Writ Petition (Criminal) Appeal No.191 of 2018

ABCD v. Union of India

1

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO.191 OF 2018

ABCD …Petitioner

VERSUS

UNION OF INDIA & ORS. …Respondents

O R D E R

Uday Umesh Lalit, J.

1. This writ petition has been filed by the petitioner

1

above-named

seeking following directions:

“I. Writ of Mandamus to the extent that the

investigation arising out of FIR No.58/2018 U/S

376,328,506 & 509 IPC 1860, be transferred from

Delhi Police to an independent Central Agency.

II. Writ of Mandamus to State of West Bengal to

suspend the accused (Respondent No.7) herein and

initiate departmental proceedings against him and

1

In terms of Section 228A of the Indian Penal Code, 1860, the Identity of the Petitioner

is not being disclosed

Writ Petition (Criminal) Appeal No.191 of 2018

ABCD v. Union of India

2

direct him not to influence the witness of this crime to

ensure free and fair investigation.

III. Order the transfer of the investigation arising out

of FIR No.256/2018 dated 03.06.2018 under Section

384, 389, 34 IPC registered at Basirhat PS, West

Bengal to a Central Agency and till then stay the

investigation.

IV. Direct the Investigating Agency to immediately

collect Call Detail Records (CDR) of the mobile

numbers and confiscate the two mobile phones of the

accused and to retrieve the CCTV footage of Lalit

Hotel on 27.01.2018 to 29.01.2018 of the lobby,

restaurant and room number 2603 where the accused

took the petitioner 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 petitioner which this court may deem fit and

proper.”

2. FIR No.58 of 2018 filed by the petitioner with Police Station

Barakhambha Road, New Delhi alleged:

That the petitioner and Respondent No.7 herein (an IPS Officer) became

friends through exchanges on Facebook and started meeting each other.

There were talks of marriage. On 28.01.2018, Respondent No.7 had

come to Delhi and was putting up at Hotel Lalit. After having spent the

entire day with Respondent No.7, the petitioner went to the room of

Respondent No.7 where he offered some chocolates to her. She fell quite

Writ Petition (Criminal) Appeal No.191 of 2018

ABCD v. Union of India

3

dizzy after she had the chocolates. Taking advantage of her situation

Respondent No.7 made physical advances and had sexual intercourse

with her. Thereafter for some time, there were discussions between the

families to carry forward their relationship to the next level of marriage

but Respondent No.7 abruptly told the petitioner on 10.02.2018 that there

could be no relationship between them. Alleging that Respondent No.7

had taken undue advantage of her situation and had forcible intercourse

with her on 28.01.2018 said FIR was filed on 26.05.2018.

3. On or about 03.06.2018, FIR No.256 of 2018 was filed by the

mother of Respondent No.7 submitting that the petitioner and her family

members had been pressurising the family of Respondent No.7 to pay to

them a sum of Rs.15 lakhs failing which they were threatened with filing

of cases with allegations of rape and other criminal cases against

Respondent No.7. It was alleged that succumbing to the pressure so

exerted, a sum of Rs.5 lakhs was paid to the brother of the petitioner on

04.02.2018 and the rest of the amount was to be paid within three months.

FIR, thus alleged commission of offences punishable under Sections 384,

389 read with 34 IPC

2

.

2

Indian Penal Code, 1860

Writ Petition (Criminal) Appeal No.191 of 2018

ABCD v. Union of India

4

4. It must be stated that protection under Section 438 of the Code

3

was

granted to the present petitioner and her family members which protection

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.256 of 2018,

on which notice has been issued.

5. It was in the background of these two FIRs that this writ petition

came to be filed submitting, inter alia that since the Respondent No.7

belonged to police service, there was apprehension that the investigation by

Delhi Police into the FIR lodged by the petitioner may not be proper and

fair. The petitioner also adverted to certain facets of the matter, namely,

that the investigating agency had delayed the recording of the statement of

the petitioner under Section 164 of the Code

3

; that no CCTV footage of

Hotel Lalit were attempted to be obtained. In these circumstances it was

prayed that the investigation be transferred from Delhi Police to an

independent police agency. Further, the FIR lodged by the mother of

Respondent No.7 was stated to be a deliberate attempt to rope in the

petitioner and her family and it was prayed that the investigation into said

FIR may also be entrusted to an independent agency.

3

Code of Criminal Procedure, 1973

Writ Petition (Criminal) Appeal No.191 of 2018

ABCD v. Union of India

5

6. On 19.06.2018 the investigation into FIR No.58 of 2018 was

transferred to Crime Branch of Delhi Police and thereafter sometime in

August 2018, the present writ petition came to be filed for the reliefs stated

hereinabove.

7. This writ petition was heard from time to time and it may be

relevant to note the following developments.

(a) On 23.07.2019 the submissions of the petitioner were

recorded that the investigating agency had not recovered CCTV

footages from the concerned Hotel and that material available in

electronic form with Respondent No.7 was also not retrieved by the

investigating agency. The Investigating Officer who was present in

Court, submitted that no CCTV footage could be procured as the

footages are preserved by the Hotel only for a month and the incident

itself was reported more than three months later. It was also stated

that a mobile belonging to Respondent No.7 was taken into custody

by the Investigating Officer while the other mobile belonging to him

did not have any material and as such the same was returned to

Respondent No.7. In the circumstances it was directed that the

investigators shall take into custody the other mobile of Respondent

Writ Petition (Criminal) Appeal No.191 of 2018

ABCD v. Union of India

6

No.7 and send both the mobiles for forensic analysis. It was also

directed that the investigation into the matter be conducted at an early

date;

(b) On 11.09.2019 it was informed that after due investigation

charge-sheet was filed in the matter. It was stated that second mobile

of Respondent No.7 was also taken into custody and attempts were

made to extract the Metadata for the opinion of the experts. The

submissions of the petitioner and Respondent No.7 were recorded as

under:

“It was submitted by Ms. Aishwarya Bhati, learned

Senior Advocate that the investigation in connection

with recovery of data 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

that because of any lack of cooperation on part of the

accused in not providing or supplying the Code

Number, the Mobile Phone could not be operated or

opened. It must also be stated that Ms. Sonia Mathur,

learned Senior Advocate for the accused has very fairly

supplied the Code Number (No.220192) and stated that

this Code Number applies to both the Mobile Phones,

with the help of which said Mobile Phones could

normally be opened.”

(c) On 21

st

October, 2019 Crl.M.P. No.162386 of 2019 was filed

by the petitioner seeking police protection after having highlighted an

incident that had occurred on 18.10.2019. In respect of said incident,

Writ Petition (Criminal) Appeal No.191 of 2018

ABCD v. Union of India

7

the petitioner 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 I phone store opposite red light suddenly one car came

from back side and hit me. I was bruised and tried to stop

the driver but he run away from there. I was injured so I

made call 100 number help and hired an auto from there

because I was feeling very unsafe there. I reached at my

residence. PCR came and took me to AIIMS Trauma Centre.

I immediately made a call to SIT (reference FIR bearing

No.0058/18 with PS Barakhamba Road New Delhi dated

26.05.2018) but they didn’t take my calls. I made a call to

concerned DCP and Whatsapp msg for the same.”

The FIR also stated that the petitioner had strong

apprehension that Respondent No.7 had attacked her. It was further

stated that CCTV Footage available be seized.

In the application filed in this Court it was stated:

“Needless to say that the Petitioner’s life has been shadowed

and her life has been under threat and clandestine scanner by

the Accused who being an IPS officer had been adopting all

means to make the Petitioner succumb to his deeds.

Henceforth the Petitioner submits that her life under the

radar of the Accused IPS officer would come to an end, if

adequate protection and measures are not granted by this

Hon’ble Court.”

Writ Petition (Criminal) Appeal No.191 of 2018

ABCD v. Union of India

8

(d) On 24.10.2019, the order stated that in terms of the directions

issued on 11.09.2019 attempts were made to retrieve data from the

second mobile of Respondent No.7 as well as from the mobile of the

Investigating Officer. The order further recorded:

“According to the learned counsel, the data could be

retrieved from the official mobile phone of the accused.

However, as regards the personal mobile phone of the

accused and the mobile of the investigator, no data

could be retrieved as both the mobile phones were

damaged. Therefore, the matter was referred to CBI

CFSL.

At this stage, Ms. Sonia Mathur, learned Senior

Advocate appearing for respondent no.7 submitted that

the relevant details including iCloud ID and Password

of the mobile belonging to him were extended to the

CBI CFSL by respondent no.7.

Consequently, relevant iCloud data has now been

retrieved by CBI 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 the

Investigating Officer as said mobile phone did not have

the back-up in the form of any iCloud as it was not an

iPhone.

We therefore call upon the concerned Investigating

Officer to file an appropriate affidavit stating all these

details without disclosing what exactly was the

material which was retrieved as a result of the entire

exercise.

Mr. Manoj V. George, learned counsel appearing for

the writ petitioner then submitted that on 17.10.2019,

the petitioner was hit by a vehicle resulting in some

Writ Petition (Criminal) Appeal No.191 of 2018

ABCD v. Union of India

9

injuries for which she was treated at AIIMS Trauma

Centre, New Delhi, whereafter an appropriate

complaint was also lodged with Police Station Kotla

Mubarakpur. FIR No.314 dated 18.10.2019 PS Kotla

Mubarakpur, District South, New Delhi and medical

papers have been placed on record along with Cr. M.P.

No.162386 of 2019.

Ms. Suhasini Sen, learned counsel submitted that

considering the nature of allegations and the injuries

suffered by the petitioner, the respondents, on their

own, have extended police protection to the petitioner

in the form of a Security Officer. She also submitted

that FIR No.314 is being investigated and appropriate

response shall be filed before the next date of hearing.”

(e) Thereafter, a Status Report was filed on 26.11.2019 by

Investigating Officer, Crime Branch, New Delhi, regarding status of

investigation into the crime registered pursuant to the FIR dated

26.05.2018 and it was stated that after retrieving the data from the

mobile phones of Respondent No. 7, supplementary charge-sheet was

prepared which would be filed after getting the approval. Another

Status Report was filed on the same date by Assistant Commissioner

of Police, Sub-Division, Defence Colony, New Delhi that CCTV

footages of the concerned place where the petitioner was allegedly

struck by a car showed that no such incident had actually occurred. It

was asserted:

Writ Petition (Criminal) Appeal No.191 of 2018

ABCD v. Union of India

10

“13. That the CCTV footages so obtained were

analysed. In the available CCTV Footage of about 8.52

p.m. dated 17.10.19, a Thela driven by a child is seen

scraped the left leg of the Petitioner/complainant while

she was attempting to hire a TSR/Auto at place of

occurrence. Complainant is seen looking towards the

Thela and then moving away. She made no attempt to

stop him. The CCTV footage has not revealed that the

complainant was hit by a car which she had tried to

stop. On the contrary, she walked away from the place

of occurrence. (Still photographs of the CCTV footage

are enclosed).

14. Local investigation was done and no witness could

be found, who could corroborate the version of the

complainant regarding four-wheeler (offending

vehicle) as alleged by the complainant/petitioner.

15. That the investigation conducted in this case so far

reveals that as per the time frame and place of incident

provided by the complainant/petitioner, she was

scraped by a “Thela”.

16. As per the available CCTV footage complainant

was hit by a Thela near Gurudwara Chowk, Kotla

Mubarak Pur, New Delhi at about 8.52 p.m. dated

17.10.2019. She made PCR calls from her place of stay

i.e. Indira Niketan Working Girls Hostel, Sarojini

Nagar, New Delhi at 9.00 p.m. and 9.07 p.m. She was

taken to Jai Prakash Narayan Apex Trauma Centre,

AIIMS, New Delhi where she was examined at about

9.56 p.m. She was found entering the Jai Prakash

Narayan Apex Trauma Centre, AIIMS, New Delhi

with PCR staff at about 9.24 p.m. The call was initially

sent to Police Station Sarojini Nagar and thereafter to

Police Station Defence Colony and finally to Police

Station Kotla Mubarak Pur, New Delhi. The details of

investigation are mentioned in Para 12 to 15.”

Writ Petition (Criminal) Appeal No.191 of 2018

ABCD v. Union of India

11

(f) Consequently, on the next date i.e. on 27.11.2019 liberty

was given to the petitioner and her counsel to watch the CCTV

footages and the 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 report as under: -

“8. The petitioner submits that the autorickshaw

which encircled at 12

th

minute 36 seconds (12:36) the

tricycle which is stated to be driven by a child to knock

her down and a car which appears within a few seconds

with closed doors raised serious suspicions in the mind

of the petitioner who construes this as a chain of events

orchestrated by some vested interest. The petitioner

who was suffering and was bleeding also realized that

any telephone call to Police saying that a tricycle hit

her without mentioning about the car which is found

suspicious would not put them into action and her

claim would be rubbished as a hit by a cycle driven by

a child.

9. The petitioner required immediate medical

attention and it was only with this intention that she had

stated that a car had come from the backside to hit her

even though now it is clear that it was a Thela (tricycle

fitted with carriage) which had hit her from the back as

the car reaches only after 28 second of the hit by the

tricycle (Thela).

The chain of events in the staged road accident

when an auto rickshaw encircles and dodges her in a

jerk and a child rides into the junction only to hit her

from the back and a Car/Van appearing in the scene as

if in a lookout for the fallen pedestrian invariably

Writ Petition (Criminal) Appeal No.191 of 2018

ABCD v. Union of India

12

reinforces the apprehension in the mind of the

petitioner, regarding a foul play.”

(h) A response was also filed by the petitioner to the other status

report. Submitting inter alia continuation of Respondent No. 7 in

service would affect fair trial.

8. In the aforesaid background and circumstances on record, it was

submitted by the learned Additional Solicitor General:-

(i) The investigation into the crime, lodged pursuant to FIR by

the petitioner, was conducted fairly under the supervision of

a Special Investigation Team headed by ACP Shweta Singh

Chauhan. After due investigation, charge-sheet has also been

filed; prompt steps were taken by the investigating agency

and as such nothing further need be done in the present writ

petition.

(ii) The allegations made by the petitioner that a car had struck

her and the suggestion that Respondent No.7 was

instrumental for such incident were completely

unsustainable. It was not a car but a thela mounted on a

tricycle which had simply brushed against the petitioner.

Writ Petition (Criminal) Appeal No.191 of 2018

ABCD v. Union of India

13

However, the petitioner deliberately flared it up to show as if

it was Respondent No.7 who was behind the incident.

(iii) On her own showing, she was aware that she was not hit by

a car but by a thela but she did not state the facts truthfully

and correctly as she anticipated that the claim could be

rubbished as a minor incident. Moreover, the petitioner used

such minor and innocuous incident to make insinuations

against Respondent No.7.

9. On the other hand, Mr. Manoj George, learned Advocate for the

petitioner submitted that:-

(i) Respondent No.7 belonged to police service and as such

there was definite apprehension that the investigation into the crime

pursuant to FIR lodged by the petitioner, would not be conducted in

fair and transparent manner;

(ii) The crime registered pursuant to the FIR lodged by the

mother of Respondent No.7 was an indication of undue influence

exerted by Respondent No.7, a police officer;

(iii) Certain audio recording and video recording with the

petitioner were not taken note of while conducting investigation;

Writ Petition (Criminal) Appeal No.191 of 2018

ABCD v. Union of India

14

(iv) Complete data from two mobile phones of Respondent No.7

was not recovered while the mobile phone of the Investigator was

completely damaged with the result there could be no retrieval of any

data from the mobile phone of the Investigator; and

(v) Soon after the petitioner was hit by a thela she had seen a car

in the vicinity and therefore apprehended that it was an attempt on

part of someone.

10. The investigation into the crime registered pursuant to FIR No.58

of 2018 lodged by the petitioner was conducted by a Special Investigation

Team headed by ACP Ms. Shweta Tiwari Singh and a charge-sheet has been

filed. The apprehension that was expressed at some stage that the mobile

phones belonging to Respondent No.7 were not being taken in custody, was

dealt with by this Court and it was ensured that said mobiles would be in the

custody of the investigating agency. The data from those mobiles was also

sought to be recovered and it must be stated that Respondent No.7 did extend

cooperation in ensuring that the data could be retrieved. However, the

assertion on behalf of the petitioner is that complete data has not been

retrieved. Both the mobile phones were also sent for forensic analysis. It is

suggested by the petitioner that certain pictures may have been taken by

Writ Petition (Criminal) Appeal No.191 of 2018

ABCD v. Union of India

15

Respondent No.7, which data is not presently available. However, what has

been extracted from iCloud is fully available with the investigating agency.

The data, in any case, would at best point that at various stages there were

exchanges and conversation between the petitioner and Respondent No.7 but

what needs to be gone into at the appropriate stage is the basic submission

that Respondent No.7 had taken undue advantage of the petitioner on the

fateful night. The contention that the mobile phone of the Investigating

Officer was damaged may not be material as details of any conversation

between the petitioner and the Investigating Officer, may also be proved

through the mobile phone of the petitioner herself. There is thus, nothing

substantial which could either show that the investigation was not well

directed or had failed to look into a particular direction. In our considered

view, nothing further is required to be done. At this stage, it may be stated

that if any video or audio recordings are still being retained by the petitioner,

they may be handed over to the Special Investigation Team within two days

from today. It is left to the Special Investigation Team to consider whether

that parts needs to be dealt with in the supplementary charge-sheet which, as

indicated above, is contemplated to be filed.

11. As regards the crime registered pursuant to FIR lodged by the

mother of Respondent No.7, protection has been afforded to the petitioner

Writ Petition (Criminal) Appeal No.191 of 2018

ABCD v. Union of India

16

and her family members and the application under Section 438 of the Code

3

has also been dealt with. An application filed by the petitioner under 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 the court and adequate

protection is being afforded to the petitioner and her family members. We,

therefore, do not see any reason why the matter presently pending pursuant

to the FIR lodged by the mother of Respondent No.7 be transferred and

investigation be entrusted to any other agency.

12. In the aforesaid circumstances we do not see any reason why

investigation into both the aforesaid FIRs, at this stage, be entrusted to any

Central Investigating Agency. All that we can say at this juncture is that the

charge-sheet filed in the crime registered pursuant to FIR lodged by the

petitioner shall be considered by the concerned court on its own merits and

in accordance with law.

13. In the end, we must observe that the matter was considered by this

Court only from the standpoint of ensuring that there was fair investigation

into the crime registered pursuant to FIR filed by the petitioner and any

observation made by us or directions issued by us shall not be considered as

Writ Petition (Criminal) Appeal No.191 of 2018

ABCD v. Union of India

17

reflection on merits of the matter or on the quality of investigation. The matter

shall be considered on its own merits and in accordance with law.

14. We may now refer to the development which occurred during the

pendency of the writ petition. In FIR No. 314, as well as in the application

preferred thereafter, insinuation was definitely made that Respondent No.7

was responsible for the incident that occurred on 17.10.2019. It was also

submitted that the petitioner was hit by a car and suspicion was expressed in

clear terms that Respondent No.7 was behind the episode. As it now turns

out, she was not hit by a car but by a thela which prima facie means that the

allegations in her sworn statement before this Court were not truthful.

15. Making a false statement on oath is an offence punishable under

Section 181 of the IPC

2

while furnishing false information with intent to

cause public servant to use his lawful power to the injury of another person

is punishable under Section 182 of the IPC

2

. These offences 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 as stated in said Section. In respect

of matters coming under Section 195(1)(b)(i) of the Code

3

, in Pushpadevi M.

Writ Petition (Criminal) Appeal No.191 of 2018

ABCD v. Union of India

18

Jatia vs. M.L. Wadhawan etc.

4

prosecution was directed to be launched

after prima facie satisfaction was recorded by this Court.

16. 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 deceive the court,

interferes with the administration of justice and can be held guilty of

contempt of court. In that case a husband who had filed a fabricated

document to oppose the prayer of his wife seeking transfer of matrimonial

proceedings was found guilty of contempt of court and sentenced to two

weeks imprisonment. It was observed as under:

“1.The stream of administration of justice has to remain

unpolluted so that purity of court’s atmosphere may give

vitality to all the organs of the State. Polluters of judicial

firmament are, therefore, required to be well taken care of to

maintain the sublimity of court’s environment; so also to

enable it to administer justice fairly and to the satisfaction of

all concerned.

2. Anyone who takes recourse to fraud, deflects the course

of judicial proceedings; or if anything is done with oblique

motive, the same interferes with the administration of

justice. Such persons are required to be properly dealt with,

not only to punish them for the wrong done, but also to deter

others from indulging in similar acts which shake the faith

of people in the system of administration of justice.

14. The legal position thus is that if the publication be with

intent to deceive the court or one made with an intention to

4

(1987) 3 SCC 367

5

(1995) 1 SCC 421

Writ Petition (Criminal) Appeal No.191 of 2018

ABCD v. Union of India

19

defraud, the same would be contempt, as it would interfere

with administration of justice. It would, in any case, tend to

interfere with the same. This would definitely be so if a

fabricated document is filed with the aforesaid mens rea. In

the case at hand the fabricated document was apparently to

deceive the court; the intention to defraud is writ large. Anil

Kumar is, therefore, guilty of contempt.”

In K.D. Sharma v. Steel Authority of India Limited and others

6

it

was observed:

“39. If the primary object as highlighted in Kensington

Income Tax Commrs.

7

is kept in mind, an applicant who does

not come with candid facts and “clean breast” cannot hold a

writ of the court with “soiled hands”. Suppression or

concealment of material facts is not an advocacy. It is a

jugglery, manipulation, manoeuvring or misrepresentation,

which has no place in equitable and prerogative jurisdiction.

If the applicant does not disclose all the material facts fairly

and truly but states them in a distorted manner and misleads

the court, the court has inherent power in order to protect

itself and to prevent an abuse of its process to discharge the

rule nisi and refuse to proceed further with the examination

of the case on merits. If the court does not reject the petition

on that ground, the court would be failing in its duty. In fact,

such an applicant requires to be dealt with for contempt of

court for abusing the process of the court.”

In Dhananjay Sharma v. State of Haryana and others

8

filing of a

false affidavit was the basis for initiation of action in contempt jurisdiction

and the concerned persons were punished.

6

(2008) 12 SCC 481

7

(1917) 1 KB 486 : 86 LJKB 257 : 116 LT 136 (CA)

8

(1995) 3 SCC 757

Writ Petition (Criminal) Appeal No.191 of 2018

ABCD v. Union of India

20

17. In the circumstances a notice is required to be issued to the petitioner

in suo motu exercise of power of this Court “why action in contempt be not

initiated against her and why appropriate direction be not passed under

Section 195(1)(a)(i) of the Code”

3

. The Registry is directed to register the

matter as suo motu proceedings and send a copy of this Order to the

Petitioner, who is directed to appear in-person before this Court on

14.01.2020.

18. With the aforesaid observations this writ petition stands disposed

of.

………………………J.

[Uday Umesh Lalit]

………………………J.

[Indu Malhotra]

New Delhi;

December 10, 2019.