Thread by @barandbench

A Bench of Justices DY Chandrachud & MR Shah is currently hearing a plea challenging the #BombayHighCourt order allowing the CBI to invesitgate postings related to former Home Minister of Maharasthra & current MLA, Anil Deshmukh.

#SupremeCourt @AnilDeshmukhNCP

Senior Advocate Rahul Chitnis, for Maharashtra sought an adjournment to Monday.

Justice DYC refuses, “No technical grounds for adjournment”. #SupremeCourt
@AnilDeshmukhNCP

Chitnis takes the #SupremeCourt through the order of the #BombayHighCourt dated April 5 under challenge. Refers to Paras 83 and 87.

Justice DYC: What have you sought, your prayer?

One prayer is asking for directions & postings for Prakash Singh's case. Another prayer called for transfers & postings devoid of any undue influence.

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Chitnis: These complaints do not relate to postings, all of them are for collections from bars.

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Justice DYC: We are concerned that allegations of undue influence were for collection from bars & restaurants.

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Justice DYC: How can we say that only CBI will investigate into the abuse of law regarding aparticular fact?

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Court: The manner of postings is the subject matter for investigation.

#SupremeCourt @AnilDeshmukhNCP

Chitnis: Consent comes into question when Section 6 of DPSE Act comes into play.

Justice DYC: Consent will defeat the direction passed by the constitutional court.

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Justice DYC: Why would we interdict CBI at this stage? We are dismissing it.

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Senior Advocate Amit Desai takes the Bench through the FIR.

After the complaint of Jaishree Patil where various allegations were made, this is the outcome of a preliminary inquiry.

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Desai: The #BombayHighCourt has read into things that were never averred.
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Justice DYC: So, there are 2 questions:

i. Will section 17A apply when directions have been made by a constitutional court?
ii. Can you say the investigation is invalid if it has been directed by constitutional court?

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Justice DYC: The entire purpose of directions by us gets defeated if the State tells the CBI, you cannot investigate my officer.

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Justice DYC: This isnt a case of murder which is why, for protection to your client the Court directed for a preliminary enquiry.

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Justice DYC: Only in a particular category of cases one can say that a person should not be targetted unnecessarily or be subjected to frivolous complaints.

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Desai: Keeping this man aside, the principle laid down in Lalita Kumari's judgment remains the same.

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Court: The #BombayHighCourt has acted according to Lalita Kumari only.

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Senior Adovocate Amit Desai, appearing for Anil Deshmukh: The High Court ordered a prelimnary inquiry but never registered an FIR.

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Desai: My submission is that the Constitutional Court was conscious of the restraint being exercised by it.

#SupremeCourt @AnilDeshmukhNCP

Desai: Section 6 of the DSPE is applicable to investigation, not to inquiry.

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Desai: When the Top Court gave directions, the second step was under Sections 6 & 17A and the Division Bench said that it saw no need to look into the matter.

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Justice MR Shah: The Division Bench was conscious of the Lalita Kumari judgment.

Justice DYC: Suppose the FIR had been lodged directly, Section 6 would come into play. Now the question is whether Section 17A will come into play.

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Justice DYC: The reason for the Court to order a Preliminary Enquiry was that the allegations were such which could shake the foundations of the police force & citizenry.

#SupremeCourt @AnilDeshmukhNCP

Desai: There are many cases where direct filing of an FIR has been ordered. The debate that arises here is that PE was ordered.

The State wanted a Stay of the investigation. There was no objection from our side.

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Justice DYC: I am sorry, we have to break this here.

We will return at 2 PM and continue hearing the matter. We have to go for our Brother Justice Sinha's farewell.

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Court reassembles.

Justice DYC: Mr. Solicitor, Mr. Desai & Mr. Lekhi, we got caught up in some administrative work at the Court.

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Senior Advocate Amit Desai continues submissions.

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Desai: “Even proceeding on the basis that on petitioners’ complaint, an FIR must be registered as it purports to disclose cognizable offences and the Court must so direct, will it not be a futile exercise having regard to section 17A”, Justice Joseph said.

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Desai: These are the observations made by your Lordship under 17A.

The closest judgement is the one in Manohar Lal Sharma that deals with 6A. It lays down the position as to what is to be done in a Court directed investigation.
The impugned judgement is in teeth with it.

Desai: The legislature intends to provide protection to public servants at the stage of investigation. This is the intent of the legislature in light of Article 21.

#SupremeCourt #AnilDeshmukh

Desai takes the Bench through the judgement in Manohar Lal Sharma vs The Principle Secretary.

Desai: In the context of the principles laid down by your Lordships, it is said we will not let the executive decide. We will not let a public servant be harassed, Section 17A protects them. The public servant is no longer in the hands of the executive but is being watched.

Justice DYC: when it is a Court monitored investigation then the Court itself will ensure harassment does not exist. The same principle will apply in this situation, even though this is not a Court monitored investigation, but the CBI stepped in after a direction by the Court..

... This subserves the purpose of Section 17A.

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Desai: There is investigation of offence and investigation of an offender. It is said that a Central state agency can come into a State and investigate an offence.

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Desai: The balancing your Lordship did was that we will allow an impartial agency to investigate the offence. So far as 17 A is concerned, it protects the offender.

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Desai: This is a vital distinction. Your Lordships have held that under 142, even the SC can’t pass an order contrary to statute.

If you see this judgement by Justice Lokur, it will become clear.

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Justice DYC: There are two aspects, one is to implement criminal law in public interest and other is to ensure a public servant is not being harassed.

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Justice DYC: The investigation has ordered in the first place because the local police cannot be trusted to carry it out. If we say you must abide by 17A, they never will grant sanction.

Justice Shah: Instead of ordering an investigation, the HC has asked for a Preliminary enquiry, that is how the Court has protected the rights of the accused.

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Justice DYC to Senior Advocate Desai: Your point basically is that the precursor of 17A was 6A. 17A has been introduced to protect the right of the accused...

....The exception has been found in Manohar Lal on the foundation that if there is a court monitored enquiry, that is safeguard to the accused as he can approach the Court in case of anything.

During the course of the investigation, there must be a safeguard to the accused.

Justice DYC: A very important circumstance- 17A applies to the very threshold, not through the entirety of the investigation.

#SupremeCourt @AnilDeshmukhNCP

Desai: Under the Lokayukt Act, there is a provision for a preliminary enquiry. There also, the scheme of a legislation is that the PE is supposed to be kept before a senior officer to see whether an investigation is needed.

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Justice Shah: According to you when will S.17 protection end?

Desai: At two stages, after PE & FIR is registered.

J. Shah: Here the FIR has been filed.

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Desai: if you look at the facts, the FIR talks about only one person. Is it to be seriously suggested that the CBI could not find even prima facie any other suspects?

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Desai: This is why I wanted to keep the facts aside and argue only on principle.

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ASG Aman Lekhi begins submissions.

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ASG: Firstly, the Bombay High Court has dealt with the letter of Singh & the complaint by Patil.
The three facets were present in the mind of the Court.
The Court has also noted the submissions of the AG, where it was said that a cognizable offence is made out.

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ASG: The Court also noted that there needs to be expeditious investigation. The Court ordered a preliminary enquiry despite a cognizable offence being made out, to add an additional layer of protection to the accused.

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ASG: The Court directed the CBI to act in accordance with law, what is the law- an FIR to be registered in case of a cognizable offence.

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ASG: Lalitha Kumari lays down that an FIR must be regd, otherwise there will be a departmental enquiry.

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ASG: As far as Section 17A is concerned, it was to protect #publicservants from frivolous complaints.

In the facts of this case, Mr. Desai’s refusal to argue on facts is his own undoing because it shows that on facts this order is correct.

Sr. Adv Desai motions no.

ASG continues: the most material fact recorder in the order is the State's disinclination to investigate.

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ASG: 17A talks of enquiry. It has been ordered. The order has been upheld by the #SupremeCourt. The enquiry relates to cognizable offences, the registration of RC is culmination of enquiry.

Justice DYC: & Section 27 does not postulate two permissions before & after.

ASG: If for 6A, the #SupremeCourt has held that no permission from the State is required. Then, the same shall apply to 17A.

ASG: No enactment can exclude or curtail the power of a constitutional court. This was the basis of West Bengal, of Manohar Lal Sharma.

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ASG refers to paragraphs 52 & 53 of ML Sharma: It relies on West Bengal & reaffirms it. In Bengal, they dealt with 32 & 226. So, to say ML Sharma restricted it to 142 is wrong.

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Justice DYC (in lighter vein): One last thing- we have wide powers under 142 but not wide enough to distribute our briefs that we have to read for tomorrow. So, please keep in mind.

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ASG Lekhi (laughs): I will wrap up in 5 minutes.

Justice DYC: No no, you continue. Either way- you circulate a short note.

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ASG: The Constitutional Court's powers are plenary. It decides its own jurisdiction and to say this power is limited in anyway disregards the very nature of a constitutional court.

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ASG: I just have a few points regarding Yashwant Sinha. This is not a case where the Court has ordered an enquiry. An enquiry was sought, but the Court declined. The occasion for dealing with 17A was on the side by Justice Joseph, it was not a part of the ratio.

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ASG: In the order, the High Court had said that the scope of investigation is not limited to one person. Paragraph 80 speaks to the need and gravity.

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ASG: Therefore, this argument that it is only one person is being read without looking at the investigation or the order of the High Court.

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Justice DYC: Okay, will conclude the arguments. You just circulate a short note with all your submissions.

Just one second. (Bench switches camera off)

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[BREAKING] Court: We just discussed amongst ourselves; WE ARE INCLINED TO DISMISS the plea. Would you want a detailed judgement or an order simplicitor?

We thought we will give you an option.

@AnilDeshmukhNCP #SupremeCourt

Senior Advocate Amit Desai asks for a minute to seek instructions.

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Senior Advocate Amit Desai returns: In criminal matters, one tends to take the practical approach. (Everyone laughs)

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#ORDER: In light of the submissions, no case is made out for interference under Article 136, no error in the Judegement of the High Court. The SLP IS DISMISSED.

#SupremeCourt @AnilDeshmukhNCP

[BREAKING] Supreme Court dismisses Anil Deshmukh plea to quash CBI FIR in corruption case

report by @SuryamShagun

#SupremeCourt #AnilDeshmukh #CBI @AnilDeshmukhNCP

Read more here: bityl.co/8HOE