Bom HC | Anil Deshmukh ‘prima facie’ committed cognizable offence, but No immediate FIR by CBI. Credibility of State machinery at stake: HC directs CBI to conclude preliminary investigation preferably within 15 days 

Bombay High Court: A Division Bench of Dipankar Datta, CJ. and G.S. Kulkarni, J. has directed the Central Bureau of Investigation (CBI) to conduct a preliminary enquiry into the complaints against the Home Minister of the State of Maharashtra, Anil Deshmukh. The Court’s order came after the former Commissioner of Mumbai Police, Param Bir Singh, and others moved the High Court seeking investigation into allegations of illegal money collection ordered by the Home Minister, Anil Deshmukh. While opining that the information furnished prima facie discloses commission of cognizable offence by Anil Deshmukh, and directing that preliminary inquiry be preferebly concluded within fifteen days, the Court held:

[Anil] 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.”

  1. Backdrop, Timeline and the Factual Matrix

In February, a vehicle laden with explosives was found parked at Altamount Road, Mumbai, near ‘Antilia’, the residence of Mukesh Ambani, the Chairman and Managing Direcotr of Reliance Industries Ltd. In this matter, on 25-2-2021, an FIR was registered with Gamdevi Police Station, Mumbai, and investigation was handed to the Anti-Terror Squad. Simultaneously, the National Investigation Agency (NIA) started conducting investigation. Soon thereafter, the owner of the vehicle died under mysterious circumstances. During NIA’s investigation, the role of one Sachin Vaze, a police officer attached to the Mumbai Crime Branch came under scanner and he was arrested.

On 17-3-2021, the incumbent Commissioner of Mumbai Police, Param Bir Singh was transferred. On 20-3-2021, Param Bir Singh, in a letter to the Chief Minister of Maharashtra, took exception to statements made against him by the Home Minister wherein he said that there were serious lapses committed by the Commissioner’s office, and Param Bir Singh’s transfer was not on administrative grounds.

In his letter to the Chief Minister, Param Bir Singh made some serious allegations stating that the Home Minister, Anil Deshmukh, had instructed Sachin Vaze to assist in collection of funds for the Home Minister, with a target of accumulating Rs 100 crores a month. As per further allegations, similar instructions were given by Anil Deshmukh to some other officers of the Mumbai Police. It was also alleged that Anil Deshmukh, on several occasions, called officers of the Mumbai Police to instruct them to adopt a specific course of action in police investigations. Param Bir Singh asserted that the Home Minister found his reservations and resistance undesirable and his transfer seem to be for extraneous and vindictive reasons.

On 21-3-2021, Param Bir Singh moved the Supreme Court under Article 32 of the Constitution seeking a writ of mandamus directing the CBI to conduct an impartial and fair investigation into the complaints against Anil Deshmukh, and to quash his transfer order. This writ petition was however withdrawn by Param Bir Singh with a liberty to approach the High Court. Availing such liberty, Param Bir Singh approached the High Court on 24-3-2021, filing a Public Interest Litigation (PIL).

On 21-3-2021 itself, one Dr Jaishri Laxmanrao Patil lodged a complaint with the Malabar Police Station and the Director, Anti-Corruption Bureau of the CBI in the same matter. No action was taken on the complaint, which prompted Dr Patil to file a Criminal Writ Petition in the present matter before the High Court seeking direction to CBI/ED to investigate the matter.

  1. Analysis

2.1. Need for an FIR

There was much debate at the Bar in respect of the omission or failure to furnish information to/lodge a complaint before the police for the same to crystallize into an FIR, which could be investigated. According to the High Court, the issue paled into insignificance in view of the disclosure made by Dr Patil of she having lodged a complaint disclosing commission of cognizable offence on 21-3-2021 and that such complaint was not given the attention that it deserved. Had such disclosure been made at the inception of hearing, much of the early exchanges may not have been necessary at all and could be avoided.

2.2. Maintainability of Param Bir Singh’s PIL

The High Court refused to be drawn into the larger controversy raised by the respondent State on the aspect of maintainability of the PIL filed by Param Bir Singh and another PIL filed by another petitioner (there were a total of three PILs including that of Param Bir Singh and one Criminal Writ Petition of Dr Patil, which were heard together). The controversy, in the Court’s opinion, which was common to the 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.

2.3. Maintainability of Dr Patil’s Criminal Writ Petition

The High Court noted that registration of a case is a sine qua non for starting an investigation. The jurisdictional fact for setting the criminal law in motion in the present case was traceable in the Criminal Writ Petition of Dr Patil, who provided a crucial breakthrough by lodging a complaint in the matter.

2.3.1. Writ Petition versus Efficacious Alternate Remedy

The State’s objection to Dr Patil’s Criminal Writ Petition was primarily grounded on existence of an efficacious alternative remedy before the Magistrate under the CrPC, which she had not availed of.

The Court explored the answer to the question: The Criminal Writ Petition of Dr Patil raises an important issue of lack of enforcement of law by the police. Does this per se warrant entertainment of the Criminal Writ Petition?

In the context of the nature of the concern expressed in the Criminal Writ Petition, the Court considered that the restriction to be kept in mind in deciding the question of entertainability is, whether there exists any equally efficacious alternative remedy in a criminal court and even if such a forum of redress is available, should the writ court entertain the writ petition. The Court found answer to this stating that where the facts of any case are such that the remedy provided by the law is found to be inadequate or inefficacious to the judicial mind, a writ petition may be entertained and decided. Provisions in Section 23 of the Police Act, 1861 and the CrPC cast a duty on the police to prevent commission of offence and to bring an offender to justice. Where a person or authority is vested with a duty by specific statutory provisions, to compel such person or authority to perform such duty is certainly within the power and jurisdiction of a writ court.

[T]he courts shall not countenance violation of Constitutional principles by anyone, howsoever high an office he occupies, and hence while acting as the sentinel on the qui vive and being always there as a watch guard of the Constitution to repel any attack on it, the courts would ensure that the democratic values enshrined in the Constitution are respected and the ideals upheld.

On this point, the High Court relied on several decisions of the Supreme Court including, Municipal Council, Ratlam v. Vardichan, (1980) 4 SCC 162; Union of India v. R. Redappa, (1993) 4 SCC 269; and N. Kannadasan v. Ajay Khose, (2009) 7 SCC 1.

While finally deciding this point, the Court held that it is not unknown that despite the existence of a remedy, the remedy against the particular mischief complained of and the redress sought for, at times, might be of no avail. It would be opposed to Constitutional philosophy if relief is refused only on the ground of existence of an alternative remedy, which may not be equally efficacious. Therefore, if a case presented before a writ court appears to it to be extraordinary, which the Criminal Writ Petition of Dr Patil indeed is, there is no bar that could operate for entertaining the same. After all, the rule which requires exhaustion of an alternative remedy is a rule of convenience and discretion, rather than a rule of law.

[I]t is indeed unheard of and unprecedented that a Minister could be so openly accused of wrongdoings and corrupt practices by none other than a senior police officer attracting wide attention from all and sundry.”

2.4.  Cognizable Offence (prima facie)

The High Court perused the complaint of Dr Patil to consider whether it makes out a prima facie case of a cognizable offence. It was clarified that examination of the veracity and/or credibility of the allegations contained therein is not the Court’s task at this stage. Dr Patil annexed to her complaint, a copy of Param Bir Singh’s letter to the Chief Minister.

As per the Court prima facie opinion, the information furnished therein discloses commission of cognizable offences by Anil Deshmukh and should have been acted upon in the manner required by the CrPC, and as judicially interpreted by the Supreme Court in Lalita Kumari v. State of U.P., (2014) 2 SCC 1.

2.5. CBI Investigation

The High Court noted that a CBI inquiry cannot be ordered as a matter of routine or merely because a party makes an allegation. But, if after considering the materials on record, the Court concludes that such materials disclose a prima facie case calling for investigation by the CBI, the Court can make the necessary order. Reliance was placed on Common Cause v. Union of India, (1999) 6 SCC 667 and T.C. Thangaraj v. V. Engammal, (2011) 12 SCC 328, among others. The Court opined that w]hen high officials are likely to be involved and a question of public confidence in the impartial working of the State agencies arises, the writ court in exercise of its jurisdiction under Article 226 of the Constitution is certainly not powerless to order such inquiry and investigation by the CBI.

It was noted by the Court that Dr Patil had submitted her complaint to the Senior Police Inspector of the Malabar Hill Police Station on 21-3-2021; however, except for making an entry in the Inward Register, no action whatsoever, was initiated. The allegations made by Param Bir Singh in his letter dated 20-3-2021, which triggered Dr Patil to lodge the complaint are 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.

2.6. Preliminary Inquiry

While holding that 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, the Court also noted the caution in P. Sirajuddin v. State of Madras, (1970) 1 SCC 595, wherein the Supreme Court held that before a public servant is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The means adopted no less than the end to be achieved must be impeccable.

  1. Directions

Concluding the discussion, the High Court ordered the following:

3.1. Although there is no immediate reason to direct registration of an FIR by the CBI based on Dr Patil’s complaint, interest of justice would be sufficiently served if the Director, CBI is directed to initiate a preliminary inquiry into the complaint of Dr Patil which has the letter of Param Bir Singh addressed to the Chief Minister, as an annexure.

3.2. Such preliminary inquiry 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 the instant order.

3.3. Once the preliminary inquiry 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.

3.4. Param Bir Singh 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 v. Union of India, (2006) 8 SCC 1, before the appropriate forum in accordance with law, if so advised.[Param Bir Singh v. State of Maharashtra, 2021 SCC OnLine Bom 516, dated 05-4-2021]


Advocates who appeared in this case:

Mr. Vikram Nankani, Senior Advocate a/w Dr. Birendra Saraf and Mr. Sharan Jagtiani, Senior Advocates, a/w Mr. Subodh Desai, Mr. Chetan Kapadia, Mr. Sunny Punamiya and Mr. Akshay Bafna, Advocates for Petitioner.

Mr. A.K. Singh and Mr. Piyush Singh, Advocates for Applicant/Intervenor in I.A. St. No. 6356/2021.

Mr. A.A. Kumbhakoni, Advocate General a/w Mr. Deepak Thakare, Public Prosecutor, a/w Mr. Akshay Shinde, “B” Panel Counsel and Mr. Manoj Badgujar, Advocate for State.

Mr. Anil C. Singh, Additional Solicitor General a/w Mr. D.P. Singh, Mr. Amogh Singh and Mr. A.A. Ansari, Advocates for Respondent nos. 2 and 3.

Dr. Jaishri L. Patil, Petitioner-in-person.

Mr. A.A. Kumbhakoni, Advocate General a/w Mr. Deepak Thakare, Public Prosecutor, a/w Mr. Akshay Shinde, “B” Panel Counsel and Mr. Manoj Badgujar, Advocate for State.

Mr. Subhash Jha, Mr. Nilesh Ojha a/w Mr. Samir Vaidya, a/w Mr. Harekrishna Mishra a/w Mr. Siddharth Jha, Mr. Abhishek Mishra a/w Mr. Munish Hemani i/b Law Global for Petitioner.

Mr. A.A. Kumbhakoni, Advocate General a/w Mr. Deepak Thakare, Public Prosecutor, a/w Mr. Akshay Shinde, “B” Panel Counsel and Mr. Manoj Badgujar, Advocate for State.

Mr. Alankar Kirpekar and Mr. Shekhar Bhagat, Advocates i/b Maglegal for petitioner.

Mr. A.A. Kumbhakoni, Advocate General a/w Mr. Deepak Thakare, Public Prosecutor, a/w Mr. Akshay Shinde, “B” Panel Counsel and Mr. Manoj Badgujar, Advocate for State.

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