Bombay High Court
Ghanshyam Upadhay vs Central Bureau Of Investigation on 22 July, 2021
Bench: S.S. Shinde, N. J. Jamadar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 1903 OF 2021
The State of Maharashtra
through Additional Chief Secretary
Home Department, Mantralaya,
Government of Maharashtra ...Petitioner
vs.
The Central Bureau of Investigation,
Through its Superintendent of Police,
Anti Corruption-V, Plot No. 5B, First Floor,
CGO Complex, Lodhi Road,
New Delhi-110003. ...Respondent
WITH
INTERIM APPLICATION NO. 1578 OF 2021
IN
WRIT PETITION NO. 1903 OF 2021
Dr. Jaishri Laxmanrao Patil
Aged 44 years, Occ : Advocate/Criminologist,
Residing at 1601, Crystal Tower, Parel TT,
Parel East, Mumbai, 400012 ...Applicant
In the matter between :
The State of Maharashtra
through Additional Chief Secretary
Home Department, Mantralaya,
Government of Maharashtra ...Petitioner
Vs.
The Central Bureau of Investigation
Through its Superintendent of Police,
Anti Corruption -V, Plot No. 5B,
First Floor, CGO Complex, Lodhi Road,
New Delhi-110003. ...Respondent
WITH
INTERIM APPLICATION NO. 1577 OF 2021
IN
WRIT PETITION NO. 1903 OF 2021
Ghanshyam Upadhyay
aged 51 years, Occupation -Advocate
having his office at 506,
Arcadia Premises, 195 NCPA Road,
Nariman Point, Mumbai 400 021. ...Applicant
Shraddha Talekar, PS 1/54
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In the matter between :
The State of Maharashtra
through Additional Chief Secretary
Home Department ...Petitioner
vs.
The Central Bureau of Investigation
through its Superintendent of Police ...Respondent
***
Mr. Rafique Dada, Senior Advocate, a/w Mr. Darius Khambata, Senior
Advocate, Mr. Deepak Thakre, PP, Mr.Akshay Shinde, APP Mr. Phiroz
Mehta, Mr. Tushar Hathiramani for Petitioner-State.
Mr. Tushar Mehta, Solicitor General of India a/w. Mr. Anil C. Singh,
Addl.S.G., Mr. Sandesh D. Patil, Mr. Aditya Thakkar, Mr. D. P. Singh, for
Respondent No.2/CBI.
Mr.Subhash Jha i/b Law Global Advocates for Applicant/Intervener in IA/
1577/2021.
Dr. Jaishri Patil, Applicant/Intervener-in-person in IA/1578/2021.
***
CORAM : S.S. SHINDE &
N.J. JAMADAR, JJ.
Reserved for Judgment on : 23rd June 2021.
Judgment Pronounced on : 22nd July 2021.
(THROUGH VIDEO CONFERENCE)
******
JUDGMENT :
1. Rule. Rule made returnable forthwith and, with the consent of the
learned counsels for the parties, heard finally.
2. The State of Maharashtra has presented this petition under Article
226 of the Constitution of India and section 482 of the Code of Criminal
Procedure, 1973 to quash and set aside the 4th and 5th unnumbered
paragraphs of the FIR RC 2232021A0003, bearing Book No. 1379, Serial
Shraddha Talekar, PS 2/54
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No. 001 of 2021 dated 21st April 2021, registered at AC-V, CBI, New Delhi,
for the offences punishable U/sec. 120-B of Indian Penal Code, 1860 ('the
Penal Code') and section 7 of the Prevention of Corruption Act, 1988 as
amended by the Prevention of Corruption (Amendment) Act, 2018 by
CBI- respondent.
3. The State claims to be constrained to invoke the writ and inherent
jurisdiction of this Court in the backdrop of the following facts :
(a) A FIR bearing CR No. 35/2021 was registered
with Gamdevi Police Station, when a SUV laden with
Gelatine was found near the residence of an
industrialist. Initially, investigation was carried out
by the Anti-Terrorist Squad of the State. Later on, the
National Investigation Agency (NIA) took over the
investigation of the said crime. Shri Sachin Vaze, API
attached to the crime investigation Unit of Crime
Branch, Mumbai came to be arrested by NIA. Shri
Param Bir Singh, the then Commissioner of Police,
Mumbai came to be transferred to the post of
Commandant General of Home Guards, Maharashtra
State by an order dated 17th March 2021. Taking
umbrage to certain Press reports attributed to Shri
Shraddha Talekar, PS 3/54
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Anil Deshmukh, the then Home Minister, Shri Param
Bir Singh addressed a letter on 20th March 2021 to
the Hon'ble Chief Minister wherein allegations were
made against Shri Anil Deshmukh.
(b) On the following day, Dr. Jaishri Patil lodged a
report with Malabar Hill Police Station, primarily on
the strength of the allegations contained in the said
letter dated 20th March 2021 addressed by Shri
Param Bir Singh. A copy of the said letter was
annexed to the said report.
(c) A series of proceedings were instituted before
this Court and the Supreme Court. First, Writ
Petition being Writ Petition (Civil) No.385/2021 was
instituted by Shri Param Bir Singh before the
Supreme Court seeking, inter-alia, a direction to
Central Bureau of Investigation (CBI) to conduct
impartial and fair investigation in the alleged
"corrupt malpractices" of Shri Anil Deshmukh and a
writ, order or direction to quash and set aside the
aforesaid transfer order dated 17th March 2021. By
an order dated 24th March 2021, the said writ
Shraddha Talekar, PS 4/54
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petition came to be disposed of as withdrawn with
liberty to approach the High Court.
(e) Shri Param Bir Singh, armed with the said
liberty, filed a Public Interest Litigation No. 6 of
2021 in this Court seeking, inter-alia, issuance of
writ of mandamus to respondent No.3-CBI to
conduct unbiased, uninfluenced, impartial and fair
investigation, in the various corrupt malpractices of
Shri Anil Deshmukh, and also to issue writ of
mandamus to respondent No.1-State to ensure that
transfer/posting of police officials are neither done
on any consideration of pecuniary benefits to any
politician, nor in contravention of the directions of
the Supreme Court of India in the case of Prakash
Singh & Ors Vs. Union of India & Ors. 1.
(f) On the very day, Dr. Jaishri Patil filed Criminal
Writ Petition No. 1541 of 2021 seeking, inter-alia,
unbiased, uninfluenced, impartial and fair
investigation in various corrupt malpractices of Shri
Anil Deshmukh, the then Home Minister and the role
played by Shri Param Bir Singh, the then
1 (2006)8 SCC 1
Shraddha Talekar, PS 5/54
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Commissioner of Police, Mumbai.
(g) Public Interest Litigation, being P.I.L. (St.) No.
6072 of 2021, was filed by Shri Ghanshyam
Upadhyay praying for a direction for thorough
investigation against the persons whose names found
mention in the letter of Shri Param Bir Singh by
drawing personnel from independent investigating
agencies.
(h) Another P.I.L., being PIL (St.) No.6166 of 2021,
was filed by Mr. Mohan Prabhakar Bhide seeking
appointment of a Committee headed by a retired
Judge of the Supreme Court or this Court to
investigate into the allegations made by Shri Param
Bir Singh.
4. A Division Bench of this Court, presided over by the Hon'ble the
Chief Justice, disposed of all the above-numbered petitions by an order
dated 5th April 2021. This Court was of the view that, in the backdrop of
the nature of the allegations, directions were required for facilitating an
unbiased, impartial and fair but effective probe so that the truth is
unearthed. Since Shri Anil Deshmukh was the Home Minister, there could
be no fair, impartial, unbiased and untainted probe, if the same were
Shraddha Talekar, PS 6/54
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entrusted to the State Police Force. Thus, the probe was required to be
entrusted to an independent agency like CBI. This Court was of the
opinion that the interest of justice would be sufficiently served if the
Director, CBI was directed to initiate a preliminary enquiry into the
complaint of Dr. Jaishri Patil, which had the letter of Shri Param Bir Singh
addressed to the Hon'ble Chief Minister, as an annexure. The Director, CBI
was, thus, ordered to conduct the preliminary enquiry, preferably within
15 (fifteen) days. Post completion of preliminary enquiry, it was further
ordered, the Director, CBI was at liberty to decide on the future course of
action, in accordance with law.
5. Since the fate of the challenge hinges upon the import of the order
passed by this Court on 5 th April 2021, it may be apposite, at this juncture
itself, to extract the paragraphs 82 and 83 of the said order, which
incorporate operative directions. They read as under :
"82. We quite agree with Shri Nankani and Shri Jha
that an unprecedented case has come before the Court. We
also agree with Dr. Patil that directions are required for
facilitating 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
(supra) 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
Shraddha Talekar, PS 7/54
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opinion, would be sufficiently served if the Director, CBI is
directed to initiate a preliminary enquiry 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
(supra). Also, the press release of Shri Deshmukh suggests
that he is not averse to facing any inquiry. It is, therefore,
ordered accordingly.
83. Such preliminary enquiry shall be conducted in
accordance with law and concluded as early as possible but
preferably within 15 (fifteen) days from receipt of a copy of
this order. We hope and trust that the officer(s) appointed for
the purpose of conducting preliminary enquiry shall receive
due cooperation from individuals/agencies who are
approached therefor. Once the preliminary enquiry 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."
6. The aforesaid order was challenged by the State as well as Shri Anil
Deshmukh by filing Special Leave Petition (Criminal) Diary No.
9414/2021 and SLP (Crl.) No. 2999-3002/2021, respectively. The
Supreme Court dismissed the Special Leave Petitions by order dated 8 th
April 2021 expressing the view that the nature of allegations, the personas
involved and the seriousness of the allegations required an independent
agency to inquire into the matter.
7. In the meanwhile, pursuant to the order passed by this Court,
preliminary enquiry vide PE2232021A0001 was registered by the
respondent against Shri Anil Deshmukh, the then Home Minister and
unknown others, on 6th April 2021.
Shraddha Talekar, PS 8/54
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8. During the course of the preliminary enquiry, the respondent called
upon the petitioner to furnish, inter-alia, following documents :-
(a) Letter/Report of the then
Commissioner, State Vigilance Department
Smt. Rashmi Shukla, dated 21st August 2020.
(b) Minutes of meeting of Police
Establishment Board.
9. The petitioner contested the relevance of the aforesaid documents
and the authority of CBI to requisition those documents in the context of
the aforesaid order passed by this Court.
10. The preliminary enquiry, according to CBI, prima-facie revealed that
a cognizable offence is made out wherein the then Home Minister and
others attempted to obtain undue advantage for improper and dishonest
performance of their public duty. Thus, FIR No. RC 2232021A003 of 2021
came to be registered on 21st April 2021 at AC-V, CBI, New Delhi against
Shri Anil Deshmukh and unknown persons for the offences punishable U/
sec. 120-B of Indian Penal Code, 1860 and Sec. 7 of the Prevention of
Corruption Act, 1988 as amended by the Prevention of Corruption
(Amendment) Act, 2018.
11. Unnumbered paragraph Nos. 4 and 5 of the said FIR lodged by Shri
R.S. Gunjiyal, Deputy Superintendent of Police, AC-V, CBI, New Delhi, of
which the State seeks quashment, read as under :
".................
Shraddha Talekar, PS 9/54
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Enquiry has also revealed that Shri Sachin
Vaze, Assistant Police Inspector, Mumbai Police had
been reinstated into the police force after being out of
the police service for more than 15 years. The inquiry
further revealed that Shri Sachin Vaze was entrusted
with most of the sensational and important cases of
Mumbai City 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 finds mention of the
fact that the then Home Minister of Maharashtra and
others exercised undue influence over the transfer and
posting of officials and thereby exercising undue
influence over the performance of the official duty by
the officials.
..............."
12. The petitioner asserts that the respondent by registering the FIR,
with the afore-extracted 4th and 5th unnumbered paragraphs, is venturing
to conduct investigation into such areas and aspects of the matter which
are beyond the scope of the inquiry and investigation directed to be
conducted by this Court by the aforesaid order. The petitioner further
asserts that, by the aforesaid device, the respondent has made an
endeavour to introduce the matters namely, reinstatement of Shri Sachin
Vaze, API and alleged undue influence over the transfer and posting of
police officials and exercise of undue influence over the performance of
official duties by those officials, for which there is no mandate in the
order passed by this Court. Nor those matters find even a reference in the
letter of Shri Param Bir Singh and the complaint of Dr. Jaishri Patil, which
Shraddha Talekar, PS 10/54
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were principally taken into account by this Court, while directing the
inquiry by CBI.
13. On the legal premise, the petitioner asserts that the authority of the
respondent to conduct investigation in respect of a matter falling within
the province of the State is governed by the provisions of section 6 of the
Delhi Special Police Establishment Act, 1946 (for short, 'the DSPE Act') .
Since the State of Maharashtra has revoked general consent to the
respondent to exercise the powers U/sec. 6, the only source of authority is
the order passed by this Court entrusting the investigation. Thus, the
respondent cannot venture to investigate into a matter beyond the scope
of the directions contained in the said order. The petitioner, thus, avers
that the extent and not just the limit of the exercise of the power to
investigate has to be strictly within the bounds or limits circumscribed by
the directions issued by this Court. Consequently, the endeavour on the
part of the respondent to bring within the ambit of investigation the
matters which do not emanate from the order dated 5 th April 2021, being
in flagrant violation of the provisions contained in section 6 of the DSPE
Act, is illegal and without jurisdiction. Hence, this petition to quash and
set aside the afore-extracted 4th and 5th unnumbered paragraphs of the
said FIR.
14. An affidavit in reply is filed on behalf of the respondent-CBI. At the
Shraddha Talekar, PS 11/54
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outset, it is contended that the petition is misconceived and an abuse of
process of law. The competence and propriety of the State in presenting
the petition to scuttle the investigation is seriously questioned. The
respondent contends that the petitioner-State, having acted in breach of
an express direction of this Court to the individuals/agencies to render the
necessary co-operation in the investigation of a serious matter is dis-
entitled to get any relief which operates to the prejudice of the public
interest. Justifying the incorporation of aforesaid unnumbered
paragraphs, the respondent contends that those paragraphs contain pure
and simple statements of fact. Such statements of fact cannot be subject
matter of a prayer for quashment. It is contested that the order dated 5 th
April 2021 precludes the respondent from investigating into the matters
referred to in the aforesaid paragraphs. On the contrary, according to the
respondent, the matters referred to therein, are specifically and directly
linked to and arise from the complaint of Dr. Jaishri Patil and the letter of
Shri Param Bir Singh. The mandate to carry out investigation into those
matters, thus, necessarily flows from the order passed by this Court. In
any event, according to the respondent, a mere incidental transgression
would not result in the violation of the provisions of section 6 of the DSPE
Act.
15. An affidavit in rejoinder was tendered on behalf of the petitioner.
Shraddha Talekar, PS 12/54
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The petitioner contested the claim of the respondent that the State did not
offer requisite co-operation in terms of the order passed by this Court. It
was denied that the contents of the 4th and 5th unnumbered paragraphs of
the FIR were pure statements of fact. The petitioner reiterated that the
respondent has no authority in law to conduct investigation in matters for
which no direction for investigation has been passed by this Court. The
endeavour of the respondent to venture into investigation in the matter of
reinstatement of Shri Sachin Vaze, transfer and posting of police officials
and the report of Ms.Rashmi Shukla was stated to be actuated by a design
to conduct a roving inquiry into the administrative affairs of the State
Government.
16. It would be contextually relevant to note that Dr. Jaishri Patil, the
petitioner in Writ Petition No.1903 of 2021 ( The State of Maharashtra
through Additional Chief Secretary Home Department Vs. The Central
Bureau of Investigation through its Superintendent of Police) has
preferred an application for intervention being Interim Application No.
1578 of 2021 (Dr. Jaishri Laxmanrao Patil Vs. The Central Bureau of
Investigation) seeking her impleadment as a party respondent to this
petition and also a direction for impleadment of Shri Sachin Vaze.
Mr.Ghanshyam Upadhyay, the petitioner in Writ Petition No. 1903 of 2021
also preferred an application for intervention being Interim Application
Shraddha Talekar, PS 13/54
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No. 1577 of 2021 (Ghanshyam Upadhyay vs. The Central Bureau of
Investigation) and sought his impleadment as party respondent.
17. In the backdrop of the nature of the controversy and the reliefs
sought in the petition, and the fact that the applicants were the petitioners
before this Court in Writ Petition No. 1541 of 2021 (Dr. Jaishri Laxmanrao
Patil (Advocate) Versus The State of Maharashtra & Ors.) and
connected matters, which were disposed of by order dated 5 th April 2021,
we thought it expedient to allow the applicants to intervene in the matter
and advance submissions.
18. It would be necessary to note that in the intervention application,
Dr. Jaishri Patil had sought the impleadment of Shri Sachin Vaze as a party
respondent. A copy of the application purportedly filed by Shri Sachin
Vaze before the NIA Court was annexed to the application. The prayer for
impleadment of Shri Vaze, who is an accused, is completely misconceived.
As regards the application allegedly submitted by Shri Vaze before the NIA
Court, we are persuaded to observe that the said communication is not at
all germane to the controversy, which we are called upon to determine,
and thus does not deserve to be taken note of. We refrain from observing
anything more lest we may be understood to have taken cognizance
thereof.
Shraddha Talekar, PS 14/54
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19. In the wake of the aforesaid facts and pleadings, we have heard
Mr.Rafique Dada, the learned Senior Counsel for the petitioner-State, Mr.
Tushar Mehta, the learned Solicitor General of India and Shri Anil Singh,
the learned Additional Solicitor General for the respondent-CBI, Mr.
Subhash Jha, the learned counsel for the intervener-Mr.Ghanshyam
Upadhyay, in Interim Application No. 1577 of 2021, and Dr.Jaishri Patil,
the intervener-applicant in-person in Interim Application No. 1578 of
2021, at length. The learned counsels have also tendered written
submissions in support of the submissions canvassed across the bar. With
the assistance of the learned counsels for the parties, we have perused the
material on record, including the copies of pleadings filed in the petitions
before the Supreme Court and this Court, tendered across the bar.
20. Mr. Rafique Dada, the learned senior counsel commenced the
submissions with an emphatic disclaimer that the petitioner-State is not
averse to the investigation to be conducted by CBI, in conformity with the
order of this Court. The State is, however, constrained to approach this
Court on account of the flagrant transgression of the authority and
jurisdiction by CBI and the consequent invidious infringement of the
constitutional rights of the State under the federal structure. This
foundational premise of the case of the petitioner was amplified by Mr.
Dada by canvassing multi-pronged submissions.
Shraddha Talekar, PS 15/54
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21. First and foremost, according to Mr. Dada, the extent of police
power demarcated by the entries in the Lists in Schedule VII of the
Constitution is an inviolable foundation of federal principle. In adherence
to federal principle, the authority of CBI to investigate into a matter
falling within the province of the State is circumscribed by the provisions
contained in section 6 of the DSPE Act. Sans consent of the State
Government, CBI has no jurisdiction to enter upon investigation into a
matter within the sphere of State Police. In the absence of consent of the
State concerned, the CBI can draw legitimacy only from the orders passed
by the constitutional courts under Articles 32 or 226 of the Constitution of
India. In the latter case, the authority of the CBI to enter into investigation
must be construed with reference to the order of the court and the
discipline of law warrants that the CBI shall keep itself within the bounds
of the order of the Court. Any usurpation of authority to investigate into
the matter, which is beyond the province of the mandate of the order by
which the CBI is entrusted with the investigation, would fall foul of the
statutory regime, enshined in section 6 of the DSPE Act, in consonance
with the principle of federal polity.
22. The edifice of aforesaid submission was the judgment of the
Constitution Bench of the Supreme Court in the case of State of West
Bengal and Others Vs. Committee for Protection of Democratic Rights,
Shraddha Talekar, PS 16/54
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West Bengal and Others 2.
23. Mr. Dada strenuously urged that in the case at hand, the 4 th and 5th
unnumbered paragraphs of the FIR (extracted above), relate to matters
which were not at all adverted to by this court in the order dated 5 th April
2020. Those matters, according to Mr. Dada, do not emanate even from
the complaint of Dr. Patil, only which this court had taken into account to
consider justifiability of directing investigation or preliminary enquiry by
CBI. Nor those matters find any mention in the letter of Mr. Param Bir
Singh, which was annexed to the complaint of Dr. Patil and constitutes the
genesis of the investigation. In contrast, Mr. Dada would urge, this Court,
in para 87 of the said order, has contra-indicated by giving liberty to Shri
Param Bir Singh to agitate grievances in the matter of transfer and posting
before appropriate forum. To buttress the aforesaid submissions, Mr.
Dada, took this Court through the order passed by the Division Bench
judgment of this Court dated 5 th April 2021, complaint of Dr. Patil and the
letter of Mr. Param Bir Singh.
24. Mr. Dada further urged that the Supreme Court has frowned upon
the transgression of the jurisdiction to investigate into a matter by CBI,
where the constitutional court had directed such investigation, in violation
of the principle of federal structure. To lend support to this submission,
Mr. Dada, placed a very strong reliance on the judgment of the Supreme
2 (2010) 3 SCC 571
Shraddha Talekar, PS 17/54
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Court in the case of Ms. Mayawati Vs. Union of India and Others 3. In the
case at hand, the endeavour of CBI to investigate into the matters referred
to in unnumbered 4th and 5th paragraphs of the FIR is in clear violation of
the authority to investigate invested by the Division Bench of this Court,
urged Mr. Dada. In that view of the matter, this Court would be justified in
restraining the CBI from usurping the jurisdiction not vested in it by the
order of this Court in exercise of the constitutional power, canvassed Mr.
Dada.
25. Per contra, Mr.Tushar Mehta, the learned Solicitor General stoutly
submitted that the endeavour of the petitioner-State is to dilute the
mandate of the order passed by this Court. The authority to investigate
into the matters referred to in unnumbered 4 th and 5th paragraphs flows
from the order passed by this Court. Those matters are intrinsically
interlinked with the allegations against the then Home Minister. The
reinstatement of Shri Vaze, his special posting, the involvement of Shri
Vaze in the alleged extortion at the instance of Mr. Deshmukh and the
transfer and posting of the officials to advance the said objective are part
of one and the same transaction. The CBI is, thus, not only within its
rights but duty bound to investigate into those matters.
26. Mr. Mehta would urge that the extraordinary circumstances in
which this Court directed the CBI to initially conduct preliminary enquiry
3 (2012) 8 SCC 106
Shraddha Talekar, PS 18/54
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and thereafter take action in accordance with law, cannot be lost sight of.
It could hardly be gainsaid that the allegations made by Mr. Param Bir
Singh were grave. In order to uphold the trust of the citizenry in fair and
uninfluenced investigation, this Court was persuaded to entrust the
investigation to an independent agency. The observations made by this
court in the order dated 5th April 2021 as well as the observations of the
Supreme Court that the matter was quite serious and affected the
administration at large deserve to be kept in view, while determining the
extent of authority of CBI to investigate into those matters.
27. Mr. Mehta would further urge that the exercise of powers under
Article 226 of the Constitution and section 482 of the Code of Criminal
Procedure, 1973 is conditioned by the overarching principle of advancing
cause of justice. In the case at hand, according to Mr. Mehta, the conduct
of the State in stonewalling requisitions made by the CBI to facilitate a
fair investigation also deserves to be taken note of. This conduct on the
part of the officials of the State, despite a specific direction of this Court to
the authorities/officials to render necessary assistance to CBI, is a matter
of concern.
28. Lastly, it was submitted that the significance of well demarcated
powers of police to investigate and that of the courts to adjudicate cannot
be overlooked. Investigation is the exclusive province of the investing
Shraddha Talekar, PS 19/54
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agency. The courts cannot issue directions to the investing agency as to
how and in what manner the investigation is to be carried out. Nor the
Court can interdict the investigation.
29. The judgment in the case of Mayawati (Supra), according to Mr.
Mehta, is of no assistance to the petitioner. The facts in the said case were
so distinct that the proposition enunciated therein, does not apply to the
case at hand, even remotely. The import of the judgment in the case of
Mayawati (Supra) has since been explained in the cases of M/s. Fertico
Marketing and Investment Pvt. Ltd. & Ors. Vs. Central Bureau of
and Kanwal Tanuj Vs. State of Bihar and
Others 5, urged Mr. Mehta.
30. Mr.Subhash Jha, the learned counsel for the intervener-applicant in
Interim Application No.1577 of 2021 questioned the locus of the State in
filing the instant petition. Mr. Jha would urge that the petitioner-State
cannot be said to be an aggrieved person. It defies comprehension as to
how the petitioner-State can feel aggrieved by the investigation into a
matter of such serious nature. Mr. Jha further urged that the endeavour of
the petitioner to seek quashment of certain portions of the FIR is as
unsustainable as unusual.
31. Dr.Jaishri Patil submitted that the complaint lodged by her with
4 (2020) SCC OnLine SC 395
5 2020 SCC OnLine SC 395
Shraddha Talekar, PS 20/54
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Malabar Hill Police Station comprises the allegations on the matters
referred to in aforesaid 4th and 5th unnumbered paragraphs. Investigation
into such serious allegations is warranted in public interest. Therefore,
this court in exercise of extraordinary jurisdiction ought not to interfere
with the investigation lest public interest would be seriously jeopardized.
32. The aforesaid submissions now fall for consideration.
33. To begin with, we deem it appropriate to consider the challenge to
the petition on the count of locus of the State. The petitioner-State has
based its challenge on the principle of federalism and legislative mandate
contained in section 6 of the DSPE Act. Per contra, the respondent asserts
that the State can, in no circumstance, be an aggrieved person in the
matter of investigation into a serious offence by a specialized agency.
34. Questioning the locus of the State, Mr. Jha placed a strong reliance
on the judgments of the Supreme Court in the cases of Jasbhai Motibhai
Desai Vs. Roshan Kumar and Ors. 6, Satishkumar Nyalchand Shah Vs.
State of Gujarat & Ors. 7, and Satyanarayana Sinha Vs. S. Lal and
Company (P) Ltd. 8
35. The purport of these judgments is that in order to have a locus
standi to invoke the extraordinary jurisdiction under Article 226, the
petitioner should ordinarily be a person who has a personal or individual
6 (1976) 3 SCR 58
7 AIR 2020 SC 1158
8 (1973) 2 SCC 696
Shraddha Talekar, PS 21/54
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right in the subject matter of the petition, though in the case of some of
the writs like habeas corpus or quo warranto the said rule is relaxed or
modified.
36. Mr. Dada countered the submissions on the ground that the
challenge to the locus of the petitioner-State is wholly misconceived. In
view of the constitutional scheme, the State has every right to insist that
there is no encroachment over the domain of its authority. The
pronouncement in the case of State of West Bengal and Others (Supra),
according to Mr. Dada, is a complete answer to the challenge based on the
locus of the petitioner.
37. In the case of Committee for Protection of Democratic Rights
(Supra), the core issue which arose for consideration before the Supreme
Court was, whether, in the backdrop of the distribution of legislative
powers between the Union and the States, can the third organ of the State
i.e., the Judiciary, direct the CBI, an agency established by the Union to
do something in respect of a State subject, without the consent of the
State Government concerned? Answering the question in the affirmative,
the Supreme Court expounded the scope of constitutional prescription in
the matter of police, and the provisions of the Delhi Special Police
Establishment Act, 1946. Paragraph 69 of the judgment reads as under :-
"69. In the final analysis, our answer to the question
referred is that a direction by the High Court, in exercise
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of its jurisdiction under Article 226 of the Constitution,
to the 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. Being the protectors of civil liberties of the citizens,
this Court and the High Courts have not only the power
and jurisdiction but also an obligation to protect the
fundamental rights, guaranteed by Part III in general and
under Article 21 of the Constitution in particular,
zealously and vigilantly."
38. It is imperative to note that in the said case, though the question
that arose for consideration was in respect of the jurisdiction of the High
Court to direct investigation by CBI, in exercise of the powers under
Article 226 of the Constitution of India, yet the contours of the sphere of
authority of the Central Government and the State Government in the
matter of police, were expounded.
39. The hallmark of federalism is the distribution of executive,
legislative and judicial authority among the organs which are co-ordinate
yet independent. Under the constitutional scheme, there is a division of
the legislative power, in the form of the Union List, State List and
Concurrent list under Schedule VII. The executive authority corresponds
with the legislative powers. (Articles 73 and 162). In the context of the
controversy at hand, Entry 2 in List II reads as under :
Entry 2 List II:
"Police (including railway and village police) subject to
the provisions of entry 2A of List I."
Shraddha Talekar, PS 23/54
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Entry 2A of List I reads as under :
Entry 2A of List I:
"Development of any armed force of the Union or any
other force subject to the control of the Union or any
contingent or unit thereof in any State in aid of the civil
power; powers, jurisdiction, privileges and liabilities of
the members of such forces while on such deployment."
Entry 80 of List I is also relevant and reads as under :-
"Extension of the powers and jurisdiction of members of a
police force belonging to any State to any area outside
that State, but not so as to enable the police of one State
to exercise powers and jurisdiction in any area outside
that State without the consent of the Govt. of the State in
which such area is situated; extension of the powers and
jurisdiction of members of a police force belonging to any
State to railway areas outside that State."
40. A conjoint reading of the aforesaid provisions makes it abundantly
clear that Entry 2 in List II confers exclusive jurisdiction on the State in
the matters relating to Police, subject to what is provided for in Entry 2A
and Entry 80 of List I. The power of Union Legislature to provide for the
regular police force of one State to exercise power and jurisdiction in any
area outside that State can only be exercised with the consent of the State
concerned. Likewise, an investigation by an agency other than the State
Police is permissible only with the consent of the State concerned. This
distribution of legislative power is in accord with the principle of
federalism.
41. The provisions of Delhi Special Police Establishment Act, 1946 are
Shraddha Talekar, PS 24/54
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in tune with the aforesaid constitutional scheme. Section 5 of the DSPE
Act empowers the Central Government to extend the powers and
jurisdiction of the Special Police Establishment to any area, in a State, not
being a Union Territory, for the investigation of any offence or classes of
offences specified in the notification issued under section 3. This general
power of expansion of powers and jurisdiction of the Special Police
Establishment to a matter within the province of a State is, however,
controlled by section 6 of the Act. It provides that the enabling provision
contained in section 5 shall not invest authority in a member of the Delhi
Special Police Establishment to exercise powers and jurisdiction in a State,
without the consent of the Government of that State. The power of the
State to investigate into a matter arising within its limits is thus inviolable,
except where the State gives the consent. The Central Government is,
therefore, not entitled to venture into investigation without the consent of
the State.
42. The question that comes to the fore is whether a State Government
is within its rights in raising a grievance that the investigation ordered by
the Constitutional Court is being carried out beyond the mandate of the
order? For an answer, it is necessary to keep in view the afore-extracted
constitutional and legislative prescription. Undoubtedly, the High Court in
exercise of jurisdiction under Article 226 of the Constitution of India is
Shraddha Talekar, PS 25/54
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empowered to order investigation by an agency other than the State
Police Force, if upon examination of material placed before it, the High
Court is satisfied that a case for ordering such investigation is made out.
However, this does not necessarily imply that investigating agency has an
unfettered authority to investigate into the matters beyond the scope of
the order. Such a view would render the aforesaid provisions otiose.
43. In this view of the matter, we are of the considered view, that the
State concerned has a vital interest in ensuring that the investigation,
even when ordered by a Constitutional Court, in a matter which otherwise
falls within the province of its authority, is within the bounds of the order
passed by the Constitutional Court. Therefore, the order of investigation
by the High Court would not give a carte blanche to the investigating
agency to venture into any matter de-hors the subject matter of the
proceedings before the High Court and thereby disturb the delicate
balance of power under the Constitution. From this standpoint, in our
view, the challenge to the locus of the petitioner-State, when it alleges
that the investigating agency is exceeding its mandate under the order of
the Court, is not sustainable.
44. This takes us to another barnacle attached to the hull of the
controversy. It was urged on behalf of the respondent and interveners that
the petition to quash certain portions of the FIR is untenable. What can be
Shraddha Talekar, PS 26/54
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sought is the quashment of the FIR as a whole or qua a particular accused.
However, the prayer to quash particular portions of the FIR is
inconceivable.
45. Mr. Dada joined the issue by canvassing a submission that where
the investigation agency ventures into the matters which are not at all
germane to the subject matter of the order to investigate, it makes no
difference whether a separate FIR is lodged or those matters are included
in one and the same FIR. To urge that, in such a scenario, the aggrieved
party cannot seek quashment of those parts is missing the woods for the
trees.
46. On first principles, we do not find that there is any impediment in
seeking to restrain an investigating agency from investigating into a
matter which is alleged to be beyond the province of its authority and
jurisdiction. If a particular aspect of the matter is demonstrably beyond
the legal competence of an investigating agency and the rest falls within
its authority then the Court, in exercise of its extraordinary powers, would
be justified in quashing that part of the first information report. The rider
is that there should be a legal bar to investigate into that matter. One of
the grounds enumerated in the case of State of Haryana & Ors. Vs. Ch.
Bhajan Lal and Ors. 9 on which the FIR can be quashed is an express legal
bar engrafted in any of the provisions of the Code or the concerned Act
9 AIR 1992 SC 604
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(under which a criminal proceeding is instituted) to the institution and
continuance of the proceedings. This ground is not diluted where a part of
the FIR is shown to be within the authority of investigating agency.
47. A useful reference, in this context, can be made to a judgment of
the Supreme Court in the case of Ishwar Pratap Singh and Others Vs.
State of Uttar Pradesh and Another 10
, wherein it was enunciated, inter-
alia, that there is no requirement that the charge-sheet has to be quashed
as a whole and not in part. The aforesaid analogy, in our view, applies
with equal force in a case where the investigating agency, according to the
petitioner, is allegedly investigating into a matter beyond its jurisdiction
along with a matter which is within its authority. We, therefore, find
considerable substance in the submissions of Mr. Dada that the fact that
the matters which are allegedly stated to be beyond the authority of CBI
are included in the FIR, in respect of matters being investigated by the
order of the Court, does not disentitle the petitioner to seek quashment
thereof.
48. This propels us to the core issue as to whether the inclusion of
afore-extracted 4th and 5th unnumbered paragraphs and the investigation
in that context is beyond the remit of the order passed by this court on 5 th
April 2021. For an answer, it may be apposite, at this stage itself, to note
the gravamen of indictment in the letter of Shri Param Bir Singh and how
10 (2018) 13 SCC 612
Shraddha Talekar, PS 28/54
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the Division Bench dealt with the said allegations. For the purpose of the
determination of the controversy at hand, the following allegations appear
relevant :
"6 At one of the briefing 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
official 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 thereafter, the Hon'ble Home Minister had
called Shri Vaze to his official 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'ble
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 office 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
Shraddha Talekar, PS 29/54
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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 officers and giving
them instructions in respect of the course to be followed
by them in performance of their official duties. The
Hon'ble Home Minister has been calling my officers at his
official residence bypassing me and other superior officers
of the Police Department to whom those respective Police
Officers report to. The Hon'ble Home Minister has been
instructing them to carry out official assignments and
collection schemes including financial 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 officers.
..........................
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 officers from the Mumbai Police to his official
residence at Dnyaneshwar for giving instructions to adopt
a specific 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 qua me and for the truth to emerge
insofar as his association with political functionaries is
concerned."
Shraddha Talekar, PS 30/54
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49. Evidently, the aforesaid allegations bear out the gravity of the
situation. The allegations were not restricted to lack of probity in
performance of public duty but the administration of law was itself put to
test of character. Faced with such crises of public confidence in the
enforcement of law, the Division Bench premised the directions for an
independent and impartial investigation, on the imperative necessity to
restore the public confidence.
50. The observations in paragraphs 75 and 80 of the judgment deserve
extraction. They read as under :-
"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 required 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 enquiry 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
Shraddha Talekar, PS 31/54
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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 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' confidence in the
police machinery in the State. Such allegations,therefore,
cannot remain unattended and are required 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 officials. This Court
cannot be a mere spectator in these circumstances. There
is certainly a legitimate public expectation of a free, fair,
honest and impartial inquiry 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
requirement of the rule of law. To instill public
confidence and safeguard the Fundamental Rights of the
citizens, it is necessary that an inquiry 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."
(emphasis supplied)
51. Professedly without questioning the necessity of an impartial
investigation, the State assails the investigation into the matters referred
to in 4th and 5th unnumbered paragraphs on the premise that the Division
Bench had not at all considered the issue, sought to be raised therein, and
thus, the investigation is without jurisdiction. The linchpin of the
Shraddha Talekar, PS 32/54
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submission of Mr. Rafique Dada was that in the order dated 5th April 2021,
the Division Bench was extremely careful and cautious in defining and
restricting the contours of preliminary enquiry and the consequent
investigation, if required. The Division Bench did not deal with the
petitions of Shri Param Bir Singh and Mr. Ghanshyam Upadhyay. The
material which was explicitly stated to have been taken into account was
the complaint of Dr. Jaishri Patil, to which the letter of Shri Param Bir
Singh was annexed.
52. The submission appears factually well grounded. The Division
Bench made it explicitly clear in paragraph No.50 of the judgment that
the controversy which was common to those petitions, could be taken care
of within a narrow compass by deciding whether, if at all, and to what
extent, if any, action on the complaint of Dr. Patil should be directed to be
taken. The Division Bench thereafter went on to consider the justifiability
of directing inquiry/investigation on the basis of the complaint of Dr. Patil.
In paragraph 55, the Division Bench posed unto itself, the following
question :
"55 The Cr.WP of Dr. Patil raises an important
issue of lack of enforcement of law by the police.
Does this per se warrant entertainment of the
CrWP? Let us explore the answer."
Shraddha Talekar, PS 33/54
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53. Mr. Rafique Dada would further urge that the fact that the transfers
and postings of police officers, adverted to in unnumbered 5 th paragraph,
was expressly excluded from the scope of inquiry by the Division Bench is
underscored by the observations in the concluding paragraph of the said
order, 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 officers and for
enforcement of the directions in Prakash Singh (supra)
before the appropriate forum in accordance with law, if
so advised."
54. In the light of the aforesaid clear and unequivocal direction as to
what was to be inquired into and interdict against venturing into the
aspect of transfer and posting, the action of the respondent-CBI in
surreptitiously including those matters is legally unsustainable, urged Mr.
Dada. The general principle that in the course of investigation into the
offence reported in the FIR, the investigating officer has the authority to
investigate into the other offences, found to have been committed in the
course of the same transaction or occurrence, under section 157 of the
Code of Criminal Procedure, 1973, is inapplicable to the investigation
which is ordered by a constitutional court in the absence of the sanction
under section 6 of the DSPE Act, submitted Mr. Dada.
55. Since the sheet anchor of aforesaid submission was the judgment of
the Supreme Court in the case of Ms. Mayawati (Supra), it may be
Shraddha Talekar, PS 34/54
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appropriate to consider the factual backdrop thereof and the enunciation
of law therein.
56. In the case of Ms. Mayawati (Supra), the Supreme Court had
directed an inquiry by CBI to find out as to who had cleared the
construction of 'Taj Heritage Corridor Project' at Agra, for what purpose it
was cleared without obtaining necessary sanction from the department
concerned and the release of Rs. 17 Crores without proper sanction.
Pursuant to the said direction, in addition to a FIR registered against the
officers and persons concerned, another FIR dated 5 th October 2003 was
registered against the petitioner therein under section 13(2) read with
section 13(1) of the Prevention of Corruption Act, 1988. The Supreme
Court found that there was no direction to lodge another/second FIR
against the petitioner under the Prevention of Corruption Act, 1988. Thus,
the FIR and the investigation pursuant thereto were quashed.
57. The observations of the Supreme Court in paragraphs 27 and 28,
which make the factual backdrop abundantly clear, read as under :-
"27 A perusal of the orders prior to the order
dated 18-09-2003 and several directions in the order
dated 18-09-2003 clearly show that this Court was
concerned with illegality/irregularity committed by the
officers/persons in carrying out the Taj Heritage
Corridor Project. The main allegation relates to an
amount of Rs. 17 crores which was released by the
State Government without proper sanction. It is also
clear that in order to find out who cleared the project
and for what purpose it was cleared without obtaining
necessary sanction from the Department concerned
Shraddha Talekar, PS 35/54
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and whether there was any illegality/irregularity
committed by the officers/persons, this Court thought
an inquiry by CBI was considered necessary. In such a
situation, the CBI was directed to interrogate and
verify their assets. As rightly pointed out by Mr. Harish
Salve, there was no occasion for this Court to consider
the alleged disproportionate assets of the petitioner
separately that too from 1995 to 2003 when
admittedly Rs.17 crores were released in September,
2002.
28 A thorough scrutiny of all the orders
including the specific directions dated 18-09-2003
clearly show that the same was confined only in
respect to the case relating to Taj Corridor Project
which was the subject-matter of reference before the
Special Bench. It is relevant to point out para 13(f) of
the order dated 18-09-2003 which makes it clear that
the CBI could have lodged only one FIR No. R.C.
0062003A0018 dated 05-10-2003. In other words,
inasmuch as there being no consideration of alleged
disproportionate assets at any stage of the proceedings
while dealing with the Taj Corridor matter, there could
not have been and in fact there was no such direction
to lodge another FIR being No. R.C. 0062003A0019
dated 05-10-2003 exclusively against the petitioner
under the P.C. Act."
58. In the backdrop of the aforesaid facts, the legal position was
exposited in paragraph 30, which reads as under :-
"30 As rightly pointed out that in the absence of
any direction by this Court to lodge an FIR into the
matter of alleged disproportionate assets against the
petitioner, the Investigating Officer could not take
resort to Section 157 of the Code of Criminal
Procedure, 1973 (in short 'the Code') wherein the
Officer-in-charge of a Police Station is empowered
under Section 156 of the Code to investigate on
information received or otherwise. Section 6 of the
DSPE Act prohibits the CBI from exercising its powers
and jurisdiction without the consent of the
Government of the State. It is pointed out on the side
Shraddha Talekar, PS 36/54
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of the petitioner that, in the present case, no such
consent was obtained by the CBI and submitted that
the second FIR against the petitioner is contrary to
Section 157 of the Code and Section 6 of the DSPE
Act. It is not in dispute that the consent was declined
by the Governor of the State and in such circumstance
also the second FIR No. R.C. 0062003A0019 dated
05.10.2003 is not sustainable."
(emphasis supplied)
59. In opposition to this, Mr. Tushar Mehta, the learned Solicitor
General would urge that the aforesaid pronouncement is of no assistance
to the petitioner. Relying upon a line of decisions, which hold that once a
FIR is registered there can be no second FIR in respect of the same
occurrence/transaction and the investigating officer is empowered to
investigate into the offences other than the reported offences, namely,
,
and Amitbhai Anilchandra Shah
Vs. Central Bureau of Investigation & Anr. 14, Mr. Mehta stoutly submitted
that the matters referred to in the 4 th and 5th unnumbered paragraphs
essentially emanate from the complaint of Dr. Jaishri Patil and letter of
Shri Param Bir Singh. Those matters are intrinsically interlinked and
cannot be segregated from the allegations in the letter of Mr. Param Bir
Singh.
60. In the case of T.T. Anthony (Supra), the Supreme Court had
11 (2000) 6 SCC 181
12 (2011) 5 SCC 79
13 (2010) 12 SCC 254
14 (2013) 6 SCC 348
Shraddha Talekar, PS 37/54
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enunciated the principle in the following words :
"20 From the above discussion it follows that
under the scheme of the provisions of Sections 154,
155, 156,157, 162, 169, 170 and 173 of Cr.P.C. only the
earliest or the first information in regard to the
commission of a cognizable offence satisfies the
requirements of Section 154 Cr.P.C. Thus there can be
no second F.I.R. and consequently there can be no fresh
investigation on receipt of every subsequent information
in respect of the same cognizable offence or the same
occurrence or incident giving rise to one or more
cognizable offences. On receipt of information about a
cognizable offence or an incident giving rise to a
cognizable offence or offences and on entering the F.I.R.
in the station house diary, the officer in charge of a
Police Station has to investigate not merely the
cognizable offence reported in the FIR but also other
connected offences found to have been committed in
the course of the same transaction or the same
occurrence and file one or more reports as provided in
Section 173 of the Cr.P.C."
(emphasis supplied)
61. In Amitbhai Anilchandra Shah (Supra), the legal position was
postulated in the following terms :
"58.4 Further, on receipt of information about a
cognizable offence or an incident giving rise to a
cognizable offence or offences and on entering FIR in
the Station House Diary, the officer-in-charge of the
police station has to investigate not merely the
cognizable offence reported in the FIR but also other
connected offences found to have been committed in
the course of the same transaction or the same
occurrence and file one or more reports as provided in
Section 173 of the Code. Sub-section (8) of Section 173
of the Code empowers the police to make further
investigation, obtain further evidence (both oral and
documentary) and forward a further report(s) to the
Magistrate. A case of fresh investigation based on the
second or successive FIRs not being a counter case,
filed in connection with the same or connected
cognizable offence alleged to have been committed in
Shraddha Talekar, PS 38/54
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the course of the same transaction and in respect of
which pursuant to the first FIR either investigation is
underway or final report under Section 173(2) has
been forwarded to the Magistrate, is liable to be
interfered with by the High Court by exercise of power
under Section 482 of the Code or under Articles
226/227 of the Constitution."
(emphasis supplied)
62. In the case of Ms. Mayawati (Supra), the Supreme Court observed
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 Officer could not have taken resort to section 157 of the
Code of Criminal Procedure, 1973 to investigate into a matter which is not
covered by the order of the court. However, in our view, the aforesaid
principle cannot be stretched to the extent desired by the petitioner. In our
understanding, there is no incongruity in the judgment of the Supreme
Court in the case of Ms. Mayawati (Supra) and the line of decisions which
hold the view propounded in the case of T.T.Anthony (Supra). These two
lines of decisions, in our considered view, operate in different spheres.
63. If a matter is wholly unconnected with the subject matter in respect
of which inquiry or investigation is ordered by the constitutional court,
the investigating officer is not free to embark upon investigation by
resorting to the general provisions contained in section 157 of the Code.
In that event, the prohibition contained in section 6 of the DSPE Act
Shraddha Talekar, PS 39/54
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would operate with full force and vigor. However, if a matter is shown to
be connected with or emanate from the subject matter of the
inquiry/investigation ordered by the Court, in the sense that there is an
element of sameness or it partakes the character of res gestae, the
investigation therein would not stand foul of the provisions contained in
section 6 of the DSPE Act.
64. The ratio of the judgment of the Supreme Court in the case of Ms.
Mayawati (Supra) is required to be appreciated in the context of its
factual backdrop. In the said case, the Court was dealing with the
illegality/irregularity committed by the officers and persons who carried
out the Taj Heritage Corridor Project and the disbursement of amount of
Rs.17 Crores, which was allegedly released without sanction, in
September 2002. In contrast, on the basis of the order of the Court,
second FIR was registered against the petitioner therein with the
allegations of amassing assets disproportionate to the known sources of
income from the years 1995 to 2003. In such fact situation, the Supreme
Court held that there was no occasion for the Supreme Court to consider
the said allegation of amassing disproportionate assets and, resultantly,
the registration of FIR was without jurisdiction.
65. Mr. Tushar Mehta was justified in placing reliance on the judgment
of the Supreme Court in the case of M/s. Fertico Marketing and
Shraddha Talekar, PS 40/54
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Investment Pvt. Ltd. & Ors. (Supra) wherein the judgment in the case of
Ms. Mayawati (Supra) was explained and distinguished as under :
"28 Insofar as the reliance on the judgment of this
Court in Mayawati (supra), the only question that fell
for consideration before this Court was, as to whether
any of the orders passed by this Court amounted to
issuance of any direction to CBI to conduct a roving
inquiry against the conduct of the petitioner
commencing from 1995 to 2003 or as to whether the
directions were restricted to irregularities in the Taj
Corridor matter. The court in the facts found, that there
was no such finding or satisfaction recorded by this
Court in the matter of the disproportionate assets of the
petitioner on the basis of the status report dated 11-9-
2003 and as a matter of fact, the petitioner was not even
a party before this Court."
66. The crucial question which wrenches to the fore is whether the
matters referred to in 4th and 5th unnumbered paragraphs emanate from
or connected with the allegations in the letter of Shri Param Bir Singh.
Could those matters be said to be completely unrelated or disjointed from
the said allegations. The thrust of the submission on behalf of the
petitioner was that there was no allegation in the letter of Shri Param Bir
Singh regarding reinstatement of Shri Sachin Vaze. Nor there was a
reference, even remotely, that at the instance or with the knowledge of
Shri Anil Deshmukh, high profile cases were entrusted to Shri Sachin
Vaze. The matter of transfer and posting of officers is conspicuous by its
absence in the letter of Shri Param Bir Singh.
67. To appreciate the aforesaid submission, it is imperative to note that
Shraddha Talekar, PS 41/54
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crime was registered against Shri Anil Deshmukh and unknown others for
the offences punishable under section 120-B of the Penal Code and section
7 of the Prevention of Corruption Act for having entered into a criminal
conspiracy and attempted to obtain undue advantage for improper and
dishonest performance of the public duty.
68. We have extracted above, the allegations in the letter of Shri Param
Bir Singh. It was alleged that the then Home Minister was indulging in
misdeeds and malpractices. Shri Sachin Vaze was called at the residence
of the Home Minister several times. He was given a target to accumulate
Rs.100 Crores a month. The Personal Secretary of the then Home Minster
allegedly conveyed the direction to collect the funds to Shri Sanjay Patil,
ACP. Both the officers related the direction to collect funds to the then
Commissioner of Police. Apart from the allegation that the then Home
Minister directed the Police Officers to collect funds, there are allegations
as regards the interference in the matters which were being investigated
by the police officers. The Home Minister was repeatedly calling the
officers and giving them instructions in respect of the course to be
adopted by them in the performance of their official duty. They were
instructed to carry out official assignments and collection schemes
including financial transactions.
69. Evidently, the aforesaid allegations are not restricted to extortion of
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money. The matter of interference in the performance of the official duties
by the police officers, including the course of investigation in particular
matters, as alleged, has the propensity to erode the very edifice of
enforcement of law. From this stand point, the question as to whether the
reinstatement of Shri Sachin Vaze, who was allegedly repetitively called at
the residence of the then Home Minister and instructed to collect the
funds, was a part of the alleged larger conspiracy is a matter for
investigation. Indisputably, Shri Vaze had no opportunity to harness his
investigation skill, for 15 long years, before reinstatement. Was there any
quid pro quo in posting Shri Sachin Vaze in a specialized crime branch
and entrusting investigation of important and sensational cases is also a
matter which cannot be said to be totally unconnected with the
allegations in the letter of Shri Param Bir Singh. Where the alleged
objectives were to extort money and influence investigations, then
whether particular officers were brought in, or shifted out, to achieve the
desired objectives, forms an inseparable part of the alleged conspiracy.
Whether the officers, who were at the beck and call of the accused and
the alleged confederates, were given particular postings is again a matter
which necessarily flows from the allegations. (We have highlighted these
issues by way of illustration and we may not be understood to have
indicated either the scope of investigation or limits thereof.)
Shraddha Talekar, PS 43/54
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70. Mr.Tushar Mehta submitted with tenacity that the endeavour of the
petitioner is directed at persuading this court to interdict the
investigation. In view of the well-nigh settled position that investigation is
the exclusive domain of the investigating agency, in exercise of the
extraordinary jurisdiction under Article 226 and the inherent jurisdiction
under section 482 of the Code, this Court ought not to impinge upon the
province of the investigating agency. To lend support to this submission,
Mr. Tushar Mehta placed reliance on the judgment of the Privy Council in
the case of The King Emperor Vs. Khwaja Nazir Ahmad 15
and the
judgments of the Supreme Court in the cases of State of Bihar and Anr.
, and Divine Retreat Centre Vs. State of
Kerala & Ors. 17. Reliance was also placed on a recent three Judge Bench
judgment of the Supreme Court in the case of Neeharika Infrastructure
Pvt. Ltd. Vs. State of Maharashtra & Ors. 18, wherein the Supreme Court
has culled out the principles which would govern exercise of jurisdiction
by the High Court under section 482 of the Code and/or Article 226 of the
Constitution of India, inter-alia, as under :
"i) Police has the statutory right and duty
under the relevant provisions of the Code of
Criminal Procedure contained in Chapter XIV of the
Code to investigate into cognizable offences;
15 SCC OnLine Part 6 page 57
16 (1980) 1 SCC 554
17 (2008) 3 SCC 542
18 2021 SCC OnLine SC 315
Shraddha Talekar, PS 44/54
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ii) Courts would not thwart any investigation
into the cognizable offences"
71. Mr. Rafique Dada attempted to salvage the position by canvassing a
submission that the judgment of the Privy Council in the case of Khwaja
Nazir Ahmad (Supra) was rendered under a different statutory regime in
a unitary system of government. The said pronouncement may not apply
with equal force where it is pitted against the federal principle, which is a
basic structure of the constitution. Thus, according to Mr. Dada, the said
proposition that the investigation is the exclusive domain of the
investigating agency cannot be pressed into service to wriggle out of
situation of want of authority to investigate, in view of the bar contained
in section 6 of the DSPE Act.
72. We are afraid to accede to the aforesaid submission. Not for the
reason that the pronouncement in the case of Khwaja Nazir Ahmad
(Supra) is oft-quoted and time tested, but for the worth of the principle it
enunciates. The foundational premise of Khwaja Nazir Ahmad (Supra) is
not the abstract doctrine of separation of the roles of the police and
judiciary but the statutory scheme which demarcates the sphere of
authority. Thus we are not persuaded to countenance the submission
which seeks to erode the binding efficacy of Khwaja Nazir Ahmad
(Supra). However, if the matter does not properly fall within the province
Shraddha Talekar, PS 45/54
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of the authority of the investigating agency and there is an endeavour to
investigate into a matter by usurpation of authority, which the
investigating agency does not possess, then the principle that the
investigation is the exclusive province of the investigating agency would
not clothe the agency with the said authority.
73. The submission on behalf of the petitioner that the Division Bench,
(by making observations in paragraph 87 extracted above), gave liberty to
Shri Param Bir Singh to agitate the grievances regarding transfer and
posting of police officers and thereby indicated that the court did not take
cognizance of the said aspect, appears attractive at the first blush.
However, on a close scrutiny, the submission does not carry much
conviction. In the PIL petition, Mr. Param Bir had additionally sought the
following substantive prayer :-
"(b) To issue a writ of mandamus or any other
appropriate writ, order or direction directing the
Respondent No.1 to ensure that transfer/posting of
police officials are neither done on any consideration
of pecuniary benefits to any politician, nor in
contravention of the directions of the Hon'ble
Supreme Court in Prakash Singh & Ors Vs. Union of
India & Ors. (2006) 8 SCC 1, which were based on the
principle of insulating police machinery from
political / executive interference to make it more
efficient and to strengthen the rule of law."
74. The Division Bench, while recording the submissions of the counsel
of Shri Param Bir Singh, (in paragraph 27) noted that the purpose of the
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PIL petition was to rid the malaise in respect of transfers and postings of
officers of the Police Force at the behest of their political masters.
Incontrovertibly, the Division Bench did not consider the said prayer and
thought it appropriate to reserve the liberty to the petitioner to raise the
grievance before the appropriate forum.
75. In the aforesaid context, Mr. Tushar Mehta, the learned Solicitor
General canvassed a submission that the liberty granted to Shri Param Bir
in paragraph No.87 was in respect of agitating grievances to ensure
transparent transfer and postings in conformity with the directions of the
Supreme Court in the case of Prakash Singh, in future. It does not imply
that the Division Bench foreclosed the inquiry on the aspect that the
petitioner and others exercised undue influence over the transfer and
posting of police officials and thereby exercised undue influence over the
performance of official duties by those officers. Mr. Dada joined the issue
by inviting the attention of the Court to the interim relief sought by Shri
Param Bir Singh in the said PIL petition in the nature of direction to the
State to produce the file containing report of Mrs.Rashmi Shukla, the then
Commissioner (Intelligence). It was, thus, urged that the transfer and
postings, which were already effected, were sought to be put on the radar.
Since the court did not delve into that aspect of the matter, it is now
impermissible to venture into investigation in that matter.
Shraddha Talekar, PS 47/54
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76. The submission loses sight of the fact that the Division Bench, in
terms, observed that the issues raised in the letter were such that the very
faith of citizens in the functioning of the police department and credibility
of the State machinery was at stake and to instill public confidence and
safeguard the fundamental rights of the citizens, an independent probe
was necessitated.
77. Implicit in the allegation that funds were to be extorted from
specified and vulnerable sources, is the element that there would be either
no enforcement or laxity in enforcement of law. Moreover, the charge is of
criminal conspiracy. It is trite that it is the unlawful agreement and not its
accomplishment, which is the gist or essence of the criminal conspiracy.
Conspiracy is hatched in private or in secrecy. It is rarely possible to
establish a conspiracy by direct evidence. There is often multiplicity of
human agency and plurality of means. In the backdrop of the nature of
the allegations, whether the police officers were given particular posting
and assignments, so as to exercise undue influence over them, and also
reinstatement of Shri Vaze after 15 years, cannot be said to be matters
which are beyond the purview of the inquiry ordered by the court.
78. On a proper construction of the prayer clause (b) in the petition of
Shri Param Bir Singh and the observations of the Division Bench in
paragraph No.87, extracted above, we are persuaded to agree with the
Shraddha Talekar, PS 48/54
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submission of Mr. Tushar Mehta that the said prayer was with a view to
cleanse the system of transfer and postings of the police officials allegedly
made for extraneous consideration, in future. The reference to the report
of Mrs. Rashmi Shukla, the then Commissioner (Intelligence), in the
interim relief sought by Shri Param Bir Singh is required to be appreciated
in the light of the fact that in the wake of the controversy at hand, the
said report of Mrs. Rashmi Shukla was also a matter of discussion in
public domain. Even the Supreme Court, in its order dated 24 th March
2021, noted that there have been subsequent developments in the matter
as has been noted in terms of the report of Mrs. Rashmi Shukla,
Commissioner, State Intelligence Department.
79. The manner in which the State claimed to have dealt with the said
report assumes salience. The Division Bench recorded (in paragraph 40)
that Shri Kumbhakoni, the learned Advocate General, submitted on
instructions that the report of the the Commissioner, State Intelligence
Department, had been duly considered at the appropriate level and since
nothing of substance was found, the file was closed. If that is the
position, we are unable to appreciate the steadfast resistance on the part
of the State to share the said report with CBI.
80. In the alternative, Mr. Rafique Dada submitted that the exercise of
seeking the report submitted by Mrs.Rashmi Shukla, the then
Shraddha Talekar, PS 49/54
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Commissioner (State Intelligence Department) is actuated by the objective
of derailing the investigation in C.R. No.2/2021 registered by Cyber Police
Station, Mumbai against Mrs.Rashmi Shukla. The investigation in
C.R.No.2/2021 is underway. The consistent demand by the respondent to
furnish the said report thus amounts to unjustifiable interference in the
said investigation. We are unable to accede to this submission. It would be
suffice to note that there are adequate provisions to take care of a
situation where the same object constitutes material/evidence in more
than one investigation/trial.
81. During the course of the hearing, we were anxious to know as to
whether CBI would investigate into the acts and omissions of the officers/
persons who might have had a role in the matter, apart from the named
accused. Mr. Tushar Mehta, the learned Solicitor General assured the court
about the integrity of investigation. It was submitted that CBI would
conduct the investigation dispassionately. The investigation is issue-
centric. It was further submitted that it was not uncommon that the
person who sets the law in motion is eventually indicted post
investigation. The endeavour of CBI would be to honour the spirit of the
order whereunder the investigation has been directed.
82. Mr. Dada expressed an apprehension that a roving inquiry into the
transfer and posting of all officers may have a demoralizing effect on the
Shraddha Talekar, PS 50/54
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police force. The apprehension on the part of the State apparently stems
from the impression that all the transfers and postings may be put in the
dock. In our view, the aspect of transfer and posting of police officers,
referred to in 5th unnumbered paragraph of the FIR is essentially linked to
the allegations of abuse of official position by the then Home Minister and
his confederates.
83. The investigation agency can, in our view, legitimately inquire into
the aspect of transfer and posting of police officers so also reinstatement
of Shri Vaze after 15 years, to the extent those transfers and posting have
the nexus with the offences alleged against the then Home Minister and
his associates keeping in view the observations of the Division Bench in
the order dated 5th April 2021. Conversely, the order of the Division Bench
cannot be construed as giving unfettered authority to CBI to inquire into
the transfer and posting of the police officers generally, which do not
reflect upon the alleged acts and conduct expressly attributed to the then
Home Minister and his alleged confederates and the resultant offences.
84. We part with the judgment with the assurance that the officers of
the Delhi Special Police Establishment, a premier investigating agency, are
and must be fully alive to their responsibility. The duty of the police,
constituted under either the State enactment or Special Acts is to act in
accordance with the law of the land. They serve none but the law. Such
Shraddha Talekar, PS 51/54
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nature of the duty which the police discharge in a society governed by
rule of law, is described by Lord Denning in R. V. Metropolitan Police
Commissioner 19 as follows :
" I hold it to be the duty of the Commissioner of
Police, as it is of every chief constable, to enforce the law of
the land. He must take steps so to post his men that crimes
may be detected; and that honest citizens may go about their
affairs in peace. He must decide whether or no suspected
persons are to be prosecuted; and, if need be, bring the
prosecution or see that it is brought; but in all these things
he is not the servant of anyone, save of the law itself."
(emphasis supplied)
85. By way of abundant caution, we clarify that the observations
hereinabove have been made for the limited purpose of adjudicating the
challenge in the present Petition by the State and the same will have no
bearing on the determination of Writ Petition No. 1902 of 2021 (Param
Bir Singh s/o Hoshiyar Singh Vs. The State of Maharashtra & Ors .), Writ
Petition No. 1843 of 2021 (Param Bir Singh s/o Hoshiyar Singh Vs. The
State of Maharashtra & Ors.), Writ Petition No. 1901 of 2021 (Rashmi
Uday Shukla Vs. The State of Maharashtra & Ors. ) and Writ Petition No.
1934 of 2021 (Rachana Ravindra Bhoir Vs. The State of Maharashtra )
which are pending consideration before this Court and they shall be
decided on their own merits.
19 (1968) 1 All ER 763
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86. The upshot of aforesaid consideration is that subject to the
observations in paragraph Nos. 81 to 85 hereinabove, the petition
deserves to be dismissed.
87. Hence, the following order :
ORDER
(i) The Writ Petition stands dismissed.
(ii) In view of the disposal of the Writ Petition, interim
applications also stand disposed of.
Rule stands discharged.
(N. J. JAMADAR, J.) (S. S. SHINDE, J.)
***
88. At this stage, Mr. Dada, the learned Senior Counsel for the
petitioner-State submits that the statement not to insist upon
requisitioned documents from the State, which was made on behalf of
CBI, as recorded in the order dated 26 th May 2021, and is in operation till
date, may be continued for a period of two weeks.
89. Mr. Tushar Mehta, the learned Solicitor General submits that the
said statement on behalf of CBI was made in peculiar circumstances, and
in view of the dismissal of the petition, the respondent-CBI would not be
Shraddha Talekar, PS 53/54
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in a position to continue the statement which was made on 26 th May
2021.
90. Thereupon, Mr. Dada made an oral application of staying the effect
and operation of this judgment for a period of two weeks so as to facilitate
the petitioner-State to peruse the judgment and decide the future course
of action. This prayer is also resisted by Mr. Tushar Mehta, the learned
Solicitor General.
91. Since we have dismissed the petition finally by recording adequate
reasons and no restraint was in operation, apart from the aforesaid
statement made on behalf of CBI, we do not think it expedient to stay the
effect and operation of this judgment. Otherwise, it would amount to
interfering with the investigation, which is underway.
92. The oral application, thus, stands rejected.
(N. J. JAMADAR, J.) (S. S. SHINDE, J.)
Shraddha Talekar, PS 54/54
