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TMI Blog2021 (4) TMI 1271X X X X Extracts X X X X X X X X Extracts X X X X ..... r Hill Police Station to follow the legislative mandate as in Section 154 of the CrPC - before considering the question of relief that could at all be granted on the CrWP, we would be failing in our duty if we do not consider the decisions cited by Shri Kumbhakoni in support of his preliminary objection to the entertainability thereof. It is well-settled that the jurisdiction under Article 226 of the Constitution of India is very wide and the same is not and cannot be restricted by law; however, various judicial pronouncements have set the limits of exercise of such power or jurisdiction ~ the limits being the self-imposed restrictions conceptualized through judicial wisdom. In the context of the nature of the concern expressed in the CrWP, the restriction to be kept in mind in deciding the question of entertainability is, whether there exists any equally efficacious alternative remedy in a criminal court and even if such a forum of redress is available, should the writ court entertain the writ petition - 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 ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor in these circumstances. There is certainly a legitimate public expectation of a free, fair, honest and impartial inquiry and investigation into such allegations which have surfaced in the public domain. The necessity to have a probe into such allegations by an independent agency, would also certainly be a requirement of the rule of law. Application disposed off. - PUBLIC INTEREST LITIGATION NO. 6 OF 2021 WITH INTERIM APPLICATION ST. NO. 6356 OF 2021 IN PUBLIC INTEREST LITIGATION NO. 6 OF 2021 WITH WRIT PETITION NO. 1541 OF 2021 WITH PUBLIC INTEREST LITIGATION ST. NO. 6072 OF 2021 WITH PUBLIC INTEREST LITIGATI - - - Dated:- 5-4-2021 - DIPANKAR DATTA, CJ AND G. S. KULKARNI,J. Mr.Vikram Nankani, Senior Advocate a/w Dr.Birendra Saraf and Mr.Sharan Jagtiani, Senior Advocates, a/w Mr.Subodh Desai, Mr.Chetan Kapadia, Mr.Sunny Punamiya and Mr.Akshay Bafna, Advocates for Petitioner. Mr.A.K.Singh and Mr.Piyush Singh, Advocates for Applicant/Intervenor in I.A. St. No.6356/2021. Mr.A.A. Kumbhakoni, Advocate General a/w Mr. Deepak Thakare, Public Prosecutor, a/w Mr.Akshay Shinde, B Panel Counsel and Mr.Manoj Badgujar, Advocate for State. Mr.Anil C. Singh, Additi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Police, Mumbai Police, Shri Param Bir Singh (hereafter Shri Param Bir ) was transferred and posted as the Commandant General of Home Guards and Civil Defence, Maharashtra State. Simultaneously, Shri Hemant Nagrale took over as the Commissioner of Police, Mumbai Police. On March 20, 2021, Shri Param Bir by a letter complained to the Hon ble Chief Minister, Government of Maharashtra. Exception was taken by Shri Param Bir to untruthful statements made against him by the Home Minister, Shri Anil Deshmukh (hereafter Shri Deshmukh ). Relevant paragraphs from such complaint are quoted hereunder for comprehending the seriousness of the allegations levelled by Shri Param Bir against Shri Deshmukh: 5. Shri Anil Deshmukh, Hon ble Home Minister, Maharashtra has stated in an interview conducted under the aegis of Lokmat and extensively reported on 18th March 2021 that: (a) there were serious lapses committed at my office, by the Mumbai Police and me in the investigation of the Antilia incident; (b) my serious lapses are not pardonable; and, (c) my transfer is not on administrative grounds. 6. At one of the briefing sessions in the wake of the Antilia incident held in mid-March 2021 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhujbal on the side. Mr. Palande informed ACP Patil that the Hon ble Home Minister was targeting a collection of ₹ 40-50 crores which was possible through an approximate 1,750 bar, restaurants and establishments operating in Mumbai. I was informed by ACP Patil about the demand to make collections for the Hon ble Home Minister. 10. The aforesaid meeting at the official residence of the Hon ble Home Minister with Shri Patil and Shri Bhujbal occurred on 4th March 2021 as informed to me by Shri Patil. In order to remind myself about the exact conversation that I had with ACP Patil, I messaged ACP Patil on 16th March 2021. Shri Patil has reconfirmed the aforesaid date and details to me on message on 16th March 2021 19th March 2021 ... Note: He has quoted the message conversations between him and Shri Patil, ACP between March 16, 2021 to March 19, 2021, which are 17 in number. 11. After the meeting of Shri Vaze with the Hon ble Home Minister, he had discussed the instructions of the Hon ble Home Minister with Shri Patil and both of them had approached me with their predicaments. 12. The Hon ble Home Minister has as a regular practice been repeatedly calling my off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve action, being fully cognizant to the retaliation that is likely against me for placing the true picture on record. 4. The day following the complaint, i.e., March 21, 2021, Shri Param Bir moved a writ petition under Article 32 of the Constitution of India before the Supreme Court being Writ Petition (Civil) No.385 of 2021 seeking, inter alia, a mandamus directing the CBI, the 3rd respondent, to immediately conduct an unbiased, uninfluenced, impartial and fair investigation in the various corrupt malpractices of Shri Deshmukh as well as for a writ, order or direction to quash and set aside the order dated March 17, 2021 transferring him from the post of Police Commissioner, Mumbai. 5. On March 21, 2021 itself, Dr. Patil, the petitioner in Criminal Writ Petition No.1541 of 2021, lodged a complaint, inter alia, with the Malabar Hill Police Station and the Director, Anti-Corruption Bureau of the Central Bureau of Investigation (hereafter the CBI ). Relevant passages from the translated version of the complaint, in vernacular, read as follows: I, Advocate (Dr.) Jayashree Laxmanrao Patil, . .. .. .. .. .. .. .. . I further state that, Param Bir Singh, Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hon ble Chief Minister, Maharashtra State, Mumbai. Respected Sir, Re: Untruthful statements by the Hon ble Home Minister, Maharashtra in relation to the transfer of Shri Param Bir Singh. Sd/- Seal of the Notary A.R. Surve Govt. of India 6. No action was taken on such complaint, which prompted Dr. Patil to invoke the writ jurisdiction of this Court by presenting the CrWP dated March 23, 2021. The prayer therein is for a mandamus or any other appropriate writ, order or direction directing the CBI/Enforcement Directorate (hereafter the ED ), or any independent agency to conduct unbiased, uninfluenced, impartial and fair investigation in the various corrupt malpractices of Shri Deshmukh, the 6th respondent, as well as into the role played by Shri Param Bir. Further prayer made by Dr. Patil is for a direction on the respondent police and investigation authorities to bring criminal law in motion by exercising the power under Section 154 of the Code of Criminal Procedure (hereafter the CrPC ) on her complaint dated March 21, 2021. Also, a prayer is made by Dr. Patil for a direction on the investigating officer to secure the CCTV footage of the dates mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficient and to strengthen the rule of law. It appears that none want to give up, inter alia, the control of police transfers or implement measures that would insulate the police machinery from performing its role without any uncalled for interference. In view of the aforesaid position, learned senior counsel for the petitioner seeks to withdraw the writ petition with liberty to approach the High Court. Liberty granted. Learned senior counsel submits that they will file the petition during the course of the day and would like the matter to be taken up tomorrow itself. That, in our view, would be an appropriate prayer made to the High Court and not by a direction from this Court. Pending applications stand disposed of. 8. Availing the liberty granted by the Supreme Court, Shri Param Bir approached this Court on March 24, 2021 itself and instituted Public Interest Litigation (St.) No.6120 of 2021 (registered as PIL No.6 of 2021). The prayer in this PIL is for a mandamus or any other appropriate writ, order or direction directing immediate unbiased, uninfluenced, impartial and fair investigation by the CBI, the 3rd respondent, in the various corrupt malpractices of Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused under the provisions of the Prevention of Money Laundering Act, 2002 forthwith as well as making a departmental probe of properties acquired by them within and outside India under benami names. The final prayer in this PIL is for a direction on the State of Maharashtra, the 1st respondent, to initiate action against all tainted police personnel involved in the collection racket in the city of Mumbai and committing various other offences under the garb of conducting investigation and that direction be issued to the State to sack them in exercise of powers vested under Article 226 of the Constitution of India. 10. The fourth and the last matter of this batch of writ petitions is Criminal Public Interest Litigation (St.) No. 6166 of 2021, at the instance of Shri Mohan Prabhakar Bhide, a chartered accountant as well as a teacher by profession (hereafter Shri Bhide ). The interim prayer in this PIL vide clause (b) is for a direction to constitute a Special Committee headed by a retired Judge of the Supreme Court or of this Court to investigate into the allegations of Shri Param Bir against Shri Deshmukh and also to investigate into the instances mentioned in the letter dated M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry, as revealed from a translation of the original version in Marathi, is: A. Whether Shri Parambir Singh has submitted in his letter, any evidence to reveal any irregularities/offence committed by Hon ble Home Minister or any officer from his office, as alleged by Shri Parambir Singh in his letter dt.20.3.2021 or else? B. Whether any commission of offence by the said Minister or the employees working in his office is revealed from the allegations levelled by Shri Parambir Singh in his letter dated 20.03.2021 on the basis of the so-called information received from Shri Sanjay Patil, Assistant Police Commissioner and Shri Sachin Vaze, Assistant Police Inspector, written by him after his transfer from the post of the Commissioner of Police, Greater Mumbai, wherein investigation by the Department of Anti-corruption Bureau or any other Investigation Agency is required? C. Any other useful recommendations concerned with the present subject. 13. Having completed the factual narration, we move on to record the arguments that have been advanced. 14. Appearing on behalf of the State of Maharashtra, Shri Kumbhakoni, learned Advocate General, raised preliminary objections to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot revealed in the PIL petition his enmity with the Home Minister. 17. It was further contended by Shri Kumbhakoni that in the civil writ petition instituted before the Supreme Court, personal grievances were laid by Shri Param Bir seeking redress. There was no assertion of any public interest being involved in his pursuit to have orders/directions, as prayed for; however, having failed to persuade the Supreme Court to admit the writ petition, it was Shri Param Bir himself who prayed for liberty to move this Court. Obviously, without anything more, he should have moved a writ petition under Article 226 with the same prayers; instead, this PIL has been instituted on the basis of a false claim that Shri Param Bir has no personal interest in the matter. 18. Shri Kumbhakoni next contended that allegations were levelled and the Supreme Court approached in no time by Shri Param Bir only after he was transferred by the order dated March 17, 2021. It was pointed out from the letter dated March 20, 2021 that though Shri Param Bir claimed to be aware of interference by the Home Minister in the course of investigation undertaken by the Police Force, not a single complaint had been lodge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16 SCC 811, by Shri Kumbhakoni. Such decision was rendered on a writ petition of Shri Upadhyay. Shri Kumbhakoni submitted that the allegations made by Shri Upadhyay on the basis of newspaper reports were not accepted by the Supreme Court. It was, accordingly, submitted that Shri Upadhyay having founded his plea in the PIL based on newspaper reports and not on the basis of his personal knowledge in regard to the facts and circumstances referred to in the complaint of Shri Param Bir, his claim ought not to be given any credence. 25. In course of submission, Shri Kumbhakoni apprised us that a High-Level Enquiry Committee had been constituted by the Government of Maharashtra with a retired High Court Judge as the Chairperson to look into the allegations Shri Param Bir had levelled against Shri Deshmukh, and that the Government is eager to have the cloud of suspicion created by wild allegations levelled by Shri Param Bir cleared so as to instill confidence in the Police Force. In view of such a development, Shri Kumbhakoni submitted that nothing survived for decision in the PIL instituted by Shri Bhide. 26. Resting on the above contentions/submissions, Shri Kumbhakoni appealed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to whether without there being an FIR, investigation by the CBI could at all be directed by the Court. 31. While not disputing that an FIR is the first step for setting the criminal law in motion, Shri Nankani urged that there have been situations where, even without an FIR, the Supreme Court had directed investigation by the CBI. Our attention in this connection was invited by him to the decision in Vishwanath Chaturvedi (3) V/s. Union of India and Ors., reported in (2007) 4 SCC 380. Placing heavy reliance thereon, it was submitted that it would be wrong in law to judge the interest of a party invoking the PIL jurisdiction without looking into the subject matter of his complaint. According to him, law is laid down therein that an inquiry could not be shut out at the threshold merely because an opponent raises an allegation of commission of an offence; if the petitioner shows failure of public duty, the Court ought to entertain the PIL and pass an appropriate order including direction for investigation by the CBI for securing the ends of justice. 32. Having been told that the Court in Vishwanath Chaturvedi (supra) did not direct investigation by the CBI but all that it direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. 36. Reference was also made by Shri Nankani to Section 4 of the Maharashtra Police Act, 1951 as well as to Section 17A of the Prevention of Corruption Act, 1988 to contend that Shri Deshmukh being the head of the organization, it would be a difficult, if not impossible, task to have the police machinery to act against such high functionary; therefore, recourse to writ remedy is the only remedy in the circumstances. 37. Drawing our attention to the order of the Supreme Court dated March 24, 2021, Shri Nankani submitted that the Supreme Court expressed in no uncertain terms that the matter raised by Shri Param Bir is quite serious and affects the administration at large. He, therefore, urged that this is a fit and proper case where interference ought not to be declined based on the preliminary objections raised by Shri Kumbhakoni. 38. Finally, Shri Nankani invited our attention to the secret report of the Commissioner, State Intelligence Department, and the Director General of Police, Maharashtra State to contend that all is not well in the police department and that it is only with the Court s interference that the malaise could be ridden. 39. Based on the above, Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the General Diary/Station Diary. 43. Shri Subhash Jha, learned advocate appeared in support of the PIL instituted by Shri Upadhyay and contended that Shri Upadhyay has sought to bring to the notice of the Court an unprecedented situation, where the former Commissioner of Police has complained to the Hon ble Chief Minister of the State of Maharashtra of the incumbent Home Minister having interfered in police administration and directing the police to extort ₹ 100 crore from owners of restaurants, bars and other establishments every month. If indeed, the allegations of Shri Param Bir are true, the situation calls for judicial interdiction. According to him, having regard to the magnitude of rampant corruption in the affairs of the executive, the said allegations are required to be thoroughly investigated immediately or else, evidence could be destroyed and key witnesses made to disappear. Thus, in such circumstances, prayers have been made in the PIL for bringing to book the culprits (which could include both Shri Param Bir and Shri Deshmukh) by constituting a Special Investigation Team consisting of officers drawn from the NIA, the CBI and the ED. 44. While replying to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the parties at considerable length. The stage has now reached for us to give our decision. 49. Much of the debate at the Bar in respect of the omission or failure to furnish information to/lodge a complaint before the police for the same to crystallize into an FIR, which could be investigated, has paled into insignificance in view of the disclosure made by Dr. Patil of she having lodged a complaint disclosing commission of cognizable offence and that such complaint was not given the attention the same deserved. Had such disclosure been made at the inception of hearing, much of the early exchanges may not have been necessary at all and could be avoided. 50. Be that as it may, we do not wish to be drawn into the larger controversy raised by Shri Kumbhakoni on the aspect of maintainability of the PIL of Shri Param Bir and of Shri Upadhyay. The controversy, in our considered opinion, which is common to these petitions, can be taken care of within a narrow compass by deciding whether, 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 concl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Dr. Patil raises an important issue of lack of enforcement of law by the police. Does this per se warrant entertainment of the CrWP? Let us explore the answer. 56. It is well-settled that the jurisdiction under Article 226 of the Constitution of India is very wide and the same is not and cannot be restricted by law; however, various judicial pronouncements have set the limits of exercise of such power or jurisdiction ~ the limits being the self-imposed restrictions conceptualized through judicial wisdom. In the context of the nature of the concern expressed in the CrWP, the restriction to be kept in mind in deciding the question of entertainability is, whether there exists any equally efficacious alternative remedy in a criminal court and even if such a forum of redress is available, should the writ court entertain the writ petition. Where the facts of any case are such that the remedy provided by the law is found to be inadequate or inefficacious to the judicial mind, a writ petition 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 grai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitution is woven be torn to pieces. Regrettably, for indolent State mechanisms and politicians, this can never happen for the courts shall not countenance violation of Constitutional principles by anyone, howsoever high an office he occupies, and hence while acting as the sentinel on the qui vive and being always there as a watch guard of the Constitution to repel any attack on it, the courts would ensure that the democratic values enshrined in the Constitution are respected and the ideals upheld. 58. The discretionary power that is vested in the High Court for enforcement of the Fundamental Rights or for any other purpose is meant to be exercised on considerations of justice, and for eradicating injustice. We are reminded of the decision in Municipal Council, Ratlam, v. Vardichan, reported in (1980) 4 SCC 162, where Hon ble V.R. Krishna Iyer, J. speaking for the Bench observed: Judicial discretion becomes mandatory duty when facts and circumstances for its exercise are 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that the appellants alleged that complaint was lodged by the respondent to wreak vengeance against them. It was in these circumstances that the Court proceeded to hold that exercise of jurisdiction by the High Court was not proper, particularly in view of the decision in Sakiri Vasu (supra). In paragraph 10, it was clarified as follows: 10. We would clarify that this Court has not expressed any opinion on merits and whether or not the complaint discloses any criminal offence. The only clarification that is required is that a civil dispute should not be given the colour of a criminal offence, and at the same time mere pendency of the civil proceeding is not a good ground and justification to not register and investigate an FIR if a criminal offence has been committed. 66. The fact situation in M. Subramaniam (supra) is completely different from the fact situation before us. Investigation into a complaint of corrupt practices of a Minister was not the issue there. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat Lalita Kumari (supra) does not go so far as to declare that a writ petition would be the appropriate remedy, should the police fail or omit to register an FIR despite receiving a complaint disclosing commission of cognizable offence. 71. However, such decisions do not aid Shri Kumbhakoni because of the facts and circumstances giving rise to the CrWP. As we have observed in the first paragraph, it is indeed unheard of and unprecedented that a Minister could be so openly accused of wrongdoings and corrupt practices by none other than a senior police officer attracting wide attention from all and sundry. 72. It is not also unknown that despite the existence of a remedy, the remedy against the particular mischief complained of and the redress sought for, at times, might be of no avail. It would be opposed to Constitutional philosophy if relief is refused only on the ground of existence of an alternative remedy, which may not be equally efficacious. 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 alte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 226 of the Constitution and the Supreme Court under Article 32 of the Constitution can direct the CBI to investigate into any specific case or to conduct an inquiry against a person. It can do so only when there is sufficient material before the Court to come to a prima facie conclusion that there is a need for such an inquiry. Certainly, such an inquiry cannot be ordered as a matter of routine or merely because a party makes an allegation. If after considering the materials on record the Court concludes that such materials disclose a prima facie case calling for investigation by the CBI, the Court can make the necessary order. If any authority is required, one may profitably refer to the decisions in Kashmeri Devi V/s. Delhi Administration Anr., reported in AIR 1988 SC 1323, Common Cause, A Regd. Society V/s. Union of India Anr., (1999) 6 SCC667, CBI (supra) and T.C. Thangaraj V/s. V. Engammal Others, reported in (2011) 12 SCC 328. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the top officials of the investigating agency, thereby allowing them to influence the investigation and further that it is so necessary to do justice and to instill confidence in the investigation or where the investigation is prima facie found to be tainted/biased. These principles have again been recognized and reiterated in a recent decision of the Supreme Court in Arnab Ranjan Goswami V/s. Union of India and Ors., reported in (2020) 14 SCC 12. Thus, when high officials are likely to be involved and a question of public confidence in the impartial working of the State agencies arises, the writ court in exercise of its jurisdiction under Article 226 of the Constitution is certainly not powerless to order such inquiry and investigation by the CBI. 79. In such context, there is yet another facet, viz. whether the accused would have any say in selecting the method of inquiry or the investigating agency. In Romila Thapar V/s. Union of India, 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 dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person, specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general The means adopted no less than the end to be achieved must be impeccable. *** (emphasis supplied) 82. We quite agree with Shri Nankani and Shri Jha that an unprecedented case has come before the Court. We also agree with Dr. Patil that directions are required for facilitating an unbiased, impartial, fair but effective probe so that the truth is unearthed and the devil, if any, shamed in accordance with procedure 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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