"Without FIR, how can you ask for our intervention?:" Bombay HC hears PIL by Param Bir Singh for CBI probe against Anil Deshmukh [Live Updates]

The Bombay High Court is hearing the plea filed by former Mumbai Police commissioner Praram Bir Singh seeking a CBI probe into the allegations made by him against the State Home Minister Anil Deshmukh.

Live updates of the hearing today feature here.

Advocate General Ashutosh Kumbhakoni appearing for the State. Senior Advocate Vikram Nankani appearing for Singh. ASG Anil Singh appearing for CBI.

AG Kumbhakoni: Preliminary submission is State is eager and anxious to clear the cloud of suspicion. The allegations made in media, we are eager to clear that.

AG: The PIL which is filed by Singh is certainly not maintainable. I will show judgments. We will deal with the law.

AG: Supreme Court says that such petitions cannot be considered by the Court.

Chied Justice: Let them state what are the facts first.

Nankani states that one of the trigger points is the point of transfers of officers. There is a complaint sent to the CM and then there is the fact that seniors are privy to a lot of this.

Nankani: It has been 11 days since the complaint. This really brings out the problems of the police forces who perform dual functions.

Chief Justice Datta: Why are there so many lawyers in the court? There are concerns raised by the associations. Do you have no concern for your families or fellow lawyers?

Nankani reads out the letter written to the CM.

Nankani points out that in this order of the day the police has to work under political masters.

Nankani: The first episode tells us about the pressure under which police officers work. It shows the entire police force is demoralised.

Nankani: The interference of the politicians in police force.. this is corroborated by the messages

Nankani continues to read about the incident of MP Mohan Delkar of Dadra Nagar Haveli.

Nankani: in our submission I do not want to say that this is a case of whistleblower. These are hard facts that coming from a person who occupied the highest position in the city that this is something that should be looked into then this canbe looked into under article 226.

Nankani: And then an independent agency can be appointed. And this complaint need to be looked into as it involves high personalities and comes from a senior IPS officer.

Chief Justice: Come to prayer clause (a), where is your FIR? How can there be an investigation without an FIR?

CJ: We are just expressing our mind, our prima facie observation is without an FIR, no investigation can be conducted. And can such a prayer be maintainable in PIL.

Nankani points out the Rashmi Shukla report.

CJ: Our first question is can a PIL be maintainable against a service matter?

CJ: This plea mostly pertains to his transfer. If you file a writ we can consider that. But this PIL cannot be maintainable on that aspect. We can dismiss on that ground only.

Nankani: I assure you this PIL has got nothing to do with the transfer order.

Nankani proceeds to read portions of the plea which pertain to the report by police officer Rashmi Shukla.

Nankani reads a letter of Commissioner of State Intelligence to the DGP Maharashtra.

Nankani: This is where law step in. When political functionaries and department of state is involved then the investigation has to go beyond the State and the State has withdrawn its consent.

Nankani: The courts have said we are not helpless. We have Art 32 and Art 226. If you investigate your own case then there is soft peddling in your investigation.

Nankani: Courts have come to the conclusion that investigation has to be handed over to an independent agency like CBI.

Nankani: interestingly the Home Minister himself invited the investigation. And how it will construed by the State government the AG will address. However it falls short of the legal requirement.

Nankani reads out a judgment.

After reading the judgment, CJ: the very crux of the matter is there was an FIR which was being investigated by the State government. And then it was transferred to an independent agency.

CJ: Are you saying that we can direct investigation when there is no consent by the state under Art 226? And the judgement you showed had an FIR. Where is the FIR here?

CJ: Show us a judgement where there is no FIR and the investigation was transferred to CBI.

Nankani shows a judgment Vishwanath Chaturvedi v. union of India.

CJ: Where is the ratio of this judgement.. this is a petition under Art 32..

CJ: Show us from the petition that the home minister said this in your presence. Is there an affidavit by them? Anyone can say I have heard this..

Nankani: These are officers who report to me, these are not some passerby...

CJ: Have they filed an affidavit stating that I was the officer and this happened?

Nankani points out to the contents of the letter and how the allegations were pointed out to the different ministers.

Nankani: It takes a lot of courage to put it into a letter. If the perpetrators of the crime are not punished then I have no where to go.

CJ: We have judgments of Bhajan Lal and Lalit kumari. Show us judgments which say that the judgments of Bhajan Lal are wrong law.

Nankani: If there is a complaint which is a genuine complaint, then the court can hand it over to the investigation agency. Like in the case of Vishwanath, a representation was made to Governor

CJ: If you say Vishwanath is the final law, then we will hold our reasons stating why that is not applicable.

Nankani: Milords may keep it tomorrow or 2.30 I will get more case laws.

CJ: No, we have granted such early circulation.

AG intervenes and states he has a direct judgment to the contrary and hearing need not be adjourned.

AG first reads out from the petition.

AG: He is vitally personally interested in both the prayers... He had filed a civil personal petition in SC. While here he has filed a criminal PIL... In the body of the petition he has placed personal grievances and is playing victim card.

AG: Before Supreme Court, it was his personal prayers. And when the Supreme Court asked him to approach the High Court, he withdrew that petition but did not file it.

AG: And then he filed it after 3 days here and then circulated for the very next day.

AG: This plea was filed pursuant to liberty granted by the Supreme Court.

CJ: But if we are not satisfied that is not a PIL then he can approach the Court under a writ.. but let us go to the fundamental issue..

AG: Just want to point out one thing. He says he has no personal interest, this is blatantly false!

CJ: Ok, now address us on the law.

AG: Ok I will show the direct judgment.

AG shows a Supreme Court judgment.

AG: There is another judgement which says that in service matters you cannot file PIL. Based on media and news reports.. he said to him, he said to someone...

AG: This case is a textbook case where public interest is camouflaged in personal grievances.

AG reads out requirements while filing a PIL.

AG: Nothing is there in this plea, hands are dirty, mind is dirty.

AG: How did the petitioner get the CID report in press conference (of Rashmi Shukla)? A top secret?

CJ: No, that was disclosed in a press conference. You should know that.

AG: He reproduced extracts.

CJ: He was officer for entire Bombay, it is not unnatural for him to have a copy...

Referring to the letter, AG: He says in the letter that the statements of the Home Minister are false.

Reads from the letter.

AG: He says his relation with the Home Minister was strained and the Minister was unhappy with me. This shows the animosity between the two

AG: This recovery racket or whatever they call it is all hearsay. He says someone said to him, etc. He does not say I am saying this and if what I saying is false the hang me!

AG: There should be exemplary costs for wasting 2 hours of judicial time.

CJ: Mr Nankani, the petitioner is no lay person, he is a senior police officer. If he has no faith in the police.. he knows the registration of complaint is not just recording of facts by the police..

CJ: He has to atleast show that there is an FIR filed and probe needs to be carried out.

CJ: What is troubling us without an FIR how can you ask for our intervention? Without an FIR seeking this prayer seems to be harsh.

Nankani: There are times when the courts receive a letter and then that letter is taken up as a petition and courts have ordered probes...

CJ: Then you should have also sent a letter to the court

Nankani: The court's intervention is required depends on the person against whom an investigation is being sought after...

CJ: You remained silent when you found out that your boss was indulging in a crime. You failed your duty as a police officer if you did not register FIR.

Nankani: Did not fail... both my doors were shut. On the one hand there were allegations against the Home Minister and on the other hand, the consent for Special Police Force was withdrawn.

Nankani: There were two things that could have been done. One to go to CBI, but consent withdrawn. There is a case of Sanjeev kumar where CBI inquiry was initiated without an FIR.

Nankani: They have yesterday ordered a one judge commission... So they themselves think that there is a need for an enquiry... And all I saying is that it is not adequate...

CJ points out a paragraph which states that there were FIRs and Inquiries pending in the case already.

Nankani: There is no judgment or authority which even the otherside has not shown where it is said that absolutely that a petition cannot be filed seeking investigation without FIR.

CJ: The appropriate course of action should have been to file a complaint and then if there is no action then you approach the Court.

Nankani states that his letter to the CM can be considered as complaint by the CBI.

CJ: But why should we direct that?

CJ: If you cannot lodge an FIR, then approach the magistrate under Sec 156 of the CrPC. Then FIR can be filed.

Nankani: But that will lead to lodging of FIR with police not the CBI. I want to avoid the chakravyuh

CJ: You being a senior officer cannot escape the chakravyuh? Are you saying that you are above the law and the law is only applicable to the lay citizens?

Nankani reads out a judgment in the case State of Punjab v. CBI.

CJ: We are not saying for a moment that the investigation should be with state police.

The bench breaks for lunch. Hearing to resume post lunch at 2.30 pm.

Hearing begins.

Nankani: Once milords appreciate that under the facts of the case, the courts can order inquiry . This is the only door open to me.

Nankani: The government has taken action against the complaint so the seriousness of the offence must be there.

CJ: So what is this committee formed? Is it under the commission of inquiry?

AG: It is not under commission of inquiry, not under statutory provision

Nankani: This just proves that there are attempts made to sweep things under the carpet.

CJ asks Nankani to substantiate his arguments from the judgment of State of West Bengal.

CJ asks Nankani to show more judgments. Advocate Subhash Jha appearing for Ghanshyam Upadhyay offers to submit those case laws.

Jha: Can the constable register the FIR against the commissioner or home minister? The constitutional courts deal with questions day in and day out, and we might not have direct judgments.

Jha: We are faced with an unprecedented situation where you cannot just believe that only the Home Minister is involved. I am sure there are others involved.

Jha: The court should have taken suo motu cognizance in this case. The magnitude in the case. This is loot and dacoity.

Jha: We have said that there has to be an entire overhaul of the force. This is not new, this has come to light because of this Commissioner.

Court asks for submission on the Lalita Kumari judgment.

Nankani: I am not seeking direct conversion of my letter into a complaint for CBI. I am seeking an inquiry not an investigation.

CJ: Are you saying that you don’t trust the state police? The go before the magistrate..

Nankani: That will not ensure a CBI investigation.

CJ: Why should he? Magistrate can investigate himself.

CJ: There are two things. Investigation by a an executive action. Inquiry by the court. But there has to be a complaint.

Nankani reads from the Lalita Kumari judgment.

CJ: So this shows that even if the Home Minister is involved or Chief Minister is involved, that does not mean you throw the provisions under the bus.

CJ: You say that the Home Minister is involved, but God forbids if the Prime Minister is involved, then who will investigate? Some superpower will come from outside? Who is CBI under?

Nankani: Then the Court can monitor the investigation supervise.

CJ: The investigation has to be done by the agency..

CJ: Why is it that no FIR has been lodged? No citizen in entire city has come forward with a complaint.

Nankani: There is apprehension to get justice. It is a long way to get justice, there is FIR, there is chargesheet..

AG points out that there is indeed a complaint filed. And the complainant has also approached the Court through writ petition. He refers to Dr Jaishri Patil’s plea.

CJ (to Patil): So you filed a complaint and then was it registered?

Patil says no. Court asks why.

AG: There is the modified Lalita Kumari judgment where the time period of 15 days is expanded to 6 weeks.

CJ: So what is the preliminary enquiry conducted so far?

AG: I have no instructions on that..

CJ: While we continue hearing we request you to call for the station diary here from the police station where the complaint is registered.

CJ: What is wrong if FIR is filed? When a particular person goes to the police station, did you visualise in the last century how many such cases came to High Court? It is because of this police inaction that such cases come to court. You should be ashamed of yourself... atleast one citizen has guts to file FIR. No one else had.

CJ asks Patil what the prayer in her petition is. Patil reads her prayers.

Justice Kulkarni asks Jha about sanction.

There can be cases where there is no time to register an FIR; then the court in such case would take cognizance.

Nankani: I am sandwiched between two learned friends. I am only trying to point out from the judgment of Lalita Kumari.

Court asks Patil to make submissions on her petition.

Patil reads the complaint filed. Court asks if any follow up was taken.

Patil: I tried to tell them to record my statement after 4-5 days. But they refused, there is total inaction.

Court: What is you submission now?

Patil points out from the petition.

Justice Kulkarni: Yes we have read the petition, you wait for the response (case diary)

Patil: I am relying upon Sarandha, Lallan Thakur and PV Narasimha Rao judgements.

CJ: The judgment of PV Narsimha Rao, para 66 is of your use Mr Nankani.

Nankani: This going round and round for getting sanction from the same people against whom I am complaining.

CJ: if an officer of the rank of commissioner is saying this, then what should an ordinary citizen do?

Nankani reads out from Shukla’s report.

CJ intervenes: How is the PIL maintainable though? You have an axe grind with the minutes. It is not a clear case that you have no ties with the minister..

Nankani: All the allegations that I have made in the letter are all prior to the transfer and not before that. There is no axe to grind.

Nankani: In Rashmi Shukla, I have shown that there is reference to Home Minister. That is why I said the immediate trigger point is the complaint.

CJ: Yes, we will read it, but where is the station diary? It doesn’t take more than 20 mins from Malabar hill to here...

CJ: We will not rise till the diary reaches here.

Jha in the meantime points out some portions of the Lalita Kumari case. Nankani reads out from the reply of Anil Deshmukh and which seeks for an enquiry.

Nankani is reading the judgment in the Sharda Scam judgment.

Nankani: Just as in civil cases, justice should be done. If not the entire relief then either part of the relief can moulded and atleast preliminary inquiry can be conducted.

AG: The station police officer had come here. But he did not get the station diary as there is an entry in the inward register but there is no entry in the station diary.

CJ: Why not?

AG: I don’t know I haven’t seen the diary.

Nankani: This answers our apprehension.

Jha: Before we close for the day, I would request for 5-7 minutes of time to cite judgments.

The bench takes a break for 10 minutes. Will resume with the hearing after that.

Hearing resumes. Jha continues with his submission.

Jha: As far as who should register the offence, there is a landmark decision of the Supreme Court in the case of Zaheera Sheikh of 2006.

Jha submits the Supreme Court judgment in the case of Noida Enterpreneurs of 2011.

Jha: I am seeking for establishing a committee which will have one person from each investigating agency...

Jha: If the richest man in the country and one of the richest in the world is not safe then what about the common man..

Jha: This is all illegal money and these are expensive cars been driven by police officers. People in the police are used to extort or plunder the citizens of Mumbai.

Jha concludes his submissions.

Advocate Alankar Kirpekar argues for the petitioner Mohan Bhide.

Kirpekar reads out the Government Resolution appointing Retired Justice KU Chandiwal for inquiry into allegations against Deshmukh.

Kirpekar: I pray to the Hon’ble Court that this inquiry will take away the doubts in the minds of the citizens in Mumbai. If the committee finds something against the Home Minister then this Court can intervene.

Kirpekar: I am not saying no one is guilty. One of them, Deshmukh or Singh has to be guilty.

ASG: it is ultimately for the court to decide whether to investigate or not. As an agency if we are directed, we will investigate. I am here because I am made a party.

AG: The report of Shukla has been enquired into, the file has been closed. It got all the seriousness it deserved. And the new report after fresh inquiry has also been taken. And the new report reiterates the earlier report.

AG: His letter is full of vagueness, as vague as possible.

AG: This started after the transfer on March 19, 2021. Never even an eye brow raised by Singh till he saw transfer order against him.

AG: The petition of Upadhyay, is all from media reports. Classic case of Hearsay! We are thankful to Jha for his legal submissions. The SC itself in a reported judgment against the Upadhyay that such petitions based on media reports would not be maintainable.

CJ: It is not just media reports otherwise how would the judicial committee have been appointed?

Advocate Nilesh Ojha appearing for Upadhyay objects stating that the statement is misleading.

AG: In Upadhyay’s petition why is Home Minister made a party when there is no FIR filed.

Ojha responds that there is a supreme court which says accused need not be made party.

AG also points out that his name should be deleted from Patil’s petition as well.

AG points out from a judgment what happens when the FIR is not registered as per Lalita Kumari judgment.

AG refers to some judgement of the Kerala Law Times.

CJ: Why aren’t you placing before us the original judgment from the reporter?

AG: I will place..

CJ: When? We are going to reserve the order today on the preliminary objection raised by you.

AG concludes his submissions.

Ghanshyam Upadhyay proceeds to submit the SC Judgment on making party to the petition.

CJ: Are you party in person? Why are you wearing robe and band? And why is your counsel not addressing us?

Upadhyay: I am an advocate but I was asked to wear a band and gown in CJI’s court.

CJ: This is my court. You follow the rules set by the justice in that court.

Upadhyay: I am aware milords..

CJ: Do you want us to hear your petition or argue on this aspect?

Upadhyay goes out and removes the band and robe.

Jha continues submissions on his behalf.

Jha concludes his submission.

Nankani rebuts the submissions made by the AG.

Nankani states that as can be seen from my letter Singh spoke to the ministers in mid March. Also the WhatsApp messages were before transfer and after his transfer as well.

Nankani: Under the conduct of business rules the sanction issue will go back to the Home Minister.

If the senior IPS is saying that this is a serious offence and an inquiry is required then that should be considered without going into technicalities.