Supreme Court Dismisses Plea Seeking Prosecution Of Former Delhi Police Commissioner Rakesh Asthana Under PC Act

Initially, Dhawan had approached the Delhi High Court. However, a single bench of Justice Suresh Kumar Kait, in February 2021, dismissed the same with cost. Against this backdrop, the dentist approached the Top Court.

The matter was listed today before Justice Sudhanshu Dhulia and Prasanna B. Varale. Right at the outset, the Division Bench apprised Dhawan's Counsel that it was not inclined to entertain this appeal under Article 136 of the Indian Constitution. Thus, in view of this, the appeal was dismissed.

To elucidate, the plea filed before the High Court sought directions to the Central Bureau of Investigation, Central Vigilance Commission, and State bodies to adjudicate, enquire, investigate, and launch consequential criminal prosecution against Asthana upon the complaints submitted and lying pending with them.

Before the Supreme Court, Dhawan argued that contrary to the prayers, the High Court entered into the disputed question of facts and gave findings on the innocence of Asthana by exceeding its brief and territory owing allegiance to a private respondent in an extraordinary writ jurisdiction bypassing entire constitutional obligations.

Court Room Exchange

At the commencement of the hearing, the Counsel for Dhawan apprised the Bench that the subsequent events that have transpired since the filing of this petition have been placed on record.

At this juncture, Justice Dhulia asked her: What is your case? Who are you, and what do you want?

To this, Counsel replied that she would not press on merits and wanted the matter to be tagged with a connected matter. She said that the facts and circumstances are the same. However, the Bench firmly stated: “Don't do that. Please don't do that. You tell us the merit of your case. Forget tagging. Just tell us what do you want.”

Consequently, the Counsel submitted: “The matter started when we went to Punjab and Haryana High Court first. My lord, we wanted the transfer of investigation not to UT but to some other state. So, that prayer was declined…..We were advised to approach the Delhi High Court only for direction and not on merits. But Delhi High Court based its order on the Punjab and Haryana High Court whereby the Court had declined the transfer of petition to any other agency.”

Justice Dhulia again asked the Counsel about the prayer that is being sought at this stage. Answering this, Counsel said: “My prayer was very limited…in Delhi High Court we were asking that already direction has been given for investigation to CBI but Delhi High Court entered into the merits of the matter …”

Justice Dhulia interjected to confirm if the petitioner wanted the matter transferred to the CBI. The counsel replied in affirmative.

“Justice Dhulia: You wanted it to be transferred to CBI

Counsel: My lords, we wanted that”

When Counsel reiterated the facts, the Bench posed: “How can we get into these facts under Article 136?”

Moving forward, the Counsel, appearing for Asthana, averred that the same petition has been filed three times. Asthana Counsel's also claimed they are trying to wriggle out of this FIR.

In the end, the Court made it clear that this was not a case for interference under Article 136 of the Indian Constitution and passed the order in this regard.

Brief Background

It must be noted that the petitioner, Dhawan, was booked in a cheating case in 2018, where a complaint was filed by Gertrude D'Souza, a US citizen, who had had 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.

The petitioner's stance is that Asthana falsely and illegally implicated and intimidated the petitioner by abusing his official position through corrupt means and corrupt activities and further attempted to extort money through the police officers in connivance with them in the garb of settling the matter by exercising his personal influence. This was done in contravention of various provisions of the Prevention of Corruption Act, particularly Sections 7 & 7A of the Prevention of Corruption Act, in order to favor the complainant, Gertrude D'Souza, and her spouse, Bryan D'Souza to dispense his proximate relations.

The Delhi High Court, while dismissing Dhawan's plea, noted that there is no iota of evidence that establishes that Asthana had ever influenced police officers at Chandigarh by any communication. The Bench had added that even if it is presumed that the complainant is known to Asthana, if something wrong has happened with her and he had suggested her to take appropriate action in that eventuality, Asthana has not committed any offence.

However, the High Court had also observed that Dhawan's writ petition was not maintainable before the Delhi HC after being informed by CBI's Counsel that Dhawan's complaint, referred by CVC to CBI, was sent to Chandigarh office as the alleged incident has taken place in Chandigarh.

Case Title: Dr Mohit Dhawan Vs Rakesh Asthana., Diary No.- 4870 - 2021

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