Plea Challenging Delhi HC's Order Dismissing Plea For Prosecution Of BSF Director General Rakesh Asthana: Supreme Court Adjourns Hearing

A division Bench of Justice UU Lalit and Justice BR Gavai directed the matter to be listed after four weeks, after a request for adjournment was made by the petitioner Counsel.

During the hearing, Adv Sushil Tekriwal, appeared for the petitioner Mohit Dhawan and Senior Advocate Mukul Rohatgi appeared for Rakesh Asthana.

Submissions In The Dhawan's Petition: The present plea has been filed challenging the judgement passed by Single Judge Bench of the High Court dismissing Dhawan's plea seeking directions to CBI and Central Vigilance Commission, and State bodies, to adjudicate, enquire, investigate and to launch consequential criminal prosecution against Asthana upon the complaints submitted and lying pending with them.

The plea before the top Court has stated 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.

"This judgement leads to a constitutional crisis and manifest and explicit travesty and injustice. The basic fundamentals of a Writ mandate are seriously breached in the impugned judgement." the plea has stated

The plea has also argued that even the leave granted by Supreme Court to pursue other remedies was interpreted conservatively.

Further, the matter being heard and decided bypassing the roster system, raises an eyebrow on the propriety, probity & correctness of the impugned judgement.

The petitioner has argued that the entire writ forwards on the premise of seeking relief from the State Agencies and in the garb of not entertaining the writ, the private respondent is being brandised.

While stating that the findings in the impugned judgement are extra·constitutional, extra-judicial and extra-terrestrial and bloomed out of proportion and out of context , the petitioner has alleger that it was done to further benefit to a private respondent by conducting a trial without appreciation of evidence.

The petitioner has stated that Rakesh Asthana, while serving as Special Director of CBI, hijacked the entire criminal justice system in connivance with other police officers of Chandigarh conspiring to obtain undue advantage from the petitioner with the intention to cause performance of 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 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 provision of Prevention of Corruption Act, particularly Section 7 & 7A of the Prevention of Corruption Act in order to favour the complainant Gertrude D'Souza and her spouse Bryan D'Souza to dispense his proximate relations.

According to Dhawan, Asthana has absolutely demolished, destroyed and devastated, for his personal venom and vengeance, his name, repute, stature, esteem, eminence, honour, reputation and image and also has caused a shattering storm in his peaceful and professional life.

The present plea has been filed by Adv Venkateswara Rao Anumolu and drawn by Advocates Sushil Tekriwal, Anupam Singla, and Mamta Tekriwal.

Delhi High Court's Order: Delhi High Court, while dismissing Dhawan's plea had noted that there is no iota of evidence which establishes that the 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, If Rakesh Asthana had misused his power being an officer of CBI, then certainly action would be warranted against him..

The 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.

Supreme Court's Order: Supreme Court had on 8th February dismissed as withdrawn Dhawan's plea seeking criminal prosecution of Rakesh Asthana, under section 7 & 7 A of the Prevention of Corruption Act.

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

The petitioner had informed the Court that a complaints were 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 therefore sought the Court's intervention alleging that Asthna is enormously powerful and highly connected and has become totally immune

Before Punjab and Haryana High Court: 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.