2015 (10) TMI 2654 - HC - Indian Laws

FIR against the petitioner - Code of Criminal Provisions - Held that - Petitioners will suffer irreparable loss and injury in case interim directions are not issued at this stage. The CBI is directed to go ahead with the investigation but the statements of the petitioners shall not be recorded without the leave of the Court. Mr. Ashok Sharma, learned ASGI, submitted at the Bar that there is no proposal of petitioners arrest at this stage. However, by way of abundant precaution, it is made clear that the petitioners shall not be arrested. It is also made clear that as and when the dossier is complete, it shall be open for the Central Bureau of Investigation to approach this Court for permission to interrogate the petitioners in accordance with law. The Central Bureau of Investigation shall not file challan without the express leave of this Court in FIR No.RCAC-1 2015 A-004. The observations made hereinabove shall have no bearing on the pendency of any case, including before the Hon ble Delhi High Court.

Issues Involved:
1. Territorial Jurisdiction
2. Second Preliminary Inquiry
3. Violation of Supreme Court Dicta
4. Mandatory Consent under DSPE Act
5. Federal Structure Violation
6. Concurrent Jurisdiction with Income Tax Department
7. Compliance with Code of Criminal Procedure and CBI Manual
8. Interpretation of Union List and State List Entries
9. Disproportionate Assets
10. Legal and Factual Mala Fide and Political Vendetta
11. Permission from Speaker of H.P. Legislative Assembly

Issue-wise Detailed Analysis:

1. Territorial Jurisdiction:
The petitioners argued that part of the cause of action arose within the territorial jurisdiction of this Court, referencing Sr. No.5 and paras 4, 5, and 6 of the FIR dated 23.9.2015. The respondent countered, citing that the Delhi High Court is already seized of the matter, and no part of the cause of action has arisen within this Court's jurisdiction. The Court referred to the Supreme Court's decision in Navichandra N. Majithia vs. State of Maharashtra, emphasizing that the cause of action for filing the writ petition must arise, wholly or in part, within the territorial jurisdiction of the Court.

2. Second Preliminary Inquiry:
The petitioners questioned the legality of conducting a second preliminary inquiry after the closure of the first one, as per para 9.26 of the CBI Manual. The Court examined whether the second preliminary inquiry was justified and in accordance with the guidelines provided in the CBI Manual.

3. Violation of Supreme Court Dicta:
The petitioners claimed that the registration of FIR No. RCAC-1 2015 A-004 violated the Supreme Court's dicta in Ms. Mayawati vs. Union of India. The Court analyzed whether the FIR was registered without proper direction and consent, as highlighted in the Mayawati case, where the Supreme Court observed that the CBI could not conduct a roving inquiry without explicit directions.

4. Mandatory Consent under DSPE Act:
The petitioners argued that the mandatory consent under Section 6 of the DSPE Act was not obtained from the State Government at the time of FIR registration, investigation, and raid. The Court referred to the Supreme Court's decision in Manohar Lal Sharma vs. Principal Secretary, emphasizing the necessity of obtaining state consent for CBI investigations.

5. Federal Structure Violation:
The petitioners contended that raiding the residence of the sitting Chief Minister without conforming to Section 6 of the DSPE Act diluted the basic federal structure of the Constitution. The Court examined the implications of such actions on the federal structure, referencing the Supreme Court's observations in State of West Bengal vs. Committee for Protection of Democratic Rights.

6. Concurrent Jurisdiction with Income Tax Department:
The petitioners argued that the FIR could not be registered when the Income Tax Department and the Court were already seized of the matter. The Court considered the interplay between different jurisdictions and the impact on the investigation.

7. Compliance with Code of Criminal Procedure and CBI Manual:
The petitioners claimed that the CBI did not comply with the mandatory provisions of the Code of Criminal Procedure and the guidelines provided in the CBI Manual while registering the FIR and conducting the investigation. The Court analyzed the procedural adherence by the CBI in light of the guidelines and statutory provisions.

8. Interpretation of Union List and State List Entries:
The Court discussed the true import of Entry 2-A, 80 of the Union List vis-`a-vis Entry 2 of the State List and their inter-play, considering the constitutional provisions and the division of powers between the Union and the State.

9. Disproportionate Assets:
The petitioners questioned whether the income reflected in paras 5 and 6 of the FIR could be treated as disproportionate assets in the hands of petitioner No.1. The Court examined the evidence and the basis for treating the income as disproportionate assets.

10. Legal and Factual Mala Fide and Political Vendetta:
The petitioners alleged that the FIR was actuated by legal and factual mala fide and political vendetta. The Court considered the context and circumstances of the FIR registration and the raid to determine if there was any mala fide intent or political motivation.

11. Permission from Speaker of H.P. Legislative Assembly:
The petitioners argued that the permission of the Speaker of the H.P. Legislative Assembly was mandatory before the registration of the FIR. The Court analyzed the necessity of obtaining such permission in light of the legislative provisions and precedents.

Interim Directions:
The Court found a prima facie case in favor of the petitioners and issued interim directions restraining the CBI from recording the petitioners' statements without the Court's leave and prohibiting their arrest. The CBI was directed not to file a challan without the Court's express leave.

Final Hearing:
The case was listed for final hearing on 18.11.2015, and the Court appreciated the professional and fair stand adopted by the Central Bureau during the hearing.

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