Manohar Lal Sharma vs Union Of India & Ors
2015 Latest Caselaw 9380 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of decision: 17th December, 2015

+                              W.P.(C) No.6414/2013

       MANOHAR LAL SHARMA                      ..... Petitioner
                  Through: Petitioner-in-person.

                                  Versus

       UNION OF INDIA & ORS.                             ..... Respondents

                    Through:          Ms. Jasmeet Singh, CGSC with Mr.
                                      Pankaj Bansal, Assistant Director,
                                      Home Ministry.
                                      Mr. Pranav Sachdeva and Mr. Syed
                                      Musaib, Advs. for AAP.
                                      Mr. Anshuman Sinha and Mr. Vijay
                                      Kumar Pandey, Advs. for R-5.
CORAM :-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. The petition, filed as a Public Interest Litigation (PIL), seeks a

mandamus to the respondent No.1 Union of India (UOI) (Ministry of Home

Affairs) to register a criminal case against the respondents No.2 to 5 viz. Sh.

Shanti Bhushan, Sh. Prashant Bhushan, Sh. Arvind Kejriwal and Sh. Manish

Sisodia under Foreign Contribution (Regulation) Act, 2010 (FCRA) and to

conduct day-to-day trial proceedings within supervision of this Court. Ancillary

reliefs of seizure of accounts and funds secured by the respondents No.2 to 5 in

the name of Aam Aadmi Party (AAP) and other societies / entities is also

claimed.

2. It is inter alia the case in the petition that though the petitioner had made

a complaint dated 20th August, 2011 in this regard to the respondent No.1 UOI

and upon UOI not taking any action thereon had also earlier filed W.P.(C)

No.3412/2012 before this Court but this petition was being filed upon fresh

cause of action within the admitted facts having accrued to the petitioner.

3. The petition came up for admission on 11th October, 2013 when the

learned Additional Solicitor General (ASG) appearing on advance notice stated

that the complaint received from the petitioner had been investigated and a

report was submitted to the Court in W.P.(C) No.3412/2012. Accordingly, the

matter was adjourned to 23rd October, 2013 with a direction to the learned ASG

to produce the said report. On 23rd October, 2013, the counsel for the

respondent No.1 UOI stated that the status report filed on 15 th January, 2013 in

W.P.(C) No.3412/2012 pertained to evaluation done in the year 2012 with

respect to the accounts of the Civil Society @ Team Anna and that UOI would

look into the allegations in the petition and if need be call for relevant

information pertaining the monies received by AAP from donors abroad.

4. The petitioner filed CM No.521/2014 for a direction to the respondent

No.6 Ford Foundation to enquire and report about their association with the

respondents No.2 to 5. The petitioner also filed an additional affidavit dated

16th November, 2013 making certain other averments as to the collection of

donation from private sources by the consortium of respondents No.2 to 5.

5. On 29th January, 2014, the learned ASG appearing for the respondent

No.1 UOI stated that certain queries had been made from the respondents

pertaining to allegations in the petition and response whereto was awaited and

the verification would be completed thereafter.

6. Vide order dated 5th February, 2014, on oral application of the petitioner,

AAP was impleaded as respondent No.7 and a response called therefrom. A

counter affidavit has been filed on behalf of the said respondent No.7 AAP

responding to the allegations made in the petition and to which a rejoinder has

been filed by the petitioner.

7. By order dated 12th March, 2014 respondent No.1 UOI was directed to

file its counter affidavit and has filed an affidavit dated 6 th May, 2014 inter alia

stating i) that it had filed a status report with respect to the allegations made by

the petitioner in the earlier writ petition being W.P.(C) No.3412/2012 and after

pursuing which status report, vide order dated 24th January, 2014, the said writ

petition was closed observing that the irregularities found were not serious

enough to warrant criminal investigation; ii) that a questionnaire had been sent

to the Chief Functionary of AAP pertaining to the allegations made in the

present petition and to which a response had been received; and, iii) further

information had been sought from AAP and the allegations of the petitioner

with regard to violation by respondents No.2 to 5 of FCRA were being enquired

into.

8. The petitioner has filed CM No.2641/2015 seeking directions to the

Central Bureau of Investigation (CBI) / National Investigation Agency (NIA) to

investigate against the respondents as well as the officials of Home Ministry

who according to the petitioner had filed un-investigated status report in

W.P.(C) No.3412/2012.

9. We have heard the petitioner appearing in person, the counsel for the

respondent UOI and the counsel for the respondent AAP. The counsel for the

respondent UOI during the hearing also handed over the record of the Ministry

of Home Affairs pertaining to the matter in a sealed cover and which has also

been perused by us.

10. While the petitioner and the counsel for the respondent UOI reiterated

their contentions as recorded by us hereinabove, the counsel for the respondent

no.7 AAP vehemently contended that the respondent no.7 AAP is being

targeted for such investigation and when it is the case of the respondent no.7

AAP that all other major political parties should be investigated on the same

lines and that the respondent no.7 AAP has nothing to hide and functions in a

transparent manner. It was also contended that the respondent no.7 AAP has in

fact approached to the Supreme Court for investigation into funding of all

political parties. The petitioner, in addition contended that the investigation also

has to be regarding the violations of Foreign Exchange Regulations Act, 1973

and Foreign Exchange Management Act and that the Central Investigation

Agency (CIA) of the United States of America also has to be involved owing to

the involvement of the Ford Foundation. He has during the hearing also handed

over several news clippings including of International Journals, downloaded

from the internet. In fact after the judgment had been reserved also the

petitioner mentioned the matter and has handed over an affidavit of one Mr.

Neil Terrance Haslam, S/o Mr. Roland Terrance deposing that the respondents

in this petition, against whom investigation is sought, have a direct connection

with one Mr. Daud Ibrahim residing in Pakistan who has arranged funds for the

respondents through USA, Canada. Certain other allegations have also been

made which we do not deem it necessary to record here.

11. We have considered the rival contentions.

12. Though undoubtedly the Courts, in exercise of their power of judicial

review, are entitled to direct investigation into an offence alleged to have taken

place, as reiterated by the Constitution Bench in State of West Bengal Vs.

Committee for Protection of Democratic Rights West Bengal (2010) 3 SCC

571 and such direction would not amount to infringement of the doctrine of

separation of powers but such power should not be exercised just for asking or

to satisfy the ego or vindicate the prestige of a party interested in such

investigation and only if find such a direction necessary in the facts and

circumstances of the case/situation.

13. In our view, the Courts would be justified in issuing such a direction only

if were to find prima facie an offence to have been committed and the

Investigating Agency, for whatsoever reason, unwilling to act lest investigate or

if find the investigation though undertaken, to be not a fair one or when find the

gravity of the offence prima facie found by the Court to be such which requires

investigation by a specialized agency, to restore public faith in the process of

law.

14. In the facts of the present case we do not find either of the said

requirements to have been met. Not only has the State/State Agency not refused

investigation or a willingness to look into the allegations made in the petition

against the respondents but from a perusal of the records produced before us we

find the State to have, in the context of each and every averment made in the

present case, launched an inquiry/investigation in accordance with law. The

petitioner has also not been able to make out a case of the likelihood of the

investigation against the respondents being not fair and proper, owing to

political factors or owing to the investigative agencies being under the

administrative control of the respondents. In fact, this Court had closed the

earlier writ petition filed by the petitioner finding no prima facie merit in the

allegations of the petitioner to call for an order by the Court in exercise of its

power of judicial review, to the investigative agencies to investigate.

15. Supreme Court, in Secretary, Minor Irrigation & Rural Engineering

Services, U.P. Vs. Sahngoo Ram Arya (2002) 5 SCC 521, set aside the

judgment of the High Court directing the Central Bureau of Investigation (CBI)

to hold an inquiry into the allegations made against the Minister. It was

reiterated that direction for investigation can be given only if an offence is

prima facie found to have been committed or a person's involvement is prima

facie established but a direction to investigate whether any person has

committed an offence or not, cannot be legally given; such a direction would be

contrary to the concept and philosophy of "LIFE" and "LIBERTY" guaranteed

under Article 21 of the Constitution. Finding that the High Court had issued the

direction without coming to a definite conclusion that there is a prima facie case

established to direct an inquiry and that the High Court had proceeded on the

basis of 'ifs' and 'buts', the said direction was set aside.

16. As far back as in S.N. Sharma Vs. Bipen Kumar Tiwari (1970) 1 SCC

653, while dealing with powers of Magistrate under Code of Criminal

Procedure, it was held that unless an extraordinary case of gross abuse of power

is made out by those in charge of investigation, the Court should be quite loathe

to interfere with the investigation, a field of activity reserved for the Police and

the executive.

17. Thus, only if a case of mala fide exercise of power by a police officer is

made out, would the Court interfere.

18. Supreme Court again in Babubhai Vs. State of Gujarat (2010) 12 SCC

254 reiterated that only in exceptional circumstances and in order to prevent

miscarriage of criminal justice the Court would interfere in investigation. Only

when there is a reasonable apprehension about justice becoming a victim

because of shabby or partisan investigation that the Court would step in and

exercise its extraordinary power. The said principle has been recently reiterated

in Mithilesh Kumar Singh Vs. State of Rajasthan (2015) 9 SCC 795.

19. In the present case, we do not find any reason as to why the investigative

agencies to whom the petitioner has already complained would not look into or

are not looking into the allegations or would not discover the truth.

20. We therefore do not find any case or the need for any direction to be

issued by the Court and dismiss this petition with the clarification that neither

should the dismissal of this petition be considered as this Court having

expressed any view on the merits of the allegations of the petitioner nor should

any observation herein be read as our having found any merit therein.

No cost.

RAJIV SAHAI ENDLAW, J

CHIEF JUSTICE th DECEMBER 17 , 2015 'gsr'/pp..