2017 (3) TMI 1886 - HC - Indian Laws

Acquiring of assets disproportionate to the source of income - cause of action has arisen within the territorial jurisdiction of this Court - whether the two Preliminary Enquiries registered in the present case pertain to the same incident or form part of the same transaction? - HELD THAT - There is absolutely no basis for entertainment of the apprehension expressed by the petitioners to decide the present petition entirely on its merits, and merits alone. There is no justification for, or reasonableness in entertainment of any such belief by the petitioners. There are no control over the thought process through which the petitioners may be going through. The issue is, whether there is any reasonable basis for the apprehension entertained and expressed by the petitioners with regard to the independence, nothing at all was found. Moreover, the said prayer has been made highly belatedly i.e. after the close of the hearing, even though the stated reasons for making his prayer were very much available even before the start of the hearing of the case. Accordingly, the prayer made by the petitioners that the case is rescued, is rejected. In SUPERINTENDENT OF POLICE, C.B.I. AND ORS VERSUS TAPAN KR. SINGH 2003 (4) TMI 593 - SUPREME COURT , before the High Court of Calcutta, the accused successfully assailed the search seizure carried out by the CBI, on the premise that the GD entry contained vague allegations and did not disclose commission of any cognizable offence. While holding that a General Diary Entry may also be considered as a FIR if it discloses the commission of a cognizable offence, the High Court held that in the said case before it the GD entry, could not be considered to be a First Information Report. It further held that subsequent registration of the First Information Report could not validate the search seizure undertaken prior to such registration. The First PE, the Second PE and the RC need to be examined as also the status reports filed by the CBI in the Common Cause PIL may be looked at. The petitioners have sought the disclosure of the contents of the Status reports filed by the CBI from time to time during the hearing of the Common Cause PIL. The CBI has not opposed the said prayer of the petitioners - so far as perusal of the said status reports by this Court, is concerned. What the Status Reports in the Common Cause PIL say - HELD THAT - There is a final status report in relation to the First PE dated 29.08.2014 placed on record. This final status report also narrates the findings of the preliminary enquiry premised on the complaint made by Mr. Prashant Bhushan, Advocate against the petitioner no.1 herein, which was also included within the ambit of the First PE. This status report also records that the Manager - Accounts of M/s IIL admitted to have made entries in the excel sheets on the instructions of Director, Corporate Affairs and ED, Finance of M/s IIL and other persons as recorded against the entries. However, the same had been denied by the mentioned individuals - the status reports filed by the CBI during the proceedings of the common cause PIL are no different from the factual narration contained in the Second PE. During the course of the First PE, the complaint of Mr. Prashant Bhushan, Advocate followed by the common cause PIL, surfaced. Both of them sought to link the disclosure of the abbreviation VBS in the Excel Sheets recovered by the Income-Tax authorities during raid on the premises of M/s IIL with the petitioner no.1, and also contained other allegations to suggest the trail of the money, allegedly received by petitioner no.1 herein from M/s IIL, to the purchase/ acquisition of LIC policies in the names of the petitioners and their family members by showing the source of the funds as horticultural income. The submission with regard to lack of territorial jurisdiction of the learned Special Judge to deal with the regular case registered at Delhi is concerned, the same has no merit at all. This is for the reason that, firstly, the check period relates to the service rendered to petitioner No.1 at Delhi as a Union Minister i.e. when the offence was allegedly committed. The allegation against the petitioner No.1 is that he was possessed of assets disproportionate to his known sources of income while serving as a Union Minister during the check period at Delhi. Secondly, one of the known sources of income which is an essential ingredient of the offence under Section 13(2) read with Section 13(1)(e) of the PC Act, was undisputedly at Delhi, since the petitioner No.1 drew his salary as a Union Minister during the check period at Delhi. The issue is not whether the FIR/RC in the case could have been registered within the jurisdiction of the Special Judge in Himachal Pradesh. The issue under examination is, whether the same has, in fact, been registered within the jurisdiction of the competent Special Judge. An accused cannot dictate to the prosecution that the case should be registered at a police station that he desires. The case may be registered at any one of the police stations within whose jurisdiction the same can be legally instituted. The present is not a writ petition preferred by the State of Himachal Pradesh. The State of Himachal Pradesh cannot seek to advance submissions which have not even been raised by the petitioners. This Court is not obliged to deal with them, since the contesting respondent i.e. the CBI has not been called upon to meet the submissions of the State of Himachal Pradesh. Even otherwise, the present is not a petition raising a Centre-State dispute, which can be adjudicated only by the Supreme Court under Article 131 of the Constitution. Petition dismissed.

Summary

Issues Involved:

1. Whether the cause of action arose within the territorial jurisdiction of the court.
2. Legality of the second preliminary inquiry after the closure of the first preliminary inquiry.
3. Whether the registration of the FIR violated the dicta of the Supreme Court in the Mayawati case.
4. Necessity of obtaining the State Government's consent under Section 6 of the DSPE Act for the CBI to investigate and conduct raids.
5. Impact of conducting raids without conforming to Section 6 of the DSPE Act on the federal structure of the Constitution.
6. Legality of FIR registration when the Income Tax Department and the court are seized of the matter.
7. Compliance with mandatory provisions of the Code of Criminal Procedure and CBI Manual during FIR registration and investigation.
8. Interplay of Entry 2A, 80 of the Union List vis-à-vis Entry 2 of the State List.
9. Whether the income reflected in the FIR can be treated as disproportionate assets.
10. Allegations of legal and factual mala fide and political vendetta behind the FIR registration.
11. Necessity of obtaining the Speaker of the H.P. Legislative Assembly's permission before FIR registration.

Detailed Analysis:

1. Territorial Jurisdiction:
The court held that the cause of action arose within the jurisdiction of the Special Judge at Delhi. The FIR was registered at Delhi, where the petitioner served as a Union Minister, and drew his salary, which is a known source of income.

2. Second Preliminary Inquiry:
The second preliminary inquiry was deemed legal as it pertained to a different aspect than the first preliminary inquiry. The first preliminary inquiry was closed because it could not establish a link between the petitioner and the alleged payments. The second preliminary inquiry was initiated to examine disproportionate assets during the petitioner's tenure as a Union Minister.

3. Compliance with Mayawati Case:
The registration of the FIR did not violate the Supreme Court's dicta in the Mayawati case. The FIR was registered based on new information that emerged during the preliminary inquiry.

4. Consent Under Section 6 of DSPE Act:
The court held that it was not mandatory for the CBI to seek the State Government's consent under Section 6 of the DSPE Act at the time of FIR registration. However, consent was necessary for conducting any part of the investigation within the State of Himachal Pradesh. The issue of whether such consent was obtained would be considered if and when a charge-sheet is filed.

5. Federal Structure:
The court ruled that the registration of the FIR at Delhi by the CBI did not dilute the basic federal structure of the Constitution. The investigation, including raids, if conducted lawfully, would not infringe upon the federal structure.

6. FIR Registration Amidst Income Tax Proceedings:
The FIR could be registered by the CBI as the Income Tax Department's proceedings concern tax liability, not criminal misconduct under the Prevention of Corruption Act. The FIR disclosed a cognizable offense, justifying its registration.

7. Compliance with CrPC and CBI Manual:
No specific mandatory provision of the Code or guideline from the CBI Manual was cited to claim that the FIR registration and investigation were in breach. These issues would fall for consideration before the learned Special Judge.

8. Interplay of Constitutional Entries:
The court discussed the import of Entry 2A, 80 of the Union List vis-à-vis Entry 2 of the State List and their interplay, affirming that the DSPE/CBI can investigate with the State's consent.

9. Disproportionate Assets:
The question of whether the income reflected in the FIR can be treated as disproportionate assets does not call for consideration in the present proceedings. This constitutes the defense of the accused and may be raised before the learned Special Judge.

10. Allegations of Mala Fide and Political Vendetta:
There was no factual basis brought on record to claim that the FIR registration was actuated by legal or factual mala fide or political vendetta.

11. Permission of Speaker:
There was no legal basis to claim that the permission of the Speaker of the Himachal Pradesh Legislative Assembly was mandatory before FIR registration. The FIR pertains to the petitioner's tenure as a Central Minister.

Conclusion:
The writ petition was dismissed, and all interim orders were vacated. The registration of the FIR/RC at Delhi was held to be within jurisdiction, and the necessity of the State Government's consent under Section 6 of the DSPE Act for the investigation within Himachal Pradesh was acknowledged but deemed a matter for consideration if a charge-sheet is filed.