Plea Seeking Prosecution Of BSF Director General Rakesh Asthana Under PC Act: Supreme Court Dismisses Plea, Allows Petitioner To Pursue Other Remedies

Supreme Court on Monday dismissed as withdrawn a petition seeking criminal prosecution of Rakesh Asthana, the present Director General of BSF under section 7 & 7 A of the Prevention of Corruption Act.

A division Bench of Justice Nageswar Rao and Justice Ravindra Bhat  has allowed petitioner Mohit Dhawan to pursue other remedies.

During the hearing today, Advocate Sushil Tekriwal submitted before the Court that he wishes to approach the High Court and should be allowed to do that.

Senior Advocate Mukul Rohatgi appearing for the Caveator opposed the petitioner's requests.

"It is the most gross case. You should not grant him any liberty." Rohatgi said.

"Mr Rohatgi we cannot stop him for pursuing his remedies." - the Bench responded.

The petitioner Mohit Dhawan is a dentist from Chandigarh and Mr Rakesh Asthana is a high profile bureaucrat who is presently serving as the Director General of BSF along with additional charge of being the Director General of Narcotics Control Bureau and has formerly served as the Special Director of CBI.

Dhawan's plea has alleged that while serving as Special Director of CBI, Asthana hijacked the entire criminal justice system in connivance with other police officers of Chandigarh and conspired to obtain undue advantage, for himself and his close family friends, thereby performing his public duty improperly and dishonestly.

The petitioner has contended that Asthana falsely and illegally implicated and intimidated the petitioner by abusing his official position through corrupt means and corrupt activities and attempting to extort money from him through police officers by conniving with them. He therefore exercised his personal influence in contravention of various provision of Prevention of Corruption Act, particularly Section 7 & 7A of the Prevention of Corruption Act. According to the petitioner, Asthana's act was a favour to the couple Gertrude D'Souza and her spouse Bryan D'Souza, with who he has enjoyed proximate relations since years.

The plea has further alleged that this is a classic case of a public servant who can, by manifestly abusing his official position, implicate and translate a common man into a criminal by betraying the entire criminal justice system and constitutional obligations conferred on him. Rakesh Asthana has absolutely demolished, destroyed and devastated, for his personal venom and vengeance, the name, repute, stature, esteem, eminence, honour, reputation and image of the petitioner dentist and also has caused a shattering storm in the peaceful and professional life of the petitioner dentist.

The petitioner has submitted that a complaint to this effect was made before the Central Vigilance Commissioner and Central Bureau of Investigation on 18th September 2019, 27th July 2020 and 17th August 2020 but the said authorities did not initiate any action or adjudication or prosecution against Asthana in consequence of the said complaints.

The plea has sought the Court's intervention alleging that Asthna is enormously powerful and highly connected and has become totally immune. It has urged the Court that the entire matter must be directed to be inquired and investigated and Asthana be prosecuted in accordance to law since he is an alleged criminal in uniform and the kingpin who runs the gang of extortionists by intimidating and implicating the innocents including the petitioner.

The Punjab and Haryana High Court had in November 2020 dismissed a petition filed by the present petitioner Mohit Dhawan against Rakesh Asthana and former Chandigarh DGP Tajinder Luthra in the case for filing a fake FIR against him and seeking transfer of a probe into a cheating case registered against him to outside the Chandigarh Police's jurisdiction or any other agency.

The petitioner, Dhawan was booked in a cheating case back in 2018 where a complaint was filed by Gertrude D'Souza, a US citizen, who had got a dental implant procedure done at his clinic in 2017. Another cheating case was filed against him in September 2020 by another woman , Enid Nayabundi, from Nairobi, Kenya.

Dhawan had alleged before the High Court that he was a victim of malice, vendetta and extortion, by Asthana, who was known to D'Souza and he had also instigated to lodge another complaint against him. According to him, Gertrude had contacted him for treatment through e-mail and after the surgery, she did not pay the fees and threatened him that she was close to Rakesh Asthana and asking for money would cost him his life. He had also alleged that after the woman returned back to the United States he was constantly threatened by the Chandigarh Police for the return of paid fee, and once the police also took him to the DGP's office and demanded Rs 50 lakh for the settlement of dispute.

The Punjab and Haryana High Court had observed that the petitioner's assertions that there was a close proximity of former CBI special director with D'Souza were mere assumptions and not substantiated by any material on record. The Court observed that merely because the police official is a Facebook friend of the complainant, it cannot be presumed that he shall favour him in an illegal manner.

"If a person appears in the friend list of a Facebook page of any public servant, it cannot be assumed that an official shall favour such a person in an illegal manner and maneuver investigation of a crime.... Sending of complaints by way of emails to the officials on their personal email IDs or having them as friends on social media do not give rise to any presumption of mala fide.", Justice Sant Prakash of the Punjab and Haryana High Court had observed.

The High Court had added that the high ranking police officer who had never remained posted in Chandigarh and had only graduated with the husband of complainant from same university/college in the year 1982 would not necessarily lead to any inference that he was instrumental in getting the investigation conducted in a biased manner.