Rachna Arora vs State & Anr.
2010 Latest Caselaw 5140 Del

               *           IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                           Date of Reserve: October 5th, 2010

                                    Date of Order: November 11th, 2010

                                    + W.P. (Crl.) No. 1527 of 2010
%                                                                               11.11.2010
         Rachna Arora                                                  ...Petitioner

         Versus

         State & Anr.                                                  ...Respondents

Counsels:

Mr. R.N. Mittal, Sr. Adv. with Ms. Seema Gulati for petitioner.
Mr. Vikas Pawha, Standing Counsel for CBI/respondent.


         JUSTICE SHIV NARAYAN DHINGRA

1.       Whether reporters of local papers may be allowed to see the judgment?            Yes.

2.       To be referred to the reporter or not?                                           Yes.

3.       Whether judgment should be reported in Digest?                                   Yes.


                                                JUDGMENT

1. This petition under Article 226 of the Constitution of India has been filed by a

serving officer of U.P. Judicial Services seeking directions of this Court to register an FIR

under various provisions of Indian Penal Code, Information Technology Act and for

handing over investigation to CBI.

2. I consider that for deciding this petition, it is not necessary to go into the

allegations made by the petitioner. It is an undisputed fact that the petitioner has not

approached any police station either in U.P. or in Delhi for registration of an FIR and it is

not her case that police of either U.P. or Delhi refused to register an FIR. It is her own

case that she was a member of U.P. Judicial Service from before her marriage. The

alleged offence described by her in the petition was allegedly committed by her

W.P. (Crl.) No.1527/2010 Rachna Arora v State & Anr. Page 1 Of 3 estranged husband

3. I consider that a person can approach this Court under Article 226 of the

Constitution of India where legal or other right of a person is infringed by the authorities

concerned. If there is no infringement of any legal or other right and there is no allegation

of infringement of any legal or other right at the hands of State, the High Court cannot be

approached under Article 226 of the Constitution of India. In The State of Maharashtra v

Farook Mohd. Kasim Mapkar and others JT 2010(8) SC 151, the Supreme Court

observed as under:-

"In Hari Singh vs. State of U.P., (2006) 5 SCC 733, considering the very same provisions, this Court concluded that when the information is laid with the police but no action on that behalf is taken, the complainant can under Section 190 read with Section 200 of the Code lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. It was further held that in case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into the offence under Chapter XII of the Code and submit a report. If he finds that complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused. After pointing out the same, the Court has concluded the dismissal of writ petition filed under Article 32." (para 12)

4. In Aleque Padamsee and ors v. Union of India & Ors. (2007) 6 SCC 171, the

Supreme Court observed that in those cases where police refuses to register an FIR,

filing of a writ petition is not the remedy and the Supreme Court reiterated its decision in

W.P. (Crl.) No.1527/2010 Rachna Arora v State & Anr. Page 2 Of 3 Hari Singh's (supra) case. In the case in hand, the petitioner has not even approached

the appropriate police station for registration of an FIR and has directly come to this

Court seeking directions for registration of an FIR and for handing over investigation to

CBI, I consider that under these circumstances, there was no infringement of

fundamental or other right of the petitioner. This petition under Article 226 of the

Constitution of India was not maintainable and is hereby dismissed.

5. The DVDs filed by the petitioner along with the present petition for perusal of the

Court be returned to her.

November 11, 2010                                         SHIV NARAYAN DHINGRA, J
rd




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