Thread by @barandbench

#BombayHighCourt to hear plea filed by #AnilDeshmukh former Home Minister of #Maharashtra seeking quashing of the FIR registered by #CBI on the allegations of corruption made by former #MumbaiPolice Commissioner #ParamBirSingh.

@AnilDeshmukhNCP
@MumbaiPolice

Hearing before Bench of Justices SS Shinde and NJ Jamadar.

Sr Adv Amit Desai to continue his submissions on behalf of Deshmukh.

#BombayHighCourt #AnilDeshmukh #Maharashtra

Hearing begins.

#BombayHighCourt #AnilDeshmukh #Maharashtra

Desai: Police is otherwise a State subject. Ordinarily there should be no interference by the Centre. It is important to protect the federal structure as a part of the basic structure.

#BombayHighCourt #AnilDeshmukh #Maharashtra

Desai: The Central police is allowed to break the basic structure doctrine. The Central government under S 3 of the DSPE has wide powers to nominate any offence for investigation.

#BombayHighCourt #AnilDeshmukh #Maharashtra

Desai: The State Police investigates keeping in mind the State subjects.

#BombayHighCourt #AnilDeshmukh #Maharashtra

Desai: The Constitutional Court merely lifted bar on Section 6 to lift the bar on investigation of matters in exceptional cases. Hence directions have to be strictly construed.

#BombayHighCourt #AnilDeshmukh #Maharashtra

Desai: In exceptional situations, when the courts permit the investigation by Centre, the Courts are overcoming the Section 6.
When the Court has to decide pertaining to transfer of investigation, there has to be a presumption in favour of state police.

#BombayHighCourt

Court: Please elaborate how the accused has a right to choose investigating agency?

Desai: No I am not saying that. The law is settled on that.

#BombayHighCourt #AnilDeshmukh #Maharashtra

Desai: An accused can say that the investigation is malafide.
In this case, I am saying, the principle of law, section 6, that even in those kind of cases what is being done is over riding of section 6.

#BombayHighCourt #AnilDeshmukh #Maharashtra

Desai: Because there is deviation in statutory scheme, there is scope of deviation from the constitutional scheme.

#BombayHighCourt #AnilDeshmukh #Maharashtra

Desai: If it is part of normal enquiry, principles are different, when it is by the court, principles are different.

#BombayHighCourt #AnilDeshmukh #Maharashtra

Desai refers to State of West Bengal v. The Committee for protection of democratic rights.

indiankanoon.org/doc/1061334/

#BombayHighCourt #AnilDeshmukh

Desai: When it is the Court exercising the exceptional power, then this power precluded from acting like the Union under Section 3.
There is a certain restraint.

#BombayHighCourt #AnilDeshmukh

Desai: Court receives petitions in dozens for FIR registration or transfer but the Court has to exercise caution and restraint. Because there are provisions in CrPC. But when there is over coming of S 6, a Central agency can come into the state, there is over caution required.

Desai: It has serious ramifications. In every matter, there are so many protections required for law. Those protections between Centre and State, how do we ensure, because there is continuous cross border.

#BombayHighCourt #AnilDeshmukh

Desai: But DSPE is a one way street. Central agency investigates Centre. Where does it happen that a State agency investigates a Central agency?

#BombayHighCourt #AnilDeshmukh

Court: Sometimes State agency, if suppose, part of offence is in State of Maharashtra and even in other state, then state police is given access.

Desai: Yes because otherwise the criminal justice system will fail.

#BombayHighCourt #AnilDeshmukh

Desai: Very technically, the State police will take assistance of the police of that state. The police of Maharashtra will not walk in Gujarat and say we have same powers. You take assistance.

#BombayHighCourt #AnilDeshmukh

Desai: In this case, there is no assistance by State police, there is a central agency directly investigating.

#BombayHighCourt #AnilDeshmukh

Desai: Courts have had to deal with cases where the other state police just comes and tries to arrest. That is wrong, and local police has to be involved.
And courts have made observations.

#BombayHighCourt #AnilDeshmukh

Desai: CrPC falls in concurrent list. So S.156(3) has a special amendment in #Maharashtra where there is a specific procedure for authorities.

#BombayHighCourt #AnilDeshmukh

Desai: CBI has power to investigate in myriad statutes. 100s probably… Their exception is Central excise, customs...

#BombayHighCourt #AnilDeshmukh

Desai: Now the scheme is for the procedure established by law pertaining to corruption cases..
There is no debate that CBI investigates under CrPC.
He reads Sections 4(2) and 5 of CrPC.

#BombayHighCourt #AnilDeshmukh

Desai: The provisions of the Prevention of Corruption Act and the amendment. Many provisions have come in for public servants.
Why? Because these amendments indicated the intention of the legislature.

#BombayHighCourt #AnilDeshmukh

Desai: The legislature is trying to control the enquiry and investigation under the corruption act.

#BombayHighCourt #AnilDeshmukh

Court: The preliminary enquiry in this case was pursuant to a Court’s order.

Desai: But then they are required to take permission too. In Gauhati, the CBI took permission even though enquiry was ordered by the Court.

#BombayHighCourt #AnilDeshmukh

Desai: Section 17A was brought in and separate and independent from the federal structure. Section 17A was not considered in State of West Bengal case.
Subject to correction, I have not come across any case that suggest that S17A can be over ridden in this manner.

#BombayHC

Desai: So the question that would have to be considered is that when the Court gave directions to commence a preliminary enquiry, the Court caveated the decision with in accordance with law.

#BombayHighCourt #AnilDeshmukh

Desai: What is this accordance with law? In my opinion, Section 17A is accordance with law.

#BombayHighCourt #AnilDeshmukh

Desai: We are not directing an FIR, we are only directing a preliminary enquiry. There was no issue that came before your lordships.
This Court was more concerned that an alleged crime is investigated into.
That enquiry was necessary to instill confidence in the administration.

Desai: Should the agency have asked for approval under S.17A? Admittedly they have not asked for approval.
That the CBI could not have registered the PE without prior approval is my submission. It is procedure by law to protect public servants.

#BombayHighCourt #AnilDeshmukh

Desai: The investigation was based on complaint of Dr Jaishri Patil who did not have personal information and she relied upon a letter of Param Bir Singh. He also did not have first hand information, so the court deemed it fit for enquiry.

#BombayHighCourt #AnilDeshmukh

Desai: Can you bypass the requirement of law? The State could have been approached and if they would have refused that would have been a separate issue.

#BombayHighCourt #AnilDeshmukh

Desai: therefore the entire enquiry is illegal.
We are now moving forward. There is now an investigation. The proceedings arise out of that investigation.

#BombayHighCourt #AnilDeshmukh

Desai reads para 83 of the order passed by Chief Justice Dipankar Datta on April 5, 2021.

#BombayHighCourt #AnilDeshmukh

Desai: There was extreme restraint shown. There were no victims, there was no first hand information. It was based on whispers.
The Court initiated independent agency just to install faith in the administration.

#BombayHighCourt #AnilDeshmukh

Desai refers to CBI’s affidavit: They only said that the permission under Section 17A was not required and neither consent under Section 6 was required as the court had given permission already.

#BombayHighCourt #AnilDeshmukh

Desai: Allegations are made against anybody and everybody. Even in Harshad Mehta case, in the Taj ballroom there was press conference and he made allegation of corruption. Allegations are made does not mean that there is corruption.

#BombayHighCourt #AnilDeshmukh

Desai: If every allegation is to be believed then there will be total anarchy.

#BombayHighCourt #AnilDeshmukh

Court: Why has a time come to argue that there is honesty in this country? That is the rule.

Desai: yes I am just having a conversation with the bench.
There is a larger context here.

#BombayHighCourt #AnilDeshmukh

Court: Desai, if some passenger has travelled by taxi and he forgets his purse, and it is returned then why is that a news? That is the rule. That should not be news.

#BombayHighCourt #AnilDeshmukh

Desai: Courts deal with cases not just to do justice, but also to send a message to the society.

Court: Art 51 is present in the constitution. It has duties written. Time has come for us to read them.

#BombayHighCourt #AnilDeshmukh

Desai: The allegations against a minister are looked into by the CBI director. Even the complaint by Dr Patil was made to the Commissioner.
The is to avoid frivolous litigations.

#BombayHighCourt #AnilDeshmukh

Court: What is the mandate under 156 of CrPC?

Desai: The complainant’s locus needs to be tempered, as not everyone’s complaint will be entertained by the Court.
The enquiry onto Patil’s complaint was to ensure no compromise on the proposed accrued’s rights.

#BombayHighCourt

Bench has risen for lunch. To be continued at 2 pm.

#BombayHighCourt #AnilDeshmukh

Hearing continues.

Sr Adv Amit Desai continues his submissions on behalf of Deshmukh.

He is referring to judgments to substantiate his point that permission under Section 17A was required in the present case.

#BombayHighCourt #AnilDeshmukh

Desai: The principle of S6A or 17A was to protect the public officer from frivolous litigation. The Court itself is a protector of rights of parties. Hence ..

Court: The only issue is can these provisions be applied for a court monitored investigation.

#BombayHighCourt

Court: Normally when the officers have to initiate enquiry or FIR, they have to take these permissions based on their preliminary investigation. But since the Court has ordered a probe based on their perusal of the facts before them, are these provisions then necessary

#BombayHC

Court: The SC permitted the deviation in Manohar Lal case but that was a court monitored investigation and this is Court ordered…

Desai: Yes that is right. Once it is deviated, then the investigation has to be within the four corners of the deviation.
Hence the court monitor

Desai: So basically the discussion of whether the order should have been passed or not is bypassed as the Court is monitoring it.

#BombayHighCourt #AnilDeshmukh

Desai: CBI had a duty to apply for permission to the State because it is very easy for a false allegation to be made.

#BombayHighCourt #AnilDeshmukh

Desai on Prevention of Corruption Act: This is one legislation with maximum criticism and protection.
We may get carried away with emotion but procedure cannot be bypassed

#BombayHighCourt #AnilDeshmukh

Desai: Even Kasab got the benefit of rule of law in the country.

Court: Section 17A gives protection when in discharge of his duties..

Desai: Proviso provides when there is no need for approval. It provides for when there is an embargo.

#BombayHighCourt #AnilDeshmukh

Desai: We also have to protect the legislative scheme.

#BombayHighCourt #AnilDeshmukh

Desai: The question under Section 17A of the PCA is protection of public person from false case. The intention is not to safeguard a person when caught taking bribe.

#BombayHighCourt #AnilDeshmukh

Desai: So when there is no direct evidence then protection is there. When there is direct evidence, then protection is not there.

#BombayHighCourt #AnilDeshmukh

Desai now makes submissions on the FIR.

Desai: According to the investigating officer conducting PE, he found no material that substantive evidence was found.
He has put label of attempt.

#BombayHighCourt #AnilDeshmukh

Desai: Complaint of Shri Gunjiyal was received and the complaint was reproduced of the investigating officer based on his PE.

#BombayHighCourt #AnilDeshmukh

Desai: It is too obvious that knowledge is not an offence. So the reinstatement and entrustment of cases does not make him an offender under Section 7.

#BombayHighCourt #AnilDeshmukh

Court asks Desai to continue on Monday since they have a matter fixed at 3.30 pm.

#BombayHighCourt #AnilDeshmukh

Matter to be continued on July 5, 2021.

Hearing ends.

#BombayHighCourt #AnilDeshmukh