Limited Resources, Routine Cases May Erode CBI's Credibility: P&H High Court Refuses To Transfer Probe In Alleged Medical Tourism Fraud Case

The Punjab & Haryana High Court has refused to transfer investigation to the Central Bureau of Investigation (CBI) in a medical tourism fraud case.

As per the allegations, a Kenyan resident was cheated by the petitioner and her dentist husband, who had offered her a medical tourism package. It was alleged that the woman was not treated properly and suffered a significant financial loss.

Justice Manisha Batra said, "This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights."

Otherwise CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations, added the Court.

The plea filed by Dr Rosy Arora, a co-accused in the case,  sought transfer of the investigation in of FIR  registered under Sections 419 and 420 of IPC and Section 66D of the Information Technology Act.

The petitioner contended that she has been falsely implicated in the case. In fact, there was a dispute between the complainant and co-accused Dr. Mohit Dhawan, i.e. her husband, and she had nothing to do with the same, she added.

"The complaint was filed on 27.09.2018 but FIR was registered only on 21.09.2020. She was implicated in this case only on 28.10.2021, when her husband had filed a petition against the police officers/officials. No allegation whatsoever had been made against her by the complainant. Advanced Dental Clinic, Chandigarh, is run by her husband and is sole proprietary concern of her husband," added the plea.

Referring to Bharati Tamang vs. Union of India and Ors., (2013) 15 SCC 578, Dharam Pal vs. State of Haryana and Ors., [(2016) 4 SCC 160] and catena cases said, to do the complete justice and furtherance of fair investigation and fair trial, the constitutional Courts may order further investigation/re-investigation/de novo investigation even if the chargesheet is filed and charges are framed, otherwise, it would lead to travesty of justice.

However, it added that if investigation by the local police is not satisfactory, a further investigation is not precluded, though accused has no right as to which investigation agency should conduct investigation into the allegations.

A Constitutional Court can direct CBI to investigate into a case even after chargesheet has been filed, charges have been framed or some evidence before the trial Court as been recorded, added the Court.

"However, simultaneously, it is also well established that such power can be exercised in exceptional circumstances when after examining the allegations in the complaint, the Court reaches a conclusion that the complainant could make out a prima facie case with regard to relief sought by him/her and only when it is satisfied that the investigation has not proceeded in a proper direction or had been conducted in a biased manner," said the Court.

Justice Batra highlighted that before directing CBI to investigate a case, the Court must reach a conclusion on the basis of the pleadings and material available on record that a prima facie case is made out or not against the accused.

 However, the investigation by CBI is to be granted only in exceptional circumstances, where the Court is of the view that accusation is against a person who by virtue of his post could influence the investigation and may cause prejudice to the cause of the complainant, said the Court.

In the present case, the Court noted that as per the allegations, it was she, who was in fact the proprietor of the Advanced Dental Clinic and in connivance with co-accused Dr. Mohit Dhawan, she had induced the complainant to get treatment of dentistry in her clinic by offering medical-cum-tourism package. 

Consequently, the Court found that no rare and exceptional case to show that the investigation is tainted, has been made out. 

Observing that "As such, it cannot stated that the investigating agency had conducted a tainted or biased investigation at the behest of some high rank police officers/officials, thereby causing failure of justice," the Court rejected the plea.

Mr. Siddhartha Dave, Senior Advocate (Through video conferencing facility) with Ms. Puja Chopra, Advocate for the petitioner.

Mr. Rajiv Anand, Additional Public Prosecutor, U. T., Chandigarh.

Mr. Ravi Kamal Gupta, Advocate for CBI/proposed respondent.

 Title: Dr Rosy Arora v. UT Chandigarh

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