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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.S. SHINDE, N.J. JAMADAR, JJ.
The State of Maharashtra through Additional Chief Secretary Home Department, Mantralaya – Appellant
Versus
The Central Bureau of Investigation – Respondent
WRIT PETITION NO. 1903 OF 2021, INTERIM APPLICATION NO. 1578 OF 2021 IN WRIT PETITION NO. 1903 OF 2021, INTERIM APPLICATION NO. 1577 OF 2021 IN WRIT PETITION NO. 1903 OF 2021
Decided On : 22-07-2021
Code of Criminal Procedure, 1973 - Section 482 - Indian Penal Code, 1860 - Section 120-B - Prevention of Corruption Act, 1988 - section 7 - Prevention of Corruption (Amendment) Act, 2018 - Delhi Special Police Establishment Act, 1946 - Section 6 - Constitution of India, 1950 - Articles 32 or 226 - Criminal Conspiracy - Transferred to the post of Commandant General of Home Guards - National Investigation Agency - Corrupt malpractices - Anti-Terrorist Squad of State - Consent of State Government to exercise of powers and jurisdiction - Whether a State Government is within its rights in raising a grievance that investigation ordered by Constitutional Court is being carried out beyond mandate of order - Whether CBI would investigate into the acts and omissions of officers/ persons who might have had a role in matter, apart from named accused - A FIR bearing CR was registered with Police Station, when a SUV laden with Gelatine was found near residence of an industrialist. Initially, investigation was carried out by Anti-Terrorist Squad of State. Later on, National Investigation Agency (NIA) took over investigation of said crime. API attached to the crime investigation Unit of Crime Branch, Mumbai came to be arrested by NIA. Shri Param Bir Singh, then Commissioner of Police, came to be transferred to post of Commandant General of Home Guards, Maharashtra State by an order.
Finding of the court : High Court in exercise of jurisdiction under Article 226 of Constitution of India is empowered to order investigation by an agency other than State Police Force, if upon examination of material placed before it, High Court is satisfied that a case for ordering such investigation is made out. However, this does not necessarily imply that investigating agency has an unfettered authority to investigate into the matters beyond the scope of the order. Such a view would render the aforesaid provisions otiose - investigation agency can, in our view, legitimately inquire into the aspect of transfer and posting of police officers so also reinstatement of Shri Vaze after 15 years, to the extent those transfers and posting have the nexus with offences alleged against the then Home Minister and his associates keeping in view observations of Division Bench in order. Conversely, the order of the Division Bench cannot be construed as giving unfettered authority to CBI to inquire into transfer and posting of police officers generally, which do not reflect upon the alleged acts and conduct expressly attributed to then Home Minister and his alleged confederates and the resultant offences - Officers of Delhi Special Police Establishment, a premier investigating agency, are and must be fully alive to their responsibility. The duty of the police, constituted under either State enactment or Special Acts is to act in accordance with law of land. Court unable to accede to this submission. It would be suffice to note that there are adequate provisions to take care of a situation where the same object constitutes material/evidence in more than one investigation/trial - investigation is issuecentric. It was further submitted that it was not uncommon that person who sets law in motion is eventually indicted post investigation. Endeavour of CBI would be to honour spirit of order whereunder investigation has been directed.
Result : Writ Petition dismissed
JUDGMENT :
1. Rule. Rule made returnable forthwith and, with the consent of the learned counsels for the parties, heard finally.
2. The State of Maharashtra has presented this petition under Article 226 of the Constitution of India and section 482 of the Code of Criminal Procedure, 1973 to quash and set aside the 4th and 5th unnumbered paragraphs of the FIR RC 2232021A0003, bearing Book No. 1379, Serial No. 001 of 2021 dated 21st April 2021, registered at AC-V, CBI, New Delhi, for the offences punishable U/sec. 120-B of Indian Penal Code, 1860 (‘the Penal Code’) and section 7 of the Prevention of Corruption Act, 1988 as amended by the Prevention of Corruption (Amendment) Act, 2018 by CBI- respondent.
3. The State claims to be constrained to invoke the writ and inherent jurisdiction of this Court in the backdrop of the following facts :
(b) On the following day, Dr. Jaishri Patil lodged a report with Malabar Hill Police Station, primarily on the strength of the allegations contained in the said letter dated 20th March 2021 addressed by Shri Param Bir Singh. A copy of the said letter was annexed to the said report.
(c) A series of proceedings were instituted before this Court and the Supreme Court. First, Writ Petition being Writ Petition (Civil) No.385/2021 was instituted by Shri Param Bir Singh before the Supreme Court seeking, inter-alia, a direction to Central Bureau of Investigation (CBI) to conduct impartial and fair investigation in the alleged “corrupt malpractices” of Shri Anil Deshmukh and a writ, order or direction to quash and set aside the aforesaid transfer order dated 17th March 2021. By an order dated 24th March 2021, the said writ petition came to be disposed of as withdrawn with liberty to approach the High Court.
(e) Shri Param Bir Singh, armed with the said liberty, filed a Public Interest Litigation No. 6 of 2021 in this Court seeking, inter-alia, issuance of writ of mandamus to respondent No.3-CBI to conduct unbiased, uninfluenced, impartial and fair investigation, in the various corrupt malpractices of Shri Anil Deshmukh, and also to issue writ of mandamus to respondent No.1-State to ensure that transfer/posting of police officials are neither done on any consideration of pecuniary benefits to any politician, nor in contravention of the directions of the Supreme Court of India in the case of Prakash Singh & Ors Vs. Union of India & Ors., (2006)8 SCC 1.
(f) On the very day, Dr. Jaishri Patil filed Criminal Writ Petition No. 1541 of 2021 seeking, inter-alia, unbiased, uninfluenced, impartial and fair investigation in various corrupt malpractices of Shri Anil Deshmukh, the then Home Minister and the role played by Shri Param Bir Singh, the then Commissioner of Police, Mumbai.
(g) Public Interest Litigation, being P.I.L. (St.) No. 6072 of 2021, was filed by Shri Ghanshyam Upadhyay praying for a direction for thorough investigation against the persons whose names found mention in the letter of Shri Param Bir Singh by drawing personnel from independent investigating agencies.
(h) Another P.I.L., being PIL (St.) No.6166 of 2021, was filed by Mr. Mohan Pr
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