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.

Sr Adv Desai refers to the judgment in Manohar Lal case.

#BombayHighCourt #AnilDeshmukh #Maharashtra

Desai: The context is that the source of power for Supreme Court to grant investigation was under Article 142, which the High Courts do not enjoy.

#BombayHighCourt #AnilDeshmukh #Maharashtra

Desai: A lot of judgments being cited pertain to investigation in section 302 and not under Prevention of Corruption Act. Hence there was no question of approval under Section 17A.

#BombayHighCourt #AnilDeshmukh #Maharashtra

Desai: Further the requirement under Section 6A was also for Central govt employees and not State government.

#BombayHighCourt #AnilDeshmukh #Maharashtra

Desai: If your lordships take a view that the constitutional court gave a direction to register a PE contrary to section 17A or to register FIR without 17A approval, then in that case, the court may consider one other principle.

#BombayHighCourt #AnilDeshmukh #Maharashtra

Desai: My submission is that the Court has not directed contrary to the requirement under Section 17A.
But in the event, the Court has, in my humble submission, the Court had no jurisdiction to do so.

#BombayHighCourt #AnilDeshmukh

Desai: Now referring to judgment in AR Antulay’s case.

indiankanoon.org/doc/1353689/

Desai: The enquiry was done by Section 17A provides for protection at both levels. While the enquiry has been completed, the continuing violation ought not be allowed.

#BombayHighCourt #AnilDeshmukh

Desai: Section 6 deals with federal structure, state and centre.
Section 17A is for protection of the public officers.

#BombayHighCourt #AnilDeshmukh

Desai: There is no power law is treat that Section 17A is not necessary in light of the directions of the Court.

#BombayHighCourt #AnilDeshmukh

Desai: Does the investigating agency have a right to conduct an investigation contrary to law? No. The procedure is something that has to be followed.

#BombayHighCourt #AnilDeshmukh

Desai is now reading CBI’s affidavit.

#BombayHighCourt #AnilDeshmukh

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Desai: The approach of the CBI in their affidavit, their case before your lordship says, is an intrinsic connection to the allegation and that under Section 157 CrPC when an intrinsically connected offence is found out, then that can be investigated.

#BombayHighCourt

Desai: My response to that is in the FIR.

#BombayHighCourt #AnilDeshmukh

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Desai reads from the FIR.

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Desai: the question for consideration still is still Section 17A. This question of transfer and posting, comes within the Ministers duties as such.

#BombayHighCourt #AnilDeshmukh

Court (to ASG Aman Lekhi): In your FIR, you have mentioned unknown. This is seen in robbery and dacoity cases. In this case you have conducted preliminary enquiry. So who are the unknown?
Secondly, what is further investigation done by CBI so far?

#BombayHighCourt #AnilDeshmukh

Court: Submit to us in sealed envelope, we will see and return.

#BombayHighCourt #AnilDeshmukh

Desai continues: under the State police act, the transfer and postings has to be undertaken by the state government and that this is the duty.

Where in their (CBI) affidavit have they said that because he was Minister approval would not have been given under S 17A.

#BombayHC

Desai: Crime will not go undetected or investigated. Section 17A merely provides for approval.

#BombayHighCourt #AnilDeshmukh

Desai submits that the act of transfer and posting which is an official duty, if is linked to the allegation in the FIR, then the approval under Section 17A is required.

#BombayHighCourt #AnilDeshmukh

Court: After PE, it was the duty of CBI to ensure that the FIR is not only against the petitioner but against everyone who is part of the allegation. Even the unknown. That may include the committee responsible for the reinstatement of Waze. We are not on ABCD.

#BombayHighCourt

Court: We made it clear to CBI and we have sought for their response..

#BombayHighCourt #AnilDeshmukh #CBI

Court: The words used by Division Bench while directing PE was “Public confidence in the administration”. So it was not just limited to the petitioner, it was for anyone who had been accused..

#BombayHighCourt #AnilDeshmukh

Desai: Public confidence can be provided through various means..

#BombayHighCourt #AnilDeshmukh #CBI

Court: judiciary is not the only institution which forms backbone of democracy. There is RBI, CBI, all form part, SIT at state-level..

Desai: Yes, Please do not misunderstand me.. CBI has done exceptional work in cases..
I am on the law, on the principle.

#BombayHighCourt

Desai: When there are provisions, then the public confidence will be upheld.

#BombayHighCourt #AnilDeshmukh #CBI

Court: Mr Singh (ASG Anil Singh) is now waiting for lunch.. He is waiting as per your promise on Friday..

Desai: I will try and finish today, but I still have to make submissions on the factual aspect.

#BombayHighCourt #AnilDeshmukh

Court: Mr. Desai we said in the morning, self-imposed restriction… (everybody laughs)

Desai: Yes milords I want to finish today, in light of the self-imposed restriction.

#BombayHighCourt #AnilDeshmukh #CBI

Court: This is the stage wherein we don’t know what investigation has been carried out by the CBI. There has been some time since the CBI has registered FIR and the hearing. If in the interregnum, if CBI has collected something, are we supposed to consider that?

#BombayHighCourt

Desai: I will place that principle before the Court. My submission is if the FIR is illegal, then it has to be quashed.

He refers to bhajan lal case of HC.

#BombayHighCourt #AnilDeshmukh

Court: The High Court judgment was quashed and set aside.

#BombayHighCourt #AnilDeshmukh

Court asks Desai to pull out two judgments - one where Justice JB Patnaik is on the bench, and another is Prakash Singh Badal.

Desai: I believe the issue pertains to the legal effect on a case if the sanction is taken at a later stage.

#BombayHighCourt #AnilDeshmukh

Desai: Maharashtra amendment to the CrPC and introduced a proviso under Section 156(3) that sanction under Section 197 is required.
That arose from Anil Kumar judgment (which is pending reconsideration before the Supreme court)

#BombayHighCourt #AnilDeshmukh

Desai: But we are not challenging the procedure here, we are not on the vires. We are saying that sanction is not taken.

#BombayHighCourt #AnilDeshmukh

Desai: There is a premier investigation agency which has failed to consider the judgment in Gauhati, in Delhi.

Court: but Gauhati does not lay down lay. It merely makes a statement.

Desai: I cited that not for the law, but for the conduct of CBI.

#BombayHighCourt #CBI

Court rises for lunch.

#BombayHighCourt #AnilDeshmukh