A Delhi court today said that mere filing of a PIL for a thorough probe into Sunanda Pushkar death case does not give any right to senior BJP leader Subramanian Swami to move an application for ascertaining if all the shortcomings pointed out in a vigilance inquiry have been considered by the police before the filing of charge sheet.
Additional Sessions Judge Arun Bhardwaj dismissed Swamy's application whereby he had sought directions to the police to produce before it a 2016 vigilance enquiry report and ensure that all shortcomings in the probe have been taken care of in the charge sheet.
"Section 301 (2) CrPC provides that any private person can instruct a pleader to prosecute a person in any court. However, in view of inclusion of definition of victim in CrPC, the expression 'any private person' will refer to the 'victim' including his or her guardian or legal heir.
"Any private person cannot include a total stranger to the case," said the court.
Sunanda Pushkar, wife of Congress leader Shashi Tharoor, was found dead in a suite in Leela Hotel in south Delhi on January 17, 2014.
Tharoor has been booked under sections 498A (husband or his relative subjecting a woman to cruelty) and 306 (abetment of suicide) of the Indian Penal Code.
The Delhi Police Commissioner had in year 2016 ordered a vigilance enquiry to ascertain shortcomings in the probe. The same was published in a newspaper.
Swamy relied on the newspaper report and sought direction to the police to produce the vigilance enquiry report and satisfy the court that the shortcomings pointed out have been considered and investigated before filing of charge sheet.
Tharoor, who has been summoned as an accused in the case, opposed Swamy's plea.
Tharoor's counsel senior advocate Vikas Pahwa and advocate Gaurav Gupta said only a victim can move such an application while Swamy was a total stranger to the case.
Swamy, on the other hand, contended that as per Section 255 CrPC, it is not provided that the prosecution shall only be conducted by the Public Prosecutor and the State and Section 301 CrPC uses the expression 'any private person'.
Tharoor argued that Swamy did not seek court's permission to move such an application and by himself assumed locus standi.
The State on it's part said since the court has already taken cognizance of the charge sheet, it cannot order a further probe. Besides this, the Additional Public Prosecutor also submitted that the vigilance enquiry report was submitted by Deputy Police Commissioner to the Joint Commissioner in 2016 whereas the charge sheet was filed in 2018 and all shortcomings were duly considered.
After hearing both sides, the court said, "Two writ petitions have been filed before the Delhi high court concerning the investigation into death of Sunanda Pushkar. The first was filed unsuccessfully by Anti Corruption Front. Two years later, the applicant (Swamy) filed a second writ petition for the constitution of SIT.
"Merely having filed the PILs will not give the applicant rights of a victim. Therefore, in the opinion of the court the applicant has no right to file an application for calling the vigilance enquiry report...".
It also said that the court cannot order further probe after cognizance of the offence has been taken.
Click Here To Download Order