KUSHAL AGARWAL Vs. MAHENDRA KUMAR JAIN

JUDGEMENT

(1.) This appeal is at the instance of one of the accused challenging the order of the learned Single Judge dtd. 14/6/2022 whereby W.P.A. No. 17293 of 2021filed by the complainant has been allowed and a Special Investigation Team has been formed to investigate the offences.

(2.) Facts in nutshell are that appellant was married to Rashika Jain (daughter of respondent no. 1) on 9/2/2020. It is stated that on 16/2/2021 Rashika Jain fell down from the terrace of the appellant's apartment and was taken to Woodlands Hospital and she had died on the same day. Respondent No. 1 had lodged a complaint with the police on 17/2/2021 on the basis of which FIR No. 15/21 at Alipore Police Station for the offences under Ss. 306, 498A, 34 of the IPC was registered. Respondent No. 1 on or about 7th of October, 2021 had filed W.P.A. No. 17293 of 2021 raising grievance against the unsatisfactory investigation and making a prayer for constituting the Special Investigation Team to investigate the offences in Alipore Police Station Case No. 15 of 2021. By the order under challenge, learned Single Judge has allowed the prayer.

(3.) Submission of the learned Counsel for the appellant is that the writ petition filed by the respondent No.1 was not maintainable because he had filed an application under Sec. 156(3) of the Cr.P.C. and without disclosing this fact, simultaneously, he had invoked the writ jurisdiction. He further submits that even otherwise in respect of the grievance relating to improper investigation the writ petition was not maintainable and the appropriate remedy was to approach the Judicial Magistrate and in support of his submission he has placed reliance upon the judgment of the Hon'ble Supreme Court in the matter of Sakiri Vasu vs. State of Uttar Pradesh and Others reported in (2008) 2 SCC 409, in the matter of Sudhir Bhaskarrao Tambe vs. Hemant Yashwant Dhage and Others reported in (2016) 6 SCC 277 and in the matter of M. Subramaniam and Another vs. S. Janaki and Another reported in (2020) 16 SCC 728. He has further submitted that before the learned Single Judge, order of the Judicial Magistrate dtd. 6/5/2022 was not produced wherein learned Judicial Magistrate had recorded satisfaction about the investigation and the said order has not been dealt with by the learned Single Judge. He has also submitted that merely because in the application before the Judicial Magistrate, respondent no. 1 had not mentioned any provision of law that will not make any difference as the contents of the application reveal that it was an application under Sec. 156(3) of the Cr.P.C. and in support of his submission he has placed reliance upon in the matter of P.K. Palanisamy vs. N. Arumugham and Another reported in (2003) 9 SCC 173. He has also submitted that on the groud of suppressing the order of the Judicial Magistrate dtd. 6/5/2022, the writ petition itself is liable to be dismissed and in support of his submission he has place reliance upon the Division Bench order of the Delhi High Court in the matter of Satish Khosla vs. Eli Lilly Ranbaxy Ltd. reported in 1988 (44) DRJ (DB). He has raised the submission that the averment made by the respondent No. 1 in the affidavit before this Court in respect of as to what transpired before the learned Single Judge at the time of hearing cannot be looked into as the same does not form part of the record of the learned Single Judge. In support of his submission, he has placed reliance upon the judgment of Hon'ble Supreme Court in the matter of State of Maharashtra vs. Ramdas Shrinivas Nayak and Another reported in (1982) 2 SCC 463. He has also submitted that learned Single Judge has not examined the case diary and that delay in investigation is attributable to the respondent No. 1 and in this regard he has submitted that the password of the seized mobile phone was belatedly supplied by the respondent No. 1 and that other 4 queries raised in the communication dtd. 10/2/2022 sent by the police to the respondent No. 1 were not replied.