the Code[3]was granted to the present petitioner and her family members whichprotection is still continuing and a petition under Section 482 of the Code[3]has also been filed by the petitioner seeking quashing of said FIR No.256of 2018, on which notice has been issued.

5. It was in the background of these two FIRs that this writ petitioncame to be filed submitting, inter alia that since the Respondent No.7belonged to police service, there was apprehension that the investigationby Delhi Police into the FIR lodged by the petitioner may not be properand fair. The petitioner also adverted to certain facets of the matter,namely, that the investigating agency had delayed the recording of thestatement of the petitioner under Section 164 of the Code[3]; that no CCTVfootage of Hotel Lalit were attempted to be obtained. In thesecircumstances it was prayed that the investigation be transferred fromDelhi Police to an independent police agency. Further, the FIR lodged by 2 Indian Penal Code, 1860

3 Code of Criminal Procedure, 1973

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Athe mother of Respondent No.7 was stated to be a deliberate attempt torope in the petitioner and her family and it was prayed that theinvestigation into said FIR may also be entrusted to an independentagency.

6. On 19.06.2018 the investigation into FIR No.58 of 2018 wasBtransferred to Crime Branch of Delhi Police and thereafter sometime inAugust 2018, the present writ petition came to be filed for the reliefsstated hereinabove.

7. This writ petition was heard from time to time and it mayberelevant to note the following developments.

C(a) On 23.07.2019 the submissions of the petitioner were recordedthat the investigating agency had not recovered CCTV footages fromthe concerned Hotel and that material available in electronic form withRespondent No.7 was also not retrieved by the investigating agency.The Investigating Officer who was present in Court, submitted that noDCCTV footage could be procured as the footages are preserved by theHotel only for a month and the incident itself was reported more thanthree months later. It was also stated that a mobile belonging toRespondent No.7 was taken into custody by the Investigating Officerwhile the other mobile belonging to him did not have any material and assuch the same was returned to Respondent No.7. In the circumstancesEit was directed that the investigators shall take into custody the othermobile of Respondent No.7 and send both the mobiles for forensicanalysis. It was also directed that the investigation into the matter beconducted at an early date; (b) On 11.09.2019 it was informed that after due investigationFcharge-sheet was filed in the matter. It was stated that second mobile ofRespondent No.7 was also taken into custody and attempts were madeto extract the Metadata for the opinion of the experts. The submissionsof the petitioner and Respondent No.7 were recorded as under:

“It was submitted by Ms. Aishwarya Bhati, learned SeniorGAdvocate that the investigation in connection with recovery ofdata from these two phones was not proper and there was no co-operation from the accused.

It must be stated that the Charge-sheet does not suggest thatbecause of any lack of cooperation on part of the accused in not H

providing or supplying the Code Number, the Mobile Phone couldnot be operated or opened. It must also be stated that Ms. SoniaMathur, learned Senior Advocate for the accused has very fairlysupplied the Code Number (No.220192) and stated that this CodeNumber applies to both the Mobile Phones, with the help of whichsaid Mobile Phones could normally be opened.”

(c) On 21[st] October, 2019 Crl.M.P. No.162386 of 2019 was filedby the petitioner seeking police protection after having highlighted anincident that had occurred on 18.10.2019. In respect of said incident, thepetitioner had filed FIR No.314 with Police Station Kotla Mubarak Pur,District South Delhi, alleging, inter alia:

“I was going back to my home from Defence Colony in front of Iphone store opposite red light suddenly one car came from backside and hit me. I was bruised and tried to stop the driver but herun away from there. I was injured so I made call 100 numberhelp and hired an auto from there because I was feeling veryunsafe there. I reached at my residence. PCR came and took meto AIIMS Trauma Centre. I immediately made a call to SIT(reference FIR bearing No.0058/18 with PS Barakhamba RoadNew Delhi dated 26.05.2018) but they didn’t take my calls. Imade a call to concerned DCP and Whatsappmsg for the same.”

The FIR also stated that the petitioner had strong apprehensionthat Respondent No.7 had attacked her. It was further stated that CCTVFootage available be seized.

In the application filed in this Court it was stated:

“Needless to say that the Petitioner’s life has been shadowed andher life has been under threat and clandestine scanner by theAccused who being an IPS officer had been adopting all meansto make the Petitioner succumb to his deeds. Henceforth thePetitioner submits that her life under the radar of the AccusedIPS officer would come to an end, if adequate protection andmeasures are not granted by this Hon’ble Court.”

(d) On 24.10.2019, the order stated that in terms of the directionsissued on 11.09.2019 attempts were made to retrieve data from thesecond mobile of Respondent No.7 as well as from the mobile of theInvestigatingOfficer. The order further recorded:

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8SUPREME COURT REPORTS

A“According to the learned counsel, the data could be retrievedfrom the official mobile phone of the accused. However, as regardsthe personal mobile phone of the accused and the mobile of theinvestigator, no data could be retrieved as both the mobile phoneswere damaged. Therefore, the matter was referred to CBI CFSL.

BAt this stage, Ms. Sonia Mathur, learned Senior Advocateappearing for respondent no.7 submitted that the relevant detailsincluding iCloud ID and Password of the mobile belonging to himwere extended to the CBI CFSL by respondent no.7.

Consequently, relevant iCloud data has now been retrieved byCCBI CFSL from both the mobile phones of respondent no.7 i.e.official mobile phone as well as personal mobile phone. However,no data could be retrieved from the mobile phone belonging to theInvestigating Officer as said mobile phone did not have the back-up in the form of any iCloud as it was not an iPhone.

DWe therefore call upon the concerned Investigating Officer to filean appropriate affidavit stating all these details without disclosingwhat exactly was the material which was retrieved as a result ofthe entire exercise.

Mr. Manoj V. George, learned counsel appearing for the writEpetitioner then submitted that on 17.10.2019, the petitioner washit by a vehicle resulting in some injuries for which she was treatedat AIIMS Trauma Centre, New Delhi, whereafter an appropriatecomplaint was also lodged with Police Station Kotla Mubarakpur.FIR No.314 dated 18.10.2019 PS Kotla Mubarakpur, DistrictSouth, New Delhi and medical papers have been placed on recordFalong with Cr. M.P. No.162386 of 2019.

Ms. Suhasini Sen, learned counsel submitted that considering thenature of allegations and the injuries suffered by the petitioner,the respondents, on their own, have extended police protection tothe petitioner in the form of a Security Officer. She also submittedGthat FIR No.314 is being investigated and appropriate responseshall be filed before the next date of hearing.”

(e) Thereafter, a Status Report was filed on 26.11.2019 byInvestigating Officer, Crime Branch, New Delhi, regarding status ofinvestigation into the crime registered pursuant to the FIR dated 26.05.2018H

and it was stated that after retrieving the data from the mobile phones ofRespondent No. 7, supplementary charge-sheet was prepared whichwould be filed after getting the approval. Another Status Report wasfiled on the same date by Assistant Commissioner of Police, Sub-Division,Defence Colony, New Delhi that CCTV footages of the concerned placewhere the petitioner was allegedly struck by a car showed that no suchincident had actually occurred. It was asserted:

“13. That the CCTV footages so obtained were analysed. In theavailable CCTV Footage of about 8.52 p.m. dated 17.10.19, aThela driven by a child is seen scraped the left leg of the Petitioner/complainant while she was attempting to hire a TSR/Auto at placeof occurrence. Complainant is seen looking towards the Thelaand then moving away. She made no attempt to stop him. TheCCTV footage has not revealed that the complainant was hit by acar which she had tried to stop. On the contrary, she walkedaway from the place of occurrence. (Still photographs of the CCTVfootage are enclosed).

14. Local investigation was done and no witness could be found,who could corroborate the version of the complainant regardingfour-wheeler (offending vehicle) as alleged by the complainant/petitioner.

15. That the investigation conducted in this case so far revealsthat as per the timeframe and place of incident provided by thecomplainant/petitioner, she was scraped by a “Thela”.

16. As per the available CCTV footage complainant was hit by aThela near Gurudwara Chowk, Kotla Mubarak Pur, New Delhiat about 8.52 p.m. dated 17.10.2019. She made PCR calls fromher place of stay i.e. Indira Niketan Working Girls Hostel, SarojiniNagar, New Delhi at 9.00 p.m. and 9.07 p.m. She was taken toJai Prakash Narayan Apex Trauma Centre, AIIMS, New Delhiwhere she was examined at about 9.56 p.m. She was foundentering the Jai Prakash Narayan Apex Trauma Centre, AIIMS,New Delhi with PCR staff at about 9.24 p.m. The call was initiallysent to Police Station Sarojini Nagar and thereafter to PoliceStation Defence Colony and finally to Police Station KotlaMubarak Pur, New Delhi. The details of investigation arementioned in Para 12 to 15.”

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A(f) Consequently, on the next date i.e. on 27.11.2019 liberty wasgiven to the petitioner and her counsel to watch the CCTV footages andthe matter was adjourned.

(g) After having availed the facility of watching the CCTV footages,a response was filed by the petitioner on 03.12.2019 to the status reportBas under: - “8. The petitioner submits that the autorickshaw which encircledat 12[th] minute 36 seconds (12:36) the tricycle which is stated tobe driven by a child to knock her down and a car which appearswithin a few seconds with closed doors raised serious suspicionsCin the mind of the petitioner who construes this as a chain ofevents orchestrated by some vested interest. The petitioner whowas suffering and was bleeding also realized that any telephonecall to Police saying that a tricycle hit her without mentioningabout the car which is found suspicious would not put them intoaction and her claim would be rubbished as a hit by a cycle drivenDby a child.

9. The petitioner required immediate medical attention and it wasonly with this intention that she had stated that a car had comefrom the backside to hit her even though now it is clear that it wasa Thela (tricycle fitted with carriage) which had hit her from theEback as the car reaches only after 28 second of the hit by thetricycle (Thela).

The chain of events in the staged road accident when an autorickshaw encircles and dodges her in a jerk and a child rides intothe junction only to hit her from the back and a Car/Van appearingFin the scene as if in a lookout for the fallen pedestrian invariablyreinforces the apprehension in the mind of the petitioner, regardinga foul play.”

(h) A response was also filed by the petitioner to the other statusreport. Submitting inter alia continuation of Respondent No. 7 in serviceGwould affect fair trial.

8. In the aforesaid background and circumstances on record, itwas submitted by the learned Additional Solicitor General:-

(i) The investigation into the crime, lodged pursuant to FIR bythe petitioner, was conducted fairly under the supervisionH

of a Special Investigation Team headed by ACP ShwetaSingh Chauhan. After due investigation, charge-sheet hasalso been filed; prompt steps were taken by the investigatingagency and as such nothing further need be done in thepresent writ petition.

(ii) The allegations made by the petitioner that a car had struckher and the suggestion that Respondent No.7 wasinstrumental for such incident were completelyunsustainable. It was not a car but a thela mounted on atricycle which had simply brushed against the petitioner.However, the petitioner deliberately flared it up to show asif it was Respondent No.7 who was behind the incident.

(iii) On her own showing, she was aware that she was not hitby a car but by a thelabut she did not state the factstruthfully and correctly as she anticipated that the claimcould be rubbished as a minor incident. Moreover, thepetitioner used such minor and innocuous incident to makeinsinuations against Respondent No.7.

9. On the other hand, Mr. Manoj George, learned Advocate forthe petitioner submitted that:-

(i) Respondent No.7 belonged to police service and as such therewas definite apprehension that the investigation into the crimepursuant to FIR lodged by the petitioner, would not be conductedin fair and transparent manner;

(ii) The crime registered pursuant to the FIR lodged by the motherof Respondent No.7 was an indication of undue influence exertedby Respondent No.7, a police officer;

(iii) Certain audio recording and video recording with the petitionerwere not taken note of while conducting investigation;

(iv) Complete data from two mobile phones of Respondent No.7was not recovered while the mobile phone of the Investigatorwas completely damaged with the result there could be no retrievalof any data from the mobile phone of the Investigator; and

(v) Soon after the petitioner was hit by a thela she had seen acar in the vicinity and therefore apprehended that it was an attempton part of someone.

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A10. The investigation into the crime registered pursuant to FIRNo.58 of 2018 lodged by the petitioner was conducted by a SpecialInvestigation Team headed by ACP Ms. Shweta Tiwari Singh and acharge-sheet has been filed. The apprehension that was expressed atsome stage that the mobile phones belonging to Respondent No.7 wereBnot being taken in custody, was dealt with by this Court and it was ensuredthat said mobiles would be in the custody of the investigating agency.The data from those mobiles was also sought to be recovered and itmust be stated that Respondent No.7 did extend cooperation in ensuringthat the data could be retrieved. However, the assertion on behalf of the petitioner is that complete data has not been retrieved. Both the mobileCphones were also sent for forensic analysis. It is suggested by thepetitioner that certain pictures may have been taken by Respondent No.7,which data is not presently available. However, what has been extractedfrom iCloud is fully available with the investigating agency. The data, inany case, would at best point that at various stages there were exchangesDand conversation between the petitioner and Respondent No.7 but whatneeds to be gone into at the appropriate stage is the basic submissionthat Respondent No.7 had taken undue advantage of the petitioner onthe fateful night. The contention that the mobile phone of the InvestigatingOfficer was damaged may not be material as details of any conversationbetween the petitioner and the Investigating Officer, may also be provedEthrough the mobile phone of the petitioner herself. There is thus, nothingsubstantial which could either show that the investigation was not welldirected or had failed to look into a particular direction. In our consideredview, nothing further is required to be done. At this stage, it may bestated that if any video or audio recordings are still being retained by theFpetitioner, they may be handed over to the Special Investigation Teamwithin two days from today. It is left to the Special Investigation Team toconsider whether that parts needs to be dealt with in the supplementarycharge-sheet which, as indicated above, is contemplated to be filed.

11. As regards the crime registered pursuant to FIR lodged by theGmother of Respondent No.7, protection has been afforded to the petitionerand her family members and the application under Section 438 of theCode[3]has also been dealt with. An application filed by the petitionerunder Section 482 of the Code[3 ]is presently pending with the High Court.It is, thus, clear that the petitioner has been invoking the processes of theHcourt and adequate protection is being afforded to the petitioner and her family members. We, therefore, do not see any reason why the matterpresently pending pursuant to the FIR lodged by the mother of RespondentNo.7 be transferred and investigation be entrusted to any other agency.

12. In the aforesaid circumstances we do not see any reason whyinvestigation into both the aforesaid FIRs, at this stage, be entrusted toany Central Investigating Agency. All that we can say at this juncture isthat the charge-sheet filed in the crime registered pursuant to FIR lodgedby the petitioner shall be considered by the concerned court on its ownmerits and in accordance with law.

13. In the end, we must observe that the matter was consideredby this Court only from the standpoint of ensuring that there was fairinvestigation into the crime registered pursuant to FIR filed by the petitionerand any observation made by us or directions issued by us shall not beconsidered as reflection on merits of the matter or on the quality ofinvestigation. The matter shall be considered on its own merits and inaccordance with law.

14. We may now refer to the development which occurred duringthe pendency of the writ petition. In FIR No. 314, as well as in theapplication preferred thereafter, insinuation was definitely made thatRespondent No.7 was responsible for the incident that occurred on17.10.2019. It was also submitted that the petitioner was hit by a car andsuspicion was expressed in clear terms that Respondent No.7 was behindthe episode. As it now turns out, she was not hit by a car but by a thelawhich prima facie means that the allegations in her sworn statementbefore this Court were not truthful.

15. Making a false statement on oath is an offence punishableunder Section 181 of the IPC[2]while furnishing false information withintent to cause public servant to use his lawful power to the injury ofanother person is punishable under Section 182 of the IPC[2]. Theseoffences by virtue of Section 195(1)(a)(i) of the Code[3] can be taken cognizance of by any court only upon a proper complaint in writing asstated in said Section. In respect of matters coming under Section195(1)(b)(i) of the Code[3], in Pushpadevi M. Jatia vs. M.L. Wadhawanetc.[4] prosecution was directed to be launched after prima faciesatisfaction was recorded by this Court.

4 (1987) 3 SCC 367

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A16. It has also been laid down by this Court in Chandra Shashi v.Anil Kumar Verma[5] that a person who makes an attempt to deceivethe court, interferes with the administration of justice and can be heldguilty of contempt of court. In that case a husband who had filed afabricated document to oppose the prayer of his wife seeking transferBof matrimonial proceedings was found guilty of contempt of court andsentenced to two weeks imprisonment. It was observed as under:

“1.The stream of administration of justice has to remain unpollutedso that purity of court’s atmosphere may give vitality to all theorgans of the State. Polluters of judicial firmament are, therefore,required to be well taken care of to maintain the sublimity of court’senvironment; so also to enable it to administer justice fairly and tothe satisfaction of all concerned.

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2. Anyone who takes recourse to fraud, deflects the course ofjudicial proceedings; or if anything is done with oblique motive,the same interferes with the administration of justice. Such personsare required to be properly dealt with, not only to punish them forthe wrong done, but also to deter others from indulging in similaracts which shake the faith of people in the system of administrationof justice.

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14. The legal position thus is that if the publication be with intentto deceive the court or one made with an intention to defraud, thesame would be contempt, as it would interfere with administrationof justice. It would, in any case, tend to interfere with the same.This would definitely be so if a fabricated document is filed withFthe aforesaid mens rea. In the case at hand the fabricated documentwas apparently to deceive the court; the intention to defraud iswrit large. Anil Kumar is, therefore, guilty of contempt.”

In K.D. Sharma v. Steel Authority of India Limited and others[6]itwas observed:G

“39. If the primary object as highlighted in Kensington IncomeTax Commrs.[7] is kept in mind, an applicant who does not come 5 (1995) 1 SCC 4216 (2008) 12 SCC 481H7 (1917) 1 KB 486 : 86 LJKB 257 : 116 LT 136 (CA)

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with candid facts and “clean breast” cannot hold a writ of thecourt with “soiled hands”. Suppression or concealment of materialfacts is not an advocacy. It is a jugglery, manipulation, manoeuvringor misrepresentation, which has no place in equitable andprerogative jurisdiction. If the applicant does not disclose all thematerial facts fairly and truly but states them in a distorted mannerand misleads the court, the court has inherent power in order toprotect itself and to prevent an abuse of its process to dischargethe rule nisi and refuse to proceed further with the examination ofthe case on merits. If the court does not reject the petition on thatground, the court would be failing in its duty. In fact, such anapplicant requires to be dealt with for contempt of court for abusingthe process of the court.”

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In Dhananjay Sharma v. State of Haryana and others[8] filingof a false affidavit was the basis for initiation of action in contemptjurisdiction and the concerned persons were punished.

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17. In the circumstances a notice is required to be issued to thepetitioner in suomotu exercise of power of this Court “why action incontempt be not initiated against her and why appropriate direction benot passed under Section 195(1)(a)(i) of the Code”[3]. The Registry isdirected to register the matter as suomotu proceedings and send a copyEof this Order to the Petitioner, who is directed to appear in-person beforethis Court on 14.01.2020.

18. With the aforesaid observations this writ petition standsdisposed of.

Devika Gujral

Writ petition disposed of.

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8 (1995) 3 SCC 757

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