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Divya Jangid vs State Of Nct Of Delhi & Ors. on 14 November, 2018

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Review Petition No.402/2018 in
+ W.P.(C) 9752/2018
Reserved on : 2nd November, 2018
Pronounced on: 14th November, 2018

DIVYA JANGID ….. Petitioner
Through: Mr.Joginder Tuli, Adv. with Mr.Ashu
Kumar Sharma, Ms.Joshini Tuli, Advs.

Versus

STATE OF NCT OF DELHI ORS. ….. Respondents
Through: Mr.Sanjoy Ghose, ASC with Ms.Urvi
Mohan, Adv. for GNCTD.
Mr.Nikhil Goel, Adv. with Mr.Gurpreet Hora,
Adv. for CBI.
Mr.N.Hariharan, Sr.Adv. Mr.K.Sultan Singh,
Sr.Adv. with Mr.Samar Vijay Singh, Mr.Amit
Ojha, Mr.Ashish Chouhan, Advs. for the Review
Petitioners.
CORAM:
HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE V. KAMESWAR RAO

JUDGMENT

C.M.No.45387/2018 (exemption)

Allowed, subject to all just exceptions.

Review Petition No.402/2018 C.M.No.43586/2018

1. By a detailed order passed on 3rd October, 2018 in W.P.(C)
No.9752/2018, we had directed for further investigation/inquiry into the
matter by the Central Bureau of Investigation („CBI‟) and submit a status

R.P.No.402/2018 in W.P.(C) No.9752/2018 Page 1 of 11
report. After directing so, we further directed that copies of the charge sheet
and other documents be handed over to the officials of the CBI who were to
take over investigation and submit a report to us within three weeks. We
had further granted three months time to the CBI to cause further
investigation/inquiry into the matter, to assess as to what action has been
taken, the matter was directed to be listed on 30th October, 2018. In the
meanwhile, a Review Petition No.402/2018 has been filed seeking
review/recall of the order passed by us on 3rd October, 2018. The review
petition has been filed under Order XLVII read with Section 114 and
Section 151 of the CPC and in the application six applicants, arrayed as
applicants No.1 to 6 seek review of the order in question. The review is
primarily sought for on the grounds detailed hereunder.

2. Firstly, it is submitted that the order has been passed at the instance of
the petitioner, Divya Jangid who had filed the petition under Article 226 of
the Constitution as a public interest litigation, but while doing so, she had
suppressed facts as to before approaching this Court by way of present
public interest litigation, with regard to the same relief claimed, earlier a
writ petition being W.P.(Crl.)2034/2018 was filed by Delhi Citizens Forum
for Civil Rights in which the petitioner, i.e., Divya Jangid was a counsel. It
is stated that the said writ petition was dismissed as withdrawn on 11 th July,
2018 by a Single Bench of this Court and order passed on 11th July, 2018 in
the said writ petition reads as under:-

“By this petition, petitioner which is an NGO seeks
transfer of investigation in case FIR No.208/2018 registered
under Sections 376/377/354/34 IPC at PS Fatehpur Beri to CBI.
The petitioner is neither a victim nor an accused in the FIR.
The present petition has not been treated as public interest
R.P.No.402/2018 in W.P.(C) No.9752/2018 Page 2 of 11
litigation.

Faced with this situation, learned counsel for the
petitioner seeks leave to withdraw the present petition with
liberty to the victims to file a fresh petition for the same.

Leave and liberty granted.

The petition and application are dismissed as
withdrawn.”

3. It is stated that suppressing this fact, Ms.Divya Jangid has filed this
petition and, therefore, it is vehemently argued that she has no locus standi
to file the writ petition and the same having been filed by suppression of
material facts is liable to be dismissed.

4. Mr.N.Hariharan and Mr.K.Sultan Singh, the learned senior counsel
appearing for the applicants argued extensively in support of the aforesaid
contention and relied upon various judgments with regard to the locus standi
of a person to file the writ petition. Amongst others, the judgment relied
upon are, Janata Dal vs. H.S.Chowdhary Ors., (1992) 4 SCC 305, Vineet
Narain Ors. vs. Union of India Anr., (1996) 2 SCC 199, Simranjit
Singh Mann vs. Union of India Anr., (1992) 4 SCC 653.

5. The learned senior counsel took us through various observations made
by the Hon’ble Supreme Court in the aforesaid cases to say that apart from
the fact that there is suppression of fact by the petitioner, Divya Jangid, a
public interest litigation at her instance for the relief claimed is not
maintainable.

6. The second ground canvassed was that the principles applicable for
transferring a case to the CBI as is laid down by the Supreme Court in
various cases including the case of K.V. Rajendran v. Supt. of Police,
R.P.No.402/2018 in W.P.(C) No.9752/2018 Page 3 of 11
(2013) 12 SCC 480 is not made out in the present case and, therefore,
transfer of the case to the CBI is not called for and to that extent the order
warrants review.

7. The next ground canvassed was that once a charge sheet has been
filed, it is the Court exercising jurisdiction as per the criminal procedure
code and the procedure contemplated under Section 173 of Cr.P.C. to
proceed in accordance with law and monitoring by the High Court at this
stage after the challan is filed is impermissible. Reference has been made in
this regard to another judgment by the Supreme Court in the case of Union
of India vs. Sushil Kr. Modi, (1998) 8 SCC 661.

8. Further ground canvassed was that once a investigation into the matter
is completed, charge sheet has been filed and the case is pending
consideration before the trial Court, de novo inquiry by registering a fresh
FIR by the CBI is not permissible and in support thereof various judgments
have been referred to.

9. That apart the act of this Court in directing for inquiry by an
independent agency like the CBI is challenged by contending that it amounts
to interfering with the personal liberty of the applicants, it was submitted
that ordering of an inquiry, after the charge sheet has been filed is not
permissible in law and in support thereof the judgments relied upon are,
Amitbhai Anilchandra Shah vs. The Central Bureau of Investigation
Ors., (2013) 6 SCC 348, S.P. Chengalvaraya Naidu (Dead) by L.Rs. (1994)
1 SCC 1, Raj Pal Singh vs. Central Bureau of Investigation Ors., (2015)
Crl.LJ 3032 and a judgment of this Court in Criminal Reference
No.4/2017, Court on its own Motion vs. State.

R.P.No.402/2018 in W.P.(C) No.9752/2018 Page 4 of 11

10. That apart learned counsel appearing for the Govt of NCT of Delhi
argued that in this case the investigation has been properly conducted. A
detailed charge sheet has been filed and, therefore, at this stage indulgence
into the matter is not called for.

11. We have heard extensive arguments on various aspects of the matter
as detailed hereinabove. In rebuttal, learned counsel appearing for the
original petitioner, Divya Jangid pointed out that the facts have not been
correctly stated before this Court. It is stated that the petitioner, Divya
Jangid was only a counsel in the first writ petition filed by Delhi Citizens
Forum for Civil Rights, i.e., W.P.(Crl.) No.2034/2018 and after the order
was passed in the said case on 11th July, 2018 as is reproduced hereinabove,
the petitioner, Ms. Divya Jangid had filed a writ petition W.P.(Crl)
No.179/2018 before the Hon’ble Supreme Court where she appeared in
person and on 27th August, 2018 the following orders were passed by the
Hon’ble Supreme Court:-

“Permission to appear and argue in person is allowed.

Heard the petitioner-in-person.

Petitioner-in-person wants to withdraw this Writ Petition with
liberty to approach the High Court.

With the said liberty, the Writ Petition is dismissed as
withdrawn.

Pending application filed in the matter also stands disposed
of.”

12. It is stated that it is only after this liberty was granted that the present
writ petition has been filed. She has also produced before us a certified copy
R.P.No.402/2018 in W.P.(C) No.9752/2018 Page 5 of 11
of the writ petition filed before the Hon’ble Supreme Court wherein the fact
of writ petition in the form of PIL filed by the Delhi Citizens Forum for
Civil Rights, that is, W.P.(C) No.6882/2018 which was subsequently
converted into a criminal writ petition, namely, W.P.(Crl.) No.2034/2018 is
mentioned and the fact about dismissal of this writ petition by a Single
Bench on 11th July, 2018 was also indicated. Accordingly, it is submitted
that the petitioner, Divya Jangid has not suppressed any fact. Further it is
also pointed out that on 19th July, 2018 the prosecutrix/victim herself had
filed a writ petition W.P.(Crl.) No.2161/2018 and her counsel Mr.Pradeep
Tiwari points out that the said writ petition was listed before the Single
Bench on 20th July, 2018 notices were issued and the case was posted for
30th August, 2018. The case was pending before the writ Court on various
dates and it was transferred to this Bench when pendency of writ petition
filed by Ms.Divya Jangid was brought to the notice of the Court.
Mr.Pradeep Tiwari invited our attention to the fact that on 3rd October, 2018
both the writ petition filed by the prosecutrix/victim and the public interest
litigation filed by Divya Jangid was taken up together and the order under
review passed on 3rd October, 2018 was passed jointly in both the cases and
that the arguments were advanced by Sh.Pradeep Tiwari in support of the
contention made by the prosecutrix/victim and merely because the operative
part of the order is dictated in the case of Divya Jangid it does not mean that
the order is passed only at the instance of Divya Jangid, the fact is that even
the victim had approached this Court and the order under review dated 3 rd
October, 2018 has been passed at the instance of the victim also. He invites
our attention to the following order passed on the same date on 3rd October,
2018 in W.P.(C) No.2161/2018 passed at the instance of the victim herself:-

R.P.No.402/2018 in W.P.(C) No.9752/2018 Page 6 of 11

“Vide detailed order passed by us today in W.P.(C)
No.9752/2018, we had directed Central Bureau of Investigation
to conduct further investigation/inquiry with respect to FIR
No.208/2018 registered on 10.06.2018 under Section
376/377/506/34 IPC and submit a status report to this Court
within three months.

List on 30th October, 2018 along with W.P.(C)
No.9752/2018″

13. It is further submitted that there is no suppression of fact and the
grounds raised for dismissal of the writ petition on review is not sustainable.
That apart, on merits of the contention various grounds were raised to rebut
the same and finally it was argued that this Court having exercised its
jurisdiction, now on the grounds canvassed, a review application is not
maintainable. It is beyond the jurisdiction available to this Court under
Order XLVII. There is no error apparent on the face of the record. At best,
the grounds canvassed may be a ground for challenging the order but not a
case for review.

14. Having heard the learned counsel for the parties at length, we are of
the considered view that primarily this review petition is on the ground that
the petitioner, Divya Jangid who filed the writ petition in public interest, that
is, W.P.(C) No.9752/2018 has suppressed material facts and has no locus
standi to file the writ petition. Before adverting to consider this question,
we may take note of certain factual aspects of the matter. Divya Jangid filed
this writ petition in public interest on 14 th September, 2018 and the matter
was listed before this Bench on 17th September, 2018, on that date the case
was adjourned to 24th September, 2018. On 24th September, 2018 when the

R.P.No.402/2018 in W.P.(C) No.9752/2018 Page 7 of 11
matter was taken up, it was informed to this Court that another writ petition
making similar prayer at the instance of the victim being W.P.(Crl.)
No.2161/2018 is pending and, therefore, this Court directed for listing of
both the petitions together after obtaining orders from the Chief Justice on
the administrative side. The Chief Justice passed administrative order on
29th September, 2018 directing for relisting of both the writ petition together
before this Bench. The matter was, therefore, listed on 3 rd October, 2018
when both the cases were heard by us. Arguments were advanced by
Sh.Pradeep Tiwari learned counsel appearing for the victim/prosecutrix in
W.P.(C) No.2161/2018 and one Sh.Joginder Tuli also advanced arguments
on the petition filed by Ms.Divya Jangid. A common order was passed in
both the cases on 3rd October, 2018. Even though the main order has been
typed in W.P.(C) No.9752/2018, the fact remains that the order was a
common order passed in both the cases which includes the writ petition filed
by the victim herself. It is, therefore, to be taken note of that the victim has
also approached this Court by way of a writ petition and it was after
considering her objections and going through the detailed charge sheet
presented before us that the order was passed on 3 rd October, 2018. That
being so, the contention that the petition was filed only by the petitioner
Divya Jangid and no complaint or grievance was made by the complainant
or the victim is not correct. That apart, if we analyse the question of
suppression fact by Divya Jangid, we find that after the order was passed by
us on 3rd October, 2018, the applicants herein filed a Special Leave Petition
before the Hon’ble Supreme Court being SLP (C) Diary No.38124/2018, the
same was heard by the Hon’ble Supreme Court on 22nd October, 2018 and
the order passed by the Hon’ble Supreme Court reads as under:-

R.P.No.402/2018 in W.P.(C) No.9752/2018 Page 8 of 11

“Learned Senior counsel appearing on behalf of the petitioners
seeks leave of this Court to withdraw the application for
permission to file Special Leave Petition to avail the remedy of
review before the High Court and to bring it to the notice of the
said Court about the earlier round of litigation.
He is at liberty to do so.

In view of the request made, application for permission to file
Special Leave Petition is dismissed as withdrawn.
In case any adverse order is passed on the review petition, the
petitioners are at liberty to move this Court again.”

15. From the aforesaid, it would be clear that before the Hon’ble Supreme
Court a liberty was obtained for filing this review application and bring to
the notice of this Court the facts about earlier round of litigation and,
therefore, much emphasis has been placed on the earlier writ petition filed
and suppression of facts. If we analyse the factum of filing of the earlier
writ petition, we find that the earlier writ petition was filed by Delhi Citizens
Forum for Civil Rights in which may be the petitioner Ms. Divya Jangid was
a counsel. However, the said Ms.Divya Jangid had also invoked the
jurisdiction of the Hon’ble Supreme Court under Article 32 of the
Constitution in W.P.(Crl.)179/2018 disclosing the fact about dismissal of the
writ petition filed by Delhi Citizens Forum and it is after taking liberty from
the Hon’ble Supreme Court that the present writ petition has been filed by
Ms. Divya Jangid. That being so, the contention of the petitioner that there
is suppression of fact cannot be accepted in its totality and this submission
gets diluted or becomes non-effective because of the fact that the victim
herself has approached this Court by filing W.P.(C) No.2161/2018 and it
was after considering her prayer also that the order in question under review

R.P.No.402/2018 in W.P.(C) No.9752/2018 Page 9 of 11
was passed by us after going through the charge sheet in detail and taking
note of the various submissions which have been detailed by us in the order.

16. Taking note of the circumstances, we are of the considered view that
on the ground of suppression of facts a case for review or recall is not made
out for the simple reason that we had, in fact, passed the order considering
the prayer made by the victim herself in her writ petition, W.P.(C)
No.2161/2018.

17. As far as the grounds on merits based on various judgments as
indicated hereinabove are concerned, they are primarily grounds which
cannot be termed as error apparent on the fact of the record. We do not wish
to go into each of them in detail as we find that while passing the order
various legal aspects of the matter have already been taken note of by us and
we find no error apparent on the face of the record to review the order on
that account except for observing that we had directed only for further
investigation by the CBI. Our intention was not at all to order a de novo
inquiry into the matter. We had directed for supply of the entire charge
sheet to the CBI and they were required to go through the charge sheet,
conduct further investigation as is permissible under law and then submit a
report to us. The report submitted by them, interim in nature, only indicates
that they have initiated the process and, therefore, we caution them to ensure
that the investigation to be conducted by them is not a de novo inquiry but it
is only a further investigation or inquiry into the matter and submitting a
report to us. In the meanwhile, based on the charge sheet already filed, the
trial Court shall proceed with the matter in accordance with law.

18. Accordingly, finding no ground, we dismiss the application and direct

R.P.No.402/2018 in W.P.(C) No.9752/2018 Page 10 of 11
for listing of the writ petition on 19th November, 2018 for issuing further
directions in the matter.

CHIEF JUSTICE

V. KAMESWAR RAO, J
NOVEMBER 14, 2018
„anb‟

R.P.No.402/2018 in W.P.(C) No.9752/2018 Page 11 of 11

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