शिमला।सीबीआई की ओर से आय से अधिक संपति अर्जित करने के मामले में मुख्यमंत्री वीरभद्र सिंह व बाकी लोगों के 13 ठिकानों पर की गई छापमोरी के बाद उन्हें गिरफ्तार करने के लिए सीबीआई को हाईकोर्ट से इजाजत लेनी होगी।लेकिन हाईकोर्ट ने वीरभद्र सिंह के खिलाफ सीबीआई की एफआईआर को रदद करने से साफ इंकार […]
शिमला।सीबीआई की ओर से आय से अधिक संपति अर्जित करने के मामले में मुख्यमंत्री वीरभद्र सिंह व बाकी लोगों के 13 ठिकानों पर की गई छापमोरी के बाद उन्हें गिरफ्तार करने के लिए सीबीआई को हाईकोर्ट से इजाजत लेनी होगी।लेकिन हाईकोर्ट ने वीरभद्र सिंह के खिलाफ सीबीआई की एफआईआर को रदद करने से साफ इंकार कर दयिा इसके अलावा सीबीआई को जांच जारी रखने के आदेश भी दिए। जांच पर भी रोक नहीं लगाई। लेकिन अदालते ने साफ किया कि सीबीआई को वीरभद्र सिंह का ब्यान लेने के लिए भी हाईकोर्ट की इजाजत लेनेी होगी। अदालत ने अस्सिटेंट सालिस्टर जनरल ऑफ इंडिया अशोक शर्मा के ये कहने के बावजूद कि सीबीआई वीरभद्र सिंह को इस स्टेज पर गिरफ्तार करने नहीं जा रही है,बावजूद इसके अदालत ने अादेश दिया कि वे ये साफ करती है कि वो(सीबीआई) वीरभद्र सिंह को गिरफ्तार नहीं करेगी।
इसके अलावा सीबीआई वीरभद्र सिंह से पूछताछ भी नहीं कर सकेगी।हाईकोर्ट के जस्टिस राजीव शर्मा और सुरेश्वर सिंह ठाकुर की खंडपीठ ने अपने आदेश में कहा कि ये साफ किया जाता है कि जब सीबीआई का डोजियर कंप्लीट हो जाएगा,सीबीआई को वीरभद्र सिंह से काूनन के मुताबिक पूछताछ करने के लिए इस अदालत का दरवाजा खटखटाने के लिए हमेशा खुले है।साथ ही अदालत ने सीबीआई को आदेश दिए कि इस अदालत की इजाजत के बगैर चालान पेश नहीं करेगी। वीरभद्र सिंह की ओर सेहाईकोर्ट में सुप्रीम कोर्ट के वरिष्ठ वकील व मंत्री कपिल सिब्बल ने पैरवी की।
हिमाचल हाईकोर्ट ने इस मामले और क्या क्या कहा व वीरभद्र सिंह व सीबीआई की ओर से क्या दलीलें दी गई ये जानने के लिए पढ़े हाईकोर्ट का ये पूरा आदेश-:
High Court of H.P.
CWP No. 4063 /2015
1.10.2015: Present: Mr. Kapil Sibbal, Sr. Advocate, Mr. Satyen
Vaidya Sr. Advocate, with Mr. Ankur Chawla,
Adit S. Pujavi, Vivek Sharma and Pranay
Pratap Singh, Advocates, for the petitioners.
Mr. Ashok Sharma, ASGI with Mr. Desh Raj
Thakur, CGC for respondent No. 1.
Mr. Shrawan Dogra, AG with Mr. M.A.Khan,
Addl. AG for respondent No. 2.
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 re gistration 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 premises.
The provisions of the Code of Criminal Procedure and Central Bureau of Investigation Manual have not been followed at the time of registration of FIR and at the time of raiding the premises of the p etitioners .
The FIR could not be registered after the closure of first inquiry report. The part of cause of action has arisen within the territorial jurisdiction of this Court in view of Sr. No.5 read with paras 4,5 and 6 of the FIR dated 23.9.2015. The permission of Hon’ble Speaker of the H.P. Legislative Assembly has not been obtained at the time of registration of FIR and its investigation. The raiding of their residence at the time when the marriage of their daughter was being solemnized speaks of wreak ing of political vendetta.
The FIR has been registered though there is no order of the Hon’ble Delhi High Court to register the same.
Petitioners also apprehend their arrest in FIR No. RCAC -1 2015 A-004 .
4. Mr. Ashok Sharma, learned ASGI has taken a preliminary objection of the maintainability of petition. He has canvassed before us that no part of cause of action has arisen within the territorial jurisdiction of this Court. According to him, Hon’ble Delhi High Court is already seized of the matter.
5. Their Lordships of the Hon’ble Supreme Court in Navichandra N. Majithia vs. State of Maharashtra and others, (2000) 7 SCC 640 have held that in legal parlance the expression “cause of action” 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. Their Lordships have further explained the expression territories within which cause of action, wholly or in part arises and have held that if any part of cause of action arises within the territorial limits of its jurisdiction even though the seat of Government or authority or residence of person against whom direction, order or writ is sought to be issued is not within the said territory. Their Lordships have held as under:
“17. From the provision in clause (2) of Art. 226 it is clear that the maintainability or otherwise of the writ petition in the High Court depends on whether the cause of action for filing the same arose, wholly or in part, within the territorial jurisdiction of that Court.
18. In legal parlance the expression ’cause of action’ isgenerally 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 jurisdi ction 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 Rs. 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 regis tered post on 2 – 2- 1993. The notice was returned to S on 15- 2- 1993 with the endorsements “Addressee absent” for three dates and “Intimation served on addressee’s house” for 6- 3- 1993. The postal article remained unclaimed till 15-2 -1993 and was then returned to the sender, S, with the endorsement unclaimed. S, filed a complaint on 4 – 3- 1993 before the Court of the Judicial Magistrate, First Class, Adoor (District Pathanamathitta) against B under Section 138 of the Negotiable Instruments Act, 1881. B denied tha t the Court had territorial jurisdiction on the basis that the cheque had been dishonoured in Kayamkulam District.
6. Their Lordships of the Hon’ble Supreme Court in State of West Bengal and others vs. Committee for Protection of Democratic Rights, West Bengal and others , (2010)3 SCC 571 have held that words “life” and “personal liberty” are used in Article 21 as compendious terms to include within themselves all the varieties of life which go to make up the personal liberties of a man and not merely the right to the continuance of a person’s animal existence. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its ow n officers. Article 21 in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim. Their Lordships have further held that High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly If the federal 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 . Their Lordships have held as under:
60. Article 21, one of the fundamental rights enshrined in Part III of the Constitution declares that no person shall be deprived of his “life” or “personal liberty” except according to the procedure established by law. It is trite that the words “life” and “personal liberty” are used in the Article as compendious terms to include within themselves all the varieties of life which go to make up the personal liberties of a man and not 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 paramou ntcy 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 membe rs. 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 serious ly 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. They confer rights which are elementary for the proper and effective functioning of democracy. They are universally regarded by the Universal Declaration of Human Rights. If Articles 14 and 19 are put out of operation, Article 32 will be drained of its life blood.
Emphasising the significance of Articles 14, 19 and 21, the learned Chief Justice remarked: “74. Three Articles of our Constitution, and only three, stand between the heaven of freedom into which Tagore wanted his country to awake and the abyss of unrestrained power. They are Articles 14, 19 and 21. Article 31 – C has removed two sides of that golden triangle which affords to the people of this
country an assurance that the promise held forth by the preamble will be performed by ushering an egalitarian era through the discipline of fundamental rights, that is, without emasculation of the rights to liberty and equality which alone can help preserve the dignity of the individual.” [ 64] Thus, the opinion of this Court in A.K. G opalan (supra) to the effect that a person could be deprived of his liberty by ‘any’ procedure established by law and it was not for the Court to go into the fairness of that procedure was perceived in Maneka Gandhi (supra) as a serious curtailment of liberty of an individual and it was held that the law which restricted an individual’s freedom must also be right, just and fair and not arbitrary, fanciful or oppressive. This judgment was a significant step towards the development of law with respect to Arti cle 21 of the Constitution, followed in a series of subsequent decisions.
This Court went on to explore the true meaning of the word “Life” in Article 21 and finally opined that all those aspects of life, which make a person live with human dignity are included within the meaning of the word “Life”. [ 68] Thus, having examined the rival contentions in the context of the Constitutional Scheme, we conclude as follows:
(i) The fundamental rights, enshrined in Part III of the Constitution, are inherent and cannot be extinguished by any Constitutional or Statutory provision. Any law that abrogates or abridges such rights would be violative of the basic structure doctrine. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account in determining whether or not it destroys the basic structure.
(iv) If the federal structure is violated by any legislative action, the Constitution takes care to protect the federal structure by ensuring that Courts act as guardians and i nterpreters 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, 197 3 (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 jurisdictio n without the consent of the Government of the State. It is pointed out on the side of the petitioner that, in the present case, no such consent was obtained by the CBI and submitted that the second FIR against the petitioner is contrary to Section 157 of the Code and Section 6 of the DSPE Act. It is not in dispute that the consent was declined by the Governor of the State and in such circumstance also the second FIR No. R.C. 0062003A0019 dated 05.10.2003 is not sustainable.
[ 40] As discussed above and afte r reading all the orders of this Court which are available in the ‘compilation’, we are satisfied that this Court being the ultimate custodian of the fundamental rights did not issue any direction to the CBI to conduct a roving inquiry against the assets o f the petitioner commencing from 1995 to 2003 even though the Taj Heritage Corridor Project was conceived only in July, 2002 and an amount of Rs. 17 crores was released in August/September, 2002. The method adopted by the CBI is unwarranted and without jurisdiction. We are also satisfied that the CBI has proceeded without proper understanding of various orders dated 16.07.2003, 21.08.2003, 18.09.2003, 25.10.2003 and 07.08.2003 passed by this Court.
We are also satisfied that there was no such direction relating to second FIR, namely, FIR No. R.C. 0062003A0019 dated 05.10.2003.
41. We have already referred to the Constitution Bench decision of this Court in Committee for Protection of Democratic Rights, West Bengal wherein this Court observed that only when this Court after considering material on record comes to a conclusion that such material does disclose a prima facie case calling for investigation by the CBI for the alleged offence, an order directing inquiry by the CBI could be passed and that too after giving opportunity of hearing to the affected person. We are satisfied that there was no such finding or satisfaction recorded by this Court in the matter of disproportionate assets of the petitioner on the basis of the status report dated 11.09.2003 and, in fact, the petitioner was not a party before this Court in the case in question. From the perusal of those orders, we are also satisfied that there could not have been any material before this Court about the disproportionate assets case of the petition er beyond the Taj Corridor Project case and there was no such question or issue 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 n ot 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:
[2 4] In the criminal justice system the investigation of an offenc e is the domain of the police. The power to investigate into the cognizable offences by the police officer is ordinarily not impinged by any fetters. However, such power has to be exercised consistent with the statutory provisions and for legitimate purpos e. 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. In very exceptional cases, however, where the Court finds that the police officer has exercised his investigatory powers in breach of the statutory provision putting the personal liberty and/or the property of the citizen in jeopardy by illegal and improper use of the power or there is ‘abuse of the inv estigatory power and process by the police officer or the investigation by the police is found to be not bona fide or the investigation is tainted with animosity, the Court may intervene to protect the personal and/or property rights of the citizens.
[ 26] One of the responsibilities of the police is protection of life, liberty and property of citizens. The investigation of offences is one of the important duties the police has to perform. The aim of investigation is ultimately to search for truth and bring the offender to the book.
[ 29] Once jurisdiction is conferred on the CBI to investigate the offence by virtue of notification under Section 3 of the DSPE Act or the CBI takes up investigation in relation to the crime which is otherwise within the jurisdict ion of the State police on the direction of the constitutional court, the exercise of the power of investigation by the CBI is regulated by the Code and the guidelines are provided in the CBI (Crime) Manual. Paragraph 9.1 of the Manual says that when, a co mplaint is received or information is available which may, after verification, as enjoined in the Manual, indicate serious misconduct on the part of a public servant but is not adequate to justify registration of a regular case under the provisions of Sect ion 154 of the Code, a preliminary enquiry (PE) may be registered after obtaining approval of the competent authority. It also says that where High Courts and Supreme Court entrust matters to CBI for inquiry and submission of report, a PE may be registered after obtaining orders from the head office. When the complaint and source 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 followed by immediate arrest of the accused.
[ 33] A proper investigation into crime is one of the essentials of the criminal justice system and an integral facet of rule of law. The investigation by the police under the Code has to be fair, impartial and uninfluenced by external influences. Where investigation into crime is handled by the CBI under the DSPE Act, the same principles apply and CBI as an investigating agency is supposed to discharge its responsibility with competence, promptness, fairness and uninfluenced and unhindered by external influences.
81. What is an investigation has already been discussed by Brother Justice Lodha and I endorse his views on this. However, what is crucial for an investigation is that it should conclude expeditiously from the point of view of all concerned: from the point of view of the accused, a quick conclusion to the investigation will clear his name and image in society if he is innocent. This is certainly of considerable importance to a person who has been wrongly accused or fr amed for an offence; from the point of view of society, a quick closure to investigation is necessary so that those against whom there is evidence of the commission of a crime are tried at the earliest and punished if they are guilty. This, so far as socie ty is concerned, is essential for maintaining the rule of law; and from the point of view of the investigator, an expeditious conclusion of investigations is necessary because greater the delay, greater the chances of evidence being destroyed, witnesses be ing compromised or the accused being able to manipulate circumstances to his or her advantage.
9. On the basis of the pleadings and the arguments advanced by the learned counsel for the parties and with their assistance, t he following questions are formul ated for determination in this petition:
1. Whether cause of action has arisen within the territorial jurisdiction of this Court qua FIR No. RCAC -1 2015 A -004 registered on 23.9.2015, more particularly, in view of Sr. No.5 read in conjunction with paras 4, 5 and 6 of the FIR ?
2. Whether there could be second preliminary inquiry after the closure of earlier preliminary inquiry purportedly as per para 9.26 of the Central Bureau of Investigation Manual?
3. Whether registration of FIR No. RCAC- 1 2015 A- 004 dated 23.9.2015 violates the dicta of Hon’ble Supreme Court in Ms. Mayawati 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 the true import of Entry 2 -A, 80 of the Union List vis-à-vis 2 of the State List and their inter -play?
9. Whether the income reflected in paras 5 and 6 of the FIR can be treated as disproportionate asset s in the hands of petitioner No.1?
10. Whether the registration of FIR against the petitioners is actuated with legal an d factual mala fide and political vendetta?
11. Whether the permission of the Speaker of the H.P. Legislative Assembly was mandatory before registration of FIR? CMP No. 10271 of 2015.
10. Notice in the aforesaid terms.
There is a prima facie case in favour of the petitioners and the balance of convenience is also in their favour. 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, i t 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 Cou rt .
11. The Court places on record its appreciation of the professional and fair stand adopted by the Central Bureau during the hearing of this matter.
12. With the consent of the learned counsel for the parties, list this case for final hearing on 18.11 .2015. Copy Dasti on usual terms.
(Rajiv Sharma),
Judge.
(Sureshwar Thakur), Judge .
1.10.2015
