A petition filed by Ex-Mumbai Police Chief Param Bir Singh seeking a CBI probe against Maharashtra Home Minister, Anil Deshmukh is being heard by the Bombay High Court. A Bench headed by Chief Justice Dipankar Dutta is hearing the same.
Following are the live updates from the hearing:
Breaking - Court reserves the petition for orders on maintainability.
Nankani - The manner in which the Rashmi Shukla report has been buried calls for attention. Everything will be buried. writ jurisdiction is very wide.
Nankani reads the amendment in the Prevention of Corruption Act. Nankani- Even an inquiry with this new amendment under the under the PC Act is not permissible.
- 31 March 2021 6:36 Pm Adv Nankani - I know it's been a long day but just to deal with two points by the AG.
Nankani - I did raise a grievance before my transfer. Moreover, WhatsApp messages are also, both, before and after.
Adv Subhash Jha representing Upadhyay now begins arguing. Nagawwa vs Veranna Shivalingappa Koujalagi & Others of the Karnataka High Court Jha submits that investigation can be directed when there is grave suspicion.
Adv/PIL Petitioner Ghanshyam Upadhyay cites a judgement on locus. CJ observes that he is wearing a robe and band despite being a petitioner, asks him to go out and remove it. Upadhyay argues. CJ Datta - This is my court you will have to abide by the rules of the court.
CJ tells the AG to place the original judgement he is referring to, on record. "Today we are going to give the order on the preliminary objections raised by you.
AG - I am not scoring a great point. In the petition there are no allegations or contentions raised about resp. 3 and 5. AG - Adv Jaishree Patil's petition is copy paste. CJ Datta- What has happened about her complaint?
The court is having a discussion about who has been made a respondent in which petition. There are 3 PILs and 2 Writ Petitions.
AG from the judgement "It is not viable for a writ court to order the initiation of an investigation. That function clearly lies in the domain of the executive..."
AG now refers to the judgement of Kunga Nima Lepcha & Ors vs State Of Sikkim & Ors on 25 March, 2010
Court asks how would a committee be set up otherwise.
AG says that the SC has said in a reported judgement where adv Ghanshyam Upadhyay is the petitioner that PILs cant just be based on news reports. AG - The public has taken cognisance. This is immaterial.
AG - The same commissioner and HM we're working together for a year. Not even an eyebrow raised till the transfer order visited him.
Advocate General for State - All these allegations have started only after the transfer order was issued. Points out the WhatsApp chats.
ASG Anil Singh for CBI - It is for the court to decide but if the court pleases, we are ready to carry out the investigation, considering the seriousness of the matter.
Kirpekar - This is an extraordinary situation where the commissioner of police has levelled allegations against the home minister. "Either ParamBirSingh or the Home Minister is guilty."
Kirpekar - I am in the teaching business for the last 36 years. I was instrumental in starting of the 'ghanta gadi,' the garbage collection van. Says he is seeking a judicial inquiry.
Court calls on the next PIL petitioner. Adv Alankar Kirpekar for the chartered accountant cites the government's order appointing a commission yesterday.
Jha- If they are not taken to the court of law, they will not be punished.
Jha- If the richest man in country and the fourth richest man in the world is not safe, what will happen to the common man?
Jha- Therefore we pray that the ED also should get involved.
Jha is now referring to Zahira Habibullah Sheikh & Anr vs State Of Gujarat & Ors on 8 March, 2006. Jha- In our experience we have seen that if the investigation is given to a solitary agency the investigation is reduced to a mockery.
Jha now cites a judgement by Justice SC Dharmadhikari on a PIL by Kamlakar Shenoy where the court directed registration of an FIR in 2017.
Adv Jha cites a judgement where the Court directed registration of FIR in Charu Kishore Mehta's case.
Court is taking up production matters.
Court says it will take a ten-minute break. Will hear Adv Ghanshyam Upadhyay's PIL and the AG. Asks ASG Anil Singh if he wants to make any submissions.
Nankani - This answers it all. Court - So we will record this.
AG says the police officer is here, without the stations diary. AG states on instruction that in the inward register there is an entry but no mention of Jaishree Patil's complaint in the station diary.
Nankani- Here there are serious allegations, its a question of the entire force. "Justice should not only be seen to be done, it should be done."
Nankani refers to a judgement in the Saradha Scam CJ Datta- In the Saradha Scam, there were FIRs in Assam, Bengal, Bihar... Court states the SC stepped in as an interstate inquiry was required.
Nankani says there is one last document he wants to rely on. Refers to a part of the press release by Anil Deshmukh on 20th March, 2021, where he asks the CM to conduct an unbiased and fair inquiry. Nankani- For us it would be the CBI
Court asks about the station diary CJ Dutta- WE WILL NOT RISE TILL THE DOCUMENT COMES.
Nankani is now dealing with prayer clause B of his petition on arbitrary police transfers. Refers to Prakash Singh's judgement
Nankani answering the axe to grind statement Nanakani says his complaint shows he had complained much before his transfer, as well.
CJ Datta - Why should we exercise our jurisdiction at your instance? Even prayer B is not maintainable. Court says that ParamBirSingh had an axe to grind against the minister. Nankani- Rashmi Shukla didn't.
Adv Nanakani - Both, on my complaint which makes out a cognisable offence and Rashmi Shukla...It shows the idea is to procrastinate, evidence will be destroyed. AG objects to these statements.
Nanakani says he did not have any other remedy CJ Datta - If a person of the rank of the police commissioner says this, what about the general public?
Court points out that one of the paras is meant for him.
Patil's husband Gunratan Sadavarte is assisting her. Patil says she is relying on Sarangdhar's judgement. Court- Why are you also relying on PV Narsimharao's judgement? Patil- Because ministers are public servants.
Court asks Patil if she took any steps after filing the FIR. Adv Patil- I asked them to record my statement. Court- Is this there in your petition. Patil- NO
Court asks Jaishree Patil to argue her petition. She begins reading her complaint in Marathi. Patil- I submitted a complaint to the CBI as well. Court- very good
The court is reading Lalita Kumari's judgement.
Jha states that the answer is in Lalita Kumari. Jha- The complaint [letter] filed by Param Bir Singh discloses an offence. There should be a review of the progress since Lalita Kumari. (how many FIRs have been registered)
CJ praises Adv Jaishree Patil for approaching the police first. "At least one citizen has the guts to file before the police."
CJ- Earlier it was not rampant that FIRs were not registered. We should all feel ashamed that we are giving the liberty to the police to decide whether an FIR is registered or not. Everything gets sorted out if the police registered complaints.
CJ - By 4pm we want the station diary Mr Advocate General.
AG continues reading a judgement from March, last year.
The AG reads from Lalita Kumari's judgement regarding time for prelimnary investigation. CJ - Please get in touch with the officer-in-charge and get the station diary. The court says it wants to see if how procedures have been complied with.
Adv Jaishree Patil, who was asked about her locus by another bench yesterday, said she approached the Malabar Hill Police Station. CJ- So an FIR was registered? AG- No. I first want to rely on an SC judgement to explain.
Nanakani tries to speak about the apprehension of getting justice CJ Datta- Justice is a long way. States that first, there is an FIR then a charge-sheet...
The Court, however, states that the investigation has to be done by investigating agency. CJ Datta- Why has no FIR been lodged by anybody?
Nanakani - The Court can monitor the investigation.
CJ Datta - Tom if a prime minister or the Home Minister is involved, who will investigate? You want a super power from outside to investigate?
CJ Datta- The investigation triggered by an FIR. If the home minister or the CM may be involved, we can't set aside provisions of CrPC.
CJ Datta- The magistrate can inquire himself. When you want an investigation, FIR is the first step.
CJ- You don't trust the state police now. Go before the Magistrate u/s 200 of the CrPC. Nanakani- The magistrate cannot direct a CBI investigation.
CJ- What were your prayers before the SC, you said you will approach the HC on the same prayers. Now that you are facing some turmoil, you change your statement. Make up your mind Mr. Nanakani. Nanakani- If a lesser relief satisfies my grevience...
CJ asks for Lalita Kumari to be read. Sr Adv Nanakani asks for his statement to be recorded that he is only seeking an inquiry by CBI.
Court asks him for the judgements.
Jha - If the court would have taken suo motu cognisance, it would be perfect.
Jha- The inquiry is only an eyewash. This is not a case of extortion this is a case of loot and plunder. They should be treated as dacoits. This is not happening now, this has been going on forever.
Jha - This is a case where the home minister is under a cloud, the government is under a cloud. The offence comes up to 6000 crores a year.
CJ asks him to please address on prayer clause 'A' of his petition seeking a CBI investigation. Jha - There are several cases where investigation has been ordered by the highest court. Registration of an FIR triggers investigation, it is a process.
Jha- We are saying offences under different statutes are being committed. PMLA, because there is money laundering, also UAPA.
CJ Datta - This is a case where the court asked the CBI to assist it ordered an inquiry on the destruction of records.
Jha is appearing for Advocate Ghanshyam Upadhyay, who has also filed a PIL. He cites a judgement by Justice Chandrachud while he was at the Bombay High Court.
CJ Datta asks for judgements. Advocate Subhash Jha appearing for the petitioner in another PIL says he wants to cite judgements. CJ- Please Jha- My petition seeks investigation not only against the Home Minister but also against [Singh]
Nankani- This itself creates a cloud of suspision, that only lip service is being done. CJ Datta- We are only on prayer 'a'. (if the PIL is maintainable in the absence of an FIR)
Nanakani says the government has already acted on the complaint. CJ asks the AG AG- It is not a committee, Commission of Enquiry Act, 1952
Adv Nankani- Kindly see the facts of this case. The court can direct investigation in the absence of the FIR. Once that door is open to me, what I have to demonstrate is, this is the only door open to me.
CJ Datta- We are not saying for a moment the investigation should remain with the state police. Matter to be heard after lunch.
CJ Datta- You are a police commissioner, why should the law be set aside for you? Are police officers, ministers and politicians all above the law? Don't view yourself so high, the law is above you. Nankani- the law has evolved.
CJ Datta- It is only in very very rare cases the court can order an FIR. Please don't convert the HC into a magistrates court to order an FIR u/s 156(3). Approach the magistrate.
SJ Datta- Where is the FIR which should be entrusted to the CBI for investigation.
CJ Datta gives the example between a constable and a police officer, where the constable would be duty-bound to report his boss in case of wrongdoing. Nanakani- This a problem faced by the force at large.
Nanakani says that the State considers this issue important as they set up a judicial inquiry last night.
CJ - You are failing in your duty if you don’t file an FIR when you know an offence has been committed. Simply writing letters to the CM won’t do. We can pull you up for it. If any citizen finds an offence is being committed he is duty-bound to file an FIR.
CJ Datta - You are a police officer. If you find an offence has been committed you are duty, you are duty-bound to file an FIR. Why did you not do it?
Nankani - This is a PIL, your power is so wide that a letter can be converted into a petition. Your lordships are therefore not helpless.
CJ Datta - It is therefore in those cases that the court would accept machinery being set in motion. But there has to be some information..information of an offence.
CJ Datta - This is the law that there can be no investigation without FIR. There can be cases where there is a riot and someone calls up the nearby police station. Do they wait for writing down FIR or will the police acting in terms of CrPC 149 prevent offence?
CJ Datta - The petitioner is no lay man, he knows the CrPC well. If he has no faith in the state, he can approach others. This petition in the absence of an FIR prima facie appears to be without substance.
AG - The entire allegation of the extortion racket is clearly hearsay. He is not ready to take responsibility. He is not saying, I am saying this and if it is false "hang me."
AG submits that ParamBir Singh is a "disgruntled" litigant.
AG cites another judgement to show 'vested interests in filing the present PIL'
AG now reads from Param Bir's letter to the Chief Minister of Maharashtra, Uddhav Thackeray AG- This clearly shows the animosity between the two.
AG-But this judgement applies. There is a personal vendetta, personal motive. He conceals there is enmity between him and the Home Minister.
CJ Datta- That is not very unnatural. You should answer how it got out. He says he got it from a reporter after it was cited at a press conference. AG - very well. Continues reading.
AG is reading from Kushum Lata vs Union Of India And Ors on 12 July, 2006 AG- How did the petitioner get hold of the SIT report?
AG reading from another judgement "clean heart, clean mind" AG- Here both hand and mind is dirty
AG Kumbhakoni reading from a judgement.. "It is not proper for the court to give direction for initiation of an investigation."
Kumbhakoni continues to read from the petition where ParamBirSingh states that he has no personal interest in filing the present PIL AG- Patently false statement on oath. Can such a person be believed on any allegation at all?
CJ states that if the court is of the view, the petition can be converted into a private matter.
AG- He approached the SC. When he was confronted by the SC, he withdrew the petition. He has filed this petition on the criminal side. He reads the SC order to say that Param Bir Singh claimed he would approach the court the same day, but filed the petition three days later.
CJ asks the Advocate General to make submissions for the state. AG- First and foremost important point is that the PIL is not maintainable. He is vitally interested in both the prayers. In the body of the petition, he is playing the victim card.
CJ Datta- Let us look at the exceptions in Lalita Kumari. But tell us, has a complaint been made to either the state police or the CBI. Nankani- If the complaint is made to the highest functionary, and no action is taken, the court under 226 can always step in.
The court says there is no affidavit of ACP Sanjay Patil..t Court - Therefore assuming whatever you have said is correct, do you support the principle of law that without any FIR there cannot be an investigation?
Nanakani- These are not light statements. I have said that I have discussed these issues with the CM, Dy CM and President of the Nationalist Congress Party. I have named the perpetrators of the crime...
CJ Datta - Is there any first-hand information that the Home Minister said something in your presence? Is there an affidavit annexed of any of the officers that this was said to them or in their presence.
Adv Nankani cites Vishwanath Chaturvedi vs Union of India.
CJ Datta states the Bench is aware of the Lalita Kumari Judgement. CJ- Don't cite that, tell us one judgement that it is within our power to direct that an FIR should be lodged.
CJ Datta- But where is the FIR here to direct further investigation? An FIR is the first step into setting the criminal law in motion.
CJ Datta says that a case had come up in Bengal and it was ultimately decided by a Constitutional Bench, which said that a court can direct CBI investigation even when the State has withdrawn consent.
...investigation into the allegations should be transferred out of the State. Soon after, the state has withdrawn its consent for matters to be investigated by the CBI.
Nankani now refers to the letter forwarded by the DG to the Additional Chief Secretary (Home) Nanakani - There can't be stronger words by the highest functionary of the police department. He says that in order to be fair, free and independent...
Nankani continues reading the letter. Cites the report submitted by Fromer Commissioner Intelligence, Rashmi Shukla to the Director-General Police.
CJ Datta states that the court will have to be addressed on two aspects. Is the PIL maintainable and can the court direct investigation without an FIR. "You have to satisfy us on these points if you want any interim relief from us."
Nanakani- This is related to interference by political masters. I am not challenging my transfer order in this petition.
J Datta - Please do, because we are of the prima facie opinion that without an FIR there can be no investigation. In a PIL can any dispute related to service matters be adjudicated?
J Datta- Come to the prayers. Investigation into what? where is the FIR, what stopped you from approaching the police? Nanakani says he will cite Lalita Kumari's case
Nankani- These are hard facts coming from the person who occupied the highest police post, who served the force for three decades. This is something that needs to be looked into by an independent investigating agency.
Nankani mentions Waze's meeting with Deshmukh, where the former was allegedly asked to give the minister 100 crore cut. Nankani- The 1st episode shows the interference by ministers when the police officers trying to discharge their duties.The pressure they are under.
Nankani begins reading the letter.
J Datta asks why have so many people assembled in court? Why are you standing shoulder to shoulder? Matter continues Adv Nankani - My endeavour will be to show the letter contains hard facts.
J Datta- Please tell us the facts of the case first. Adv Nankani- A letter is written by a senior IPS officer. It has been 11 days since. Since the complaint is the starting point, I will go directly to it. I will show the problems being faced by the police force.
AG Ashutosh Kumbhakoni for the State - The state is eager and anxious to lift this cloud of suspicion. Clear these wild allegations. This is unnecessary affecting the morale of the force. I have a preliminary objection, the PIL is not maintainable.
Hearing begins. Sr Adv Vikram Nankani appears for Param Bir Singh.