Punjab and Haryana High Court: In a writ petition filed by a dentist seeking transfer of a cheating case filed against her and her husband by a Kenyan woman who was allegedly cheated for dental treatment, a Single Judge Bench of Manisha Batra, JJ., dismissed the petition, holding that no rare and exceptional case was made out to show that the investigation was tainted thus, transfer of the investigation to the Central Bureau of Investigation (‘CBI’) was not warranted.
Background
The complainant, a Kenyan resident, was looking for a dentist and had visited the website called www.whatclinic.com, wherein she came across the name of Advanced Dental Clinic, Chandigarh (‘Dental Clinic’), run by the accused/petitioner’s husband, the co-accused doctor. She contacted the clinic and was offered a medical tourism package, which included her dentistry work, accommodation, and airfare. On being satisfied with the offer made by the co-accused, the complainant made advance payment and visited India in 2017 and 2018.
She alleged that neither proper accommodation was provided to her nor the dentistry work done by the co-accused as per the promise. The dentures he prepared did not fit her gums, causing her discomfort and pain. She was also made to wait for a long time and had to incur extra money during her treatment. She had to spend more money in Kenya to get her dentures adjusted.
Aggrieved, she filed a complaint against the co-accused, alleging that the co-accused cheated her by making false assurances and caused a wrongful loss of $4226. Thereafter, the accused was also arraigned due to allegations that she hatched a conspiracy with her husband and sent emails to the complainant to induce her to accept the offer of getting dentistry work done.
Accordingly, an FIR was registered under Sections 419 and 420 of the Penal Code, 1860 (‘IPC’), and later, Section 66D of the Information Technology Act, 2000 was added. The investigation was completed, and the chargesheet was presented to the Trial Court.
The accused filed the present petition seeking transfer of the present case to the Central Bureau of Investigation (‘CBI’).
Analysis
At the outset, the Court considered whether it could issue directions to the CBI for conducting the investigation even after the chargesheet had been filed before the Trial Court. The Court referred to Ram Jethmalani v. Union of India, (2011) 8 SCC 1, wherein the Supreme Court held that in appropriate cases, even if a chargesheet is filed, it is open for the High Court or Supreme Court to direct investigation of the cases to be handed over to CBI or any other independent agency to do complete justice. Further, the Court referred to several other cases in this regard.
The Court stated that the ratio of law laid down was that the commencement of trial and examination of some witnesses cannot be an absolute impediment for exercising the constitutional power to order fresh, de novo, or re-investigation vested with Constitutional Courts, which is meant to ensure a fair and just investigation.
The Court reiterated that if a grave suspicion arises about the investigation, a Constitutional Court should not close its hands and accept the proposition that the matter is beyond it as the trial has commenced. To do complete justice and in the interest of fair investigation and trial, the Constitutional Courts may order further investigation/re-investigation/de novo investigation even if the chargesheet is filed and charges are framed, otherwise, it would lead to a travesty of justice. The Court added that if an investigation by the local police is not satisfactory, a further investigation is not precluded, though the accused has no right as to which investigation agency should conduct the investigation into the allegations.
Thus, the Court held that it was evident that a Constitutional Court can direct CBI to investigate a case even after a chargesheet has been filed, charges have been framed, or some evidence before the Trial Court has been recorded. However, such power can be exercised in exceptional circumstances when, after examining the allegations in the complaint, the Court concludes that the complainant could make out a prima facie case regarding the relief sought by him/her and only when it is satisfied that the investigation has not proceeded in a proper direction or was conducted in a biased manner. An investigation by CBI is to be granted only in exceptional circumstances, where the Court is of the view that the accusation is against a person who, by virtue of his post, could influence the investigation and may cause prejudice to the cause of the complainant.
In this regard, the Court placed reliance on K.V. Rajendran v. CBCID, (2013) 12 SCC 480, wherein the Supreme Court observed that the power of transferring investigation from a State investigating agency to any other independent investigating agency, like CBI, must be exercised in rare and exceptional cases where the Court finds it necessary to do justice between the parties and to instill confidence in the public mind, or where investigation by the State police lacks credibility and it is necessary for having a fair, honest and complete investigation, and particularly when it is imperative to retain public confidence in the impartial working of the State agencies. The Court also placed reliance on Vishal Tiwari (Adani Group Investigation) v. Union of India, (2024) 4 SCC 115, wherein it was observed that such powers must not be exercised by the Court in the absence of cogent justification indicative of a likely failure of justice in the absence of exercise of power to transfer the investigation. The petitioner must place on record strong evidence indicating that the investigating agency has portrayed inadequacy or, prima facie, appears to be biased.
The Court noted that the petitioner contended that the FIR was lodged by the investigating agency to wreak vengeance upon the co-accused because he had filed certain petitions/complaints against some high-rank police officers. However, the petition did not mention the name(s) of any such officer(s)/officials(s) who are allegedly offended by the co-accused or the details as to why such officer(s) were so offended. The Court further noted that, undoubtedly, some other FIRs had been registered against the co-accused, however, at this stage, nothing reflected that the accused had been implicated due to that reason. Additionally, as per the allegations, the accused, as the proprietor of the Dental Clinic, induced the complainant to get her dental treatment in their clinic in connivance with the co-accused.
The Court also noted that the accused was alleged to have represented herself as another person named Aarti, an employee of the Dental Clinic, and had correspondence with the complainant through emails under the said name. Though it was debatable as to whether she had committed any offence of cheating because of those emails, that question had to be decided by the Trial Court.
The Court held that the contention that the accused was not the proprietor of the Dental Clinic prima facie appeared to be false since a complaint under Section 138 of the Negotiable Instruments Act, 1881 had been filed against her alleging that she was the proprietor of the Dental Clinic and she was held guilty in the said complaint and there was nothing on record to show that the accused had denied that she was the proprietor of the said clinic in those proceedings. Thus, at this stage, the Court held that it could not be stated that she had no concern with the said clinic and had no hand in inducing the complainant to accept the offer to receive treatment in the Dental Clinic.
Accordingly, the Court held that there was no rare and exceptional case to show that the investigation was tainted. As such, it could not be stated that the investigating agency conducted a tainted or biased investigation at the behest of some high-ranking police officers/officials, thereby causing a failure of justice. Thus, the Court dismissed the petition, holding that no case was made out warranting interference and accepting the prayer of transferring the investigation to the CBI.
[Dr. Rosy Arora v. Union Territory of Chandigarh, CRWP-10536-2021 (O&M), decided on 03-06-2025]
Advocates who appeared in this case:
For the petitioner: Senior Advocate Siddhartha Dave and Puja Chopra
For the respondent: Additional Public Prosecutor Rajiv Anand and Ravi Kamal Gupta
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