Delhi High Court: A petition under Articles 226 and 227 of the Constitution read with Section 482 of Criminal Procedure Code, 1973 (‘CrPC’) was filed by petitioner for setting aside order dated 02-11-2023 passed by ASJ/SPL, whereby application filed on behalf of petitioner for further investigation was dismissed. Anoop Kumar Mendiratta, J., opined that merely, based on allegation that prosecutrix might be a member of gang of ‘honey trapping’ or the second mobile phone used by prosecutrix might contain some evidence of extortion, the Court could not direct further investigation under Section 173(8) of CrPC. Thus, the Court disposed of the petition and held that no grounds were made out to direct further investigation, however, the cost of Rs 20,000 was to be deposited by petitioner.
Background
Petitioner met prosecutrix through a dating app and both started communicating with each other and eventually entered into a sexual relationship, which prosecutrix alleged to be on ‘promise of marriage’ by petitioner. Prosecutrix further alleged that she got pregnant and thereafter petitioner blocked her mobile number, and she also levelled allegations of abuse and criminal intimidation. An application preferred on behalf of petitioner before the Trial Court for conduct of further investigation qua the angle of honey trapping and extortion by prosecutrix, was dismissed by the Trial Court.
Petitioner submitted that the investigating agency seized only one of the mobile phones which was in possession of prosecutrix, while the other mobile phone being used by prosecutrix on which WhatsApp messages were exchanged, was not seized during investigation. Thus, it was submitted that an important aspect of investigation was overlooked and not collected by the investigating agency. Respondent submitted that the other mobile phone on which WhatsApp messages were alleged to have been exchanged could not be seized as prosecutrix claimed that the same belonged to her friend and despite efforts, the same could not be seized.
Analysis, Law, and Decision
The Court noted that the Trial Court observed that petitioner’s application was devoid of merit, and it was abuse of process of Court, merely to pressurize prosecutrix. The Trial Court noted that no complaint of extortion was made by petitioner and there was no iota of allegation to substantiate the case that prosecutrix was a member of gang of honey trapping. The Trial Court thus observed that the purpose of further investigation was not to prove or establish defence of accused.
The Court opined that where a charge sheet was filed by police under Section 173(2) of CrPC, police could undertake further investigation in respect of the offence, under Section 173(8) of CrPC. The objective for ‘further investigation’ was to find the truth and bring evidence on record for ensuring substantial justice. However, this right did not extend to mere ‘reinvestigation’ or ‘fresh investigation’ to be started ab initio.
The Court also opined that if the circumstances deserve for a further investigation, the power of the jurisdictional court to direct the police to conduct further investigation could not have any inhibition and the same could not be ruled out merely because cognizance was taken by the Court. Whether further investigation should or should not be directed was within the discretion of the jurisdictional court which exercised its discretion on the facts of each case before the trial commenced by framing of charge.
The Court opined that in the present case, if any WhatsApp messages were exchanged between petitioner and prosecutrix, the same must have been recorded even on the ‘WhatsApp’ of petitioner’s device and the messages could be duly looked into or brought to notice of court, if deemed appropriate by petitioner during evidence. The Court further opined that merely, based on allegation that prosecutrix might be a member of gang of ‘honey trapping’ or the second mobile phone used by prosecutrix might contain some evidence of extortion, it could not direct further investigation under Section 173(8) of CrPC.
Thus, the Court disposed of the petition and held that no grounds were made out to direct further investigation, however, the cost of Rs 20,000 was to be deposited by petitioner.
[Piyush Agarwal v. State (NCT Of Delhi), 2024 SCC OnLine Del 749, Order dated 01-02-2024]
Advocates who appeared in this case:
For the Petitioner: Anoop Prakash Awasthi, Parthvi Ahuja, Prapti Singh, Advocates
For the Respondent: Rupali Bandhopadya, ASC
Buy Code of Criminal Procedure, 1973 HERE
Buy Constitution of India HERE
