Bombay High Court Reserves Order On Param Bir Singh's PIL Seeking CBI Probe Against Anil Deshmukh

A Division Bench comprising of Chief Justice Dipankar Datta and Justice GS Kulkarni has expressed dilemma over passing order for investigation in the absence of an FIR.

"An FIR is the first step into setting the criminal law in motion," CJ Datta said.

However, ASG Anil Singh appearing for the CBI submitted that the agency is ready to look into the allegations, considering their seriousness, if the Court deems fit.

"It is for the court to decide but if the court pleases, we are ready to carry out the investigation, considering the seriousness of the matter," he said.

The Court also heard two other PILs on the same issue, filed by Advocate Ghanshyam Upadhyay and by a chartered accountant, respectively. Apart from the Home Minister, the two petitions also seek probe against Singh for concealing the corruption allegations.

It has reserved orders on all petitions including the preliminary question of maintainability.

During the hearing, the bench also expressed dissatisfaction at the fact that the Police authorities are failing in their duty to promptly register FIR on disclosure of information pertaining to cognizable offences.

"Earlier it was not rampant that FIRs were not registered. We should all feel ashamed that we are giving the liberty to the police to decide whether an FIR is registered or not. Everything gets sorted out if the police registered complaints," the CJ said.

The remarks were made after Advocate Jaishree Patil, who was asked about her locus by another bench yesterday, informed the Bench that she had approached the Malabar Hill Police Station. However, the FIR was not registered.

Feel ashamed that Police not registering FIRs: Chief Justice Datta

During the first half of the hearing, the Bench had disapproved the practice of approaching the Courts seeking directions for independent probe, without even filing a FIR. "Why has no FIR been lodged by anybody?" CJ Datta had asked.

"You Are A Police Officer, You Are Failing In Your Duty If You Don't File FIR When You Know An Offence Was Committed": Bombay HC In Param Bir Singh Vs Anil Deshmukh

The Bench had expressed its disinclination to order an investigation into the matter in the absence of an FIR. It had observed that FIR is the first step into setting the criminal law in motion. The Bench further said that merely because the Home Minister of the State is involved in the matter would not mean that the provisions of the CrPC can be bypassed.

However, during the second half, it was informed about Patil's (failed) attempt to file a FIR. It therefore sought the State's response.

It asked the AG to get in touch with the officer-in-charge of the concerned Police Station and get the station diary. "By 4pm we want the station diary Mr Advocate General… We will not rise till the document comes," CJ Datta said.

The AG relied on Lalita Kumari v. Govt. of UP to contend that investigation agency may require time for conducting a preliminary inquiry to ascertain whether cognizable offence is disclosed or not.

At the latter end of the hearing, the AG obtained instruction that in the inward register, there is an entry but, there is no mention of Jaishree Patil's complaint in the station diary.

"This answers it all," Nankani remarked.

Can Court order investigation without FIR?

During the first half of the hearing, the Bench had sought to be addressed primarily on two grounds: (i) Maintainability of the PIL, and (ii) Power of Court to direct investigation in the absence of an FIR.

It expressed its prima facie opinion that ordinarily, a Court cannot order investigation in the absence of a FIR. It observed that it is only in extremely rare cases that the Court can order an FIR and otherwise, the correct course of action would be to approach a Magistrate Court under Section 156(3) of CrPC.

Submissions by Petitioners

Senior Advocate Vikram Nankani, appearing for Param Bir Singh insisted that the allegations have been levelled by a person who occupied the "highest police post" and it is something that needs to be looked into by an independent investigating agency.

He submitted that even the Maharashtra Government considers this to be an important issue, leading to institution of a judicial inquiry, ordered last night.

Maharashtra Govt. Orders Judicial Inquiry By Justice (Rtd) KU Chandiwal Into Corruption Allegations Against Anil Deshmukh

"The government has already acted on the complaint. This itself creates a cloud of suspicion, that only lip service is being done," he submitted.

Nankani also argued that if a complaint is made to the highest functionary of the State and no action is taken, the Court can step in under Article 226 of the Constitution.

On this point, he referred to the case of Vishwanath Chaturvedi v. Union of India, where the Top Court had asked CBI to investigate the allegations of corruption against UP Administration after the Home Minister and the Governor of the State failed to take any action on the representations made to them.

Nankani also referred to the West Bengal Saradha Chit Fund Scam case, where the Top Court had ordered a CBI inquiry.

The Bench however said that the above case is not applicable in the instant matter as in Saradha case, FIRs were filed in Assam, Bengal and Bihar and the Supreme Court had to step in only because an interstate inquiry was required.

Provisions of CrPC cannot be bypassed for Ministers: CJ Datta

Advocate Subhash Jha appearing for Advocate Ghanshyam Upadhyay insisted during his submissions that an independent probe into the allegations is expedient. "Offences under different statutes are being committed. PMLA, because there is money laundering, also UAPA," Jha pressed.

He stated that in his experience, if the investigation is given to a solitary agency the investigation is reduced to a mockery. Therefore, he insisted that the Directorate of Enforcement should also get involved.

Reliance was placed on Zahira Habibullah Sheikh & Anr v. State Of Gujarat & Ors.

He submitted that there are several cases where investigation has been ordered by the highest court. "Registration of an FIR triggers investigation, it is a process," he submitted.

Jha further stated that this case involves allegations against a sitting Home Minister, computing to about Rs. 6,000 crores a year. In such a scenario, the inquiry ordered by the State is only an "eyewash".

"This is not a case of extortion; this is a case of loot and plunder. They should be treated as dacoits. This is not happening now; this has been going on forever. If the court would have taken suo motu cognisance, it would be perfect," Jha told the CJ-led Bench.

However, CJ Datta opined that an investigation is "triggered" by an FIR. "If the Home Minister or the Chief Minister may be involved, we can't set aside provisions of CrPC… Tomorrow, if a Prime Minister or the Home Minister is involved, who will investigate? You want a super power from outside to investigate?" he remarked.

Advocate Alankar Kirpekar, appearing for the chartered accountant also urged the Court to order an independent probe into the matter.

"This is an extraordinary situation where the Commissioner of Police has levelled allegations against the Home Minister. Either Param Bir Singh or the Home Minister is guilty," Kirpekar submitted.

State's Submissions

Advocate General Ashutosh Kumbhakoni on the other hand referred to several judgements to argue that it is not proper for the Court to pass directions for initiation of investigation.

"It is not viable for a writ court to order the initiation of an investigation. That function clearly lies in the domain of the executive and it is upto the investigating agencies themselves to decide whether the material produced before them provides a sufficient basis to launch an investigation," the AG quoted from the judgment in Kunga Nima Lepcha & Ors. v. State of Sikkim.

Finding itself in agreement with the AG, the Bench had remarked (during first half of the hearing), "It is only in very-very rare cases the court can order an FIR. Please don't convert the High Court into a Magistrate's Court to order an FIR u/s 156(3). Approach the magistrate."

The Bench had also rapped the former IPS Officer for not raising his voice or filing a FIR when he was aware of the alleged corrupt practices in the State administration.

"You (Param Bir Singh) are a police officer. If you find an offence has been committed you are duty, you are duty-bound to file an FIR. Why did you not do it?

You are failing in your duty if you don't file an FIR when you know an offence has been committed. Simply writing letters to the CM won't do. We can pull you up for it. If any citizen finds an offence is being committed he is duty-bound to file an FIR," the Bench observed during the hearing.

Change in Prayer

Last week, the Supreme Court had asked Param Bir Singh to approach Bombay High Court with his plea seeking CBI investigation in the alleged corrupt malpractices of Anil Deshmukh, Home Minister of Government of Maharashtra.

He had also challenged the Government's Order transferring him from the post of Mumbai Police Commissioner.

Before the High Court, Senior Advocate Nankani submitted that he is not challenging the transfer order in the PIL and that he is only seeking an inquiry by CBI.

Taking an objection to this, the AG submitted, "He approached the Supreme Court. When he was confronted by the Supreme Court, he withdrew the petition. He has filed this petition on the criminal side. He had claimed he would approach the court the same day, but filed the petition three days later."

CJ Datta also asked Nankani to "make up his mind". The Judge said,

"What were your prayers before the SC, you said you will approach the HC on the same prayers. Now that you are facing some turmoil, you change your statement. Make up your mind Mr. Nanakani."

He continued that FIR is the first step towards any investigation. "You don't trust the state police now. Go before the Magistrate u/s 200 of the CrPC… The magistrate can inquire himself. When you want an investigation, FIR is the first step," the Judge said.

Issue of Maintainability

On the issue of maintainability, Nankani had submitted that his plea is limited to "interference by political masters" and that he is not challenging his transfer orders.

However, the AG alleged that Singh is a "disgruntled" litigant who has concealed the fact of his enmity between with the Home Minister. He referred to the case of Kushum Lata v. Union of India & Ors., where it was held that "When there is material to show that a petition styled as a public interest litigation is nothing but a camouflage to foster personal disputes, said petition is to be thrown out."

An axe to Grind: CJ Datta

The AG submitted before the Bench that the petition filed by Singh is motivated by personal vendetta. He submitted that Singh had purposely concealed the fact of his enmity between with the Home Minister.

The Court opined that Singh had failed in his duty by not filing an FIR when he was aware of the alleged corrupt practices. "Simply writing letters to the CM won't do," the CJ remarked.

As Singh's counsel defended those actions citing helplessness, the Judge remarked, "If a person of the rank of the police commissioner says this, what about the general public?"

The CJ went on to state that Singh had an axe to grind against the Home Minister as the latter had approved orders for his transfer.

Background

The bench was dealing with a PIL filed by ex- Chief of Mumbai Police, Param Bir Singh, seeking an "immediate, unbiased, uninfluenced impartial and fair investigation on the various corrupt malpractices of Anil Deshmukh before evidences are destroyed."

Singh, who was shunted out from the Mumbai Police Commissionerate in the wake of Ambani bomb scare case, also prayed that transfer of police officials is neither done on any consideration of pecuniary benefits to any politicians nor in contravention of the guidelines issued in Prakash Singh & Ors. v. Union of India.

Last week, the Supreme Court had asked Param Bir Singh to approach Bombay High Court with his plea seeking CBI investigation in the alleged corrupt malpractices of Anil Deshmukh, Home Minister of Government of Maharashtra.

In his petition Singh has submitted Deshmukh had been holding meetings in February, 2021 at his residence with police officers including Sachin Vaze of Crime Intelligence Unit, Mumbai and Sanjay Patil, ACP Social Service Branch, Mumbai, bypassing their seniors and had instructed them that he had a target to accumulate Rs. 100 crores every month and had directed to collect money from various establishments and other sources.

He claimed that on or about 24th/25th August 2020, Rashmi Shukla, the Commissioner Intelligence, State Intelligence Department had brought to the notice of the Director General of Police, who in turn brought it to the knowledge of the Addl Chief Secretary Home Department, Government of Maharashtra about corrupt malpractices in postings / transfers by Shri Anil Deshmukh based on a telephonic interception. "She was shunted out rather than taking any firm action against the persons involved," Singh had alleged.

Edited by Akshita Saxena