CBI Probe Denied In Medical Tourism Fraud Case | Court Finds No Prima Facie Taint Or Bias In Police Investigation
Sanchayita Lahkar
The High Court of Punjab and Haryana Single Bench of Justice Manisha Batra dismissed a petition seeking transfer of investigation to the Central Bureau of Investigation (CBI) in a cheating case arising from a dental tourism complaint. The Court held that no rare or exceptional circumstance was established to warrant interference under constitutional jurisdiction. It directed that the trial shall proceed uninfluenced by the present order and dismissed the plea for impleadment of CBI as infructuous.
The matter arose from a petition under Articles 226 and 227 of the Constitution of India, originally filed with multiple prayers including writs of Habeas Corpus, Mandamus, and Certiorari. However, the petitioner ultimately limited her request to seeking the transfer of investigation from the local police to the CBI in connection with FIR No. 0075 dated 21.09.2020, registered under Sections 419 and 420 IPC and later amended to include Section 66D of the Information Technology Act.
The FIR was based on a complaint lodged by Enid Nayabunbdi, a Kenyan resident who was seeking dental treatment and came across a listing for Advanced Dental Clinic, Chandigarh on the online portal www.whatclinic.com. The clinic, run by co-accused Dr. Mohit Dhawan, husband of the petitioner, offered her a medical tourism package comprising dental procedures, airfare, and accommodation. After paying the required advance and travelling to India twice, the complainant alleged she received substandard dental treatment, inadequate accommodation, and incurred additional expenses, ultimately suffering a financial loss of USD 4226.
The complaint initially named Dr. Mohit Dhawan as the sole accused. However, during investigation, the petitioner was also named as co-accused under Sections 66D of the Information Technology Act and 120-B IPC for allegedly impersonating an employee named “Aarti” and sending deceptive emails to the complainant to induce her into accepting the clinic’s offer.
The petitioner, upon her arrest on 28.10.2021, was released on bail. She alleged that her arrest was motivated by malice harboured by certain police officials against her husband. She contended that the investigation was tainted, carried out in a biased manner, and necessitated transfer to an independent agency like the CBI.
Her counsel argued that she was not connected to the dental clinic and had been implicated to settle scores with her husband, who had previously initiated legal proceedings against police officials. It was further submitted that there were no specific allegations against her in the original complaint, and the investigation was flawed and prejudiced due to the involvement of senior officers.
The petitioner relied on several Supreme Court decisions including Ram Jethmalani v. Union of India (2011), Bharati Tamang v. Union of India (2013), Rubabbuddin Sheikh’s case, and Dharam Pal v. State of Haryana (2016) to contend that constitutional courts have the power to direct fresh investigation or CBI investigation even post-filing of chargesheet, provided justice so demands.
In response, the Union Territory, Chandigarh opposed the petition, stating that the petitioner’s husband had earlier filed a similar plea for transfer of investigation, which was dismissed and not pursued further. The respondents asserted that the petitioner and her husband were abusing legal processes by repeatedly filing petitions to delay proceedings. They further submitted that investigation was complete, chargesheet had been filed, and no justification existed for transfer to CBI.
The Additional Public Prosecutor submitted that there were specific and serious allegations against the petitioner. Investigation revealed she was the actual proprietor of the dental clinic and had impersonated an employee to deceive the complainant. Therefore, no exceptional circumstance was made out to warrant transfer of the case.
The CBI, in its written response to the petitioner’s plea for impleadment, argued that the allegations did not require its involvement as they lacked any inter-State or international ramifications. The CBI further contended that an accused cannot insist that a particular agency must conduct the investigation.
The Court considered the scope of its constitutional powers to order investigation by the CBI even after a chargesheet is filed.
Citing Ram Jethmalani v. Union of India, it recorded that “even if the chargesheet is filed, it is open for the High Court or Supreme Court to direct investigation of the cases to be handed over to CBI or to any other independent agency in order to do complete justice.”
It noted similar views in Dharam Pal v. State of Haryana, Rubabbuddin Sheikh’s case, and Mithilesh Kumar Singh’s case, stating: “The ratio of law laid down in these cases is that the power to order fresh, de novo or re-investigation, being vested with constitutional Courts, commencement of trial and examination of some witnesses cannot be an absolute impediment for exercising the said constitutional power, which is meant to ensure a fair and just investigation.”
The Court observed that “if a grave suspicion arises with regard to the investigation, a constitutional Court should not close its hands and accept the proposition that as the trial has commenced, the matter is beyond it.” It further stated that “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, the Court recorded the legal principle that “an accused has no right as to which investigation agency should conduct investigation into the allegations.” Quoting from CBI v. Rajesh Gandhi (1997), the Court recorded: “No one can insist that an offence be investigated by a particular agency. An aggrieved person can only claim that the offence he alleges be investigated properly, but he has no right to claim that it be investigated by any particular agency of his choice.”
The Court observed that such powers should only be exercised in “rare and exceptional” cases. Referring to Secretary, Minor Irrigation & Rural Engineering Services, U.P. v. Sahngoo Ram Arya (2002) and State of West Bengal’s case, it stated that “such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police.”
It stated that “unless the unfairness of the investigation is such that it pricks the judicial conscience of the Court, the Court should be reluctant to interfere in such matters.”
Referring to Vishal Thakur v. Union of India, it recorded: “Such powers must not be exercised by the Court in the absence of cogent justification indicative of a likely failure of justice in the absence of exercise of power to transfer the investigation.”
On the merits, the Court found no such exceptional circumstance. It noted that the petitioner had not provided names or reasons why any police official may be biased against her. The Court also recorded 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.”
The Court observed: “She is also alleged to have represented herself as one Aarti, an employee of the said clinic and had correspondence with the complainant through emails under the said name.”
It held that the claim of the petitioner denying proprietorship of the clinic was prima facie contradicted by her conviction in a prior case under Section 138 of the Negotiable Instruments Act, where she was recorded as proprietor of the Advanced Dental Clinic.
The Court observed that, based on the facts discussed, no rare and exceptional case had been made out to establish that the investigation was tainted.
It further held that there was no basis to conclude that the investigating agency had conducted a biased or influenced investigation at the behest of high-ranking police officers, resulting in a failure of justice.
Consequently, the Court held that no grounds existed for it to interfere and allow the petitioner’s request for a CBI investigation.
It also clarified that the observations made in the order should not be treated as findings on the merits of the case, and the trial court should proceed independently and in accordance with law, uninfluenced by the present order.
It also dismissed as infructuous the connected application CRM-W-1489-2024 filed by the petitioner seeking impleadment of CBI as a party-respondent.
Advocates Representing the Parties
For the Petitioners: Mr. Siddhartha Dave, Senior Advocate with Ms. Puja Chopra, Advocate
For the Respondents: Mr. Rajiv Anand, Additional Public Prosecutor, U.T., Chandigarh; Mr. Ravi Kamal Gupta, Advocate for CBI
Case Title: Dr. Rosy Arora @ Dr. Rosy Dhawan v. Union Territory, Chandigarh
Neutral Citation: 2025:PHHC:075381
Case Number: CRWP-10536-2021 (O&M)
Bench: Justice Manisha Batra
[Read/Download order]
