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The National Human Rights Commission, NHRC, India has received a communication from Shri Henri Tiphagne, a human rights activist associated with Human Rights Defenders’ Alert, HRDA-India expressing grave concern over filing criminal cases by the CBI on 13.06.2019, against human rights organization “Lawyers Collective”,  and its other unnamed functionaries. It is mentioned that the FIR has been filed by the CBI on 13.06.2019, under various sections of the IPC, Foreign Contribution Regulation Act, 2010 (FCRA) and Prevention of Corruption Act (PC) 1988. The Ministry of Home Affairs, Government of India, New Delhi has reportedly written to the CBI on 15.05.2019 for further investigation.

The complainant has stated that the Lawyers Collective is a group of lawyers with a mission to empower and change the status of marginalized groups through the effective use of law and engagement in human rights advocacy, legal aid and litigation. It is also mentioned that Shri Anand Grover was the UN Special Rapporteur on Right to Health between August 2008- July 2014 and Ms. Indira Jaising was an Addl. Solicitor General of India between July 2009- May 2014 and a member of the UN Committee on the Elimination of Discrimination Against Women between 2009-2012. It is also stated that registration of criminal cases by the CBI against this organization is a step to intimidate and harass them for their human rights work.

The HRDA has requested the Commission to exercise the provisions laid down under Section 12 (b) of the PHR Act, 1993 and act on its long-standing request of urgently reviewing FCRA.

The Commission has also received a similar complaint from Ms. Maja Daruwala, Senior Advisor of Commonwealth Human Rights Initiative, expressing concern on Ms. Jaisingh that she and her husband are being victimized for the work that they have done in Court of Law in their capacity as lawyers. She also stated that a pattern of intimidation is going on against anyone who challenges Government policies. To substantiate her concerns, Ms. Daruwala referred Ms. Jaisingh about the timing of allegations made against her and her husband. She also stated that Ms. Jaising and Mr. Grover are long standing, reputed lawyers and Human Rights Defenders of high integrity, reputed both at home and abroad.

The Commission has carefully examined the contents of both the communications. The Commission while considering earlier communications received from various human rights defenders, have made it clear that the matter related to alleged violation of norms of FCRA and suspension of the organization by the Government of India due to alleged violation of norms is a subject which is outside purview of the Commission. However, with regard to submission made by Shri Henri Tiphagne and Ms. Maja Daruwala that filing of criminal charges against their organization is solely based on a report of the Ministry of Home Affairs pertaining to the year January, 2016 and there has been no change in circumstances or material on record since 2016 and hence, it has no material basis for invoking provisions of the IPC and other acts is definitely a subject matter of investigation by the investigating agency, but the Commission is also empowered under the Protection of Human Rights Act, 1993 to examine the issue to make it non-discriminatory and to avoid arbitrariness. Shri Henri Tiphagne has also stated that the MHA’s communication to the CBI and registration of the FIR has been after a petition was filed by an NGO, “Lawyers Voice” in the Supreme Court on 08.05.2019 where Supreme Court has issued the notice. Ms. Maja Daruwala has also noted that Ms. Jaisingh is known world over for her work on women’s rights, civil liberties and high standards of bar and bench in court proceedings.

Taking into consideration that Shri Anand Grover and Ms. Indira Jaising have been actively raising the issues pertaining to alleged violation of human rights across the country and looking into their active role in the civil society, the Commission finds it appropriate to forward copies of the complaints lodged by Shri Henri Tiphagne and Ms. Maja Daruwala to the Director, Central Bureau of Investigation, New Delhi calling for present status of the investigation in the matter within 4 weeks.”

[Press Release dt. 21-06-2019]

National Human Rights Commission

Case BriefsHigh Courts

Calcutta High Court: Protik Prakash Banerjee, J. granted interim protection from arrest to Rajeev Kumar in the Saradha Chit Fund case.

The petitioner, Rajeev Kumar, had approached the Court with an application for the quashing of the proceedings against him. The case of the respondent, the Central Bureau of Investigation, was that the petitioner, who was a member and in charge of the special investigation team formed by the State of West Bengal to investigate the Saradha Chit Fund case, had suppressed relevant documents and not handed them over to CBI when he was required to. Thus the CBI had accordingly summoned the petitioner for questioning.

The learned counsel for the petitioner, Sudipto Moitra appearing along with Gopal Chandra Halder, Navanil De, Rudradipta Nandy and Rajeev Kumar Jha, took a plea that notices served to the petitioners did not require custodial interrogation. The learned counsel also submitted that the fact that no FIR was registered against the petitioner and he wasn’t named as an accused or witness in the charge sheet filed by the CBI showed that no coercive process should be continued against the petitioner.

The learned counsel for the respondent, Y. Dastoor appearing along with Anirban Mitra and Samrat Goswami submitted that his client was attempting to ask the petitioner questions so as to decide in the first place, whether there was a reasonable basis to suspect him. The respondent had shown clear neutrality and that is why the petitioner was being given every opportunity to clear doubts against him.

The Court observed that the main question in the case was whether in absence of any allegation of offence under Sections 201, 202 of the Penal Code, 1860, could the given course of conduct be meted out to the petitioner. The Court opined that such a matter required more discussion and hence it was held that the petition would be heard by the regular Bench on 12-06-2019.

The Court further held that for a period of one month from the date of reopening or until further order, whichever was earlier, the petitioner would not be subjected to coercive process or be arrested on certain specified conditions that the petitioner had to adhere to.[Rajeev Kumar v. Central Bureau of Investigation, 2019 SCC OnLine Cal 793, decided on 30-05-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Appellate Tribunal for Prevention of Money Laundering: A Coram of Justice Manmohan Singh (Chairperson) and G.C Mishra (Member) allowed an appeal against the order passed by the Adjudicating Authority to retain seized assets based on a reasonable belief of the respondents.

In this instant case, an FIR was registered by the Central Bureau of Investigation in relation to allegations that Sterling Group of companies and the Sandesara Group were involved in bribing public officials in the period between the period 2005 to 2011 for obtaining tenders for the supply of goods, loans by banks and financial institutions. The statements of one Ajay Panchal, who was maintaining diaries in the year 2011 was recorded, and it was stated that Angadias, one of the appellants, were involved in the transfer of suspected proceeds of crime from Vadodara to Delhi between “Starling Biotech Limited and various individuals/entities based in Delhi”. There was a search of the appellant’s premises and properties were seized based on the FIR.

The Appellate Tribunal took note of the allegations against the appellants and ordered that the impugned orders were passed without any due consideration to the provisions of the Prevention of Money Laundering Act, 2000. The Appellate Tribunal, in its findings, opined that the allegations that the appellant’s services were used to transfer funds from the Sandesara Group to certain public officials did not hold true since the averment as to the whether there were any proceeds of crime was not concluded by the Directorate of Enforcement. The properties seized, pertained to the year 2017 whereas in the FIR and complaints it was noted that the transactions took place between 2005 and 2011. The Tribunal opined “the impugned orders have been passed without any application of mind and in a completely mechanical manner.”

 It was noted by the Tribunal that the Respondents failed to produce any material having relation or link between the appellants and Sterling Biotech Ltd., they also could not provide any proceeds of crime being generated from the transactions. The Petitioners have the option to enforce Section 8(8) of PMLA which provides an alternative statutory remedy to allow the release of property even during trials. The Appellate Tribunal noted that Sections 17 to 21 of PMLA provide that the outer limit up to the date for deciding the application for retention of property within the meaning Section 21(4) is 180 days from the date of seizure of any property or records and this said period cannot be extended. Thus, the Appellate Tribunal reiterated the provisions of Sections 17 and 18 of PMLA and stated that if the Adjudicating Authority has a legitimate reason for investigation of the said property, it should pass an order on the same and direct for investigation wherein the assets will be frozen for a period not exceeding 90 days, otherwise, the properties shall be defreezed.

The Appellate Tribunal ordered that in this instant case, the properties were seized for the purpose of investigation and the 90 days period had elapsed and there were no concrete averments against the appellants or their property hence the properties were to be defreezed.[Kapoor Chand Galbaji Prajapati v. Joint Director, Directorate of Enforcement, Delhi, FPA-PMLA-2231-2334/DLI/2018, decided on 02-05-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Mr Divya Prakash Sinha, Information Commissioner directed the Central Bureau of Investigation (CBI) to disclose and share information relating to corruption or human rights violation irrespective of the fact the information pertains to the intelligence or security organizations, its own officers or matters being investigated by the organization.

In a Right to Information (RTI) application filed by the Appellant, details regarding irregularities committed in allotting LPG distributorship by the officers of the Indian Oil Corporation Ltd., Jaipur and in particular against, Ranjeet Singh, were sought. However, the Central Public Information Officer (CPIO) refused to provide any information citing Section 24 (1) of the Right to Information Act, 2005 which states that the intelligence and security organizations are exempted from the Act, but if the issue pertains to corruption or human rights violation, the same shall not be exempted from the exclusion clause, and has to be disclosed under the RTI Act.

During the proceedings, learned counsel for the Respondent, R.S. Shekhawat, Deputy SP and Rep. of CPIO, Central Bureau of Investigation, Jaipur further referred to written statements of the CPIO sent to the Commission wherein it had been submitted that CPIO, CBI is obliged to provide information relating to an allegation of corruption against its own employees and not regarding cases of corruption being investigated by the CBI.

The Commission rejected the contention made by the Respondents and referred to the Delhi High Court judgment of CPIO, Intelligence Bureau v. Sanjiv Chaturvedi, 2017 SCC OnLine Del 10084, wherein it was held that the term “any information” in the proviso to Section 24 (1) includes all kinds of information. It further stated that “The proviso becomes applicable if the information pertains to allegations of corruption and human rights violation. The proviso is not qualified and conditional on the information being related to the exempt intelligence and security organizations. If the information sought, furnished by the exempt intelligence and security organizations, pertains to allegations of corruption and human rights violation, it would be exempt from the exclusion clause.” The High Court concluded that “the only conclusion that can be drawn is that, if the information sought pertains to allegation of corruption and human right violation, it would be exempt from the exclusion clause, irrespective of the fact that the information pertains to the exempt intelligence and security organizations or not or pertains to an Officer of the Intelligence Bureau or not.”

In view of the above, the Commission disposed this appeal stating that the aforesaid judgment shall be applicable in the instant case, and also directed the Director of CBI to sensitize its CPIOs on Section 24 of RTI Act by way of appropriate workshops. [Radha Mohan Sharma v. CPIO, Central Bureau of Investigation, 2019 SCC OnLine CIC 298, decided on 08-05-2019]

Case BriefsHigh Courts

Calcutta High Court: The Bench of Protik Prakash Banerjee, J., addressed a petition involving substantial questions of law as to the interpretation of the Constitution of India and requested the matter to be placed before Chief Justice/Acting Chief Justice.

Learned amicus curiae Mr Phiroze Edulji had stated in regard to the questions of law as to the interpretation of the Constitution of India, be referred to the Division Bench taking such cases for disposal within meaning of second proviso of Rule 1 of Chapter 2, Part II of the Appellate Side Rules or to Chief Justice/Acting Chief Justice to appoint Special Division Bench consisting of three or more Judges since a question of finality of decision of this Court would also be involved.

The substantial questions of law as to the interpretation of the Constitution that were present in the petition were as follows:

1. What is the effect of an order of the Supreme Court which stays the operation of a final order of a Division Bench of a High Court which holds that a Central Statute is not a valid piece of legislation?

2. Whether the Delhi Special Police Establishment Act, 1946 is a valid piece of legislation?

3. Whether the Central Bureau of Investigation is an organ or a part of Delhi Special Police Establishment?

4. In a Constitution having federal form with distinct feels of legislation apportioned to the federal legislature and/or the federating legislature with corresponding executive power where law and order and their maintenance are part of the power given to the federating states whether a federal police force even for investigation can be made by central legislation without following the procedure established by the Constitution of India for central legislature making laws which would be enforceable in each of the States?

5. Whether admission of special leave petition and stay of a final judgment of nature referred to above would mean that Supreme Court has declared any law by such interim order of stay?

Therefore, the High Court on noting the questions present in the case stated that the mentioned questions should be decided by the bench whose Judgment would be binding on all the Courts of the State.

Thus the matter be placed before Chief Justice/Acting Chief Justice for an appropriate order. [Chandan Biswas v. State of W.B.,  2019 SCC OnLine Cal 485, Order dated 29-03-2019]