On Thursday, the High Court of Bombay dismissed two pleas to quash completely or partly an FIR registered by the Central Bureau of Investigation (CBI) against Ex-State Home Minister Anil Deshmukh & unknown others for criminal conspiracy & offence of undue gains as a public servant under the Prevention of Corruption Act.
A bench of Justice S S Shinde & Justice N J Jamadar, while dismissing the state’s petition to delete 2 paras from the FIR, said the CBI can legitimately inquire into the aspect of transfer & postings of police officers, “so also (the) reinstatement of Sachin Waze after fifteen years, to the extent those transfers & posting have nexus with offences alleged against then Home Minister & his associates keeping in view the observations of the bench in the order of April 5”.
It added, “Conversely,” the April 5 order “cannot be construed as giving unfettered authority to CBI” to probe transfers & postings “generally which do not reflect upon the alleged acts & conduct expressly attributed to then HM”.
The High Court, noting the state’s concern, expressed by senior lawyer Rafique Dada, of CBI using the April 21 FIR to do a roving inquiry into its administration & demoralising the police force, said the transfer & posting referred to in the para of the CBI FIR which the state wanted gone “is essentially linked to allegation of abuse of official position by then home minister & his confederated (sic)”. The state’s objection was to two unnumbered paras mentioning Waze’s reinstatement as API, Waze getting all the sensational cases & Deshmukh’s alleged ‘exercise of undue influence’ over transfers & postings & hence over performance of police officers’ duties. Deshmukh, 70, through his senior lawyer Amit Desai, had said the FIR was “vague” & “motivated,” & wanted it totally quashed. He said lodging of FIR needed prior sanction since he was a public servant & the state’s prior consent was needed for CBI to probe. His counsel had said even “Ajmal Kasab got the benefit of the rule of law in this country.” The HC said, about his plea, “The audacity of the submission that the FIR does not disclose a prima facie offence is belied by the hard facts of the case.”
The High Court held prior state consent was not necessary for a CBI probe, “especially when the Division Bench has adverted to the necessity of entrusting the enquiry to an independent agency as it found that cognizable offences were prima facie made out”. On whether prior sanction was needed as mandated under Section 17A of PCA since Deshmukh was a public servant, the HC said the section “is not held by court to be a fetter when a higher court is convinced that impartial probe is needed by an independent agency”.
On April 5, the HC directed CBI to do a preliminary enquiry (PE) into a complaint by advocate Jaishri Patil, based on ex-Mumbai police chief Param Bir Singh’s March 20 letter alleging “corrupt malpractices” by Deshmukh who allegedly asked Waze to collect Rs 100 crore per month from almost restaurants & bars.
The High Court also noted it had expressed its anxiety during the hearing on how or whether the probe would be broadbased to “investigate the acts & omissions of officers who might have had a role,” apart from Deshmukh. The HC judgment records that CBI, through solicitor general Tushar Mehta, assured it about the “integrity of investigation” & that it would be “done dispasstionately” as investigation is “issue-centric”. It was not uncommon that a person who sets the law in motion is also eventually indicted, CBI had submitted, adding its “endeavour would be to honour the spirit of the order under which the investigation has been directed”.
The Court did not accept the state’s submission that consistent demand by CBI for former state intelligence commissioner Rashmu Shukla’s report amounts to derailing or interference of its probe into the leaking of her report. If the state is saying nothing of substance was found in her report, “we are unable to appreciate the steadfast resistance” by the state to share it with CBI, it said.
The High Court agreed with Mehta, for CBI, that the plea by Singh was to “cleanse the system of police postings & transfers allegedly made for extraneous consideration, in future”.
To the state’s submission that Singh had sought to put past postings & transfers on the radar, the HC said that on April 5, the CJ-led bench had observed that Singh’s letter raised issues that placed citizens’ faith in police & state machinery at stake, necessitating an independent probe.
The HC granted no stay on the dismissal verdicts. To the state’s plea for stay, it said “it was not expedient to stay, else it would amount to interfering with the investigation which is underway” & to Deshmukh’s counsel Desai who sought a stay saying question of law was involved, HC saw “no justifiable reason to stay” its judgment.
Kamlesh Ghumre, advocate for Deshmukh, later said, “Once we study the judgment, we will be able to decide the future course of action.”
“We clarify that the observations are made” only for the state’s petition, said the HC, & not on other pending petitions of Shukla & Singh, to be heard on July 28.
Inherent powers to quash FIR are required to be exercised in
exceptional cases, said the HC. “At the stage…when the truth is yet to
be unearthed, this Court cannot embark upon the inquiry into the
correctness or otherwise of the allegations.”
ASG Aman Lekhi for CBI assured the HC that “nobody would be spared”
& it would “not play favourites” & “it would be an unsparing
investigation irrespective of the rank”.
The bench said CBI must be alive to its responsibility & quoted from Lord Denning on police duties to say “they serve none but the law”.
Source Link
0 Comments