Thread by @barandbench

#BombayHighCourt to continue hearing 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

Desai: Milords should note the social media, activism on social media. Political activism, this and that.. bank frauds led to slowing of the economy. There are allegations.. Unless procedures are not complied with there are issues..

#BombayHighCourt #AnilDeshmukh

Court: Mr. Desai, the very argument was advanced by Dr Singhvi before the Supreme Court.
The petitioner was required to be heard before passing the order in High Court.

Desai: Let me deal with it straightaway.

#BombayHighCourt #AnilDeshmukh

Desai: Supreme Court said an independent enquiry is to be made. The issue was about an independent enquiry...

Court: We are on the argument that the petitioner was not heard..

Desai: But that is the fact. I was not heard.

#BombayHighCourt #AnilDeshmukh

Court: But are proposed accused supposed to be heard?

Desai: I will tell candidly that once the Court has ordered, the Supreme Court, the order is binding.. Maybe approach the apex court only.

#BombayHighCourt #AnilDeshmukh

Desai: But generally speaking, there are judgments which clear that notice has to be issued to the accused in 482 and 226 petitions..

#BombayHighCourt #AnilDeshmukh

Court: We have two fold questions - one there is a preliminary enquiry initiated by the Court to look into the issue and then come to a conclusion.
And second - when the argument has been considered by SC, we do not want to delve on that.

#BombayHighCourt #AnilDeshmukh

Desai: I am not on that.. I am only saying that the HC order was confirmed..

Court: Before you continue, Mr Lekhi, we want some clarification.

#BombayHighCourt #AnilDeshmukh

Court to ASG Aman Lekhi for CBI: The Supreme Court order mentioned two personas, one the former minister and one a former commissioner who may have strong connections with each other.
We believe this needs to be looked into.

#BombayHighCourt #AnilDeshmukh

ASG: Let me assure you milords, the investigation is proceeding in the same manner. We have considered two aspects from the High Court: 1 - credibility of the machinery and 2 - public confidence in them.

#BombayHighCourt #AnilDeshmukh

ASG: As for the legal points, I will deal with them in detail, kindly grant me time.

Court: We will grant you time.. not necessarily the same time as taken by Mr. Desai.. (everyone laughs)

#BombayHighCourt #AnilDeshmukh

ASG: Certainly not. He has eruditely covered all legal points in detail. I will merely respond on the points and it will not take as much time.

#BombayHighCourt #AnilDeshmukh

Desai crystallises the three allegations in the FIR - undue advantage, undue influence over transfer & postings and the knowledge of cases assigned.

Desai then goes back Section 17A of the PCA.

#BombayHighCourt #AnilDeshmukh

Desai: they have realised what the final outcome is, and they have registered an FIR accordingly. There is no allegation of extortion in the FIR.
This is in the teeth of the order of High Court.

#BombayHighCourt #AnilDeshmukh

Desai: There need to be facts, not reproduction of the section.
There is not a single sentence in the FIR which suggests that an offence has been committed. Transfer and posting is not offence, it is part of law, and part of function.

#BombayHighCourt #AnilDeshmukh

Desai: Reinstatement done by whom, what is wrong, nothing mentioned. Are your lordships expected to read newspapers to come to a conclusion for the offences! Was this the intention of the agency when FIR was registered?

#BombayHighCourt #AnilDeshmukh

Desai: His reputation and image is at stake.. On this he lost his post, he is target of investigating agencies..
And this is an outcome of the preliminary enquiry which has been ordered by a reasoned detailed order..

#BombayHighCourt #AnilDeshmukh

Desai: this matter of sealed envelope.. that has to be dealt with caution.
This has left me helpless, my reputation is lost..
All that is there is an FIR and an affidavit..

#BombayHighCourt #AnilDeshmukh

Desai: If they believe that there is material and steps need to be taken then do it properly! If you want - Add the facts, add the reasons, add the section, add the co-conspirators - do it in accordance with law. Not in this manner.

#BombayHighCourt #AnilDeshmukh

Desai: I am not asking for a certificate of honesty. I am merely seeking for protection of my rights.
These are questions of facts and not just CBI’s belief of facts..

#BombayHighCourt #AnilDeshmukh

Desai: There is not an iota of evidence. There is not one sentence in their affidavit - he tried to commit the offence.
I will come to the tried part in a few minutes.
There is no material on where he tried, with whom he tried, against whom he tried, etc..

#BombayHighCourt

Desai: we live in a society that lives on dishonesty.
Once there is a minister involved, he is assumed to be dishonest.

#BombayHighCourt #AnilDeshmukh

Desai: Dr Gunjiyal’s contention was that there is illegal gains, corruption..
There is nothing in the FIR.
A reputed CBI officer was involved in the enquiry and he could not find one co-conspirator!

#BombayHighCourt #AnilDeshmukh

Desai: I have the highest respect for this agency, for some of its officers, but where is the law?

They say “It cannot be denied that undue influence was by political executives”.. but who are these executives?

#BombayHighCourt #AnilDeshmukh

Desai: they are linking some allegation of corruption with extortion.
These are fishing and roving techniques.

#BombayHighCourt #AnilDeshmukh

Desai: and they expect all administrative officers to just turn up for interrogation?

#BombayHighCourt #AnilDeshmukh

Desai: There are two parts, one is law, one is conscience. One is to quash FIR. There has to be some fact, which gives some consideration to be looked into. Then milords will say, let us see the further points.

#BombayHighCourt #AnilDeshmukh

Desai: An FIR may be registered, and the Court might say that yes an allegation is there and does there need to be a further investigation
But the larger jurisdiction of 482 and 226, your lordships have to look if even the allegations have to be looked into.

#BombayHighCourt

Court: Since you have mentioned about documents which can be looked into.. There is a judgment of Justice Sinha which talks about which type of documents can be looked into.

#BombayHighCourt #AnilDeshmukh

Desai: There are judgments which looks to find out evidence of sterling quality.

Lekhi: The judgment which milords are saying deals with the an issue of quashing FIR where the FIR was compared with civil pleading.
But that may not be relevant here.

#BombayHighCourt

Desai: While we construe Bhajan lal principle, when there is an enquiry, there is an FIR, and there are checks and balances, then those have to be looked into.

#BombayHighCourt #AnilDeshmukh

Desai submitted that there may be an assumption of the CBI, that the Courts may get influenced by what is being discussed in the media.

Court: To be honest, we do not have time for TV..

#BombayHighCourt

Desai: I am sure and I am aware that the Court will only go by court pleadings.

Court: Obviously..

#BombayHighCourt #AnilDeshmukh

Desai continues with Patil’s complaint.

Desai: Some of the sentences in the FIR were just picked up from her complaint.
She has not said anything on her own that offence has been committed. She has relied on Singh’s letter.

#BombayHighCourt #AnilDeshmukh

Desai: The details are not in her letter.

Court: We will continue after lunch. We have not seen Dr Patil today. We don’t know when she wants to address.

Desai: She can continue after CBI’s submissions.

#BombayHighCourt #AnilDeshmukh

Bench rises for lunch. To be continued at 2.30 pm.

#BombayHighCourt #AnilDeshmukh

Hearing begins.

Desai reads from the letter of #ParamBirSingh.

#BombayHighCourt #AnilDeshmukh

Desai: Improbable and absurd is one submission. The other is, can this be a start of an investigation.

#BombayHighCourt #AnilDeshmukh

Desai gives the series of event leading to the letter of Singh to point out that there seemed to be no probability for the conversation happening as mentioned in Singh’s letters.

Desai: The sequence of dates have to be kept in mind by the Court.

#BombayHighCourt #AnilDeshmukh

Court: Which is why we put to Mr. Lekhi that if Waze is found to be so dangerous, then why not add him in the FIR or the board which reinstated him.

Desai: Not add milord, that is a separate issue.

Court: No no, not in this. We mean it should be looked into.

#BombayHighCourt

Desai: just one fundamental issue - which I will argue.

#BombayHighCourt #AnilDeshmukh

Desai: Whether there is prima facie offence? Which is section 7 which is alleged. Even if one takes the complaint of Singh, there is nothing in it which makes it an offence. The preliminary enquiry has also concluded as attempt.

#BombayHighCourt #AnilDeshmukh

Desai: There is information for enquiry, but that is in the affidavit. It is not in the FIR. And then there is nothing else in the FIR. This FIR is registered with ulterior purposes with no material to support it.

#BombayHighCourt #AnilDeshmukh

Desai: This FIR cannot be for a fishing and roving technique.
One may feel there may be some substance, but not an entire allegation.

#BombayHighCourt #AnilDeshmukh

Lekhi: Submissions are both wrong in facts and law. Considering the time I have, I will make an outline of what we want to argue.

What we say at the outset is that affirms a fundamental principle on the sections invoked.

#BombayHighCourt #AnilDeshmukh

Lekhi: Governance cannot be organised crime and ministers cannot form crime syndicate and sanction of law there has to be investigation.
The sections invoked are satisfied.

#BombayHighCourt #AnilDeshmukh

Lekhi: It is trying to contest what has been held by high court and supreme court and invokes doctrine of impunity and tries to evade investigation.

#BombayHighCourt #AnilDeshmukh

Lekhi: Guardianship of federalism is in the custody of court. The petition points a musket at itself to undo rule of law.

#BombayHighCourt #AnilDeshmukh

Lekhi: The effect is to undermine rule of law, undermine accountability and void any investigation which will point out against the criminality and the governance and this ought not be permitted.

#BombayHighCourt #AnilDeshmukh

Lekhi: No act of parliament can curtail powers of constitutional court for fundamental rights. And section 17A is not a bar for constitutional court.

#BombayHighCourt #AnilDeshmukh

Lekhi: there is no difference in powers of Art 226 and art 32. What applies to SC will apply to the HC as well.

#BombayHighCourt #AnilDeshmukh

Court: You need not argue on that. On the contrary the powers are wider under Art 226.

#BombayHighCourt #AnilDeshmukh

Lekhi: I am submitting this is because there has been a misreading on the Manoharlal case.

#BombayHighCourt #AnilDeshmukh

Lekhi: Encatement cannot limit power, Section 17A is not a bar. If that is not a bar then all the judgments for that are irrelevant.

#BombayHighCourt #AnilDeshmukh

Lekhi: We will rely on the fact that the complaint of Patil which relied on Singh’s letter was not looked into by the State.
The HC order not having been over turned, the consequence of the enquiry will stay.

#BombayHighCourt #AnilDeshmukh

Lekhi: This is a case where the action of the petitioner showed a fanciful claim and the police was being used a medium of extortion undermining the police institution.

#BombayHighCourt #AnilDeshmukh

Lekhi: Mr Desai is disregarding the forum and the stage. This is not the appeal. Truth or falsehood is not the scope of enquiry at the stage. We have to accept facts as they are and for what they stand.

#BombayHighCourt #AnilDeshmukh

Lekhi: For time being let us deal with the complaint of #ParamBirSingh. The decision of registering an RC is justified by the order.

#BombayHighCourt #AnilDeshmukh

Lekhi: While reading this complaint, the submissions were for comments over content. The purpose of investigation is to probe the contents.
So all that we have to show is cause to investigate and probability of an offence.

#BombayHighCourt #AnilDeshmukh

Lekhi: While at this stage, there is good cause to proceed.

#BombayHighCourt #AnilDeshmukh

Lekhi: The difference between preparation and intent can be found through investigation. At this stage we only need allegations. The agency’s reluctance to state anything conclusively shows their fairness and openness.

#BombayHighCourt #AnilDeshmukh

Court: At the cost of repetition, the committee which reinstated an officer after 15 years will have to be looked into.
Also the higher machinery in the state.
If you want to give full meaning to the order of the Court.

#BombayHighCourt #AnilDeshmukh

Court: Whoever is the head of the executive and the administrative cannot be free with innocence, that officer told me so I was helpless. It was equal duty of the officer to stop at the relevant time.
We expect from CBI a broad base investigation.

#BombayHighCourt #CBI

Lekhi: Investigation needs free play.

Court: There is no interim order in this..

Lekhi: the investigation is ongoing and we will not withhold because of status anywhere involved.

#BombayHighCourt #AnilDeshmukh

Lekhi: We are dealing with people of public having stature. We need some strong evidence before coming to a conclusion.

#BombayHighCourt #AnilDeshmukh

Court: We will post this matter on Monday for you to argue.

Court records that Desai has concluded his submissions and Lekhi will continue with his submissions on Monday.

Hearing ends.

#BombayHighCourt #AnilDeshmukh