TaxTMI 
TaxTMI 
2021 (4) TMI 1271
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.... It is said that none can see time, but many a time, time makes us see many things hitherto before unseen. So true. The proceedings of which we are seized lays bare incidents, allegations and approaches of a kind which, at least, the two of us have not experienced before. It is time that has made us realize that the realities of life would have to be examined to give shape to law, for, law would cease to serve its purpose if justice cannot be administered. With such realization in mind, we now proceed to complete the task at hand. 2. This batch of 3 (three) Public Interest Litigation (hereafter "PIL") and 1 (one) Criminal Writ Petition (hereafter "CrWP"), instituted under Article 226 of the Constitution, have a common origin. It may not be inapt to note the facts and circumstances preceding institution of these petitions, before we proceed to consider the individual grievances, the diverse prayers that the petitioners have made and the arguments advanced on behalf of the parties. Incidentally, the petitioners before us belong to the intellectual strata of society. An accredited police officer, an advocate and a self-proclaimed criminologist, an advocate, and a chartered accountant....
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....ter. I have similarly briefed the Hon'ble Deputy Chief Minister, Maharashtra, the President of the Nationalist Congress Party, Shri Sharad Pawar and other senior Ministers also about the misdeeds and malpractices. On my briefings, I noticed that some of the Ministers were already aware about some aspects mentioned by me to them. "7. In the aforesaid context, Shri Sachin Vaze who was heading the Crime Intelligence Unit of the Crime Branch of the Mumbai Police was called by Shri Anil Deshmukh, Hon'ble Home Minister, Maharashtra to his official residence Dyaneshwar several times in last few months and repeatedly instructed to assist in collection of funds for the Hon'ble Home Minister. In an around mid-February and thereafter, the Hon'ble Home Minister had called Shri Vaze to his official residence. At that time, one or two staff members of the Hon'ble Home Minister including his Personal Secretary, Mr. Palande, were also present. The Hon'ble Home Minister expressed to Shri Vaze that he had a target to accumulate Rs. 100 crores a month. For achieving the aforesaid target, the Hon'ble Home Minister told Shri Vaze that there are about 1,750 bars, restaurants and other establishments i....
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....officers at his official residence bypassing me and other superior officers of the Police Department to whom those respective Police officers report to. The Hon'ble Home Minister has been instructing them to carry out official assignments and collection schemes including financial transactions as per his instructions based on his expectations and targets to collect money. These corrupt malpractices have been brought to my notice by my officers. 15. Dutybound to do so, I held to my professional view as advised by legal experts. The Hon'ble Home Minister kept insisting otherwise despite having been informed by me about the opinion of legal experts on this issue. Due to my resistance, the Hon'ble Home Minister was unhappy with me as the political mileage desired to be derived from the registration of the abetment of suicide case in Mumbai in the death of Shri Mohan Delkar, Member of Parliament against senior officials of Dadra & Nagar Haveli was not being achieved. 17. It has been my experience during the last more than one year as Commissioner of Police, Mumbai that the Hon'ble Home Minister has on numerous occasions called several officers from the Mumbai Police to his official ....
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....ter to Uddhav Thackeray, the Hon'ble Chief Minister, and the same has reached the public at large through social media. In the said letter, it is claimed that the Hon'ble Home Minister Anil Deshmukh had given a target to Sachin Vaze to make recovery of Rs. 100 crores every month. Further, many serious allegations have been levelled in the said 8-page letter, addressed to the Hon'ble Chief Minister. The said allegations are the clear-cut proof for they committing corruption and the mastermind Anil Deshmukh, Home Minister of Maharashtra, Sharad Pawar, Sachin Vaze are involved therein. The letter written by Param Bir Singh of Indian Police Service to the Hon'ble Chief Minister Uddhav Thackeray, should have been immediately given to the concerned Police Station as a First Information Report under Section 154(3) of the Criminal Procedure Code, as a Senior Police Officer and an offence was required to be registered but the same has not happened. When a criminal conspiracy from any complaint, information is found as a Senior Police Officer, it is necessary to register an offence as per the (decision) given by the Hon'ble Supreme Court in (Lalita Kumari vs Govt. of U.P. & Ors on 12 Novem....
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....d by Dr. Patil. 7. The writ petition of Shri Param Bir was considered by the Supreme Court on March 24, 2021. We consider it appropriate to quote the order passed by the Supreme Court on the writ petition in its entirety, since much would depend on it. The order reads as under: "ORDER We have heard learned senior counsel for the petitioner. We pointed out at the inception that the concerned person Mr. Anil Deshmukh, Minister concerned has not been impleaded as a respondent. Learned senior counsel submits that the same appears to be a mistake and that he is willing to forthwith implead Mr. Anil Deshmukh as respondent No.4. At his oral request, Mr. Anil Deshmukh is impleaded as respondent No.4 and National Investigation Agency (NIA) as respondent No.5, as it is stated that the investigation has been handed over to the NIA by the Central Government. Order accordingly. Amended memo of parties be filed during the course of the day. On further hearing, we put to learned senior counsel as to why the petition should not have been preferred under Article 226 of the Constitution of India before the Bombay High Court as the powers thereunder, if any, are wider. If investigation by....
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....cials are neither done on any consideration of pecuniary benefits to any politician, nor in contravention of the directions of the Supreme Court in Prakash Singh & Ors. V/s. Union of India & Ors., reported in (2006) 8 SCC 1. As and by way of interim relief, it has been prayed that the State, the 1st respondent, be directed to produce before this Court the complete file containing report of Ms. Rashmi Shukla, the former Commissioner (Intelligence), State Intelligence Department, as well as the connected file of the Home Department, Government of Maharashtra with complete file notings, evidence gathered, comments exchanged thereon and communications, if any, issued therein, as well as for urgent directions to any independent agency such as CBI to forthwith take custody of the entire CCTV footage from the residence of Shri Deshmukh, the 4th respondent, to prevent destruction thereof. This PIL has been heard as the lead matter in the batch of writ petitions under consideration. 9. The third writ petition in the batch is Criminal Public Interest Litigation (St.) No.6072 of 2021.The petitioner is an advocate, Shri Ghanshyam Upadhyaya (hereafter "Shri Upadhyaya"). The main prayer in the ....
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.... pleased to issue an appropriate writ or order directing the State of Maharashtra, 1st respondent, to initiate appropriate legal action against Shri Deshmukh and Shri Param Bir, the 3rd and the 4th respondents, respectively, and/or any other person directly and/or indirectly involved in the illegal acts mentioned in the aforesaid letter dated March 20, 2021. 11. In the PIL instituted by Shri Param Bir, an application for intervention being Interim Application (St.) No.6356 of 2021 has been filed. The applicant, Shri Vinod Kumar Dubey, claims to be the President of Maharashtra Karjdar Jamindar Haq Bachav Sangharsh Samiti, Mumbai. According to him, Shri Param Bir has instituted the PIL to exert pressure on the Government of Maharashtra in collusion with the opposition party. Being an IPS officer, Shri Param Bir did not lodge any complaint before any authority and maintained silence and it is only after his transfer from the office of the Police Commissioner, Mumbai Police, that he levelled charges against the State of Maharashtra with an ulterior motive. The applicant seeks to point out that although Shri Param Bir has challenged the order of his transfer before the Supreme Court an....
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.... the prayers made by him are intrinsically connected to secure personal benefits and that he is vitally interested in the outcome of the PIL for vindication of his own self. 15. Shri Kumbhakoni further contended that the letter addressed to the Hon'ble Chief Minister by Shri Param Bir was based on what he had heard from his subordinates and that there is absolutely no reference to any evidence to establish that the Home Minister had made the alleged statements in the presence of Shri Param Bir. Being based on hearsay evidence, the allegations lack substance and as such did not call for immediate action. 16. Continuing his argument, Shri Kumbhakoni submitted that at various pages of the PIL, Shri Param Bir had averred that the same was instituted pursuant to the liberty granted by the Supreme Court. Shri Kumbhakoni was at pains to show us that while the first prayer in the writ petition under Article 32 of the Constitution before the Supreme Court is substantially the same as in this PIL, the second prayer in the PIL is completely different from the one prayed before the Supreme Court. While the second prayer before the Supreme Court was for quashing of the order of transfer dated....
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....eported in (2010) 4 SCC 513, Shri Kumbhakoni submitted that the PIL not having been instituted bona fide by Shri Param Bir, the same does not deserve to be entertained. 20. The decision of the Supreme Court in Dr. B. Singh V/s. Union of India and Others, reported in (2004) 3 SCC 363, was relied on in support of the proposition that in regard to disputes relating to 'service', a PIL is not maintainable. 21. To remind that a PIL is a weapon which has to be used with great care and circumspection and that the judiciary has to be extremely careful to see that no ugly private malice, vested interest and publicity lurking lies behind the beautiful veil of public interest, the decision in Kalyaneshwari V/s. Union of India and Ors., reported in (2011) 3 SCC 287, was referred to. 22. The decisions of the Supreme Court in Sakiri Vasu V/s. State of U.P. and Ors., reported in (2008) 2 SCC 409 and M. Subramaniam V/s. S. Janaki, reported in (2020) 16 SCC 728, were relied on by Shri Kumbhakoni to drive home the point that even if the police fails to register an FIR upon receipt of information/complaint disclosing a cognizable offence, the remedy of the aggrieved informant/complainant lies befo....
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....essentially for achieving three purposes: (i) investigation by an independent agency into the allegations contained in the letter dated March 20, 2021 addressed to the Hon'ble Chief Minister of Maharashtra to unearth the truth; (ii) to rid the malaise in respect of transfers and postings of officers of the Police Force at the behest of their political masters; and (iii) effective compliance of the directions contained in Prakash Singh (supra). 28. While arguing, Shri Nankani submitted an additional affidavit of Shri Param Bir. Such affidavit includes as annexures a top-secret letter dated August 25, 2020 of Ms. Rashmi Shukla, Commissioner (Intelligence), State Intelligence Department, marked to the Director General of Police, State of Maharashtra as well as a letter dated August 26, 2020 of the Director General of Police immediately reacting to the former and forwarding a report to the Additional Chief Secretary (Home), Maharashtra State. The additional affidavit further contains as annexures secret documents regarding secret movements of those who are allegedly involved in securing cherry postings for certain police officers. The affidavit also contains a Press Release signed by ....
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....ram Bir, at this stage, is asking for. 33. Shri Nankani also invited our attention to an order dated October 21, 2020 of the Home Department, Government of Maharashtra, which purports to withdraw the consent accorded to the members of the Delhi Special Police Establishment vide Government Order of the Home Department dated February 22, 1989 as also by any other instruments issued by the Government of Maharashtra from time to time, to exercise the powers and jurisdiction under the Delhi Police Establishment Act, 1946 in the State of Maharashtra. According to Shri Nankani, had such order dated October 21, 2020 not been in existence, Shri Param Bir could have approached the CBI for investigation; however, in view of such withdrawal, remedy under Article 226 of the Constitution is the only course open to him. 34. Referring to the decision in State of Punjab V/s. Central Bureau of Investigation and Ors., reported in (2011) 9 SCC 182, Shri Nankani contended that law is well settled to the effect that investigation can be entrusted to the CBI even after a chargesheet is filed. Ultimately, what ought to weigh in the mind of the Court is the gravity of the allegations levelled, viz. the r....
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....t the appropriate level and since nothing of substance was found, the file was closed. 41. Dr. Patil, appearing in person, invited our attention to the written complaint dated March 21, 2021 lodged by her with the Malabar Hill Police Station, Mumbai, the Director, CBI, Mumbai, the Minister of Home Affairs, New Delhi and the Governor, Maharashtra State. According to her, as her complaint makes out a case of commission of cognizable offence and in view of the decision of the Supreme Court in Lalita Kumari (supra), it was the mandatory duty of the police to register an FIR upon receipt thereof. Despite disclosure made by her, neither any FIR was registered nor was she informed of the fate of the complaint prompting her to invoke the writ jurisdiction of this Court. Dr. Patil submitted that although Shri Param Bir had not lodged any complaint for being registered as an FIR, she prayed that direction be issued to the Director, CBI to register her complaint as an FIR, to investigate the cognizable offences and to place periodical reports before us. 42. After Dr. Patil had concluded her submission, we asked Shri Kumbhakoni whether any action had been taken on the complaint of Dr. Patil ....
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....d since there cannot be two FIRs registered in respect of the same offence, the Court may proceed to pass an appropriate order as prayed for in the PIL. 45. In course of his submission, Shri Jha referred to the following decisions: 1. Chandra Deo Singh V/s. V. Prokash Chandra Bose alias Chabi Bose and Anr., reported in AIR 1963 SC 1430; 2. Smt. Nagawwa V/s. V. Veeranna Shivalingappa Konjalgi and Ors., reported in AIR 1976 SC 1947; 3. Manohar Lal V/s. Vinesh Anand and Ors., reported in (2001) 5 SCC 407; 4. Zahira Habibullah H. Sheikh and Anr. V/s. State of Gujarat and Ors., reported in (2004) 4 SCC 158; 5. Mrs. Charu Kishor Mehta V/s. State of Maharashtra and Ors., reported in (2010) SCC OnLine Bom 1794; 6. Narmada Bai V/s. State of Gujarat and Ors., reported in (2011) 5 SCC 79; 7. Noida Entrepreneurs Association V/s. Noida and Ors., reported in (2011) 6 SCC 508; 8. Provident Investment Co. Ltd. V/s. Hemlata Vijaysingh Ved and Ors., reported in 2012(3) Mh. L.J. 359; 9. Kamlakar R. Shenoy V/s. State of Maharashtra and Ors., reported in 2019 SCC OnLine Bom 1885; 10. Satishkumar Nyalchand Shah V/s. State of Through Gujarat and Ors., reported in (2020) 4 SCC 22; and....
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....tee, as prayed for on his behalf. 52. As we proceed to deal with the objection of Shri Kumbhakoni to the entertainability/maintainability of the CrWP, we recollect the observation of the Supreme Court in its order dated March 24, 2021 that the allegations levelled by Shri Param Bir are serious, affecting the administration at large. We too, with respect, share the same view and are of the opinion that no decision on the CrWP ought to be rendered oblivious of such an observation. 53. Registration of a case is a sine qua non for starting an investigation has been held in Mohindro V/s. State of Punjab, reported in (2001) 9 SCC 581. Such registration could be facilitated if information were furnished or a complaint lodged disclosing commission of a cognizable offence. The jurisdictional fact for setting the criminal law in motion is traceable in the CrWP of Dr. Patil, who seems to have provided the necessary and crucial break through by lodging a complaint. She has brought to the notice of this Court the failure of the Senior Police Inspector, Malabar Hill Police Station to follow the legislative mandate as in Section 154 of the CrPC. It is the prayer of Dr. Patil that the criminal l....
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.... reports from the law enforcing agency to ascertain the veracity of the allegations contained in the writ petition/complaint in order that the party against whom the allegations are made may not find an easy escape route on the specious plea of disputed questions of fact being involved or nonexhaustion of an efficacious alternative remedy. Provisions in Section 23 of the Police Act, 1861 and the CrPC cast a duty on the police, inter alia, to prevent commission of offence and to bring an offender to justice. Where a person or authority is vested with a duty by specific statutory provisions, to compel such person or authority to perform such duty is certainly within the power and jurisdiction of a writ court. The exercise of such power will be consistent with the Constitutional provision which binds a person, on his elevation as a Judge, by the oath of office administered to him. Where, therefore, there is a duty to act, refusal is the least the law can tolerate. 57. It is true that having regard to the self-imposed restrictions, a High Court exercising writ powers under Article 226 may refuse to entertain a challenge to an action/inaction of a public official who, being bound to pe....
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...., who said: "Injustice anywhere is a threat to justice everywhere". This has been accepted by the Supreme Court to be true in N. Kannadasan V/s. Ajay Khose, reported in (2009) 7 SCC 1, while proceeding to hold that the people's faith in the judiciary cannot be afforded to be eroded. 61. We are thus of the view that since the law courts exist for the society, technicalities ought not to stand in the way. 62. Pertinently, the chink in the State's armour is truly manifested by the frivolity of the submissions made on its behalf. The proceedings instituted by Shri Param Bir and Shri Upadhyaya have been opposed on the ground that such institution was not preceded by any written complaint; however, once it came to the fore that Dr. Patil had made a complaint, the track of attack was changed and objection to the entertainability of her CrWP was raised based on Sakiri Vasu (supra) and M. Subramaniam (supra). 63. Prior to considering such decisions, we may briefly make a reference to the decision of the Supreme Court in CBI v. State of Rajasthan, reported in (2001) 3 SCC 333. The central question arising for decision there was: "Has a Magistrate power to direct the Central Bureau of In....
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....restated there that: "28. It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High Court should not ordinarily interfere. ... 31. No doubt the Magistrate cannot order investigation by CBI vide CBI v. State of Rajasthan but this Court or the High Court has power under Article 136 or Article 226 to order investigation by CBI." (emphasis supplied) 68. Since Dr. Patil has prayed for investigation into her complaint by the CBI, she could not have moved the Magistrate under Section 156(3), CrPC in terms of the law laid down in CBI (supra) and Sakiri Vasu (supra). That apart, Sakiri Vasu (supra) also reiterates the settled position in law that if there is an alternative remedy, the High Court should not ordinarily interfere (emphasis supplied). 69. True it is, Dr. Patil cannot choose the investigating agency having regard to the law laid down in Sakiri Vasu (supra). However, as observed above, each case has to be dealt with keeping in mind its peculiar features. It would need a thorough examination, which we propose to do hereafter, as to whether in the given facts and circumstance....
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....d. Shri Kumbhakoni has not urged that the complaint of Dr. Patil does not disclose any cognizable offence. If indeed the police were also of the view that Dr. Patil's complaint did not disclose any cognizable offence, a duty was cast on the police in terms of sub-section (2) of Section 157, Cr.P.C. to inform her that her complaint would not be investigated since it does not disclose a cognizable offence. It is not the claim of Shri Kumbhakoni that Dr. Patil was so notified. On the contrary, he has been fair to say that the complaint of Dr. Patil was not processed. Although an impression was sought to be initially created that a preliminary enquiry was on, it was ultimately conceded by Shri Kumbhakoni that apart from an entry in the Inward Register, no further/other action was taken on such complaint. Thus, there cannot be any two opinions that the police by not registering an FIR on receipt of Dr. Patil's complaint, and then again by not notifying her that the complaint would not be investigated, have not acted in accordance with law. 75. We have perused the complaint of Dr. Patil to consider as to whether it makes out a prima facie case of a cognizable offence. Examination of the....
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....them. The Court also observed that functioning of a democratic form of Government demands equality and absence of arbitrariness and discrimination. 78. In State of Bihar and Another V/s. Ranchi Zila Samta Party and Anr., reported in AIR 1996 SC 1515, the Supreme Court observed that the power under Article 226 of the Constitution in a public interest litigation, to order an inquiry and investigation to be taken over from the State Police and entrusting it to the CBI, can be exercised when it was to investigate corruption in public administration, misconduct by the bureaucracy, fabrication of official records, and misappropriation of public funds by an independent agency that would command public confidence. In State of West Bengal (supra), the Supreme Court observed that the very plenitude of the power under Article 226 of the Constitution requires great caution in its exercise. Such extraordinary power is required to be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary ....
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....making an entry in the Inward Register, no action whatsoever, as the law would mandate, was initiated. We have already noted above that the allegations as made by Shri Param Bir in the letter dated March 20, 2021, which triggered Dr. Patil to lodge complaint with the Malabar Hill Police Station, Mumbai, is of a serious nature and against the highest functionary of the Government of Maharashtra, when it comes to the functioning of the police department. Prima facie, the issues are such that the very faith of citizens in the functioning of the police department is at stake. If there is any amount of truth in such allegations, certainly it has a direct effect on the citizens' confidence in the police machinery in the State. Such allegations, therefore, cannot remain unattended and are required to be looked into in the manner known to law when, prima facie, they indicate commission of a cognizable offence. It is, hence, certainly an issue of credibility of the State machinery, which would stare at the face when confronted with the expectations of the law and when such complaints are received against high ranking public officials. This Court cannot be a mere spectator in these circumsta....
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....Director, CBI is directed to initiate a preliminary inquiry into the complaint of Dr. Patil which has the letter of Shri Param Bir addressed to the Hon'ble Chief Minister, as an annexure. This would be in perfect accord with paragraph 120.6 of Lalita Kumari (supra). Also, the press release of Shri Deshmukh suggests that he is not averse to facing any inquiry. It is, therefore, ordered accordingly. 83. Such preliminary inquiry shall be conducted in accordance with law and concluded as early as possible but preferably within 15 (fifteen) days from receipt of a copy of this order. We hope and trust that the officer(s) appointed for the purpose of conducting preliminary inquiry shall receive due cooperation from individuals/agencies who are approached therefor. Once the preliminary inquiry is complete, the Director, CBI shall be at liberty to decide on the future course of action, also in accordance with law. Should the Director, CBI see no reason to proceed further, Dr. Patil shall be duly informed of the same. 84. We make it clear that the observations made in this order are for the purpose of addressing the rival claims as raised in these proceedings and are without prejudice to t....