Thread by @barandbench

#BombayHighCourt to hear plea of #MaharashtraGovernment to quash portions of the #CBI FIR filed against ex-Home Minister #AnilDeshmukh.

Hearing before Bench of Justices SS Shinde and NJ Jamadar.

@CMOMaharashtra
@AnilDeshmukhNCP

CBI had raised preliminary objection to the petition in the previous hearing. However hearing was adjourned to permit intervenors to file appropriate proceedings and other parties to file their responses.

barandbench.com/news/litigatio…

Sr Advs Rafiq Dada and Darius Khambata with Chief Public Prosecutor Deepak Thakare will appear for #MaharashtraGovernment.

SG Tushar Mehta with ASG Anil Singh to appear for #CBI

#BombayHighCourt

Hearing begins.

#BombayHighCourt #CBI #MaharashtraGovernment

Dada says that Adv Subhash Jha’s intervention application and Adv Jaishri Patil’s intervention application will be replied to as and when they are served with the application.

Dada: I will begin submissions on the merits of the case because we are waiting for a hearing since May

Dada: The point is very simple in our petition. We are only opposing a few paragraphs in the FIR.
The police rules are clear.
If CBI wants to investigate, then it depends on the consent of the State.

#BombayHighCourt #CBI #MaharashtraGovernment

Dada: Or by the directions of the constitutional court.
If there is no consent by the State, then CBI is bound by the constitutional court directions, ONLY in accordance with the directions of the court.

#BombayHighCourt #CBI #MaharashtraGovernment

Dada: Since this is a matter of federal rights of the state, it is free to address the Court, that the order of the Court has been breached.
The entire matter will be around these points.

#BombayHighCourt #CBI #MaharashtraGovernment

Dada: Just because it is a large matter I am only pointing out 1-2 pages.

Points out the following paragraphs from the page.

#BombayHighCourt #CBI #MaharashtraGovernment

Dada: If during the course of the investigation the agency comes across something which is beyond the subject of investigation, they can do so if the State has consent or if the constitution court permits them to do so. This is in case, the permission is specifically given.

#CBI

Dada also reads page 5 of the petition. Asks the Court to note these pages.

#BombayHighCourt #CBI #MaharashtraGovernment

Dada is listing out the chronology of the events.
Dada points out that former Mumbai Police Commissioner Param Bir Singh’s PIL pertained to the transfer of police officials.

#BombayHighCourt #CBI #MaharashtraGovernment

Dada: The Court had not initiated action in Singh’s petition.
On the same date apparently Dr Patil filed her petition which annexed the letter of Singh.
And the Court initiated enquiry in her petition which included that letter.

#BombayHighCourt #CBI #MaharashtraGovernment

Dada is reading further into the chronology of events leading to the order of April 5, 2021 directing CBI probe.

barandbench.com/news/litigatio…

Dada reads out section 6 of the Act.

#BombayHighCourt #CBI #MaharashtraGovernment

Dada: The investigating agency cannot say that we are investigating this, and we have come across somethign else, so we will investigate that.

#BombayHighCourt #CBI #MaharashtraGovernment

Dada: Mayawati’s case is a case where FIR was struck down, as it was not in accordance with the directions of the Court. Without their express permission when it was not done, they struck it down.

#BombayHighCourt #CBI #MaharashtraGovernment

Dada: In Maharashtra, the consent under section 6 was withdrawn.

barandbench.com/news/litigatio…

Dada: As a state it is my right to come to the Court and tell that they have gone beyond the order and that should not be permitted.

#BombayHighCourt #CBI #MaharashtraGovernment

Dada: since there is no consent, we are governed by the court order.
But before that I will show you the FIR.

#BombayHighCourt #CBI #MaharashtraGovernment

Dada reads out the FIR lodged by CBI.

#BombayHighCourt #CBI #MaharashtraGovernment

barandbench.com/news/cbi-regis…

Dada says the objection to the following paragraphs.

#BombayHighCourt #CBI #MaharashtraGovernment

Dada: Here they are saying the Deshmukh was involved, but then I am saying this is beyond the scope of HC order.

The petitionmentions, that the then Home Minister had influence over the officials and their transfer.
But this is Singh’s petition which mentioned it.

#BombayHC

Dada: The HC had 4 petitions before them. Their directions came specifically in Patil’s petition. Because her’s was the only petition where a complaint was filed.

#BombayHighCourt #CBI #MaharashtraGovernment

Dada: This goes completely contrary to the High Court order.
Because the HC order specifically says that the matter pertaining to postings and transfers has to be raised separately, which Singh can raise in a separate.

#BombayHighCourt #CBI #MaharashtraGovernment

Dada: There was an allegation against the former Minister, he resigned and he has his rights, which he is exercising by filing a separate petition. But this petition is about the federal rights of the State.

#BombayHighCourt #CBI #MaharashtraGovernment

Dada now shows the High Court.

Dada: I will trouble your Lords to read the judgments because that forms the crux of the matter.

#BombayHighCourt #CBI #MaharashtraGovernment

Dada is reading paragraph no. 2

#BombayHighCourt #CBI #MaharashtraGovernment

Dada reads the facts recorded by the Court pertaining to the #AntiliaCase and the incidents that followed within the police department thereafter.

Dada reads out the portion of the letter of Singh, which the Court reproduced in their order.

#BombayHighCourt #CBI

barandbench.com/news/param-bir…

Dada: So the allegations is that the Home Minister asked Waze (former Mumbai Police officer Sachin Waze) to collect funds.

Dada reads further from the letter.

Dada: So no part of the letter refers to reinstatement to Waze or entrustment of his cases. Nothing in the letter pertains to the posting of officials.
Both of this is present in the FIR.

#BombayHighCourt #CBI #MaharashtraGovernment

Dada: According to us, the whole enquiry can be directed into the complaint of Dr. Patil.

Dada reads her letter.

#BombayHighCourt #MaharashtraGovernment #CBI

Dada reads from the order, that since no action was taken against the complaint, Patil filed the criminal WP in the court to seek directions to seek independent probe.

#BombayHighCourt #MaharashtraGovernment #CBI

Dada reads out the order of the Supreme Court filed in Param Bir Singh’s matter.

barandbench.com/news/litigatio…

Dada: Then he filed PIL in High Court which was quite different from his petition in SC.

As and by way of interim relief, it has been prayed that the State be directed to produce before this Court the report of IPS officer Rashmi Shukla and connected file of the Home Department.

Dada is reading details of the final two petitions filed in the matter by Adv Ghanshyam Upadhyay and Mohan Bhide.

#BombayHighCourt #MaharashtraGovernment #CBI

Dada: I am only reading all prayers to establish before this court what was the final order granted.

#BombayHighCourt #MaharashtraGovernment #CBI

Dada points out about the judicial inquiry initiated by the #MaharashtraGovernment into the into the allegations levelled by Singh against Deshmukh.

barandbench.com/news/law-polic…

Dada reads the submissions made by AG Ashutosh Kumbhakoni recorded by the Court.

#BombayHighCourt #MaharashtraGovernment #CBI

Dada reads para 27 to apprise the Court the contentions of Singh, which according to him were not granted by the Court.

#BombayHighCourt #MaharashtraGovernment #CBI

Dada points out that the “investigation by an independent agency into the allegations contained in the letter” was granted by the Court because it was part of Patil’s complaint.

#BombayHighCourt #MaharashtraGovernment #CBI

Dada: The other two prayers pertaining to transfers and postings of officers and compliance of the directions contained in Prakash Singh was not granted.

#BombayHighCourt #MaharashtraGovernment #CBI

Dada: He asked for three prayers, then brought an additional prayer through his affidavit - which pertains to the report of IPS Officer Rashmi Shukla.
Singh referred to all this, but the constitutional court did not direct enquiry into this matter.

#BombayHighCourt #CBI

Dada: And now through a back-door method through this FIR, the CBI is trying to resurrect these inquiries.

#BombayHighCourt #MaharashtraGovernment #CBI

Dada asks the Court to note that this paragraph.

Dada: His petition was specifically declined.

#BombayHighCourt #MaharashtraGovernment #CBI

Dada: He was asked to approach the appropriate forum for this particular grievance.
He was granted an investigation into his letter which was part of Patil’s complaint.

#BombayHighCourt #MaharashtraGovernment #CBI

Dada: This is particularly over-reaching the Court’s orders and powers given to the CBI.

#BombayHighCourt #MaharashtraGovernment #CBI

Dada: We were in Court, the Court directed CBI probe, that is fine, but then the CBI should not travel beyond what the Court ordered.

#BombayHighCourt #MaharashtraGovernment #CBI

Dada refers to the judgment in State of West Bengal and Ors. v. Committee for Protection of Democratic Rights and Ors.

indiankanoon.org/doc/1061334/

Dada points out to Nankani’s submissions seeking preliminary enquiry and not an investigation.

#BombayHighCourt #CBI

Dada: Nobody queried into the secret report of Shukla which was closed by the State after appropriate consideration.
But that was reopened after Shukla leaked out documents, according to us, I hope that is not true.

#BombayHighCourt #CBI #MaharashtraGovernment

Dada: The ultimate direction was made on Patil’s petition as the letter was annexed to it, and the whole enquiry of CBI was confined to it.
Patil was filed Writ Petition.

#BombayHighCourt #CBI #MaharashtraGovernment

Dada: Because on the maintainability on the petitions of Singh, Upadhyay, the Court had reserved their order, but then no order passed on that aspect because that was not decided.
What was decided what only on the aspect of Dr. Patil’s petition.

#BombayHighCourt #CBI

Dada: The decision which is to be rendered as per the Court was on Patil’s petition in view of the allegations in the complaint.

#BombayHighCourt #CBI #MaharashtraGovernment

Dada: The Court had knocked off Bhide, Upadhyay’s petitions.
But they proceeded to decide on Patil’s petition because of the nature of reliefs in her petition.

#BombayHighCourt #CBI #MaharashtraGovernment

Court: Mr Dada if you see paras 50 and 51 it is clear that paragraphs following that will be pertaining to Patil’s submissions.

#BombayHighCourt #CBI #MaharashtraGovernment

Dada: The judges look at the grievance of non-action on the complaint raised from the point of view of Patil’s complaint.

#BombayHighCourt #CBI #MaharashtraGovernment

Dada points out that the Court’s observations for initiating probe pertained to Singh’s letter.

Dada: We still maintain that enquiry into that has to continue as per the Court’s directions.

#BombayHighCourt #CBI #MaharashtraGovernment

Dada asks the Court to note paragraph 85.

#BombayHighCourt #CBI #MaharashtraGovernment

Dada: Maintainability of the petitions of Singh, Upadhyay were not considered, not decided.
A prima facie view was taken in Patil’s petition and the order was passed.

#BombayHighCourt #CBI #MaharashtraGovernment

Dada: This is the scope of jurisdiction given by the Court to CBI. And no order was passed in Singh’s petition.

#BombayHighCourt #CBI #MaharashtraGovernment

Dada: After preliminary enquiry was registered, what was asked from us were these.

#BombayHighCourt #CBI #MaharashtraGovernment

Dada: These files and minutes they were seeking pertained to the transfer of postings.
Our reply asked them to clarify how these documents they sought pertained to the investigation.

#BombayHighCourt #CBI #MaharashtraGovernment

Dada: Through our responses to the letter we tried to make them fully aware of the extent and limitation and scope of exercise of CBI to conduct the enquiry
We tried to clarify their line and area of field of enquiry for CBI.

#BombayHighCourt #CBI #MaharashtraGovernment

Dada: We made a full analysis of what they were seeking and tried to respond accordingly. We should our willingness to co-operate but merely asked the reason why they asked for these letters.

#BombayHighCourt #CBI #MaharashtraGovernment

Dada: During the enquiry CBI allegedly got a sealed envelope pertaining to the documents pertaining to the report of Rashmi Shukla. Apart from the fact that it not part of the probe, we alleged those documents were leaked.

#BombayHighCourt

Dada reads from an affidavit submitted in response to the reinstatement of Waze and the Shukla’s document.

#BombayHighCourt #CBI #Maharashtra

Dada: Despite our responses to CBI, they continue to persecute us. We are a State, we have our own police force, we are running our State. This is not how they deal with us, no response nothing.

#BombayHighCourt #CBI #Maharashtra

Dada: CBI had filed a complaint with the Magistrate to get those documents. That was rejected.
Then they issued fresh notice to the Chief Secretary for interrogation. He appeared before them and answered all questions.

#BombayHighCourt #CBI #Maharashtra

Dada: When the constitutional court makes an order on preliminary enquiry have to looks into the material before them. The only material they looked at was the letter.
The para 5 was a copy paste of Singh’s petition. They cannot be permitted to go beyond their scope.

#BombayHC

Dada: Now I will just point out few judgments now.

Dada starts with State of West Bengal case.

indiankanoon.org/doc/1061334/

#BombayHighCourt #CBI

Dada: The judgment of the court cannot be liberally construed and then something can be tucked in and said that we just came across this so we are considering it.

#BombayHighCourt #CBI #Maharashtra

Dada: The decision of the Court was an exception for the State.
But just as the consent must be carefully construed, so much the permission given by Court.

#BombayHighCourt #CBI #Maharashtra

Dada: This is an important paragraph. The court must come to a conclusion after considering material on record…

#BombayHighCourt #CBI #Maharashtra

Dada: The discipline was followed by the Chief’s bench when passing their order. They only considered material before them, which was the complaint and the letter of Singh.

#BombayHighCourt #CBI #Maharashtra

Court rises for lunch.

Hearing to continue at 2 pm.

#BombayHighCourt

Hearing commences.

ASG Singh states that the grounds in State’s matter and Anil Deshmukh’s matter will clash, so arguments may clash.

Singh: There will be a lot of repetition.

#BombayHighCourt #CBI #Maharashtra

Dada: Let my matter be argued first. I am not concerned with that matter. He is not my minister, I do not want to be seen taking his side.

#BombayHighCourt #CBI #Maharashtra

Singh: But what is the problem? We are just trying to save the Court’s time.

Court: No we feel that the hearing of this matter should conclude first, then we will immediately hear the next.

#BombayHighCourt #CBI #Maharashtra

Dada continues with his submissions.
He says that State’s right to approach the Court arises from the federal structure of the Constitution.
They are merely challenging certain portions. Not seeking quashing.

#BombayHighCourt #CBI #Maharashtra

Dada is responding the SG Mehta’s submission that State has no locus to file this petition.

He refers back to the West Bengal’s judgment.

#BombayHighCourt #CBI #Maharashtra

Dada: The Court is ultimate custodian of rights. If someone has violated order of the Court, then I have right to approach the Court.

Secondly, this is interpretation of the Court’s order. This has to be done by the Court. I cannot go to politicians for this.

#BombayHighCourt

Dada: I may lose out on interpretation, but not on locus.

Thirdly, Shukla’s matter is part of investigation before another court.
The Court can take judicial cognizance, but to point out that the CBI cannot investigate into that I can only come to Court.

#BombayHighCourt #CBI

Dada now invites court’s attention to another judgment. Mayawati v. UOI (2012)

indiankanoon.org/doc/112244139/

Dada: the precise question raised in this judgment is what we have raised.

#BombayHighCourt #CBI #Maharashtra

Dada indicates that he will adopt this argument as it was accepted by the Apex Court in the end.

#BombayHighCourt #CBI #Maharashtra

Dada: The Court which makes the direction and substitutes the consent with its directions must make so prima facie observations.
And in the present case the order was passed not for considering Waze’s reinstatement or transfers etc.

#BombayHighCourt #CBI #Maharashtra

Dada: One point which I should point out is this.

#BombayHighCourt #CBI #Maharashtra

Dada: This judgment was reviewed. What was argued was that if anything comes up during investigation why can it not be investigated?
The court rejected this submission.

casemine.com/judgement/in/5…

#BombayHighCourt #CBI #Maharashtra

Dada: So this principle was held twice, first in Mayawati’s original judgment and then in the review.

The next judgment is Fertico Marketing.

barandbench.com/news/litigatio…

Dada: It refers to Mayawati’s case and probably the last case.

#BombayHighCourt #CBI #Maharashtra

Dada: The Court should have considered the aspect mentioned in para 4 and 5 of the CBI FIR and then if the Court ordered then the Court may have ordered.

#BombayHighCourt #CBI #Maharashtra

Dada now refers to Kanwal Tanuj v. State of Bihar and Others.

indiankanoon.org/doc/39639613/

#BombayHighCourt #CBI #Maharashtra

Dada: In my respectful submission this is my case.
Just to summarise, my lordships are experienced judges. Every matter has short point. And the short point is has High court spoken about Waze? Then FIR says Deshmukh knew? But is this there in the letter?

#BombayHighCourt

Dada: Then comes with transfer and officers. Is it CBI’s job to get into the report of Shukla? Singh was giving postings to Waze, he was Commissioner then..
How can CBI pop into that when an enquiry is initiated by the state investigation agency?

#BombayHighCourt

Dada: Curiously, nothing mentioned about the fact that Deshmukh called and conversation happened. We have great respect, this is part of federal structure. We are State.
Singh’s grievance with respect to his posting can be raised before the appropriate forum.

#BombayHighCourt

Dada: We are not challenging their investigation, that is court ordered. We are only challenging the encroachment by CBI beyond the Court order.

#BombayHighCourt

Dada: The stay which is being granted will have to be extended till Monday if the hearing is not over today.

Dada completes his submissions.

#BombayHighCourt #MaharashtraGovernment

Court asks Adv Subhash Jha appearing for Ghanshyam Upadhyay to commence his submissions.

Jha: This is a unique petition I have come across for the first time.

#BombayHighCourt #MaharashtraGovernment

Jha: This petition is filed seeking deleting of portions of the FIR which is unheard of in law.
Why? Because there is no consent under Section 6.
The bar which Section 6 creates can be lifted if direction is given by Constitutional courts.

#BombayHighCourt #CBI

Jha: The first and foremost is who can file petition under Article 226. For invoking jurisdiction one must have locus stand. And who can have locus is the person to whom injury is caused and person is aggrieved.

#BombayHighCourt

Jha: I fail to understand how State of Maharashtra can be an aggrieved person or to whom legal injury is caused.
State can never claim injury has been caused. It is precluded from filing frivolous petitions.

#BombayHighCourt

Jha: See the magnitude of loot and plunder. Rs 100 crores per month! And if this government is to continue for 5 years then Rs 6000 crores for 5 years!

Whether this is true or false, is matter of investigation.

#BombayHighCourt

Jha: We think he also deserves to be prosecuted, but then now the FIR is the matter of arguments.
But judgments say that disclosure of cognizable offences is only reason for lodging FIR.

#BombayHighCourt

Jha: Deshmukh was trying to extort money, but he was not going to do so himself, but he will do it by requisitioning people to do the task from them. In this case, an officer who was not in service for 15 years was brought in.

#BombayHighCourt

Jha: The fact remains that people like Waze were brought in a manner that creates doubt.
So CBI is entitled to look into the gamut of how the offence is to take place and how money is to be collected.
It was imperative for CBI to find out how the man was brought in.

#BombayHC

Jha: An ingenious method is used by filing of this petition by using the excuse of federal structure. As if the federal structure will collapse. THis is an eyewash. State is either becoming mouth piece of the former Minister or trying to protect any persons within.

#BombayHC

Jha: This petition is not filed with clean hands! This preliminary enquiry directed by the Court was a decision. An FIR also would not have been wrong.

During the enquiry they stumbled upon communication.

#BombayHighCourt

Jha: The registration of FIR was passed after constitutional court passed an order. And after that the bar was entirely lifted for consent under Section 6.

#BombayHighCourt

Jha: Law is that FIR is not encyclopaedia which could include all the facts. The gist of the FIR must disclose commission of offence and against whom investigation has to be take place, that CBI must decide.

#BombayHighCourt

Jha: One offence can have many tentacles. So the documents that they are seeking from the State can be trying to investigate those offences arising from the cognizable offences connected or part of the same transaction.

#BombayHighCourt

Jha: The most cardinal principle is that the prosecution has to build a fool proof case.
Waze is the centre of controversy, he was in touch with the Home Minister, and taking instructions from him. He is very important link.

#BombayHighCourt

Jha: How was this man inducted in the police force will have to be investigated and by CBI. If they do not, then people like me and you will come and knock the doors of the Court.

#BombayHighCourt

Court: in this FIR which is impugned, how many accused are there?

Jha: The FIR says Deshmukh and unknown others.

#BombayHighCourt

Court: Who are the unknown others?

Jha: That Mr. Singh’s clients will know. Or Dada may know..

Dada: No no, you are in the better know of CBI than me.

#BombayHighCourt

Jha: The State very well knew that the accused, proposed accused could not have challenged, so then the State came in. This petition did not merit any hearing. But the motive and on the agenda alone this petition ought to be dismissed with exemplary cost.

#BombayHighCourt

Jha concludes his submissions.

Court notes that Adv Patil is not present in the hearing.

#BombayHighCourt

Jha: On a lighter note, ASG Singh has logged in with the name of one Nikhil Waze!

Everyone laughs.

ASG: He is my junior. I also asked him when this matter came, if he was related to Waze..

#BombayHighCourt

Dada: Only the statement may be extended till Tuesday then..

ASG Singh agrees.

#BombayHighCourt

Court records the extension.

Hearing posted to June 21, 2021.

#BombayHighCourt