Thread by @barandbench

#BombayHighCourt is hearing the plea filed by former Home Minister #AnilDeshmukh seeking quashing of the FIR registered by #CBI in connection with the allegations of corruption made by former #MumbaiPolice Commissioner #ParamBirSingh.

@AnilDeshmukhNCP

Hearing before Bench of Justices SS Shinde and NJ Jamadar.

Sr Adv Amit Desai is making submissions on behalf of Deshmukh.

#BombayHighCourt #AnilDeshmukh #CBI

Desai submits that the duty of the constitutional court was to ensure allegations of corruption was investigated.
The Court was required to consider whether a letter by Singh which attached letter of petitioner Dr. Jaishri Patil required any directions of the court.

#BombayHC

Desai: There are no victims in this case. No one has come forwards to complain that money was taken from them. The letter can at the most be some suspicion or rumour heard in the Commissioner office corridor.

#BombayHighCourt #AnilDeshmukh #CBI

Desai: The Court ordered a preliminary enquiry only because the letter was not sufficient to register an FIR.

#BombayHighCourt #AnilDeshmukh #CBI

Desai: The preliminary enquiry concept was brought in as it was easiest to accuse a public servant.
Deshmukh has been shamed, declared a devil. But is it with proper material?

#BombayHighCourt #AnilDeshmukh #CBI

Desai: The enquiry was to be in accordance of law.
Preferably within 15 days.
The high court in its order had directed States to co-operate with the probe.

#BombayHighCourt #AnilDeshmukh #CBI

Desai: Once enquiry was complete, CBI Director was given full liberty to register FIR and in accordance with law.

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Desai: I said in my press statement that I was not averse to the enquiry. But it is still a fact that I was not heard.

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Desai: We have given up the belief that a large part of the people are not corrupt. There are sweeping statements on the corruption made in such case.

#BombayHighCourt #AnilDeshmukh #CBI

Desai: One of the instance of the transfer and posting, but has a single police officer come forward?
Why is police part of list II of Constitution? Because every State has its own policy for transfer and posting.

#BombayHighCourt #AnilDeshmukh #CBI

Desai: But to make a sweeping statement that transfer and posting has to be looked into, by a central agency.. They are talking about a policy.

#BombayHighCourt #AnilDeshmukh #CBI

Desai: Police establishment board is set up, there is a hierarchy. It is a policy.
There are recommendations made by the board to the State government.
Decision vests with Home Minister or Chief Minister, depending..

#BombayHighCourt #AnilDeshmukh #CBI

Desai: To interfere with this is interfering in the federal state administration.

#BombayHighCourt #AnilDeshmukh #CBI

Desai: If you raise a question of allegation without naming police persons on the board, saying they are unknown.
This a question of perception, as a general allegation is made against a minister.

#BombayHighCourt #AnilDeshmukh #CBI

Desai: There is a heartburn within the police establishment.

#BombayHighCourt #AnilDeshmukh #CBI

Desai: your lordships will have to be cautious of the implications on the federal structure.

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Desai: This is one of the procedure established by law.

Court asks Desai to resume his submissions at 2 pm after lunch.

Bench rises for lunch.

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Hearing resumes.

Desai: Constitutional court does the balancing when there is no consent under Section 6. The underlying principle is we are bypassing the federal structure in the context of protecting fundamental rights.

#BombayHighCourt #AnilDeshmukh #CBI

Desai: When your lordship examines this proposition, the consequences of the prayer have some far reaching implications in the federal structure and interference of central police in state matter.

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Desai reads the judgment State of West Bengal v. Committee for protection of democratic rights.

indiankanoon.org/doc/165179815/

#BombayHighCourt #AnilDeshmukh #CBI

Desai: Since the constitutional courts are custodian of the federal rights, that breach has to be permitted only in exceptional cases.

#BombayHighCourt #AnilDeshmukh #CBI

Court: What is your legal proposition though?

Desai: I started with enquiry, then this judgment because I want to point out the section 6..

Court: One thing is clear we aren’t sitting in review of previous judgment..

#BombayHighCourt #CBI #AnilDeshmukh

Desai: Just bear with me I am coming to it.

#BombayHighCourt #CBI #AnilDeshmukh

Desai: Much has been said in the judgment. The DB judgment of April 5, 2021, the basis on which CBI carried out enquiry and registered FIR.
The provisions of Section 6 deals with investigation and not enquiry.

#BombayHighCourt #CBI #AnilDeshmukh

Desai reads section 5 and 6 of the DSPE Act.

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Desai: this Act as it was framed dealt with the question of investigation and that was in compliance of the CrPC.
The offences to be investigated was as notified by the Act.

#BombayHighCourt #CBI #AnilDeshmukh

Desai: The DSPE Act was not limited to corruption cases. It was for all offences which was notified by the Central govt which was applicable to State too.

#BombayHighCourt #CBI #AnilDeshmukh

Desai: The check and balance in the act was Section 6.

#BombayHighCourt #CBI #AnilDeshmukh

Court: Now Desai, do you want to suggest that the Director CBI should have sought Court’s permission before registering FIR?

Desai: Your lordships have gone ahead of me.
The procedure is followed. It is not like it is not followed.

#BombayHighCourt #CBI #AnilDeshmukh

Desai: All that CBI required was consent under Section 6.
In matters where there is withdrawal of consent. But CBI’s work does not stop. CBI keeps applying for consent on regular basis.

#BombayHighCourt #CBI #AnilDeshmukh

Court: But Mr Dada argued that so far as investigation is concerned they have no objection but only to para 4 and 5. So what does that mean?

Desai: But where is the consent?

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Desai: in regular cases CBI applies. In this case also CBI can apply. SO why did they not apply to the State. The Court did not say bypass Section 6.

#BombayHighCourt #CBI #AnilDeshmukh

Desai: the purpose of Section 6 is to ensure the balance. And hence the Court wanted to keep that balance.
Since the accused was a functionary of the state, the Court deemed it fit for CBI.

#BombayHighCourt #CBI #AnilDeshmukh

Desai: And as soon as enquiry was initiated, the accused stepped away from his office agreeing to face the enquiry.
The High Court regularly transfers cases from one dept to another.

#BombayHighCourt #CBI #AnilDeshmukh

Desai: And there is nothing to suggest that the accused has influence over the other investigation to be conducted by the State agency.
There is a legal bar to continue investigation under Section 6, not the enquiry.

#BombayHighCourt #CBI #AnilDeshmukh

Court: Mr Singh what is the progress in the investigation?

Singh: As far as para 4 and 5 is concerned, due to our statements, there is..

Court: But what about the first three paragraphs?

#BombayHighCourt #CBI #AnilDeshmukh

Singh: I will take instructions.

Court: ED is different than this? Their investigation...

Singh: This is CBI enquiry, ED is different to this..

#BombayHighCourt #CBI #AnilDeshmukh

Court: At 3.30 one small Appeal we have listed.
Continue for another 10 mins.

Desai: In the scheme of protection, there is federal structure. Now let us position for corruption law.

#BombayHighCourt #CBI #AnilDeshmukh

Desai gives a history of enquiry to give context of Section 6A of the Act.

Desai: Section 6A says approval of central govt is required for enquiry for investigation into the corruption charges against officers appointed by the central govt.

#BombayHighCourt #CBI #AnilDeshmukh

Desai: Section 6A required prior approval from the Central govt. but even for that enquiry was required.

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Since it is 3.30, the Court asks Desai to continue his submission on the next hearing.

Matter posted for hearing on July 2 2021.

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