Delhi High Court
Mukesh vs Union Of India & Ors. on 28 August, 2015
#4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 28.08.2015
+ W.P.(CRL) 766/2015
MUKESH ..... Petitioner
Through Mr. M.L. Sharma, Advocate
versus
UNION OF INDIA & ORS. ..... Respondents
Through Ms. Nandita Rao, ASC (Crl.)
Inspector J.B. Dharkar, P.S. EOW
CORAM:
HON'BLE MR JUSTICE SIDDHARTH MRIDUL
SIDDHARTH MRIDUL, J (ORAL)
W.P. (Crl.) 766/2015 and Crl. MA No. 5550/2015 (Stay)
1. The present is a petition under Article 226 of the Constitution of India
read with Section 482 Cr.P.C., 1973 praying as follows:-
"1. To seize entire said film namely "Mukesh Interview
@ India Daughter" & its raw material being as case
property for proper prosecution AND
2. Be further pleased to declare/issue direction &
prohibition order not to use any part of the impugned
film namely "Mukesh Interview @ India Daughter" for
any action and process in any legal and judicial
proceedings in any manner. AND
3. Be pleased to allow cost of the writ petition. AND
4. This Hon‟ble Court may graciously be pleased to
grant such other or further relief(s) as this Hon‟ble Court
may deem fit and proper in the facts and circumstances
of the case to do the complete justice to the petitioner."
2. Mr. M.L. Sharma, learned counsel appearing on behalf of the
petitioner states that the present petition is connected to a public interest
litigation which is currently pending before this Hon‟ble Court. However,
this submission made on behalf of Mr. M.L. Sharma has been opposed by
Ms. Nandita Rao, Additional Standing Counsel (Criminal) appearing on
behalf of the official respondent.
3. The petitioner has been convicted by the trial Court for the
commission of an offence under Sections
365/376(2)g/377/307/395/397/396/412/201/120 IPC along with other co-
accused in the case commonly known as „Nirbhaya‟s Rape and Murder
Case‟.
4. The appeal filed on behalf of the petitioner has since been dismissed
and the conviction and sentence imposed by the trial Court on the petitioner
has been upheld.
5. Mr. M.L. Sharma, counsel appearing on behalf of the petitioner
submits that a Special Leave Petition against the judgment and order
dismissing his appeal by this Court is pending consideration before the
Hon‟ble Supreme Court of India.
6. The present petition arises out of the following facts:-
(i) an interview of the petitioner was conducted by one Leslee
Udwin/respondent no. 2 at the Tihar Jail, Delhi which was subsequently
utilized for the production of a documentary film purportedly titled "Mukesh
Interview @ India daughter"
(ii) the above mentioned documentary is stated to have been screened
worldwide except in India by the British Broadcasting Corporation,
respondent no. 3 herein.
7. According to Mr. M.L. Sharma, counsel appearing on behalf of the
petitioner, the aforesaid documentary was screened and exhibited in the teeth
and in violation of an order restraining the producers from
uploading/transmitting/publishing the aforesaid documentary through any
web portal or print or any other media, passed by the learned Duty MM,
Patiala House Courts, New Delhi on 3rd March, 2015.
8. A perusal of the status report filed on behalf of the official respondent
reveals that pursuant to the interview of the petitioner, wherein the latter is
stated to have allegedly made defamatory, offensive and insulting remarks
against women, an FIR No. 29/2015 dated 3rd March, 2015 under Sections
504/505(1)(B)/509 IPC read with Section 66A of the Information
Technology Act, 2008 was registered by the Police Station Economic
Offences Wing, New Delhi. The said order dated 3rd March, 2015 was
passed at the instance of the Economic Offences Wing.
9. It is stated by Ms. Nandita Rao, ASC (Criminal) appearing on behalf
of the official respondent, on instructions from Inspector J.B. Dharkar,
Economic Offences Wing, New Delhi, that investigations in the subject FIR
are currently underway.
10. Ms. Nandita Rao, ASC (Criminal) appearing on behalf of the official
respondent further states that at this stage, the subject enquiry is focussed on
the collection of the permissions obtained by respondent no. 2 which enabled
her to conduct the interview of the petitioner within the premises of the Tihar
Jail, Delhi.
11. In the above background, Mr. M.L. Sharma, counsel appearing on
behalf of the petitioner limits the relief in the present petition to prayer
clause (1) and (2).
12. On the contrary, Ms. Nandita Rao, ASC (Criminal) appearing on
behalf of the official respondent states that with regard to prayer clause (1),
investigation is on-going and all necessary steps in accordance with law shall
be taken at an appropriate stage.
13. Insofar as prayer clause (2) is concerned, Ms. Nandita Rao would urge
that in view of the order passed by the concerned Magistrate on 3 rd March,
2015 at the instance of the Economic Offences Wing, there is no
apprehension of the allegedly offensive documentary being
exhibited/screened in India.
14. As per the law laid down in Sakiri Vasu vs. State of U.P. reported as
(2008) 2 SCC 409, the Court held as follows:-
"13. The same view was taken by this Court in Dilawar
Singh vs. State of Delhi (JT vide para 17). We would further
clarify that even if the police has made the investigation, or is
actually making the investigation, which the aggrieved person
feels is not proper, such a person can approach the Magistrate
under Section 156(3) CrPC, and if the Magistrate is satisfied
he can order a proper investigation and take other suitable
steps and pass such order(s) as he thinks necessary for
ensuring a proper investigation. All these powers a
Magistrate enjoys under Section 156(3) CrPC.
14. Section 156(3) states:
"156(3) Any Magistrate empowered under Section 190 may
order such an investigation as abovementioned."
The words "as abovementioned" obviously refer to Section
156(1), which contemplates investigation by the officer in
charge of the police station.
15. Section 156(3) provides for a check by the Magistrate on
the police performing its duties under Chapter XII Cr.PC. In
cases where the Magistrate finds that the police has not done
its duty of investigating the case at all, or has not done it
satisfactorily, he can issue a direction to the police to do the
investigation properly, and can monitor the same.
16. The power in the Magistrate to order further investigation
under Section 156(3) is an independent power and does not
affect the power of the investigating officer to further
investigate the case even after submission of his report vide
Section 173(8). Hence the Magistrate can order reopening of
the investigation even after the police submits the final report,
vide State of Bihar vs. JAC Saldanha (SCC: AIR para 19).
17. In our opinion Section 156(3) CrPC is wide enough to
include all such powers in a Magistrate which are necessary
for ensuring a proper investigation, and it includes the power
to order registration of an FIR and of ordering a proper
investigation if the Magistrate is satisfied that a proper
investigation has not been done, or is not being done by the
police. Section 156(3) CrPC, though briefly worded, in our
opinion, is very wide and it will include all such incidental
powers as are necessary for ensuring a proper investigation.
18. It is well settled that when a power is given to an
authority to do something it includes such incidental or
implied powers which would ensure the proper doing of that
thing. In other words, when any power is expressly granted
by the statute, there is impliedly included in the grant, even
without special mention, every power and every control the
denial of which would render the grant itself ineffective. Thus
where an Act confers jurisdiction it impliedly also grants the
power of doing all such acts or employ such means as are
essentially necessary for its execution."
15. In view of the foregoing, I am entirely in agreement with the
submissions made on behalf of the Economic Offences Wing that this
petition is premature at this stage since the reliefs prayed for on behalf of the
petitioner may be raised at an appropriate stage before the concerned
Magistrate, before whom the subject FIR is currently pending adjudication.
16. The petition is devoid of any merit and the same is hereby dismissed.
SIDDHARTH MRIDUL, J
AUGUST 28, 2015/sd
