State Has Locus To Challenge CBI Investigation If It Goes Beyond The Scope Of HC Order :Bombay High Court

The division bench of Justices SS Shinde and NJ Jamadar on Thursday dismissed Maharashtra Government's plea and allowed the CBI to investigate transfer and postings of police officers in Maharashtra and reinstatement of dismissed Assistant Police Inspector Sachin Waze after 15 years. However, the court added a rider that the investigation is permitted to the extent of nexus with former Home Minister Anil Deshmukh and his aides, and not into transfers in general.

The bench rejected the CBI's contention that the State had no locus standi to challenge the corruption FIR against Deshmukh and could not seek for portions of an FIR to be deleted.

The court observed that while the court under Article 226 can direct the CBI to inquire or investigate, allowing "unfettered powers" to investigating agency would render Section 5 and 6 of the Delhi Special Police Establishment Act, 1946 otiose(redundant), which bars the Central government from venturing into investigation in a State without its consent.

"We are of the considered view, that the State concerned has a vital interest in ensuring that the investigation, even when ordered by a Constitutional Court, in a matter which otherwise falls within the province of its authority, is within the bounds of the order passed by the Constitutional Court."

"Therefore, the order of investigation by the High Court would not give a carte blanche (complete freedom) to the investigating agency to venture into any matter de-hors (outside the scope) of the subject matter of the proceedings before the High Court and thereby disturb the delicate balance of power under the Constitution. From this standpoint, in our view, the challenge to the locus of the petitioner-State, when it alleges that the investigating agency is exceeding its mandate under the order of the Court, is not sustainable."

The court reiterated that Entry 2 in List II of the Constitution confers exclusive jurisdiction on the State in the matters relating to Policing subject to Entry 2A and Entry 80 of List I.

"The hallmark of federalism is the distribution of executive,legislative and judicial authority among the organs which are co-ordinate yet independent", the bench observed.

Parts of An FIR can Be Quashed

The court rejected another legal argument by the CBI and intervenors that part of an FIR can never be quashed and the document can either be quashed in is entirety or qua an accused.

However, the court said that there is no impediment in seeking to restrain an investigating agency from investigating a matter beyond its authority and jurisdiction. And the important factor is the requirement of a legal bar to investigate.

The court relied on the case of Ishwar Pratap Singh and Others Vs. State of Uttar Pradesh wherein it was enunciated, that the charge-sheet could be quashed in parts.

"We, therefore, find considerable substance in the submissions of Mr. Dada that the fact that the matters which are allegedly stated to be beyond the authority of CBI are included in the FIR, in respect of matters being investigated by the order of the Court, does not disentitle the petitioner to seek quashment thereof."

Param Bir Singh's Letter Connected To Transfers and Posting

Despite upholding the Maharashtra Government's contentions on legal principles, the court upheld CBI's arguments on fact. That the two paragraphs the Maharashtra Government had challenged were not unconnected to Ex-Mumbai Police Commissioner Param Bir Singh's March 20 letter.

The bench noted the allegations made by Param Bir Singh in his letter against Deshmukh which included - giving orders to officers to adopt a particular course of investigation, assigning important cases to tainted police officer Sachin Waze, the target given to Waze and other officers for collection of Rs. 100 crores from the 1750 bar owners etc.

"Evidently, the aforesaid allegations bear out the gravity of the situation. The allegations were not restricted to lack of probity in performance of public duty but the administration of law was itself put to test of character. Faced with such crises of public confidence in the enforcement of law, the Division Bench premised the directions for an independent and impartial investigation, on the imperative necessity to restore the public confidence."

Was there a quid-pro-quo in Waze's reinstatement?

The court said that while they were not defining the scope of CBI's investigation, considering the allegations in the letter, Waze's reinstatement in the police force, whether he was or was not part of a larger conspiracy would be a matter of investigation.

"Indisputably, Shri Waze had no opportunity to harness his investigation skill, for 15 long years, before reinstatement. Was there any quid pro quo in posting Shri Sachin Vaze in a specialized crime branch and entrusting investigation of important and sensational cases is also a matter which cannot be said to be totally unconnected with the allegations in the letter of Shri Param Bir Singh."

"Where the alleged objectives were to extort money and influence investigations, then whether particular officers were brought in, or shifted out, to achieve the desired objectives, forms an inseparable part of the alleged conspiracy. Whether the officers, who were at the beck and call of the accused and the alleged confederates, were given particular postings is again a matter which necessarily flows from the allegations."

Rashmi Shukla's Report

As for the State's opposition to give then State Intelligence Department head IPS officer Rashmi Shukla's report the court said that the manner in which the State has dealt with such an important report needs to be seen. The report allegedly contained scathing details of transfer and postings of police officers.

The State had told the High Court that the report was duly considered at the appropriate level and since nothing of substance was found, the file was closed.

"If that is the position, we are unable to appreciate the steadfast resistance on the part of the State to share the said report with CBI."

[The State of Maharashtra vs The Central Bureau of Investigation]

Appearances –

Petitioners - Rafique Dada, Senior Advocate, a/w Mr. Darius Khambata, Senior Advocate, Mr. Deepak Thakre, PP, Mr.Akshay Shinde, APP Mr. Phiroz Mehta, Mr. Tushar Hathiramani.

CBI - Tushar Mehta, Solicitor General of India a/w. Mr. Anil C. Singh, Addl.S.G., Mr. Sandesh D. Patil, Mr. Aditya Thakkar, Mr. D. P. Singh, for Respondent No.2/CBI.