Bombay High Court
Anil Vasantrao Deshmukh vs The State Of Maharashtra And Ors on 22 July, 2021
Bench: S.S. Shinde, N. J. Jamadar
CRIWP1904-2021.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 1904 OF 2021
Anil Vasantrao Deshmukh
Aged 70 years, Occu. Agricultural &
Social Service, having his address at
Dyaneshwar Bungalow, Malabar Hill,
Mumbai - 400006. ...Petitioner
Versus
1. The State of Maharashtra
(through the Secretary, Home
Department, Madama Cama Road,
Mumbai - 400 032.
2. Central Bureau of Investigation
Through Anti Corruption - V Plot
No.5B, First Floor, CGO Complex, Lodhi
Road, New Delhi - 110 003.
3. Dr. Jayshree Patil,
Age - Adult, Occu : Advocate,
Residing at 1601, Crystal Tower, Parel,
T. T. Parel (East), Mumbai - 400 012. ...Respondents
Mr. Amit Desai, Senior Advocate, a/w Mr. Kamlesh Ghumre,
Mr. Prashant Pawar, Mr. Gopal Shenoy, Mr. Bhadresh
Raju, Mr. Abhieet Sawant, Mr. Unmesh Breed, Mr.
Anand Dagai, i/b Ms. Sonali Jadhav a/w Ms. Dipti
Bhat, for the petitioner.
Mr. Rafi Dada, Senior Counsel, a/w Mr. Darius Khambata,
Senior Counsel, Mr. Deepak Thakre, PP, Mr. Akshay
Shinde, Mr. Phiroz Mehta & Mr. Tushar Hathiramani,
for the State/Respondent no.1.
Mr. Aman Lekhi, ASG, a/w Mr. Anil C. Singh, Addl. SG, Mr.
Aditya Thakkar & Mr. D. P. Singh, for the CBI/
Respondent no.2.
Dr. Jayshree Patil, Respondent no.3 present-in-person.
1/77
::: Uploaded on - 22/07/2021 ::: Downloaded on - 23/07/2021 02:54:34 :::
CRIWP1904-2021.DOC
CORAM: S. S. SHINDE &
N. J. JAMADAR, JJ
RESERVED ON: 12th JULY, 2021
PRONOUNCED ON: 22nd JULY, 2021
(Through Video Conferencing)
JUDGMENT:-
1. Rule. Rule made returnable forthwith and, with the
consent of the Counsels for the parties, heard fnally.
2. The petitioner, who is the former Home Minister of the
State of Maharashtra, has preferred this petition under
Article 226 of the Constitution of India and Section 482 of the
Code of Criminal Procedure, 1973, (for short "the Code") for a
writ, direction or order to iuash and/or set aside First
Information Report (for short "FIR") bearing RC
No.2232021A0003, dated 21st April, 2021, registered by the
Central Bureau of Investigation ("CBI") - respondent no.2,
and all the conseiuent proceedings initiated pursuant to the
said FIR. The aforesaid FIR came to be registered conseiuent
to preliminary eniuiry ordered by a Division Bench of this
Court by order dated 5th April, 2021, in Writ Petition No.1541
of 2021, fled by Dr. Jayshree Patil - respondent no.3-in-
person.
3. To begin with, it may be apposite to briefy note the
circumstances in which the aforesaid order dated 5 th April,
2/77
::: Uploaded on - 22/07/2021 ::: Downloaded on - 23/07/2021 02:54:34 :::
CRIWP1904-2021.DOC
2021, directing a preliminary eniuiry, came to be passed.
(a) The genesis is in an FIR bearing CR No.35 of
2021, registered with Gamdevi Police Station, in connection
with the occurrence wherein a gelatin laden SUV was found
near the residence of an industrialist. Eventually, the
National Investigation Agency ("NIA") took over the
investigation in the said crime. As the investigation allegedly
revealed the complicity of Mr. Sachin Vaze, the then API
attached to Crime Investigation Unit of Crime Branch,
Mumbai, he was arrested. In the wake of the controversy, Mr.
Param Bir Singh, the then Commissioner of Police was
transferred as Commandent General, Home Guards,
Maharashtra, by an order dated 17th March, 2021.
(b) The petitioner, who was then holding the offce of
Home Minister, alleges that, in retaliation to the transfer, Mr.
Param Bir Singh addressed a letter, dated 20th March, 2021,
to the Hon'ble Chief Minister, making wild, malafde and
unjustifed allegations. As the said letter came in the public
domain, respondent no.3 lodged a complaint with Malbar Hill
Police Station annexing thereto a copy of the letter addressed
by Mr. Param Bir Singh.
4. Mr. Param Bir Singh fled a Writ Petition (Civil) No. 385
3/77
::: Uploaded on - 22/07/2021 ::: Downloaded on - 23/07/2021 02:54:34 :::
CRIWP1904-2021.DOC
of 2021, before the Supreme Court seeking, inter alia, a
direction to the Central Bureau of Investigation to conduct
impartial, unbiased and fair investigation, in the various
"corrupt malpractices" of the petitioner. It was withdrawn
with liberty to approach the High Court. PIL Petition No.6 of
2021 (Param Bir Singh s/o Hoshiyar Sing vs. The State of
Maharashtra & ors.) was fled by Mr. Param Bir Singh for the
aforesaid relief. In addition, a direction was sought against
the State of Maharashtra to ensure that transfer and posting
of police offcials are neither done on any consideration of
pecuniary benefts to any politician nor in contravention of
the direction of the High Court in Prakash Singh & ors vs.
Union of India & ors.1 Dr. Jayahree Patil - respondent no.3
herein, preferred Writ Petition No.1541 of 2021, again seeking
an unbiased, uninfuenced, impartial and fair investigation in
various "corrupt malpractices" of the petitioner and others,
who were named in her complaint. Mr. Ghanshyam
Upadhyaya preferred a PIL, being Criminal Public Interest
Litigation (ST) No.6072 of 2021, for thorough investigation.
All these petitions, along with Criminal Public Interest
Litigation (ST) No.6166 of 2021, fled by Mr. Mohan Prabhakar
Bhide, seeking appointment of a Committee headed by a
1 (2006) 8 SCC 1.
4/77
::: Uploaded on - 22/07/2021 ::: Downloaded on - 23/07/2021 02:54:34 :::
CRIWP1904-2021.DOC
retired Judge of the Supreme Court or this Court to
investigate the allegations made by Mr. Parm Bir Singh, were
heard and disposed of by the Division Bench (Coram: Hon'ble
The Chief Justice and G. S. Kulkarni, J) by order dated 5 th
April, 2021.
5. This Court recorded that the allegations in the letter of
Mr. Param Bir Singh, were serious in nature and against the
highest functionary of the Government of Maharashtra, when
it came to functioning of the police department. The issues
raised were such that the very faith of citizens in the
functioning of the police department was at stake. Such
allegations, therefore, could not remain unattended and were
reiuired to be looked into in the manner known to law when,
prima facie, they indicated commission of a cognizable
offence. Thus, directions were reiuired for facilitating an
unbiased, impartial, fair but effective probe so that the truth
is unearthed. Since the petitioner was the Home Minister
there could have been no fair, impartial, unbiased and
untainted probe, if the same were to be entrusted with the
State Police Force. Therefore, the probe was reiuired to be
entrusted to an independent agency like CBI.
6. The Division Bench concluded that interest of justice
5/77
::: Uploaded on - 22/07/2021 ::: Downloaded on - 23/07/2021 02:54:34 :::
CRIWP1904-2021.DOC
would be suffciently served if the Director, CBI, was directed
to initiate a preliminary eniuiry into the complaint of Dr.
Patil, which had the letter of Mr. Param Bir Singh addressed
to the Hon'ble Chief Minister, as an annexture. The Director
(CBI) was, thus, ordered to conduct the preliminary eniuiry,
preferably within 15 days. Post completion of iniuiry, the
Director (CBI) was also given liberty to decide on the future
course of action, in accordance with law.
7. To complete the narration, it is necessary to note that
the petitioner as well as the State of Maharashtra -
respondent no.1, challenged the aforesaid order dated 5 th
April, 2021, by fling Special Leave Petition (Cri) Diary
No.9414/2021(Anil Deshmukh vs. The State of Maharashtra
& ors.) and Special Leave Petition (Cri) Diary No.2999-
3002/2021, respectively. The special leave petitions were
dismissed by the Supreme Court by order dated 8 th April,
2021, observing that the nature of allegations, the personas
involved and the seriousness of the allegations reiuired an
independent agency to eniuire into the matter.
8. In adherence to the order of the Division Bench,
respondent no.2 registered preliminary eniuiry against the
petitioner and unknown others vide PE2232021A0001, dated
6/77
::: Uploaded on - 22/07/2021 ::: Downloaded on - 23/07/2021 02:54:34 :::
CRIWP1904-2021.DOC
6th April, 2021. After completion of preliminary eniuiry,
Mr. R. S. Gunjiyal, DSP, AC-V, CBI, New Delhi, lodged
complaint against the petitioner and unknown others,
purportedly on the basis of the fndings of the preliminary
eniuiry. On the strength thereof, RC No.2232021/A0003
came to be registered on 21st April, 2021 alleging, inter alia,
that the preliminary eniuiry, prima facie, revealed that the
cognizable offence is made out wherein the petitioner and
unknown others attempted to obtain undue advantage for
improper and dishonest performance of their duty. Thus FIR
came to be registered for the offences punishable under
Section 7 of the Prevention of Corruption Act, 1988 (for short
"the PC Act") and Section 120-B of the Indian Penal Code,
1860, (for short "the IPC") against the petitioner and
unknown others.
9. (a) Petitioner has invoked the writ jurisdiction of this
Court with the assertions that the FIR has been registered in
gross violation of the fundamental rights of the petitioner,
and for extraneous considerations. The preliminary eniuiry
did not reveal any material which would justify the
registration of the frst information report. The FIR thus,
prima facie, does not disclose any offence. Moreover, since
7/77
::: Uploaded on - 22/07/2021 ::: Downloaded on - 23/07/2021 02:54:34 :::
CRIWP1904-2021.DOC
there is a legal bar to the registration of the FIR, incorporated
in Section 6 of the Delhi Special Police Establishment Act,
1946, ("the DSPE Act") and Section 17A of the PC Act, the
action of respondent no.2 in registering the FIR is not in
accordance with law, the only course which the Division
Bench had directed respondent no.2 to pursue post
preliminary eniuiry.
(b) The petitioner further asserts that respondent
no.2 by registering the aforesaid FIR has endeavoured to
enter into the matters which were expressly excluded by the
order of the Division Bench from the very purview of the
preliminary eniuiry. Aspect of transfer and posting of police
offcials was specifcally kept out of the ambit of the
preliminary eniuiry. The insistence of respondent no.2 to
delve into the transfer and posting of police offcials is again
in teeth of the provisions contained in Section 6 of the DSPE
Act as in the absence of the consent of the State Government
respondent no.2 is not authorized to investigate into a matter
which siuarely falls within the province of the State.
(c) Even otherwise, according to the petitioner, the
FIR, as it stands, does not make out the essential ingredients
of Section 7 of the PC Act. Nor a prima facie case for the
8/77
::: Uploaded on - 22/07/2021 ::: Downloaded on - 23/07/2021 02:54:34 :::
CRIWP1904-2021.DOC
offence punishable under Section 120B of the IPC is made
out. Hence, the FIR and the conseiuent investigation, which
is tainted with malice and ulterior motive, deserves to be
iuashed and set aside.
10. (a) An affdavit-in-reply is fled on behalf of
respondent no.2 - CBI. In the backdrop of the Division
Bench order directing the preliminary eniuiry, the tenability
of the petition is assailed. The instant petition is stated to be
an instance of abuse of the process of the Court as the
Division Bench has elaborately considered the necessity of
investigation in the light of the grave nature of the allegations
against the petitioner.
(b) Legal bar sought to be raised to the registration of
the FIR, both under Section 6 of the DSPE Act and 17A of the
PC Act, is stated to be misconceived. Since the investigation
by CBI is ordered by the constitutional court, according to
Respondent no.2, the interdict contained in Section 6 of the
DSPE Act does not come into play. Nor the prior approval of
the competent authority, as envisaged by the provisions
contained in Section 17A of the PC Act, is warranted as the
offence of attempt to obtain undue advantage for improper
and dishonest performance of the public duty does not form
9/77
::: Uploaded on - 22/07/2021 ::: Downloaded on - 23/07/2021 02:54:34 :::
CRIWP1904-2021.DOC
part of, "recommendation made or decision taken by the
public servant in discharge of his offcial functions or duties".
Moreover, where the investigation is ordered by the
Constitutional Courts no iuestion of prior approval for
investigation arises. Respondent no.2 thus contends that the
FIR has been registered in conformity with the order of this
Court and the governing provisions.
(c) On merits, it is categorically denied that the FIR
does not, prima facie, disclose commission of the offences.
Both the offences punishable under Section 7 of the PC Act
and 120B of the IPC are made out by the assertions in the
FIR and the documents annexed thereto.
11. At this juncture, it may apposite to note the worst part
of the allegations against the petitioner in the letter of Mr.
Param Bir Singh. The following allegations bear upon the
determination of the instant petition:
"6. At one of the briefng sessions in the wake of the
Antilia incident held in mid-March 2021 when I was called
late evening at Varsha to brief you, I had pointed out several
misdeeds and malpractices being indulged into by the
Hon'ble Home Minister................."
7. In the aforesaid context, Shri Sachin Vaze who was
heading the crime intelligence unit of the crime branch of the
Mumbai police was called by Shri Anil Deshmukh, Hon'ble
Home Minister, Maharashtra to his offcial residence
Dnyaneshwar several times in last few months and
repeatedly instructed to assist in collection of funds for the
Hon'ble Home Minister. In and around mid-February and
10/77
::: Uploaded on - 22/07/2021 ::: Downloaded on - 23/07/2021 02:54:34 :::
CRIWP1904-2021.DOC
thereafter, the Hon'ble Home Minister had called Shri Vaze to
his offcial residence. At that time, one or two staff members
of the Hon'ble Home Minister including his personal
secretary, Mr. Palande, were also present. The Hon'ble Home
Minister expressed to Shri Vaze that he had a target to
accumulate Rs.100 Crores a month for achieving the
aforesaid target, the Hon'be Home Minister told Shri Vaze
that there are about 1,750 bars, restaurants and other
establishments in Mumbai and if a sum of Rs.2-3 lakhs each
was collected from each of them, a monthly collection of
Rs.40-50 crores was achievable. The Hon'ble Home Minister
added that the rest of the collection could be made from
other sources.
8. Shri Vaze came to my offce the same day and informed
me of the above. I was shocked with the above discussion
and was mulling over how to deal with the situation.
9. ........................While ACP Patil and DCP Bhujbal were
made to wait outside the Hon'ble Home Minister's cabin, Mr.
Palande, Personal Secretary to the Hon'ble Home Minister,
went inside the chamber of the Hon'ble Home Minister and
after coming out took ACP Patil and DCP Bhujbal on the
side. Mr. Palande informed ACP Patil that the Hon'ble Home
Minister was targeting a collection of Rs.40-50 Crores which
was possible through an approximate 1,750 bars,
restaurants and establishments operating in Mumbai. I was
informed by ACP Patil about the demand to make collections
for the Hon'ble Home Minister.
...................
11. After the meeting of Shri Vaze with the Hon'ble Home
Minister, he had discussed the instructions of the Hon'ble
Home Minister with Shri Patil and both of them had
approached me with their predicaments.
12. The Hon'ble Home Minister has as a regular practice
been repeatedly calling my offcers and giving them
instructions in respect of the course to be followed by them
in performance of their offcial duties. The Hon'ble Home
Minister has been calling my offcers at his offcial residence
bypassing me and other superior offcers of the Police
Department to whom those respective Police Offcers report
to. The Hon'ble Home Minister has been instructing them to
carry out offcial assignments and collection schemes
including fnancial transactions as per his instructions based
on his expectations and target to collect money. These
corrupt malpractices have been brought to my notice by my
offcers.
..........................
17. It has been my experience during the last more than
one year as Commissioner of Police, Mumbai that the Hon'ble
Home Minister has on numerous occasions called several
offcers from the Mumbai Police to his offcial residence at
CRIWP1904-2021.DOC
Dnyaneshwar for giving instructions to adopt a specifc
course of action in police investigations.............."
..................
20. ...............The call records and phone data of Shri
Sachin Vaze be examined to ascertain the truth of the
allegations iua me and for the truth to emerge insofar as his
association with political functionaries is concerned."
12. How the Division Bench viewed the aforesaid allegations
and proceeded to deal with the method of iniuiring into the
same, in a manner known to law, becomes evident from the
observations of the Division Bench in paragraphs 75, 80, 82
and 83 of the order dated 5 th April, 2021. They deserve
extraction in extenso:
"75. We have perused the complaint of Dr. Patil to
consider as to whether it makes out a prima facie case of a
cognizable offence. Examination of the veracity and/or
credibility of the allegations contained therein is not our
task, at this stage. Dr. Patil annexed to her complaint a copy
of Shri Param Bir's letter to the Hon'ble Chief Minister.
Relevant portions thereof have been extracted supra. The
information furnished therein discloses commission of
cognizable offences by Shri Deshmukh and in our prima
facie view, should have been acted upon in the manner
reiuired by the CrPC, and as judicially interpreted by the
Supreme Court in Lalita Kumari (supra). Whether or not an
FIR ought to be straightaway registered on the basis thereof
or a preliminary iniuiry ought to precede registration of an
FIR, is a matter which we propose to consider after applying
our mind as to whether the present case deserves to be
referred to the CBI.
.............
80. In the present case, it is clear that Dr. Patil had
submitted her complaint to the Senior Police Inspector of
the Malabar Hill Police Station on March 21, 2021; however,
except for making an entry in the Inward Register, no action
whatsoever, as the law would mandate, was initiated. We
have already noted above that the allegations as made by
Shri Param Bir in the letter dated March 20, 2021, which
triggered Dr. Patil to lodge complaint with the Malabar Hill
Police Station, Mumbai, is of a serious nature and against
CRIWP1904-2021.DOC
the highest functionary of the Government of Maharashtra,
when it comes to the functioning of the police department.
Prima facie, the issues are such that the very faith of
citizens in the functioning of the police department is at
stake. If there is any amount of truth in such allegations,
certainly it has a direct effect on the citizens' confdence in
the police machinery in the State. Such
allegations,therefore, cannot remain unattended and are
reiuired to be looked into in the manner known to law
when, prima facie, they indicate commission of a cognizable
offence. It is, hence, certainly an issue of credibility of the
State machinery, which would stare at the face when
confronted with the expectations of the law and when such
complaints are received against high ranking public
offcials. This Court cannot be a mere spectator in these
circumstances. There is certainly a legitimate public
expectation of a free, fair, honest and impartial iniuiry and
investigation into such allegations which have surfaced in
the public domain. The necessity to have a probe into such
allegations by an independent agency, would also certainly
be a reiuirement of the rule of law. To instill public
confdence and safeguard the Fundamental Rights of the
citizens, it is necessary that an iniuiry and investigation is
conducted by an independent agency and for such reasons,
we consider it to be in the paramount public interest that
an independent probe in the present circumstances would
meet the ends of justice.
82. We iuite agree with Shri Nankani and Shri Jha that
an unprecedented case has before the Court. We alsoagree
with Dr. Patil that directions are reiuired for facilitting an
unbiased, impartial, fair but effective probe so that the
truth is unearthed and the devil, if any, shamed in
accordance with procedure established by law. Here, Shri
Deshmukh is the Home Minister. The police department is
under his control and direction. There can be no fair,
impartial, unbiased and untainted probe, if the same were
entrusted to the State Police Force. As of necessity, the
probe has to be entrusted to an independent agency like the
CBI. While so entrusting, the note of caution in P.
Sirajuddin [(1970) 1 SCC 595] has to be borne in mind.
Although we do not see an immediate reason to direct
registration of an FIR by the CBI based on Dr. Patil's
complaint, interest of justice, in our opinion, would be
suffciently served if the Director, CBI is directed to initiate a
preliminary iniuiry into the complaint of Dr. Patil which has
the letter of Shri Param Bir addressed to the Hon'ble Chief
Minister, as an annexure. This would be in perfect accord
with paragraph 120.6 of Lalita Kumari [2014(2) SCC 1].
Also, the press release of Shri Deshmukh suggests that he
is not averse to facing any iniuiry. It is, therefore, ordered
accordingly.
CRIWP1904-2021.DOC
83. Such preliminary iniuiry shall be conducted in
accordance with law and concluded as early as possible but
preferably within 15 (ffteen) days from receipt of a coy of
this order. We hope and trust that the offcer(s) appointed
for the purpose of conducting preliminary iniuiry shall
receive due cooperation from individuals/agencies who are
approached therefor. Once the preliminary iniuiry is
complete, the Director, CBI shall be at liberty to decide on
the future course of action, also in accordance with law.
Should the Director, CBI see no reason to proceed further,
Dr. Patil shall be duly informed of the same."
13. Preliminary eniuiry, as directed by the Division Bench,
according to respondent no.2 - CBI culminated in the
registration of the RC. Since the iuestions which crop up for
consideration turn upon the averments in the FIR as well, for
appreciation in the correct perspective, we deem it
appropriate to extract the relevant portion of the FIR:
"The Preliminary Eniuiry prima facie revealed that a
cognizable offence is made out in the matter, wherein the
then Home Minister of Maharshtra, Shri Anil Deshmukh
and unknown others have attempted to obtain undue
advantage for improper and dishonest performance of their
public duty.
Eniuiry has also revealed that Shri Sachin Vazze,
Assistant Police Inspector, Mumbai Police had been
reinstated into the police force after being out of the police
service for more thatn 15 years. The eniuiry further reveled
that Shri Sachin Vaze was entrusted with most of the
sensational and important cases of Mumbai City Police and
that the then Home Minister was in knowledge of the said
fact.
Further, the petition of Shri Param Bir Singh
(Annexure -C, 104 pages) also fnds attention of the fact that
the then Home Minister of Maharashtra and others
exercised undue infuence over the transfer & posting of
offcials and thereby exercising undue infuence over the
performance of offcial duties by the offcials."
CRIWP1904-2021.DOC
14. In the light of the aforesaid background facts and
pleadings, we have heard Mr. Amit Desai, the learned Senior
Counsel for the petitioner and Mr. Lekhi, the learned Addl.
Solicitor General, for respondent no.2 - CBI, at length. With
the assistance of the learned Counsels, we have also perused
the material on record. A report regarding the status of
investigation was also tendered for our perusal in a sealed
envelope.
15. Mr. Desai, the learned Senior Counsel for the petitioner,
took a slew of exceptions to the registration of the aforesaid
FIR and conseiuent investigation. It was strenuously urged
that the instant prosecution is a classic example of enmity,
animosity and politics joining hands to play the game of
perception and thereby jeopardise the life, liberty and
reputation of the petitioner. In such a situation, protection
by a constitutional Court is imperative lest the rule of law,
which is the bedrock of constitutional democracy, would
become a casualty. In the case at hand, according to Mr.
Desai, the registration of the FIR is in fagrant violation of the
principles of constitutionality, federal polity and the
constitutional and statutory rights of the petitioner.
16. Amplifying the aforesaid submissions, Mr. Desai, laid
CRIWP1904-2021.DOC
emphasis on the fact that the Division Bench had directed
only a preliminary eniuiry and that too in accordance with
the law. Post completion of preliminary eniuiry, respondent
no.2 was duty bound to seek the consent of the State
Government as envisaged by Section 6 of the DSPE Act.
Since the Division Bench did not direct the registration of the
FIR, it was not open to CBI to straightway register the FIR
and enter upon investigation in teeth of the provisions
contained in Section 6 of the DSPE Act, urged Mr. Desai. The
endeavour of respondent no.2 to enter into investigation
without the consent of the State Government, according to
Mr. Desai, is in gross violation of the principle of federalism,
which is the basic structure of the Constitution. To lend
support to this submission, Mr. Desai placed a very strong
reliance on the judgment of the Supreme Court in the case of
State of West Bengal and others vs. Committee for Protection
of Democratic Rights, West Bengal, and others2 ("CPDR").
17. As a second limb of the submission based on the bar
under Section 6 of the DSPE Act, Mr. Desai would urge that
respondent no.2 - CBI, in any event, was auhorised to
conduct eniuiry only into the allegations in the complaint of
Dr. Patil, to which the letter of Mr. Param Bir Singh was
2 (2010) 3 SCC 571.
CRIWP1904-2021.DOC
annexed. Respondent no.2 could not have transgressed
beyond the ambit of the order of the Division Bench. The
matter of reinstatement of Mr. Sachin Vaze, the alleged
entrustment of sensational and important cases to Mr. Vaze
as well as alleged exercise of undue infuence over transfer
and posting of offcials, referred to in the FIR, (extracted
above) were clearly beyond the scope of the eniuiry ordered
by the Division Bench. Such endeavour of respondent no.2
to usurp the jurisdiction to investigate stands foul of the
interdict contained in Section 6 of the DSPE Act. Support
was sought to be drawn from the judgment of the Supreme
Court in the case of Ms. Mayawati vs. Union of India and
others.3
18. Mr. Desai further urged, with a degree of vehemence,
that there can be no iualm over the proposition that a crime
should not go uninvestigated. However, it was eiually
imperative that the investigation must be in accordance with
the procedure established by law. In the instant case, the
action of respondent no.2 in embarking upon investigation
against the petitioner, with the allegations that the petitioner
attempted to obtain undue advantage for improper and
dishonest performance of his public duty, is in complete
3 (2012) 8 SCC 106.
CRIWP1904-2021.DOC
negation of the constitutional guarantee of right to life and
personal liberty under Article 21 of the Constitution of India.
In view of the provisions contained in Section 17A of the PC
Act, introduced by the Amendment Act, 2018, the professed
investigation into the offences alleged to have been
committed by the petitioner in discharge of public duty,
without the approval of the competent authority, is in clear
violation of the procedure established by law. In the absence
of such approval, the continuation of the further proceedings
constitutes an abuse of the process of the Court and deserves
to be iuashed, urged Mr. Desai.
19. Apart from the aforesaid challenges based on statutory
bar for investigation, it was canvassed on behalf of the
petitioner that the FIR is based on legally inadmissible
material. The letter of Mr. Param Bir Singh, which
constitutes the fulcrum of the prosecution, being a product of
hearsay, hardly furnishes a sustainable ground for
registration of the FIR. Even otherwise, the allegations made
in the FIR taken at their face value and accepted in their
entirety, do not make out a prima facie offence. It is bereft of
facts. No attempt is evident. Nor the element of conspiracy is
discernible, even remotely. Mr. Desai thus urged that mere
CRIWP1904-2021.DOC
reiteration of the ingredients which constitute an offence
punishable under Section 7 of the PC Act in the FIR is of no
legal conseiuence. By applying the settled principles which
govern the exercise of jurisdiction to iuash the
FIR/prosecution, the FIR in the instant case is reiuired to be
iuashed, submitted Mr. Desai.
20. In opposition to this Mr. Lekhi, the learned ASG for
respondent no.2 - CBI stoutly submitted that the instant
petition is an undisguised attempt to revisit the order passed
by the Division Bench on 5th April, 2021. Mr. Lekhi would
urge that the principles, which the order of the Division
Bench upholds, and the spirit thereof cannot be lost sight of.
The avowed object of the order of the Division Bench was to
instill public confdence in the State machinery as such, as
the allegations were of such a nature that the governance
was shown to be an exercise in organized crime. The action
of respondent no.2 in conducting the preliminary eniuiry
and registering the FIR is in due compliance of the order
passed by the Division Bench and, thus, the instant petition
does not deserve to be entertained.
21. Taking the court through the observations of the
Division Bench in the order dated 5th April, 2021, Mr. Lekhi
CRIWP1904-2021.DOC
submitted that the Division Bench has recorded at more than
one places that the allegations against the petitioner, prima
facie, made out a cognizable offence. In the face of such
observations, the endeavour on the part of the petitioner to
urge that no offence is, prima facie, made out is unworthy of
countenance.
22. Mr. Lekhi would further urge that the submission on
behalf of the petitioner that the interdict contained in Section
6 of the DSPE Act comes into play is wholly misconceived. By
making reference to the observations of the Constitution
Bench in the case of CPDR (supra), Mr. Lekhi strenuously
urged that a direction for registration of FIR and conseiuent
investigation is implicit in the order of the Division Bench
dated 5th April, 2021. Once the constitutional Court is
persuaded to exercise the extraordinary jurisdiction to
authorise CBI to iniuire into a matter, sans the consent of
the State under Section 6 of the DSPE Act, the objection to
further action, in conformity with the directions of the Court,
is thoroughly unsustainable. The submission is in utter
ignorance of the wide amplitude of the power of the High
Court under Article 226 of the Constitution of India, urged
Mr. Lekhi.
CRIWP1904-2021.DOC
23. The challenge to the registration of FIR, based on the
provisions contained in Section 17A of the PC Act is eiually
misconceived, submitted Mr. Lekhi. Adverting to the object of
Section 17A of the PC Act, namely, to insulate the public
servants from frivolous iniuiry and investigation, Mr. Lekhi
canvassed a submission that where the constitutional Court,
after recording a prima facie satisfaction that eniuiry /
investigation is warranted, orders such iniuiry or
investigation, the bar under Section 17A does not at all come
into play as the protection, which the approval by the
competent authority affords, is substituted by a more
effcacious and judicious scrutiny by constitutional Court.
Where a constitutional Court is called upon to exercise the
extraordinary powers in a situation where there is crisis of
credibility of the State apparatus, the statutory provisions, be
it Section 6 of DSPE Act or Section 17A of the PC Act, do not
impinge upon the Court's power, submitted Mr. Lekhi. It was
further urged that in the facts of the instant case, in the face
of the manifest disinclination on the part of the State of
Maharashtra to even look into the allegations, as noted by the
Division Bench, it would be absurd to urge that the CBI
ought to have sought approval of the State Government.
CRIWP1904-2021.DOC
24. Mr. Lekhi would urge that the submission on behalf of
the petitioner that the allegations in the FIR are bereft of
facts and do not make out an offence is unworthy of
acceptance. The FIR in iuestion explicitly refers to the
complaint of Dr. Patitl as well as the letter of Mr. Param Bir
Singh, as annexures thereto. Since the Division Bench in its
order dated 5th April, 2021 has recorded in clear and explicit
terms that the letter of Mr. Param Bir Singh, prima facie,
discloses cognizable offences, it is now not open for the
petitioner to agitate the said issue, especially when the order
of the Division Bench was affrmed by the Supreme Court in
the Special Leave Petition preferred by the petitioner.
25. We have given careful consideration to the aforesaid
rival submissions. In the context of the controversy and the
submissions canvassed across the bar, the following
iuestions fall for consideration:
(i) Is the registration of FIR and conseiuent investigation
barred by the provisions of Section 6 of the DSPE Act?
(ii) Is the investigation barred by the provisions of Section
17A of the PC Act?
(iii) Whether the registration of the FIR and conseiuent
CRIWP1904-2021.DOC
investigation are in conformity with the order of the
Division Bench?
(iv) Whether the FIR and conseiuent proceedings are liable
to be iuashed in exercise of extraordinary and inherent
jurisdiction?
26. Question No.(i): Bar under Section 6 of the DSPE Act:
The thrust of the submission on behalf of the petitioner
was that the Division Bench consciously and cautiously
chose to order a preliminary eniuiry and not registration of
the FIR. The Division Bench was further circumspect in
expressly directing that after the completion of the eniuiry,
the Director, CBI, shall be at liberty to decide on the future
course of action, also in accordance with law. Mr. Desai
would urge that the mandate of the order dated 5 th April,
2021, stops at that. After completion of the preliminary
eniuiry, before the respondent no.2 proceeded to register the
FIR and enter into investigation, it was enjoined to seek the
consent of the State Government under Section 6 of the
DSPE Act. Any deviation therefrom would infringe the federal
structure of the Constitution, urged Mr. Desai.
27. Elaborating the aforesaid submission, Mr. Desai, urged
CRIWP1904-2021.DOC
that there is a well recognized distinction between an eniuiry
and investigation, especially where the CBI exercised the
power and jurisdiction under DSPE Act. ( Shashikant vs.
Central Bureau of Investigation4) Such distinction cannot be
obliterated to the prejudice of the State concerned. What
exacerbates the situation, according to Mr. Desai, is the fact
that respondent no.2 is fully conscious of its limitations in
registration of the FIR, despite the order of the constitutional
court to conduct a preliminary eniuiry, and has chosen to
follow the said course in somewhat similar circumstances
before the Gauhati High Court in the case of Taba Tedir and
another vs. Central Bureau of Investigation5
28. In the case of CPDR (supra) the Constitution Bench
concurred with the observations of the Supreme Court in the
case of Minor Irrigation and Rural Engineering Services vs.
Sahngoo Ram Arya6 to the effect that an order directing the
eniuiry by CBI should be passed only when the High Court,
after considering the material on record, comes to the
conclusion that such material discloses a prima facie case
calling for an investigation by CBI or any other similar
4 (2007) 1 SCC 630.
5 2019 SCC Online Gaui 3451.
6 (2002) 5 SCC 521.
CRIWP1904-2021.DOC
agency. In the case at hand, the Division Bench referred to
the aforesaid position in law and recorded that the allegations
against the petitioner prima facie disclose cognizable offence.
Ultimate direction for institution of a preliminary eniuiry is
reiuired to be viewed through the aforesaid prism of prima
facie satisfaction recorded by the Division Bench about its
necessity.
29. In our understanding, what weighed with the Division
Bench in ordering a preliminary eniuiry instead of a
direction for registration of FIR was the caution administered
by the Supreme Court in the case of P. Sirajuddin vs. State of
Madras7 that before a public servant whatever be his status,
is publicly charged with acts of dishonesty which amounts to
serious misdemeanour or misconduct and a frst information
is lodged against him, there must be some suitable
preliminary eniuiry into the allegations by a responsible
offcer. The Division Bench also found the said course to be
in perfect accord with paragraph 120.6 of the Constitution
Bench judgment in the case of Lalita Kumari vs. Government
of UP.8
30. In the backdrop of the nature of the allegations and the
7 1971 SCC 595.
8 2014(2) SCC 1.
CRIWP1904-2021.DOC
observations of the Division Bench, we fnd it rather diffcult
to accede to the submission on behalf of the petitioner that
the direction for the institution of the preliminary eniuiry
was for the reason that the Division Bench did not fnd the
allegations worthy of directing registration of the FIR. The
ultimate direction for preliminary eniuiry cannot thus be
construed in isolation and torn of the observations which
precede the said direction.
31. The submission on behalf of the petitioner that even
when a constitutional court orders a preliminary eniuiry by
CBI into a matter which falls within the province of the State,
without the consent of the State, at a later stage the interdict
contained in Section 6 of the DSPE Act again operates with
full force, in our view, losses sight of the amplitude of the
power of the Constitutional Court, which is exercised in
exceptional and extraordinary circumstances.
32. Section 5 of the DSPE Act enables the Central
Government to extend the powers and jurisdiction of the
members of the Delhi Police Establishment for investigation
into offences or class of offences specifed in a notifcation
under Section 3, to any area in a State. The said power is
however controlled by Section 6. It precludes a member of
CRIWP1904-2021.DOC
the Special Police Establishment to exercise powers and
jurisdiction in any area in a State, without the consent of the
Government of that State.
33. In the aforesaid context, the iuestion which arose for
consideration in the CPDR (supra) was whether the High
Court can direct CBI, an agency established by the Union to
do something in respect of the State subject, without the
consent of the State Government concerned. The
Constitution Bench, after considering the challenge
principally based on the federal structure and doctrine of
separation of powers, held that a direction by the High Court,
in exercise of its jurisdiction under Article 226 of the
Constitution, to CBI to investigate a cognizable offence alleged
to have been committed, within the territory of a State
without the consent of that State will neither impinge upon
the federal structure of the constitution nor violate the
doctrine of separation of power and shall be valid in law.
While arriving at the aforesaid conclusion, the Supreme
Court culled out the principles in paragraph 68. The
following principles bear upon the controversy at hand:
"68. (i)....
(ii) ....
CRIWP1904-2021.DOC
(iii) ....
(iv) ....
(v) Restriction on Parliament by the Constitution
and restriction on the Executive by the Parliament
under an enactment, do not amount to restriction on the
power of the Judiciary under Article 32 and 226 of the
Constitution.
(vi) If in terms of Entry 2 of List II of The Seventh
Schedule on the one hand and Entry 2-A and
Entry 80 of List I on the other, an investigation by another
agency is permissible subject to grant of consent by the
State concerned, there is no reason as to why, in an
exceptional situation, Court would be precluded from
exercising the same power which the Union could exercise
in terms of the provisions of the Statute. In our opinion,
exercise of such power by the constitutional courts would
not violate the doctrine of separation of powers. In fact, if in
such a situation the court fails to grant relief, it would be
failing in its constitutional duty.
(vii) When the Special Police Act itself provides that subject
to the consent by the State, the CBI can take up
investigation in relation to the crime which was otherwise
within the jurisdiction of the State Police, the court can
also exercise its constitutional power of judicial review and
direct the CBI to take up the investigation within the
jurisdiction of the State. The power of the High Court under
Article 226 of the Constitution cannot be taken away,
curtailed or diluted by Section 6 of the Special Police Act.
Irrespective of there being any statutory provision acting as
a restriction on the powers of the Courts, the restriction
imposed by Section 6 of the Special Police Act on the
powers of the Union, cannot be read as restriction on the
powers of the Constitutional Courts. Therefore, exercise of
power of judicial review by the High Court, in our opinion,
would not amount to infringement of either the doctrine of
separation of power or the federal structure."
(emphasis supplied)
34. The Supreme Court has, in terms, observed that the
constitutional court, in a deserving case, is not precluded
from exercising the same power (to direct the CBI to
investigate) which the Union could exercise in terms of the
provisions of the statute. When CBI can take up investigation,
CRIWP1904-2021.DOC
albeit with the consent of the State, in relation to the crime
which was otherwise within the jurisdiction of the State
Police, the Court can also, in exercise of its power of judicial
review, direct the CBI to take up the investigation within the
jurisdiction of the State. The power of the High Court under
Article 226 of the Constitution cannot be taken away,
curtailed or diluted by Section 6 of the DSPE Act.
35. The aforesaid exposition of law, in emphatic terms,
rules out the application of Section 6 of the DSPE Act at a
subseiuent stage where the High Court, upon being satisfed
about its justifability, directs an eniuiry by CBI. In such a
situation, the authority to exercise the powers and
jurisdiction over a matter which would otherwise fall within
the province of the State police, stems from the order of the
High Court. In our view, the true import of such order is to
invest the CBI with the power and jurisdiction which it did
not statutorily possess. Such an order cannot be so
constricted as to rob it of meaning and content, unless the
order itself limits the contours of the authority. To urge that
the authority gets exhausted the moment the preliminary
eniuiry is completed is in negation of the very power of the
constitutional court to order such iniuiry in exercise of
CRIWP1904-2021.DOC
judicial review. Once a constitutional court passes an order
authorizing CBI to iniuire into a matter, the latter is invested
with the reiuisite power and jurisdiction to pursue the
proceeding to a logical culmination. If the State Government
were to interdict the investigation, at an intermediate stage,
by withholding or denying the consent, the order of the
constitutional court directing eniuiry would be denuded of
mandate and effcacy.
36. Reliance on the order of the Guahati High Court in the
case of Taba Tedir (supra) is of no assistance to the petitioner.
In the said case, a Division Bench of Guahati High Court had
directed the CBI to have preliminary eniuiry into the
allegations that contracts were allotted to the kith and kin of
respondent no.7 therein, a Minister in the State of Arunachal
Pradesh. It was further directed that in case the allegations
were found to have substance warranting further proceedings
with criminal prosecution, the CBI may proceed in
accordance with law. Preliminary eniuiry was conducted.
An application was preferred by CBI seeking a direction from
the Court to the competent authority to grant approval under
Section 17A of the PC Act. Subseiuently, the application
came to be withdrawn. The petitioner therein, against whom
CRIWP1904-2021.DOC
FIR was registered assailed the prosecution, inter alia, on the
ground that the it was incumbent upon CBI to obtain
approval under Section 17A of the PC Act before registering
the FIR. When the matter came up before the Court, a
statement was made on behalf of the CBI that CBI was open
to obtain necessary approval from the competent authority.
In the backdrop of the said statement the Court did not fnd
it necessary to enter into the merits of the contentious issue,
and the petition came to be disposed of by granting leave to
CBI to take steps for obtaining approval under Section 17A.
37. Evidently, the Court had not delved into the merits of
the matter. Nor the issue of reiuirement of consent of the
State under Section 6 of the DSPE Act and approval of the
competent authority under Section 17A of the PC Act was
examined. In fact, a submission was also made on behalf of
the respondent therein that in view of the direction of the
High Court to hold preliminary eniuiry, approval was not
reiuired. In this setting of the matter, the disposal of the writ
petition on the basis of a statement that CBI was open to
obtain the approval can hardly lay down a legal proposition.
Nor would it advance the cause of the submission on behalf
of the petitioner that respondent no.2 - CBI was conscious of
CRIWP1904-2021.DOC
the peremptory nature of the said reiuirement.
38. In our view, the proposition sought to be canvassed on
behalf of the petitioner that the mandate of the order for
eniuiry by CBI, passed by the High Court, would stand
exhausted the moment preliminary eniuiry is completed, is
impregnated with an insurmountable incongruity. If the
submission is taken to its logical end, it would imply that the
situation would be brought to status iuo ante the date of the
passing of the order by the High Court for eniuiry.
Conceivably, a State Government can frustrate the purpose of
independent investigation by CBI by withholding or denying
the consent. Such an anomalous situation cannot be
countenanced especially when the Division Bench has
adverted to the necessity of entrusting the eniuiry to an
independent agency as it found that cognizable offences were
prima facie made out. We are, thus, not inclined to accede to
the submission of Mr. Desai, that the investigation by CBI is
barred by the provisions contained in Section 6 of the DSPE
Act.
39. Question No.(ii): Bar under Section 17A of the
Prevention of Corruption Act:
A more vigorous attack against the continuation of the
CRIWP1904-2021.DOC
investigation was mounted on the premise that the
investigation is wholly without jurisdiction in view of the bar
created by Section 17A of the PC Act, inserted by the
Amendment Act 16 of 2018. Mr. Desai submitted that the
history of prevention of corruption laws would indicate that
there has been a constant tension between the two objectives:
eradication of corruption and protection of innocent public
servants. Corrupt must be punished. At the same time, the
procedure established by law to protect the innocent public
servants from motivated, vexatious and frivolous proceedings,
also serves a defnite public interest. The anxiety to protect
the public servants manifested in repeated attempts to
introduce a mechanism which envisages such protection,
despite such measures having been struck down,
underscores the legislative intent as well as the necessity to
protect the public servants. Alluding to single directive
No.4.7(3), which warranted prior sanction before eniuiry was
initiated by CBI against a decision making level offcer, which
was struck down in Vineet Narain and others vs. Union of
India and another,9 Section 6A of the DSPE Act, which came
to be enacted after the decision of the Supreme Court in the
case of Vineet Narain (supra) and was, in turn, struck down
9 (1998) 1 SCC 226.
CRIWP1904-2021.DOC
by the Supreme Court in the case of Subramanian Swamy
vs. Director, Central Bureau of Investigation and another 10 as
being violative of Article 14 of the Constitution of India, Mr.
Desai urged that with a view to provide the protection to all
the public servants, where the alleged offence is relatable to
any recommendation made or decision taken by such public
servant in discharge of their offcial functions or duties, the
Parliament has now barred eniuiry or investigation without
the approval of the competent authority, by inserting Section
17A in the PC Act. This protection is a part of the procedure
established by law, under Article 21 of the Constitution. It
was urged that in the instant case, since the investigation is
commenced sans the approval of the competent authority, the
entire exercise is vitiated. Therefore, this Court is called
upon to exercise the extraordinary jurisdiction of balancing
the rights, submitted Mr. Desai.
40. Section 17A of the Prevention of Corruption Act, reads
as under:
"17-A. Eniuiry or Iniuiry or investigation of offences
relatable to recommendations made or decision taken by
public servant in discharge of offcial functions or duties:(1)
No police offcer shall conduct any eniuiry or iniuiry or
investigation into any offence alleged to have been committed
by a public servant under this Act, where the alleged offence
is relatable to any recommendation made or decision taken
by such public servant in discharge of his offcial functions
10 (2014) 8 SCC 682.
CRIWP1904-2021.DOC
or duties, without the previous approval--
(a) in the case of a person who is or was employed, at
the time when the offence was alleged to have been
committed, in connection with the affairs of the Union, of
that Government;
(b) in the case of a person who is or was employed, at
the time when the offence was alleged to have been
committed, in connection with the affairs of a State, of that
Government;
(c) in the case of any other person, of the authority
competent to remove him from his offce, at the time when
the offence was alleged to have been committed:
Provided that no such approval shall be necessary for
cases involving arrest of a person on the spot on the charge
of accepting or attempting to accept any undue advantage for
himself or for any other person:
Provided further that the concerned authority shall
convey its decision under this section within a period of three
months, which may, for reasons to be recorded in writing by
such authority, be extended by a further period of one
month.‟
41. On a plain reading, Section 17A precludes a police
offcer from conducting any eniuiry, iniuiry or investigation
into any offence allegedly committed by a public servant
where the offence is relatable to any recommendation made
or decision taken by the public servant in discharge of his
offcial functions or duties, without the previous approval of
the specifed competent authority. What is proscribed
without approval is both eniuiry and investigation.
Evidently, the bar under Section 17A operates where the
offence is alleged to have been committed in discharge of
offcial functions or duties. Once the act complained of is
shown to have nexus with the recommendation made or
CRIWP1904-2021.DOC
decision taken by a public servant in discharge of such
functions or duties, the interdict operates.
42. Mr. Desai strenuously submitted that the substratum of
the FIR is that the petitioner attempted to obtain undue
advantage for improper and dishonest performance of public
duty. The petitioner is alleged to have exercised undue
infuence over the transfer and posting of offcers and thereby
further exercised undue infuence over the performance of
the offcial duty by the offcials. Thus acts attributed to the
petitioner siuarely fall within the protective umbrella of
Section 17A of the PC Act. All the acts have the direct nexus
to the recommendations made or decisions taken by the
petitioner. An inference is, according to Mr. Desai,
inescapable that the alleged acts were in discharge of the
offcial functions or duties. The necessary corollary is that
the interdict contained in Section 17A operates with full force
and vigour and renders the registration of the FIR and the
conseiuent investigation legally unsustainable.
43. Mr. Desai would further urge that in the backdrop of
the legislative history of providing a protective mechanism to
the public servants, the provisions of Section 17A should
receive a meaningful construct. Such a provision, as is
CRIWP1904-2021.DOC
judicially recognized, cannot be construed too narrowly so as
to render the protection illusory. The statutory safeguard
must be strictly complied with as it is conceived in public
interest. If the offence alleged to have been committed by a
public servant has something to do or related in some
manner with the discharge of a offcial duty, the protection
must be extended.
44. To lend support to aforesaid submissions, our attention
was invited to a large number of authorities, including the
pronouncements of the Supreme Court in the cases of
Shreekantiah Ramayya Munipalli vs. State of Bombay, 11 State
of Madhya Pradesh vs. Mubarak Ali12, B. Saha vs. M. S.
Kochar,13 and Abdul Wahab Ansari vs. State of Bihar.14
45. The legal position is fairly crystallized. To fall within the
protective umbrella, the act constituting the offence ought to
have been committed in the performance of the offcial duty
or purported performance thereof. There must be a
reasonable connection between the act and the discharge of
the offcial duty. It is the iuality of the act rather than the
nature of the duty which is determinative.
11 (1955) 1 SCR 1177.
12 AIR 1959 SC 707.
13 (1979) 4 SCC 177.
14 (2008) SCC 500.
CRIWP1904-2021.DOC
46. It would be advantageous to make a proftable reference
to the judgment of the Constitution Bench in the case of
Matajog Dobey vs. H. C. Bhari,15 wherein the legal position
was illuminatingly postulated as under: "In the matter of
grant of sanction under Section 197 of the Code of Criminal
Procedure, the offence alleged to have been committed must
have something to do, or must be related in some manner,
with the discharge of offcial duty. There must be a
reasonable connection between the act and the discharge of
the offcial duty; the act must bear such relation to the duty
that the accused could lay a reasonable claim, but not a
pretended or fanciful claim, that he did it in the course of the
performance of his duties".
47. Mr. Lekhi, the learned ASG, on the contrary, urged that
in the facts of the case, the claim of the petitioner that the
alleged offences were committed in discharge of offcial
functions and duties is neither well grounded in facts nor in
law. The offences alleged against the petitioner can not
conceivably be described as having been committed in the
performance or purported performance of offcial functions
and duties. The authority which the petitioner drew from the
position he held, only authorised the performance of what
15 AIR 1956 SC 44..
CRIWP1904-2021.DOC
may be reasonably necessary for execution of the public duty.
At best, the petitioner is laying a pretended and fanciful claim
of performance of public duty as the offcial status only
furnished the opportunity for the commission of the offences,
urged Mr. Lekhi. Reliance was placed on the judgment of the
Supreme Court in the case of Prakashsingh Badal vs. State
of Punjab,16 wherein it was held that the offence of cheating
and cognet offences can by no stretch of imagination by their
very nature be regarded as having been committed by any
public servant while acting or purporting to act in discharge
of offcial duty. In such a case, offcial status only provides
an opportunity for commission of the offence.
48. On the aforesaid touchstone, reverting to the facts of
the case, the allegations against the petitioner can be
classifed in three broad categories. First, the petitioner,
attempted to obtain undue advantage of his offcial position
by directing the police offcials to collect funds from certain
sources. Second, the petitioner allegedly interfered with the
course of investigation into certain cases and infuenced the
investigation. Third, the petitioner allegedly exercised undue
infuence over the transfer and posting of police offcials with
a view to further exercise undue infuence over the
16 (2007) 1 SCC 1.
CRIWP1904-2021.DOC
performance of public duties by those police offcials.
49. By their very nature, the frst two sets of acts,
attributed to the petitioner, can by no stretch of imagination
be said to be in the performance or purported performance of
the offcial duties. It was no part of the duty of the petitioner
to direct the collection of the funds, as alleged. Nor the
petitioner had any authority in law to interfere with the
course of investigation and give directions as to the manner
in which the investigation is to be conducted by the police
offcers. It is trite that even the Courts can not tread that
path. Mere statement in the FIR that the petitioner
attempted to obtain undue advantage for improper and
dishonest performance of his public duty, in the context of
the aforesaid allegations, does not establish the nexus
between the alleged acts and the discharge of offcial duty.
50. The submission on behalf the petitioner as regards
third set of allegations, of exercising undue infuence in the
matter of transfer and posting of police offcials, however,
appears to carry some substance. In pursuance of the
judgment of the Supreme Court in the case of Prakash Singh
& ors. vs. Union of India & ors. 17 under Chapter IIA of the
17 (2006) 8 SCC 1.
CRIWP1904-2021.DOC
Maharashtra Police Act, 1951, Police Establishment Boards
have been constituted, inter alia, to make recommendations
to the State Government regarding the transfer and posting of
police offcers and also decide transfer and posting of police
offcers, based on their rank. Under Section 22N, the
competent authority for general transfer and the mid-term
transfer of the Maharashtra police service offcers of and
above the rank of Deputy Superintendent of Police is Home
Minister, the position which the petitioner occupied.
51. An offcial act can be performed in the discharge of the
offcial duty as well as in dereliction thereof. In the case at
hand, the act complained of, exercise of undue infuence over
the transfer and posting of police offcials, could have been
given effect to by the petitioner only in the performance of the
offcial duty. Dishonest performance thereof falls in the
dragnet of the offences punishable under the PC Act and
Penal Code. However, the reasonable nexus between the act
complained of and the discharge of offcial duty can hardly be
disputed.
52. Mr. Desai would urge that in a series of judgments
rendered post insertion of Section 17A of the PC Act, the
Supreme Court and various High Courts have held that the
CRIWP1904-2021.DOC
provisions of Section 17A are mandatory in nature.
Investigations commenced, without the approval of the
competent authority, and the conseiuent prosecutions also
have been iuashed and set aside. Attention of the court was
invited to the decisions of the Karnataka High Court in the
case of Hemant Nimbalkar vs. State of Karnataka and
others,18 the Gujarat High Court in the case of Bhayabhai
Gigabhai Sutreja vs. State of Gujarat, 19 the Kerala High Court
in the case of Ramesh Chennithala vs. State of Kerala 20 and
the Rajasthan High Court in the case of Kailash Chandra
Agarwal and another vs. State of Rajasthan and another.21
53. A very strong reliance was placed on the judgment of
the Supreme Court in the case of Yashwant Sinha and others
vs. Central Bureau of Investigation and another 22 wherein in
a separate and concurrent opinion, Hon'ble Justice K. M.
Joseph adverted to the import of the provisions contained in
Section 17A of the PC Act.
54. As regards the various pronouncements of the High
Courts adverted to above, which emphasize the mandatory
18 MANU/KA/0842-2021.
19 2020 SCC Online Guj 2266.
20 2018 SCC Online Ker 14261.
21 S.B. Criminal Misc.(Pet.) No.159/20218.
22 (2020) 2 SCC 338.
CRIWP1904-2021.DOC
nature of the prior approval envisaged by Section 17A of the
PC Act, there can be no iualm over the propositions
enunciated therein as the phraseology of Section 17A is
explicitly clear and unambiguous. In our view, the moot
iuestion that wrenches to the fore, in the instant case, is
whether Section 17A of the PC Act operates as a fetter on the
power of the High Court to direct iniuiry and/or investigation
in exercise of extraordinary jurisdiction under Article 226 of
the Constitution? In our endeavour to fnd an answer to this
iuestion, we will advert to the pronouncement of the
Supreme Court in the case of Yashwant Sinha (supra).
55. Under general criminal law, the police have a statutory
duty to register an FIR, if a cognizable offence is made out,
and a statutory right to investigate, if there is reason to
suspect commission of a cognizable offence. The
PC Act provides a special procedure for eniuiry, investigation
and trial of offences punishable thereunder, within the
meaning of Section 4(2) and 5 of the Code of Criminal
Procedure ("the Code"). Section 17A of the PC Act is a
signifcant departure from the general law in as much as it
mandates prior approval for iniuiry or investigation. Does
this statutory restriction on the power of the police operate as
CRIWP1904-2021.DOC
an injunction against the constitutional court directing
iniuiry or investigation?
56. The pronouncement of the Constitution Bench in the
case of CPDR (supra) illuminates the path. We have
extracted the observations which bear upon the controversy
at hand. The enunciation of law that restriction on the
executive by the Parliament under an enactment, does not
amount to restriction on the power of the judiciary under
Article 32 and 226 of the Constitution makes the position
abundantly clear. In the context of the interdict contained in
Section 6 of the DSPE Act, the Constitution Bench ruled in
uneiuivocal terms that, "Irrespective of there being any
statutory provision acting as a restriction on the powers of
the Court, the restrictions imposed by Section 6 of DSPE Act
on the powers of the Union cannot be read as restrictions on
the powers of the constitutional court."
57. It is a different matter that the constitutional Court may
not ordinarily pass orders in derogation of the statutory
provisions. However, where in an exceptional and
extraordinary situation, the High Court exercises the plenary
power of the judicial review under Article 226 and orders
iniuiry/investigation, the statutory provisions must yield to
CRIWP1904-2021.DOC
the jurisdiction under Article 226, which is exercised to
uphold the Constitution and maintain the rule of law.
58. As indicted above, the measure to insulate the public
servants from motivated and frivolous iniuiry and
investigation has been on the legal horizon in the form of
either executive instructions or legislative prescription. The
latter was manifested in the form of Section 6A of the DSPE
Act, which introduced the mechanism of prior approval of the
Central Government for an iniuiry or investigation in respect
of the employees of the Central Government of the level of
Joint Secretary and above and eiuivalent. In a sense,
Section 6A of the DSPE Act is a precursor to the protection
envisaged by Section 17A of the PC Act:
"Section 6A of the DSPE Act reads as under:
(1) The Delhi Special Police Establishment shall not conduct
any iniuiry or investigation into any offence alleged to have
been committed under the Prevention of PC Act, 1988 (49 of
1988) except with the previous approval of the Central
Government where such allegation relates to--
(a) the employees of the Central Government of the
Level of Joint Secretary and above; and
(b) such offcers as are appointed by the Central
Government in corporations established by or under
any Central Act, Government companies, societies and
local authorities owned or controlled by that
Government.
(2) Notwithstanding anything contained in sub-section (1),
no such approval shall be necessary for cases involving
arrest of a person on the spot on the charge of accepting or
CRIWP1904-2021.DOC
attempting to accept any gratifcation other than legal
remuneration referred to in clause (c) of the Explanation to
section 7 of the Prevention of PC Act, 1988 (49 of 1988).]"
59. In the case of Manohar Lal Sharma vs. Principal
Secretary and others,23 a Three Judge Bench of the Supreme
Court was confronted with the iuestion, whether the
approval of the Central Government is necessary under
Section 6A of the DSPE Act in a matter where the
iniuiry/investigation into the crime under the Prevention of
PC Act is being monitored by the Court.
60. In two separate opinions, the iuestion was answered in
the negative. The observations of the Supreme Court in
paragraphs 49 and 50 note the submissions premised on the
protection of the right of the public servant and the reasons
for repelling the same. They read as under:
"49. The argument of the learned Attorney General that
Section 6-A is in the nature of procedure established by law
for the purpose of Article 21 and where conseiuences follow
in criminal law for an accused, the Court is not at liberty to
negate the same even in exercise of powers under Article 32
of Article 142 overlook the vital aspect that Court monitoring
of the iniuiry/ investigation conducted by CBI is itself a very
strong check on CBI from misusing or abusing its power of
iniuiry/ investigation. The fltration mechanism which
Section 6-A provides to ensure that the senior offcers at the
decision making level are not subjected to frivolous iniuiry is
achieved as the constitutional court that monitors the
iniuiry/ investigation by CBI acts as guardian and protector
of the rights of the individual and, if necessary, can always
prevent any improper act by CBI against senior offcers in the
Central Government when brought before it.
23 (2014) 2 SCC 532.
CRIWP1904-2021.DOC
50. When the Court monitors the investigation, there is
already departure inasmuch as the investigating agency
informs the Court about the progress of the investigation.
Once the constitutional Court monitors the iniuiry/
investigating which is only done in extraordinary
circumstances and in exceptional situations having regard to
the larger public interest, the iniuiry/ investigation into the
crime under the PC Act against public servants by CBI must
be allowed to have its course unhindered and uninfuenced
and the procedure contemplated by section 6-A cannot be
put at the level which impedes exercise of constitutional
power by the Supreme Court under Articles 32, 136 and 142
of the Constitution. Any other view in this regard will be
directly inconsistent with the power conferred on the highest
constitutional Court."
61. Mr. Desai, the learned Senior Counsel, canvassed a
forceful submission that the aforesaid determination of law is
restricted to the cases where the Court monitors
investigation. Secondly, the deviation from the statutory
reiuirement is permissible only when the Supreme Court
exercises its plenary jurisdiction under Articles 32 and 142 of
the Constitution. A High Court exercising jurisdiction under
Article 226 of the Constitution, where it does not monitor the
investigation, is not within its rights in overriding the
statutory provision. Since in the instant case the Division
Bench simply ordered preliminary eniuiry and the petitions
were disposed of, the aforesaid pronouncement is of no
assistance to the respondent - CBI, urged Mr. Desai.
62. In order to properly appreciate the aforesaid
CRIWP1904-2021.DOC
submission, it is imperative to consider the backdrop of the
decision in the case of M.L.Sharma (supra). The aforesaid
iuestion came up for consideration before the Supreme
Court, in the backdrop of the fact that the iniuiry and
investigation into the allocation of the coal blocks were being
monitored by the Supreme Court and CBI had submitted
report about the status of the progress made in that regard.
In the said case, the Supreme Court had put two iueries to
the learned Attorney General. The second was, "why the
approval of the Government (under Section 6A) was
necessary in respect of "Court monitored" or "Court directed"
investigation". The submissions of the learned Attorney
General in response to the second iuery were noted in
paragraph 19 as under:
"19. In response to the second iuery, the learned Attorney
General submits that Section 6-A is in the nature of
procedure established by law for the purposes of Article 21
and where conseiuences follow in criminal law for an
accused, the Court is not at liberty to negate the same even
in exercise of powers under Article 32 of Article 142.
According to him, reiuirement of sanction under Section 6-A
is to be interpreted strictly and cannot be waived under any
circumstances. That the Court monitors or directs an
investigation does not affect the basis of protection available
under law and CBI cannot be asked to proceed with iniuiry
or investigation dehors the statutory mandate of Section 6-A.
The learned Attorney General, thus, submits that Section 6-
A which was a defnite objective must be allowed to operate
even in the cases where the investigation into the crimes
under the PC Act is being monitored by the Court."
CRIWP1904-2021.DOC
63. It would contextually relevant to note that the
submissions advanced by Mr. Desai substantially resonate
with the submissions of the learned Attorney General, as
noted by the Supreme Court above.
64. In answering the aforesaid iuestion, the Supreme Court
adverted to the pronouncement of the Constitution Bench in
the case of CPDR (supra). As the learned Attorney General
sought to draw a distinction between the sphere of operation
of the provisions contained in Section 6 and Section 6A, the
Supreme Court observed as under:
"53. The learned Attorney General is right that the two
provisions, namely Section 6 and Section 6A are different
provisions and they operate in different felds, but the
principle of law laid down in respect of Section 6, in our
view, can be extended while considering applicability of
Section 6-A to the Court-monitored investigations. If Section
6 necessitates the prior sanction of the State Government
before investigation is carried outby CBI in terms ofthat
provision and the principle of law laid down by the
Constitution bench of this Court is that the constitution
courts are empowered to direct the investigation of a case by
CBI and in such cases no prior sanction of the State
Governemtn is necessary under Section 6 of the DSPE Act,
there is no reason why such principle is not extended in
holding that the approval of the Central Government is not
necssary under Section 6A of the DSPE Act in a matter
where the iniuiry/investigation into the crime under the PC
Act is being monitored by the Court. It is the duty of this
Court that anti-corruption laws are interpreted and worked
out in such a fashion that helps in minimising abuse of
public offce for private gain."
(emphasis supplied)
65. The afore-extracted observation that there is no reason
as to why the principle expounded in CPDR (supra) cannot
CRIWP1904-2021.DOC
be extended to hold that the approval of the Central
Government is not necessary under Section 6A of the DSPE
Act in a matter where the iniuiry/investigation into the crime
under the PC Act is monitored by the Court, constitutes a
complete answer to the submissions sought to be canvassed
on behalf of the petitioner.
66. The observations of the Hon'ble Mr. Justice M. B. Lokur
in the concurrent yet separate opinion, in paragraphs 95 and
98, put the matter beyond the pale of controversy. They read
as under:
"95. The iuestion therefore is, can a statutory fetter such
as Section 6-A of the Act bind the exercise of plenary power
by this Court of issuing orders in the nature of a continuing
mandamus under Article 32 of the Constitution ? The
answer is iuire obviously in the negative. Any statutory
emasculation, intended or unintended, of the powers
exercisable under Article 32 of the Constitution is
impermissible.
98. The law laid down by the Constitution Bench vis-a-vis
a High Court exercising judicial review under Article 226 of
the Constitution and a statutory restriction under section 6
of the Act, would apply (perhaps with greater vigour) mutatis
mutandis to the exercise of judicial review by this Court
under Article 32 of the Constitution with reference to a
statutory restriction imposed by section 6-A of the Act. That
being so, section 6-A of the Act must be meaningfully and
realistically read, only as an injunction to the excutive and
not as an injunction to a constitutional court monitoring an
investigation under Article 32 of the Constitution in an
exercise of judical review and of issuing a continuing
mandamus."
(emphasis supplied)
67. It is imperative to note that in both the opinions,
support and sustenance was drawn from the pronouncement
CRIWP1904-2021.DOC
of the Constitution Bench in the case of CPDR (supra).
Indubitably, in CPDR (supra) the Supreme Court examined
the contours of the authority of the High Court under Article
226 of the Constitution.
68. In our view, from a fair reading of the pronouncement of
the Supreme Court in the case of M. L. Sharma (supra), it
becomes evident that the issue of necessity of prior sanction
in a Court directed investigation was also under
consideration. Undoubtedly, the Supreme Court answered
the iuestion which arose for consideration with reference to
Court monitored investigation. Pertinently, the Supreme
Court, did not observe that such approval is reiuired when it
is a case of Court directed investigation in contradistinction
to Court monitored investigation.
69. The matter can be looked at from a slightly different
perspective. The protection envisaged by Section 17A of the
PC Act is stage controlled. Such approval is warranted at the
stage of eniuiry, iniuiry and investigation. It would imply
that the justifability of the iniuiry or investigation is to be
evaluated by the competent authority in time context. Viewed
through this prism, the Court monitored investigation, which
is in the nature of continuing mandamus, cannot be said to
CRIWP1904-2021.DOC
be the only situation under which investigation sans such
approval can be sustained. We do not fnd any iualitative
difference in a court-monitored and court-ordered
investigation, in the matter of ordering an iniuiry or
investigation sans approval, in exercise of power of judicial
review. The distinction sought to be made between a Court
monitored and Court directed / ordered investigation thus
seems artifcial. Once a constitutional court, examines and
satisfes itself about the necessity and desirability of the
iniuiry or investigation into the alleged crime, the
reiuirement of approval by the competent authority is
substituted by a more judicious determination. In the instant
case, the observations of the Division Bench in the order
dated 5th April, 2021, explicitly make out such satisfaction.
70. Mr. Desai attempted to open a new front by canvassing
a submission that the plenary power which is vested in the
Supreme Court under Articles 32 and 142 of the
Constitution, being not available to a High Court, the
statutory prescriptions cannot be lightly brushed aside
entailing serious prejudice to the fundamental rights of an
accused. In order to buttress the aforesaid submission,
reliance was sought to be placed on the judgment of the
CRIWP1904-2021.DOC
Supreme Court in the case of Paramjit Kaur vs. State of
Punjab.24 In the said case, in the context of the bar
envisaged by Section 36(2) of the Protection of Human Right
Act, 1993 ('the Human Rights Act'), which precluded the
commission from iniuiring into any matter after the expiry of
one year from the date on which the act constituting violation
of human rights is alleged to have been committed, the
Supreme Court held that the power and jurisdiction of the
Supreme Court under Article 32 of the Constitution cannot
be curtailed by any statutory limitation including those
contained in Section 36(2) of the Human Rights Act.
71. The aforesaid pronouncement reiterates the principle
that the statutory provisions do not impinge upon the
plenary powers of the constitutional court under Articles 32
of the Constitution. This pronouncement is of little
assistance to advance the cause of the petitioner's
submission that the width of power under Article 226 of the
Constitution is not of the same amplitude as that of the
Supreme Court under Article 32 of the Constitution of India.
In contrast, it is well neigh settled that under the
constitutional scheme, the jurisdiction conferred on the High
Court is in the same wide terms as the jurisdiction under
24 (1999) 2 SCC 131.
CRIWP1904-2021.DOC
Article 32 of the Constitution. In fact, the jurisdiction of the
High Court under Article 226 is much wider as the High
Courts are reiuired to exercise the jurisdiction not only for
enforcement of fundamental rights but also for enforcement
of any legal right.
72. It was next urged that it is the duty of the Courts to
protect the rights which emanate from the due observance of
the procedure established by law. Rigorous observance of the
procedure is a constitutional imperative, however
inconvenient it may be in a given situation. Attention of the
Court was invited to the decision of the Supreme Court in the
case of Prabhu Dayal Deorah vs. The District Magistrate,
Kamrup and others,25 wherein the following observations
were made:
"21. ............The history of personal liberty is largely the
history of insistence on observance of procedure. And
observance of procedure has been the bastion against
wanton assaults on personal liberty over the years. Under
our Constitution, the only, guarantee of personal liberty for a
person is that he shall not be deprived of it except in
accordance with the procedure established by law. The need
today for maintenance of supplies and services essential to
the community cannot be over-emphasized. There will be no
social security without maintenance of adeiuate supplies
and services essential to the community. But social security
is not the only goal of a good society. There are other values
in a society. Our country is taking singular pride in the,
democratic ideals enshrined in its Constitution and the most
cherished of these ideals is personal liberty. It would indeed
be ironic if, in. the name of social security, we would
sanction the subversion of this liberty. We do not pause to
25 AIR 1974 SC 183.
CRIWP1904-2021.DOC
consider whether social security is more precious than
personal liberty in the scale of values, for, any judgment as
regards that would be but a value judgment on which
opinions might differ. But whatever be its impact on the
maintenance of supplies and services essential to the
community,'when a certain procedure is prescribed by the
Constitution or the laws for depriving a citizen of his
personal liberty, we think it our duty to see that that
procedure is rigorously observed, however strange this might
sound to some ears."
(emphasis supplied)
73. Mr. Desai would further urge that no Court, including
the Supreme Court, can give directions contrary to the
statutory provisions. To this end, reliance was placed on the
judgment of the Supreme Court in the case of Central
Bureau of Investigation and others vs. Keshub Mahindra and
others,26 wherein in the context of an apprehension that the
1996 judgment of the Supreme Court in Bhopal Gas Leak
Case, whereby the Supreme Court had directed the trial
Court to frame charges under Section 304A instead of Section
304 (Part II) of the IPC, the Sessions Court would feel
helpless in framing charges for more serious offences, the
Supreme Court held that the apprehension was wrong and
without any basis and went on to postulate that, "No decision
by any Court, this Court not excluded, can be read in a
manner as to nullify the express provisions of an Act or the
Code and the 1996 judgment never intended to do so."
26 (2011) 6 SCC 216.
CRIWP1904-2021.DOC
74. Reliance was also placed on another judgment of the
Supreme Court in the case of M. S. Ahlawat vs. State of
Haryana and another,27 wherein the Supreme Court, set aside
the conviction of the petitioner therein, for the offence
punishable under Section 193 of the IPC, for which the
petitioner was convicted by the Supreme Court. It transpired
that the procedure prescribed under Section 340 of the
Code was not followed before petitioner was so convicted. In
that context, the Supreme Court observed that:
"To perpetuate an error is no virtue but to correct it is a
compulsion of judicial conscience. We, therefore,
unhesitatingly set aside the conviction of the petitioner for
the offence under Section 193 IPC."
75. Reliance was also placed on the judgment of the
Supreme Court in the case of Union of India and another vs.
Kirloskar Company Ltd.,28 wherein the High Court had
directed the authorities under the Customs Act to decide the
claim for refund, with a further rider that the claim shall not
be rejected on the ground that it was time-barred. Setting
aside the said direction, the Supreme Court held that the
power conferred by Articles 226/227 of the Constitution is
designed to effectuate the law, to enforce the rule of law and
27 (2000) 1 SCC 278.
28 (1996) 4 SCC 453.
CRIWP1904-2021.DOC
to ensure that the several authorities and organs of the State
act in accordance with law. It cannot be invoked for
directing authorities to act contrary to law.
76. An earnest endeavour was made to draw support from
the Seven Judge bench judgment of the Supreme Court in
the case of A. R. Antulay vs. R. S. Naik and another, 29
wherein the Supreme Court recalled the direction (in R. S.
Nayak vs. A. R. Antulay -[(1984) 2 SCC 183]) transferring the
trial under the Criminal Law Amendment Act, 1952, from the
Court of Special Judge, Bombay to the High Court of
Bombay. It was observed that in giving the directions the
Supreme Court infringed the constitutional safeguards
granted to a citizen or to an accused and injustice resulted
therefrom. It was just and proper for the Court to rectify and
recall that injustice, in the peculiar facts and circumstances
of the said case.
77. A judgment of a Division Bench of this Court in the
case of IDBI Bank Ltd. vs. Aditya Logistics (I) Pvt. Ltd. and
others30 was also pressed into service to bolster up the
submission that in exercise of jurisdiction under Article 226
of the Constitution the High Court cannot direct any
29 (1988) 2 SCC 602.
30 2017 (5) Mh.L.J. 69.
CRIWP1904-2021.DOC
authority including a statutory tribunal to act contrary to the
statutory provisions.
78. Mr. Lekhi, joined the issue by canvassing a submission
that the analogy sought to be drawn, from the aforesaid
pronouncements, is misplaced. We are persuaded to agree
with the submissions of Mr. Lekhi. A case where the
constitutional court passes an order, which turns out to be in
derogation of the statutory provision or prescribed procedure
in exercise of ordinary jurisdiction or for that matter writ
jurisdiction, stands on a different footing than a case where
the constitutional court invokes the plenary jurisdiction
vested under Article 32 or 226 of the Constitution for
enforcement of the fundamental rights and upholding the
rule of law. In the latter cases the statutory restrictions do
not impede the exercise of the jurisdiction under Article 32 or
226 of the Constitution which is of wide plenitude. It bears
repetition to record that the pronouncement of the Supreme
Court in the case of CPDR (supra) sets the issue at rest.
79. This takes us to the judgment of the Supreme Court in
the case of Yaswant Sinha (supra) on which heavy reliance
was placed by Mr. Desai. The review petitions in the said
reported judgment, arose out of the judgments whereby the
CRIWP1904-2021.DOC
writ petitions which sought investigation in the matter of
purchase of Rafale Fighter Jets, were dismissed. The review
petitions were disposed of by two separate yet concurring
opinions. In the judgment delivered by Hon'ble Mr. Justice K.
M. Joseph, the applicability of the bar contained in Section
17A of the PC Act, where a prayer is made for directing
registration of the FIR against a public servant, was adverted
to. His Lordship, observed as under:
"114. The Constitution Bench in Lalita Kumari(supra),
had before it, the CBI Crime Manual. It also considered the
decision of this Court in P. Sirajuddin (supra) which
declared the necessity for preliminary iniuiry in offences
relating to corruption. Therefore, the petitioners may not be
justifed in approaching this Court seeking the relief of
registration of an FIR and investigation on the same as such.
This is for the reason that one of the exceptions where
immediate registration of FIR may not be resorted to, would
be a case pointing fngers at a public fgure and raising the
allegation of corruption. This Court also has permitted
preliminary iniuiry when there is delay, laches in initiating
criminal prosecution, for example, over three months. A
preliminary iniuiry, it is to be noticed in paragraph 120.7, is
to be completed within seven days.
115. The petitioners have not sought the relief of a
preliminary iniuiry being conducted. Even assuming that a
smaller relief than one sought could be granted, there is yet
another seemingly insuperable obstacle.
.......
117. In terms of Section 17A, no Police Offcer is
permitted to conduct any eniuiry or iniuiry or conduct
investigation into any offence done by a public servant where
the offence alleged is relatable to any recommendation made
or decision taken by the public servant in discharge of his
public functions without previous approval, inter alia, of the
authority competent to remove the public servant from his
Offce at the time when the offence was alleged to have been
committed. In respect of the public servant, who is involved
in this case, it is clause (c), which is applicable. Unless,
therefore, there is previous approval, there could be neither
CRIWP1904-2021.DOC
iniuiry or eniuiry or investigation. It is in this context
apposite to notice that the complaint, which has been fled
by the petitioners in Writ Petition (Criminal) No. 298 of 2018,
moved before the frst respondent-CBI, is done after Section
17A was inserted. The complaint is dated 04.10.2018.
Paragraph 5 sets out the relief which is sought in the
complaint which is to register an FIR under various
provisions. Paragraphs 6 and 7 of the complaint are relevant
in the context of Section 17A, which reads as follows:
"6. We are also aware that recently, Section
17(A) of the act has been brought in by way of an
amendment to introduce the reiuirement of prior
permission of the government for investigation or
iniuiry under the Prevention of PC Act.
7. We are also aware that this will place you
in the peculiar situation, of having to ask the
accused himself, for permission to investigate a
case against him. We realise that your hands are
tied in this matter, but we reiuest you to at least
take the frst step, of seeking permission of the
government under Section 17(A) of the Prevention
of PC Act for investigating this offence and under
which, "the concerned authority shall convey its
decision under this section within a period of
three months, which may, for reasons to be
recorded in writing by such authority, be
extended by a further period of one month".
118. Therefore, petitioners have fled the complaint
fully knowing that Section 17A constituted a bar to any
iniuiry or eniuiry or investigation unless there was previous
approval. In fact, a reiuest is made to at least take the frst
step of seeking permission under Section 17A of the 2018
Act. Writ Petition (Criminal) No. 298 of 2018 was fled on
24.10.2018 and the complaint is based on non-registration of
the FIR. There is no challenge to Section 17A . Under the
law, as it stood, both on the date of fling the petition and
even as of today, Section 17A continues to be on the Statute
Book and it constitutes a bar to any iniuiry or eniuiry or
investigation. The petitioners themselves, in the complaint,
reiuest to seek approval in terms of Section 17A but when it
comes to the relief sought in the Writ Petition, there was no
relief claimed in this behalf.
119. Even proceeding on the basis that on petitioners
complaint, an FIR must be registered as it purports to
disclose cognizable offences and the Court must so direct,
will it not be a futile exercise having regard to Section 17A . I
am, therefore, of the view that though otherwise the
petitioners in Writ Petition (Criminal) No. 298 of 2018 may
CRIWP1904-2021.DOC
have made out a case, having regard to the law actually laid
down in Lalita Kumari (supra), and more importantly,
Section 17A of the Prevention of PC Act, in a Review Petition,
the petitioners cannot succeed. However, it is my view that
the judgment sought to be reviewed, would not stand in the
way of the frst respondent in Writ Petition (Criminal) No.
298 of 2018 from taking action on Exhibit P1-complaint in
accordance with law and subject to frst respondent
obtaining previous approval under Section 17a of the
Prevention of PC Act."
80. Banking upon the aforesaid observations, especially the
observations in paragraph 115 that Section 17A of the PC Act
seemed to be an insuperable obstacle in granting the relief of
preliminary iniuiry, Mr. Desai urged, with a degree of
vehemence, that the order of the Division Bench directing
preliminary eniuiry cannot be so construed as to perpetuate
the mistake. Since the Supreme Court has emphasized the
peremptory nature of the approval envisaged by Section 17A
of the PC Act, the investigation must be interdicted at this
stage.
81. Mr. Lekhi, the learned ASG submitted that the
aforesaid observations, which form part of the order of
Hon'ble Mr. Justice Joseph cannot be construed as an order
of the Court. Since the majority has not adverted to the
provisions contained in Section 17A of the PC Act, the
aforesaid observations, do not command any precedential
value. In any event, according to Mr. Lekhi, the aforesaid
CRIWP1904-2021.DOC
observations are contrary to the judgments of the Supreme
Court in the cases of CPDR and M.L. Sharma (supra).
82. In order to lend support to the submission that the
aforesaid observations in respect of applicability of Section
17A, do not command precedential value, Mr. Lekhi placed
reliance on the judgment of the Supreme Court in the cases
of Kaikhosrou (Chick) Kavasji Framji vs. Union of India 31 and
Rameshbhai Dabhai Naika vs. State of Gujarat, 32 wherein the
legal position as to when the observations in the concurring
judgment constitute binding precedent was exposited.
83. We are not persuaded to adopt a doctrinaire approach
and delve into the aspect of binding effcacy of the
afore-extracted observations in the case of Yashwant Sinha
(supra). In our considered opinion, from the perusal of the
aforesaid observations, it becomes abundantly clear that two
factors weighed with the Supreme Court. First, in the context
of the nature of allegations of corruption against a public
fgure, the writ petitioners could not have sought the relief of
registration of FIR directly. Second, though the petitioners
were aware of the impediment for the investigating agency in
entering upon the investigation, in view of the bar under
31 (2019) 20 SCC 705.
32 (2012) 3 SCC 400.
CRIWP1904-2021.DOC
Section 17A, yet no relief was sought in that behalf. In this
backdrop, the observations were made that even if it is
assumed that the allegations in the petitioner's complaint
disclosed congnizable offences and the Court must direct the
registration of the FIR, would it not be a futile exercise having
regard to Section 17A.
84. In our understanding, the afore-extracted observations
in the case of Yashwant Sinha (supra), cannot be read de
hors the context in which those observations were made. The
aforesaid observations, with respect, do not lay down a
proposition that even when a constitutional Court is
convinced about the justifability of the cause and necessity
of a fair and impartial investigation by an independent
agency, Section 17A operates as a fetter on its power to order
such investigation. On a proper construction, in our view,
the aforesaid observations underscore the restrictions to
iniuire and investigate iua the investigating agency and not
against the Court which fnds it expedient to exercise the
jurisdiction under Article 226 of the Constitution.
85. Question No.(iii): Whether FIR beyond the ambit of the
order of Division Bench:
A two-pronged submission was advanced in support of
CRIWP1904-2021.DOC
the challenge that the registration of the FIR and the
conseiuent investigation transgresses the ambit of the order
of the Division Bench. One, the issues of transfer and posting
of the police offcials and the reinstatement in service of Mr.
Sachin Vaze and entrustment of important and sensitive
cases, were not at all referred to in the complaint of Dr.
Jayshree Patil nor in the letter of Mr. Param Bir Singh. Thus,
this Court had no occasion to consider those issues and
order an iniuiry therein. Two, the Division Bench order
manifests a clear contra-indication that the said aspect was
beyond the province of the preliminary eniuiry entrusted to
respondent no.2.
86. We have been taken through the letter of Mr. Param Bir
Singh to bolster up the submission that there is nothing
which can be even remotely related to the alleged exercise of
undue infuence in the matter of transfer and posting of the
police offcials by the petitioner. Attention of the Court was
also invited to the observations in paragraph 87 of the order
of the Division Bench, which reads as under:
"87. We also make it clear that Shri Param Bir shall be at
liberty to raise grievances, if any, in regard to transfers and
postings of police offcers and for enforcement of the
directions in Praksh Singh (supra) before the appropriate
forum in accordance with law, if so adviced."
CRIWP1904-2021.DOC
87. As the Division Bench had reserved the liberty to Mr.
Param Bir Singh to raise grievances, if any, in regard to the
transfer and postings of police offcials before the appropriate
forum, it implied that the Division Bench did not consider the
said aspect, much less satisfed about the necessity of
ordering eniuiry into that matter, submitted Mr. Desai.
Resultantly, the registration of the FIR and investigation in
respect of the matters, which were not at all adverted to by
the Division Bench, amounts to venturing into investigation
in matters which otherwise fall within the domain of the
State Government and thus wholly impermissible under
Section 6 of the DSPE Act. A strong reliance was placed on
the judgment of the Supreme Court in the case of Mayawati
(supra).
88. In the context of aforesaid challenge we deem it
appropriate to record that in Criminal Writ Petition No.1903
of 2021, preferred by the State of Maharashtra, assailing the
legality of registration of the FIR incorporating the allegations
in respect of exercise of undue infuence over the transfer and
posting of the police offcials and the reinstatement of Mr.
Sachin Vaze and entrustment of important and sensitive
CRIWP1904-2021.DOC
cases to him, we have elaborately dealt with the challenge
based on the provisions of Section 6 of the DSPE Act and the
judgment of the Supreme Court in the case of Mayawati
(supra). [The said Writ Petition No.1903 of 2021 is also
disposed of simultaneously by a separate judgment.]. We are
of the view that it may not be necessary to burden this
judgment by incorporating all those reasons once more.
89. It would be suffce to note that the ratio in the case of
Mayawati (supra) is that in a case where there is no consent
of the State under Section 6 of the DSPE Act and the
authority to investigate springs from the order of the
constitutional court, in the absence of direction in the order
of the Court, the investigating offcer is not free to resort to
the provisions contained in Section 157 of the Code to
investigate into a matter which is not covered by the order of
the Court. The aforesaid ratio of the judgment of the
Supreme Court in the case of Mayawati (supra) is reiuired to
appreciated in the context of its factual backdrop. In the said
case, the Court was dealing with the illegality / irregularity
committed by the offcers and the persons who carried out
the 'Taj Heritage Corridor Project' and the disbursement of
the amount of Rs.17 Crores, which was allegedly released
CRIWP1904-2021.DOC
without sanction, in September, 2002. In contrast,
purportedly on the basis of the order of the Supreme Court,
another FIR was registered against the petitioner therein with
the allegations of amassing assets disproportionate to the
known sources of income from the year 1995 to 2003. In
such fact situation, the Supreme Court held that there was
no occasion for the Supreme Court to consider the said
allegations of amassing disproportionate assets and,
resultantly, the registration of the FIR was without
jurisdiction. The aforesaid pronouncement, in our view, does
not apply with eiual force to the facts of the case at hand.
90. We have extracted above, the allegations in the letter of
Shri Param Bir Singh. It was alleged that the petitioner was
indulging in misdeeds and malpractices. Mr. Sachin Vaze was
called at the residence of the petitioner several times. He was
given a target to accumulate Rs.100 Crores a month. The
Personal Secretary of the petitioner allegedly conveyed the
direction to collect the funds to Shri Sanjay Patil, ACP. Both
the offcers related the direction to collect funds to the then
Commissioner of Police. Apart from the allegations that the
petitioner directed the Police Offcers to collect funds, there
are allegations as regards the interference in the matters
CRIWP1904-2021.DOC
which were being investigated by the police offcers. The
petitioner was repeatedly calling the offcers and giving them
instructions in respect of the course to be adopted by them in
the performance of their offcial duty. They were instructed to
carry out offcial assignments and collection schemes
including fnancial transactions.
91. If these allegations are considered in juxtaposition with
the stated claim that it was part of the duty of the petitioner
to take a call on the recommendations made by the Police
Establishment Board and/or take decision in the matter of
the transfer and posting of the police offcials, in view of the
provisions contained in the Maharashtra Police Act, 1951, the
aspect of transfer and posting of the police offcials cannot be
said to be wholly unconnected with the subject matter of the
iniuiry, ordered by the Division Bench. Whether the offcers
were transferred and posted to achieve the alleged desired
objective of collection of funds, whether the offcers who were
amenable to the infuence of the petitioner were brought in so
as to allegedly interfere with the course of investigation,
whether the offcers, who were allegedly instructed to carry
out offcial assignments and discharge the public duty in a
particular manner, were posted at particular position are all
CRIWP1904-2021.DOC
matters which are inextricably intermingled with the
allegations against the petitioner.
92. Question No.(iv): Whether a case for iuashment:
A strenuous effort was made to demonstrate that the
allegations in the FIR, even if they are taken at their face
value and accepted in their entirety, do not, prima facie
constitute any offence. Multi-fold grounds were urged. First,
FIR is bereft of facts to make out the case against the
petitioner. Second, it is based on vague and hearsay material.
Third, there is no material to indicate the commission of the
offence punishable under Section 7 of the PC Act and 120B of
the Penal Code. Fourth, even if taken at face value, the acts
attributed to the petitioner do not traverse beyond the stage
of preparation. Lastly, the fact that the FIR alleges that the
petitioner and unknown others have attempted to obtain
undue advantage for improper and dishonest performance of
their public duty and that the petitioner conspired with the
unknown others, despite holding a preliminary eniuiry,
justifes an inference that nothing of substance was found in
the preliminary eniuiry.
93. The audicity of the submission that the FIR does not
disclose a prima facie offence is belied by the hard facts of
CRIWP1904-2021.DOC
the case. At the cost of repeatation, we are constrained to
record that in the backdrop of the allegations in the letter of
Mr. Param Bir Singh, the Division Bench, while directing
independent probe by CBI, recorded in no uncertain terms
that:
74. While considering the Criminal Writ Petition on
merits, we fnd that one other aspects cannot be overlooked.
Shri. Kumbhkoni has not urged that the complaint of Dr.
Patil does not disclose any cognizable offence. ........"
75. ........... The information furnished therein discloses
commission of cognizable offences by Shri Deshmukh and
in our prima facie view, should have been acted upon in the
manner reiuired by the CrPC, and as judicially interpreted
by the Supreme Court in Lalita Kumari (supra). ........"
(para 75.)
80. "......... Such allegations, therefore, cannot remain
unattended and are reiuired to be looked into in the
manner known to law when, prima facie, they indicate
commission of a cognizable offence. ......."
(para 80.)
94. In the light of the aforesaid observations, the
submission on behalf of the petitioner that the allegations in
the FIR do not make out a prima facie case does not deserve
to be countenanced, at least, at this stage and before this
forum.
95. Undaunted and at his combative best, Mr. Desai would
urge that despite the aforesaid observations, since the
Division Bench in paragraph 84 of the order made it clear
that the observations made in the said order were without
CRIWP1904-2021.DOC
prejudice to the rights and contentions of the parties, who
might fgure in the position of the accused in future, the
petitioner cannot be deprived of the opportunity to agitate the
ground that the FIR and the conseiuent investigation deserve
to be iuashed as they constitute an abuse of the process of
the court.
96. In view of the aforesaid submission, we deem it
expedient to consider the challenge and record brief reasons.
To begin with, the claim that the FIR, as its stand, is bereft of
facts and material looses sight of the fact that the FIR makes
reference to the annexures which include the complaint of Dr.
Jayshree Patil and the letter of Mr. Param Bir Singh. To urge
that only the allegations in the FIR are determinative and not
the documents annexed thereto and attendant circumstances
is again not in consonance with law. To ascertain as to
whether there is a reason to suspect commission of a
cognizable offence, the investigating offcer can, in law, look
into the allegations in the FIR, documents annexed to
FIR, the evidence collected and the attendant circumstances
as well. A proftable reference, in this context, can be made
to the observations of the Supreme Court in the case of State
of Haryana and others vs. Bhajanlal and others, 33 wherein
33 1992 Supp. (1) SCC 335.
CRIWP1904-2021.DOC
the import of the expression, "reason to suspect the
commission of an offence" and the material which can be
taken into account to arrive at such inference, were
expounded as under:
"48. One should not lose sight of the fact that Section
157(1) reiuires the police offcer to have reason to suspect
only with regard to the commission of an offence which he is
empowered under Section 156 to investigate, but not with
regard to the involvement of an accused in the crime.
Therefore, the express, "reason to suspect the commission
of an offence" would mean the sagacity of rationally
inferring the commission of a cognizable offence based on
the specifc articulate facts mentioned in the frst
information report as well as the annexures, if any, enclosed
and any attending circumstances which may not amount to
proof. In other words, the meaning of the expression
"reason to suspect" has to be governed and dictated by the
facts and circumstances of each case and at that stage the
iuestion of adeiuate proof of facts alleged in the frst
information report does not arise."
97. The submission that despite preliminary eniuiry
respondent no.2 could not unearth any material except the
complaint of Dr. Jayashree Patil and the letter of Mr. Param
Bir Singh, the very material which was before the Division
Bench while ordering preliminary eniuiry, though alluring at
the frst blush, is not well grounded in law. It misconstrues
the scope of preliminary eniuiry completely. The purpose of
preliminary eniuiry is not verify the veracity or otherwise of
the information received but only to ascertain whether the
information discloses a cognizable offence.
CRIWP1904-2021.DOC
98. It was next urged on behalf of the petitioner that the
allegations in the letter of Mr. Param Bir Singh are not based
on his personal knowledge and do not deserve consideration
being hearsay. The FIR is thus based on legally inadmissible
material. To buttress the aforesaid submission Mr. Desai,
banked upon the pronouncement of the Supreme Court in
the case of Kalyan Kumar Gogoi vs. Ashutosh Agnihotri 34
wherein the juristic connotation of the term 'hearsay' was
explained.
99. We fnd it rather diffcult to accede to the submission
that the allegations in the letter of Mr. Param Bir Singh,
deserve to be discarded, at this stage, on the ground of being
hearsay. At the stage of consideration of the prayer for
iuashing the FIR this Court is expected to look into only the
allegations so as to fnd out whether an offence is prima facie
disclosed or not? If the answer is in the affrmative, the
truthfulness or otherwise of the allegations is a matter for
investigation and trial.
100. A faint attempt was made to draw home the point that,
even if the allegations in the FIR are taken at their face value,
they would, at best, indicate preparation to extort money and
34 (2011) 2 SCC 532.
CRIWP1904-2021.DOC
nothing beyond that. There is no allegation that the
petitioner, in fact, accepted or attempted to accept money.
Reliance was sought to be placed on the judgments of the
Supreme Court in the case of Koppula Venkat Rao vs. State
of A.P.35 and Lahore High Court in the case of High Court Bar
Association vs. Crown36 wherein, the distinction between an
attempt to commit a crime and intention and preparation for
its commission was expounded.
101. The distinction between attempt and preparation is well
recognized. However, the dividing line between a mere
preparation and attempt is often thin. Its determination is
rooted in facts. In the case at hand, the submission on
behalf of the petitioner that, at best, the direction to the
police offcers to collect funds was a preparatory act, with no
consummated offence, proceeds on the premise as if that is
the only act attributed the petitioner. A bare perusal of the
complaint of Dr. Jayshree Patil and the letter of Mr. Param Bir
Singh annexed thereto, would prima facie indicate that the
petitioner allegedly identifed the source from which the
funds were to be collected, the probable number of such
units, and the amount to be collected from each of them. We
35 (2004) 3 SCC 602.
36 1941 Indian Law Reporter 796.
CRIWP1904-2021.DOC
therefore do not deem it appropriate to delve deep into the
iuestion as to whether those acts fall in the realm of
preparation only.
102. In the backdrop of the aforesaid nature and the gravity
of the allegations made in the complaint of Dr. Jayshree Patil,
annexure thereto and the observations made by the Division
Bench, we are afraid that we would be justifed in delving
deep into the thickets of facts, at this stage of the
proceedings. It is trite that the inherent powers to iuash the
FIR/prosecution are reiuired to be exercised sparingly and in
exceptional cases. Ordinarily, the inherent powers ought not
be exercised to stife a legitimate prosecution. At the stage of
investigation, when the truth is yet to be unearthed, this
Court cannot embark upon the iniuiry into the correctness
or otherwise of the allegations. We agree with the
submissions of Mr. Lekhi that at this stage when
investigation is underway any attempt to sieve through the
material with a fne gauze to ascertain the existence or
otherwise of the ingredients of the offences is uncalled for. It
is trite that FIR is not an encyclopedia and the purpose of
investigation is to unearth the truth.
103. The last submission on behalf of the petitioner that
CRIWP1904-2021.DOC
respondent no.2 has shied away from naming the alleged co-
conspirators of the petitioner and continues to proceed with
the investigation with the specious and convenient refrain of,
"unknown others" gave us a cause for anxious consideration.
During the course of the hearing, in the backdrop of the
nature of the allegations, we called upon Mr. Lekhi, to clear
the stand of respondent no.2 as regards the possibility of the
complicity of other persons, apart from the petitioner. Mr.
Lekhi, the learned ASG, assured the Court that the
investigation would be conducted in scrupulous adherence to
the mandate of the order of the Division Bench. Nobody
would be spared. Respondent no.2 will not play favourite. It
would be an unsparing investigation irrespective of the rank.
104. Before parting, by way of abundant caution we clarify
that the observations hereinabove have been made for the
purpose of determining the justifability of the prayer to
iuash the FIR and the investigation. And these observations
shall not be construed to have any bearing on the Writ
Petitions and other proceedings fled by Mr. Param Bir Singh
and Mrs. Rashmi Shukla, which shall be determined on their
own merits.
105. For the forgoing reasons, the petition deserves to be
CRIWP1904-2021.DOC
dismissed. Hence, the following order:
:ORDER:
(i) The petition stands dismissed.
(ii) The Registrar (Judicial) is directed to return the
sealed envelope containing the report to the
concerned Investigating Offcer.
(iii) Rule stands discharged.
[N. J. JAMADAR, J.] [S. S. SHINDE, J.]
At this stage, Mr. Desai, the learned Senior Counsel for
the petitioner, submitted that having regard to the
substantial iuestion of law of general importance, which
according to him, has arisen for consideration in this
petition, the effect and operation of this judgment be stayed
to facilitate the petitioner to raise the issue before the
Supreme Court.
Mr. Tushar Mehta, the learned Solicitor General,
opposes the prayer. It was submitted that no interim relief
was in operation during the pendency of this petition. Nor
any substantial iuestion of law arises for consideration.
We have considered the submissions. We are of the
view that in view of the consideration which we have
bestowed to the submissions canvassed across the bar, in
this judgment, there is no justifable reason to stay the effect
and operation of this judgment. Hence, oral application for
stay stands rejected.
[N. J. JAMADAR, J.] [S. S. SHINDE, J.]
