'CBI FIR Simply Copy-Pastes Param Bir's Petition; This Is Overreaching Court Order': Maharashtra Govt Argues In Bombay High Court

The Maharashtra Government on Monday concluded its arguments in their petition before the Bombay High Court challenging certain portions of the Central Bureau of Investigation's (CBI) FIR against former state Home Minister Anil Deshmukh and unknown others.

The two unnumbered paragraphs pertain to dismissed Assistant Police Inspector - Sachin Waze's reinstatement, and alleged corruption and political influence in police transfers.

The division bench of Justices SS Shinde and NJ Jamadar heard Senior Counsel Rafique Dada canvas arguments on the merits of the case and the state's locus, as the CBI has questioned the plea's maintainability.

Dada cited several instances to demonstrate that Chief Justice Dipankar Datta's bench had ordered the CBI to conduct the preliminary enquiry (PE) against Deshmukh on Advocate Jaishri Patil's complaint, which was based on ex-Mumbai Police Commissioner Param Bir Singh's letter to the Chief Minister.

While the letter alleged corruption, it was silent on Waze's reinstatement and the issue of police transfers, Dada submitted.

He clarified that the court didn't order the PE on the PIL Singh filed subsequently, which went far beyond his letter and sought an enquiry into the two paragraphs currently under challenge.

Dada, therefore, claimed that the two paragraphs of CBI's FIR, a "copy-paste" from Param Bir Singh's PIL, were not mandated to be investigated as per April 5, 2021, Bombay High Court order and doing so without the state's consent was a flagrant violation of the law.

The senior counsel relied heavily on the apex court's judgement in former Uttar Pradesh Chief Minister Mayawati's disproportionate assets case. The bench had quashed the FIR against Mayawati, observing that the CBI 'exceeded its jurisdiction' as the court had merely permitted it to investigate the Taj Corridor Case.

Regarding the state's locus, Dada submitted that even the CBI agreed that the issue in the present petition arises from an interpretation of the Chief Justice's order.

"Where do I go for interpretation? I have to approach the court. I can't go to the political people and say, let us interpret this like politicians. My locus is based on the federal structure of the state, on the fact that I have to move the court if someone violates the court's order," Dada said.

Additional Solicitor General Anil Singh requested the bench to hear both - the State and Anil Deshmukh's petition - before the CBI argued. However, Dada objected to the proposition.

"I don't want to be seen as supporting Mr. Deshmukh. We are not questioning the jurisdiction of the CBI to investigate. He is not my minister anymore," he said, adding that Deshmukh may have a good case, but it's different from the state's contentions.

After hearing Dada's and an intervenor's arguments, the bench adjourned the matter for Monday, clarifying that it would hear the parties on the state's plea first and then hear Anil Deshmukh's petition seeking quashing of CBI's FIR.

The Challenge

In the petition filed through the Additional Chief Secretary of the Home Department, the state claimed that the two paragraphs are inserted in CBI's FIR "to carry out [a] fishing and roving inquiry into the administration of the State Government in order to try and find out some material enabling political groups that are presently not in power in the petitioner state, to try and destabilise the present government in the petitioner State."

In the first paragraph from the FIR, the CBI mentions that its Preliminary Enquiry (PE) had found that former State Home Minister Anil Deshmukh was aware of Waze's reinstatement into the force after 15 years, and sensitive and sensational cases were given to him for investigation.

The second such paragraph states that Deshmukh and others exercised "undue influence" over the transfer and postings of police officers, as alleged by former Mumbai Police Commissioner Param Bir Singh.

Jurisdiction of the CBI to investigate in the absence of state's consent

During Friday's hearing, Dada clarified at the outset, "We are only aggrieved by certain portions of the FIR, as it has gone beyond what was ordered by the division bench. The Home Minister has resigned, but we want to protect our rights. This is a matter of the federal rights of the state."

Dada cited Section 6 of the Delhi Special Police Establishment Act 1946, which governs the CBI investigations.

[6. Consent of State Government to exercise powers and jurisdiction.—Nothing contained in section 5 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in 2 [a State, not being a Union territory or railway area], without the consent of the Government of that State.]

Dada submitted that when CBI registered the FIR, the Maharashtra Government had revoked its general consent to the agency. Therefore, it was only by a court order that the investigation was permitted, and the agency could not have gone beyond the scope of the High Court's ruling.

"The courts have been very very careful," he said.

Dada read out the prayers of each petitioner from the April 5^th order to show that only Param Bir Singh had prayed for an investigation into the 'police transfers,' however, he was directed to approach an appropriate forum with his grievances.

"The FIR (portions under challenge) simply copy-pastes from his petition. This is overreaching the court's order. The CBI cannot travel beyond what the court granted, and that can't become part of the FIR," he said.

"Patil's petition had Param Bir Singh's letter attached to it, and our respectful submission is that the letter is the only scope of enquiry."

Dada relied on the case of State Of West Bengal & Ors vs Committee For Protection of Democratic Rights, where the court held it could order an inquiry even in the absence of the state government's consent. "My right to approach the court comes from the federal structure of the constitution which was considered in the West Bengal Case. If somebody violates the court's order, I have the power to approach the court. If the court has the power to direct an enquiry, I have the right to approach the court" he said.

He also cited the case of Minor Irrigation & Rural Engineering Services, UP & Ors. Vs. Sahngoo Ram Arya & Anr.31, where the bench held that an order directing an enquiry by the CBI should be passed only when the High Court, after considering the material on record comes to a conclusion that such material does disclose a prima facie case calling for an investigation by the CBI.

" In the present case, there was no consideration of Waze's reinstatement while directing the FIR. And the investigation into police transfers was categorically declined. " he said.

Dada closed his arguments by saying that CBI's mention of transfers and postings in the FIR is a pretext to peep into and interfere with investigations already ordered by the state.

He added that the state's right must be protected and respected. "Param Bir has a grievance on his transfer, but the court didn't order an investigation into that," he said.

Advocate Subhash Jha, appearing on behalf of intervenor Ghanshyam Upadhyay, opposed the state's petition because it was not maintainable and should be dismissed with exemplary costs.

"The state of Maharashtra cannot come under the bracket of being an aggrieved petitioner. This is a frivolous petition. The fact remains that people like Waze were inducted into the police force in a surreptitious manner. Therefore CBI can look into the entire gamut of allegations."

"The state is trying to become a mouthpiece of the former Home Minister or to protect certain people. The state has not come with clean hands. Waze was frequently meeting the Home Minister and being asked to extort money. How he was re-instated is important, and the CBI would be failing its duty if it did not investigate this aspect," he said.

The bench will now hear the matter on Monday, June 21.

[State of Maharashtra vs CBI]