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TMI Blog2015 (10) TMI 2654X X X X Extracts X X X X X X X X Extracts X X X X ..... Sureshwar Thakur, JJ. For the Petitioners : Kapil Sibbal, Satyen Vaidya, Ankur Chawla, Adit S. Pujavi, Vivek Sharma, Pranay Pratap Singh For the Respondent : Ashok Sharma, Desh Raj Thakur, Shrawan Dogra, M. A. Khan ORDER CMP No. 10270/2015. Allowed. The application is disposed of. CWP No. 4063 of 2015 Admit. Notice. Mr. Desh Raj Thakur, CGC and Mr. M.A.Khan, Addl. AG, accept notice on behalf of respective respondents. They pray for and are granted four weeks time to file reply. 2. We have heard the learned counsel for the parties at length and have gone through the pleadings. 3. Petitioner No.1 is the Chief Minister of the State and petitioner No.2 is Ex. Member of Parliament. Petitioners have challenged the registration of FIR No.RCAC-1 2015 A-004 and the raid conducted in their premises. According to the averments made in the petition, the registration of the FIR is in violation of the law laid down by the Hon ble Supreme Court. The mandatory consent under section 6 of the Delhi Special Police Establishment Act has not been obtained from the State Government at the time of registration of FIR, investigation and carrying out raid in their p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion' is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a Court or a tribunal; a group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in Court from another person. (Black's Law Dictionary). [22] So far as the question of territorial jurisdiction with reference to a criminal offence is concerned the main factor to be considered is the place where the alleged offence was committed. [23] This Court in case of K. Bhaskaran v. Sankaran Vaidhyan Balan (1999) 7 SCC 510 : (1999 AIR SCW 3809 : AIR 1999 SC 3762 : 1999 Cri LJ 4606) considered the question of territorial jurisdiction of the Courts relating to the offence under Section 138 of the Negotiable Instruments Act. In that case on 29-1-1993 the respondent, S. presented a cheque for the amount of ₹ 1 lakhs bearing the signature of the appellant, B, at the Kayamkulam (Kerala) Branch of the Syndicate Bank for encashment. The cheque was returned by the bank unpaid, because of the insufficiency of funds in the account of B. S issued a notice by registered post on 2-2-1993. The notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t merely the right to the continuance of person's animal existence. (See: Kharak Singh Vs. State of U.P., 1964 1 SCR 332) [61] The paramountcy of the right to life and personal liberty was highlighted by the Constitution Bench in Kehar Singh (supra). It was observed thus: To any civilised society, there can be no attributes more important than the life and personal liberty of its members. That is evident from the paramount position given by the courts to Article 21 of the Constitution. These twin attributes enjoy a fundamental ascendancy over all other attributes of the political and social order, and consequently, the Legislature, the Executive and the Judiciary are more sensitive to them than to the other attributes of daily existence. The deprivation of personal liberty and the threat of the deprivation of life by the action of the State is in most civilised societies regarded seriously and, recourse, either under express constitutional provision or through legislative enactment is provided to the judicial organ. [62] In Minerva Mills (supra), Y.V. Chandrachud, C.J., speaking for the majority observed that Articles 14 and 19 do not confer any fanciful rights ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ederal structure is violated by any legislative action, the Constitution takes care to protect the federal structure by ensuring that Courts act as guardians and interpreters of the Constitution and provide remedy under Articles 32 and 226, whenever there is an attempted violation. In the circumstances, any direction by the Supreme Court or the High Court in exercise of power under Article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure. 7. Their Lordships of the Hon ble Supreme Court in Ms. Mayawati vs. Union of India and others (2012) 8 SCC 106 their Lordships have held as under: [30] As rightly pointed out that in the absence of any direction by this Court to lodge an FIR into the matter of alleged disproportionate assets against the petitioner, the Investigating Officer could not take resort to Section 157 of the Code of Criminal Procedure, 1973 (in short 'the Code') wherein the Officer-in-charge of a Police Station is empowered under Section 156 of the Code to investigate on information received or otherwise. Section 6 of the DSPE Act prohibits the CBI from exercising its powers and jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue about disproportionate assets of the petitioner. In view of the same, giving any direction to lodge FIR relating to disproportionate assets case did not arise. 8. Their Lordships of the Hon ble Supreme Court in Manohar Lal Sharma vs. Principal Secretary and others , (2014) 2 SCC 532 have held that the courts ordinarily do not interfere in the matters of investigation by police, particularly, when the facts and circumstances do not indicate that the investigating officer is not functioning bona fide, but in very exceptional cases, where the court finds that the police officer has exercised his investigatory powers in breach of the statutory provisions, the court may intervene. Their Lordships have further held that proper investigtation into crime is one of the essentials of the criminal justice system and an integral facet of rule of law. Central Bureau of Investigation is regulated by Code of Criminal Procedure CBI (Crime) Manual, 2005 and guidelines. Their Lordships have further held that the investigation should conclude expeditiously from the point of view of all concerned. Their Lordships have held as under: [24] In the criminal justice system the investigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... information reveal commission of a prime facie cognizable offence, a regular case is to be registered as enjoined by law. PE may be converted into RC as soon as sufficient material becomes available to show that prima facie there has been commission of a cognizable offence. When information available is adequate to indicate commission of cognizable offence or its discreet verification leads to similar conclusion, a regular case may be registered instead of a PE. [30] Paragraph 9.10 of the Manual states that PE relating to allegations of bribery and corruption should be limited to the scrutiny of records and interrogation of bare minimum persons which may be necessary to judge whether there is any substance in the allegations which are being enquired into and whether the case is worth pursuing further or not. [32] Paragraph 10.6 of the Manual, inter alia, provides that if a case is required to be registered under the PC Act against an officer of the rank of Joint Secretary and above, prior permission of the Government should be taken before inquiry/investigation as required under Section 6A of the DSPE Act except in a case under Section 7 of the PC Act where registration is f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yawati vs. Union of India and others , (2012) 8 SCC 106? 4. Whether it was mandatory for the Central Bureau of Investigation to seek the consent of the State Government as per section 6 of the Delhi Special Police Establishment Act at the time of registration of FIR and its subsequent investigation and raiding the residential premises of the petitioners and non conforming to mandatory provisions of section 6 of the Delhi Special Police Establishment Act vitiates the investigation as well as raid in the official premises of the petitioners? 5. Whether the raid at the residential premises of the sitting Chief Minister without conforming to section 6 of the Delhi Special Police Establishment Act would dilute the basic federal structure of the Constitution of India? 6. Whether the FIR No. RCAC-1 2015 A-004 could be registered when the Income Tax Department and this Court is seized of the matter? 7. Whether the Central Bureau of Investigation has complied with the mandatory provisions of Code of Criminal Provisions and the guidelines provided in Central Bureau of Investigation Manual while registering the FIR and also while undertaking the investigation? 8. What is t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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