Probe Can't Be Transferred To CBI Merely Because Litigant Feels She Is Being Unfairly Prejudiced: Delhi High Court In Sexual Harassment Case

The Delhi High Court has observed that an order for transfer of investigation is a serious affair, and that investigation cannot be transferred to the Central Bureau of Investigation (CBI) merely because the litigant feels she is being unfairly prejudiced.

While dismissing the plea seeking transfer of further investigation in a sexual harassment case from the State Police to the CBI, the court said nothing was placed on record to show to shake the its conscience with respect to the investigation conducted by the police. It added that there had been no dereliction of duties by the police officials.

Noting that the power to order further investigation rests with the Magistrate, Justice Jasmeet Singh observed that the correct course of action is to approach the Magistrate under Section 156(3) of the Code of Criminal Procedure, 1973 (CrPC), who can order further investigation under Section 173(8) even post-cognizance until the trial commences.

The petitioner, a former employee of M/s GMR Delhi International Airport (P) Ltd (GMR DIAL), has levelled sexual harassment allegations against a senior officer of the company and further alleged that Head of the Department aided the accused in further harassing her. She filed a writ petition seeking transfer of further investigation in relation to the FIR registered by her under Section 509/34 of the Indian Penal Code, 1860 (IPC) at P.S. IGI Airport to the CBI. She claimed that the authorities did not make efforts to investigate the matter fairly and that there were major loopholes in the investigation.

She further sought a direction to the concerned agency to arrest or detain the two persons for further investigation. She also stated in her plea that the Central Vigilance Commission and Commissioner of Police must be recommended to take serious action against the police officials who neglected their duties, and that the investigating agency must be direct to seize the laptops of Samanta and Hazra.

Sharma said that she had approached the Patiala House Court by filing an application under Section 156(3) CrPC for registration of FIR. She added that the Trial Court directed the police to register the FIR, however, ignoring the directions of the Trial Court, an FIR was registered after a lapse of 2 months only under Section 509/34 IPC and that Section 354 IPC (Assault to outrage women’s modesty) was deliberately omitted, which is a non-bailable offence.

The court noted that Sharma had earlier filed a similar writ petition before the High Court seeking transfer of investigation in the same FIR to CBI, and had raised similar issues with respect to the same cause of action. Thus, the court concluded that the plea seeking transfer of further investigation to CBI was barred by Res Judicata.

“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,” the court said, adding that an issue or a point decided and having attained finality cannot be allowed to be re-opened and re-agitated all over again.

“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,” the court added.

The bench added that in terms of the liberty granted vide that order, 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 investigation is complete and chargesheet has been filed. Hence, the said prayer cannot be reagitated," said the court.

While observing that 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, Justice Singh remarked, “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.”

The court further observed that Sharma’s conduct indicates interference in the investigation process. It added that 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,” the court said.

Noting that the accused have been granted bail by the competent court, the court held, “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.”

Dealing with Sharma’s plea that the investigation agency must be directed to seize the laptops of the accused, the court said, “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.”

The court thus dismissed the petition.

Case Title: AS vs State and Ors.

Citation: 2023 LiveLaw (Del) 330

Counsel for the Respondent: Mr. Sachin Mittal, ASC for State with Mr. Alok Sharma, Mr. Nishant Chauhan, Advs. with SI Manju Chahar, PS IGI Airport Mr. Anirudh Bakhru, Ms. Ayush Puri, Mr. Umang Tyagi, Ms. Tejaswini Chandrashekhar, Mr. Prateek Kumar Jha, Advs. for R-10 Mr. Daviender Hora, Mr. Anurag Gautam, Mr. Sahil Chouhan, Advs. for R-3 Mr. Sanjay K. Das, Mr. Vikas Kumar Singh, Advs. for R-2