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2021 (4) TMI 1271
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....espondent nos. 2 and 3. ORDER P.C.: 1. 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 crimi....
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....ds and malpractices being indulged into by the Hon'ble Home Minister. 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....
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....rse to be followed by them in performance of their official duties. The Hon'ble Home Minister has been calling my 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,....
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....icer in Indian Police Service, Former Commissioner of Police, Mumbai and the present Director General of Police, Home Guards and Civil Defence has written a letter 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 Seni....
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....o secure the CCTV footage of the dates mentioned by Shri Param Bir in his report dated March 20, 2021 submitted to the Hon'ble Chief Minister of the Government of Maharashtra. It is noted that no interim relief has been claimed 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 ....
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....ed, impartial and fair investigation by the CBI, the 3rd respondent, in the various "corrupt malpractices" of Shri Deshmukh, the 4th respondent, including those mentioned in the petition as well as for a direction on the State of Maharashtra, the 1st respondent, to ensure that transfer/posting of police officials 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 thereo....
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.... Shri Param Bir against Shri Deshmukh and also to investigate into the instances mentioned in the letter dated March 20, 2021 of Shri Param Bir addressed to the Hon'ble Chief Minister of the State of Maharashtra and based on such report of the Special Committee, the prayer [vide clause (a)] is that this Court be 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....
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.... 14. Appearing on behalf of the State of Maharashtra, Shri Kumbhakoni, learned Advocate General, raised preliminary objections to the maintainability of the proceedings, in particular to the maintainability of the PIL of Shri Param Bir. According to him, no PIL at the instance of Shri Param Bir is maintainable having regard to the fact that 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 th....
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....rference by the Home Minister in the course of investigation undertaken by the Police Force, not a single complaint had been lodged by him prior to his transfer. 19. Relying on the decision of the Supreme Court in Kushum Lata V/s. Union of India and Ors., reported in (2006) 6 SCC 180, and Kunga Nima Lepcha and Ors. V/s. State of Sikkim and Ors., reported 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....
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....or decision in the PIL instituted by Shri Bhide. 26. Resting on the above contentions/submissions, Shri Kumbhakoni appealed to the Court to maintain a hands-off approach and to dismiss all the petitions. 27. Appearing in support of Shri Param Bir, Shri Nankani, learned senior advocate contended that given the exceptional situation, the PIL has been instituted 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 Pol....
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....e. 32. Having been told that the Court in Vishwanath Chaturvedi (supra) did not direct investigation by the CBI but all that it directed was a preliminary inquiry into the assets of all the respondents and further action was directed to be taken in the matter if, upon scrutiny, a case was made out, Shri Nankani submitted that it is not an investigation but an inquiry that Shri Param 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 ....
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....he police department and that it is only with the Court's interference that the malaise could be ridden. 39. Based on the above, Shri Nankani prayed for admission of the writ petition and grant of appropriate interim relief. 40. After Shri Nankani concluded, Shri Kumbhakoni submitted on instructions that the report of the Commissioner, State Intelligence Department, had duly been considered at 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 tha....
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....by constituting a Special Investigation Team consisting of officers drawn from the NIA, the CBI and the ED. 44. While replying to a query of the Court as to whether Shri Upadhyay lodged any complaint for being registered an FIR, Shri Jha contended that the gravity of the situation deserves suo motu cognizance by the Court. In any event, Shri Jha prayed that there being a complaint lodged by Dr. Patil and 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. S....
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....r, if at all, and to what extent, if any, action on the complaint of Dr. Patil should be directed to be taken. 51. However, prior to dealing with the CrWP of Dr. Patil, we deem it proper to conclude that with the constitution of the High-Level Committee by the Government of Maharashtra vide Government Resolution dated March 30, 2021, the grievance voiced by Shri Bhide in his PIL no longer survives and there is no justifiable reason to keep such PIL pending awaiting the decision of such Committee, 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 wer....
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....ion may be entertained and decided. During the more than 70 years of existence of India as a Republic, the Constitutional courts of our country have gained sufficient experience to separate the grain from the chaff and decide on whether there exists an equally efficacious alternative remedy or any particular writ petition or class of writ petitions should be entertained in the extra-ordinary jurisdiction to uplift the Constitutional jurisprudence. Whenever the court considers it necessary, it may call for 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 jur....
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....present." 59. In Union of India & Others V/s. R. Redappa & Anr., reported in (1993) 4 SCC 269, the Supreme Court ruled that although the jurisdiction exercised by the High Court under Article 226 is not as wide as it is in appeal or revision but once the Court is satisfied of injustice or arbitrariness, then the restriction ~ selfimposed or statutory ~ stands removed and no rule or technicality on exercise of power can stand in the way of rendering justice. 60. We feel tempted to quote here Martin Luther King, Jr., 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....
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....here. Such decision is, thus, clearly distinguishable. 67. In Sakiri Vasu (supra), no doubt the Supreme Court held that an aggrieved person cannot insist that an offence be investigated by a particular agency and that he can only claim a fair and proper investigation. It has also been held that the remedy provided by the CrPC ought to be pursued in case an FIR is not registered despite information being laid of a cognizable offence having been committed, instead of the writ court examining the matter and issuing direction. However, it has been 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 ....
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....ous. Therefore, if a case presented before a writ court appears to it to be extra-ordinary, which the CrWP indeed is, there is no bar that could operate for entertaining the same. After all, the rule which requires exhaustion of an alternative remedy is a rule of convenience and discretion, rather than a rule of law. 73. We, therefore, see no reason as to why the CrWP may not be entertained. It is altogether a different question whether Dr. Patil is entitled to the relief claimed by her. 74. While considering the CrWP on merits, we find that one other aspect cannot be overlooked. 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....
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.... 77. In NOIDA Entrepreneurs Association V/s. Noida and Ors., reported in (2011) 6 SCC 508, the Supreme Court, while directing the CBI to have a further inquiry, observed that the public trust doctrine is part of the law of the land. It was observed that the power vested by the State in a Public Authority should be viewed as a trust coupled with duty to be exercised in larger public and social interest. A decision taken in an arbitrary manner contradicts the principle of legitimate expectation. It was observed that the public authorities cannot play fast and loose with the powers vested in 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 off....
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....reported in (2018) 10 SCC 753, the Supreme Court taking a review of the earlier precedents reiterated the principle that the accused does not have a say in the matter of appointment of the investigating agency while referring to the decisions in Narmada Bai (supra), Sanjiv Rajendra Bhat V/s. Union of India, reported in (2016) 1 SCC 1 and Divine Retreat Centre V/s. State of Kerala, reported in (2008) 3 SCC 542. 80. In the present case, it is clear that Dr. Patil had submitted her complaint to the Senior Police Inspector of the Malabar Hill Police Station on March 21, 2021; however, except for 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 amo....
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....rocedure established by law. Here, Shri Deshmukh is the Home Minister. The police department is under his control and direction. There can be no fair, impartial, unbiased and untainted probe, if the same were entrusted to the State Police Force. As of necessity, the probe has to be entrusted to an independent agency like the CBI. While so entrusting, the note of caution in P. Sirajuddin (supra) has to be borne in mind. Although we do not see an immediate reason to direct registration of an FIR by the CBI based on Dr. Patil's complaint, interest of justice, in our opinion, would be sufficiently served if the 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 orde....