Who Are The "Unknown Others" In FIR Against Anil Deshmukh? Bombay High Court Asks CBI

The Bombay High Court on Monday observed that the CBI is duty-bound to investigate not just the former state Home Minister Anil Deshmukh but also the others who may be involved, including the Suspension Review Committee that had reinstated dismissed Assistant Police Inspector Sachin Waze.

"Pursuant to the directions of this court, the Preliminary Enquiry was initiated, and CBI's FIR was registered. So it would not apply qua only the petitioner (Anil Deshmukh) but it would be the duty of the CBI to investigate properly in respect of whatever allegations are there in the FIR. And even those who are others who are involved in transfers and all that, including the committee that inducted Mr Waze, and reinstated him after 15 years," a division bench of Justices SS Shinde and NJ Jamadar observed while hearing Deshmukh's petition.

The then Mumbai Police Commissioner Param Bir Singh had headed the committee that inducted Waze back into force.

During Monday's hearing, the court also asked CBI's counsel ASG Aman Lekhi to inform them in a sealed envelope who are the "unknown others" cited in Deshmukh's FIR and the progress in their investigation.

"Mr Lekhi, in the FIR, the name of the petitioner is mentioned and then "unknown others." We have seen that in theft and dacoity cases. Who are the unknown here? Your preliminary enquiry is over, FIR is registered long back, what is the further investigation of the CBI? You can tell us in a sealed envelope."

Anil Deshmukh has sought quashing of FIR registered by the CBI against him and unknown others under the Prevention of Corruption Act read with section 120B (criminal conspiracy) of the Indian Penal Code.

Senior Advocate Amit Desai began his arguments on sanction, referring to the judgments in the cases of Manohar Lal Sharma and AR Antulay urging the Courts to not allow the bypassing of Section 17A of the Prevention of Corruption Act, 1988 (PC Act).

Section 17A of the PC Act lays down that the sanction from the concerned government must be sought before any investigation against any public servant is initiated.

"Your lordship asked if an accused can choose the investigating agency, and I said no. But does an investigating agency have the right to conduct an investigation contrary to law? The answer is an unambiguous NO", Desai added.

In April 2021, the Bombay HC had directed the CBI to conduct preliminary enquiry on the allegations of corruption against Deshmukh. On this, Mr. Desai argued that if it is to be concluded that the Court ordered the Preliminary Enquiry contrary to Section 17A of the P.C. Act, it was without jurisdiction.

Desai also argued that the claims made in the affidavit by the CBI are vague and devoid of merits; while extortion is not mentioned in the FIR, the affidavit contains it. The affidavit suggests that "there is an intrinsic connection between the illegal gratification and transfers and postings." However, as per the State Police Act, "transfers and posting" are a state function; hence Section 17A will automatically come into play and divest CBI of its jurisdiction, requiring sanction to proceed.

Desai further argued that the FIR does not disclose a cognizable offense, as it contains no facts, only unfounded allegations. As per the rules, as laid down in the Bhajan Lal case, an FIR must disclose a cognizable offense to proceed with an investigation.

"If the FIR in the instant case is taken at face value, it does not constitute an offence which imposes a legal bar and thus is liable to be quashed," Desai added.

The Court observed that they are unaware of the details of the investigation by the CBI, and asked Mr. Desai if the FIR can be quashed while investigation is ongoing, to which he replied in affirmative. The Court noted that even the FIR in the Bhajanlal case was restored. Mr. Desai emphasizes the fact that the FIR in Bhajanlal Case was only restored after compliance.

"In case of breach of procedures, FIR is to be quashed, the investigation can restart if the procedures are followed. However, till the time there is a defect in continuance, it cannot be sustained", Desai added.

On the question of want of sanction, ASG Lekhi rebutted that the question will arise only at the time of cognizance.

Desai however said that as per an amendment specific to the state of Maharashtra, a provision to Section 156(3) was introduced requiring sanction under Section 197 before the commencement of the investigation.

The matter has now been posted on July 07, 2021