Bombay HC asks former Mumbai Police Commissioner why he hadn’t filed FIR against the home minister before approaching court; reserves order after 5-hour hearing

THE Bombay High Court Wednesday reserved its order on multiple petitions including the one filed by former Mumbai police commissioner Param Bir Singh seeking a Central Bureau of Investigation(CBI) probe against state home minister Anil Deshmukh for his alleged corrupt practices.

A division bench of Chief Justice Dipankar Dutta and Justice GS Kulkarni heard the various lawyers from 10:30 am to 6:40 pm when it finally closed the hearing for orders to be pronounced later on maintainability of the petitions.

During the hearing, Chief Justice Dutta asked Senior Advocate Vikram Nankani who was appearing for Singh how the court could order an investigation in exercise of its power under Article 226 of the Constitution when there was no FIR registered in the case?

The bench asked Nankani to cite case law supporting his argument that such an investigation could be ordered by the court without an FIR having been lodged.

It pulled up Singh for not following statutory procedure.

"Please do not turn the Bombay High Court into a magistrate's court. If you wish, you can move to an appropriate forum and initiate proceedings by filing a complaint before a magistrate", CJ Datta told Nankani.

"You are failing your duty as a citizen if you don't file an FIR if you know about a cognizable offense", CJ Datta went on to say.

"We cannot throw the CrPC for you. You are not above the law", CJ Datta told Singh.

CJ Datta went on to state that Singh had an axe to grind with the home minister. "Why should the court invoke PIL jurisdiction?" he asked.

Nankani sought to cite some decisions of the Supreme Court to argue that the top court had ordered the investigation, but the bench pointed out to him that in those cases an FIR had already been registered.

Nankani submitted he had no option except to approach the court under Article 226 as the complaint was against the home minister and that state had withdrawn general consent accorded to the CBI. Thus, only the high court could order a CBI probe.

Advocate General (AG) Ashutosh Kumbhakoni, for state government, argued that the PIL filed by Singh was not maintainable and was aimed at settling personal scores with home minister Deshmukh.

He argued that Singh had spoken about alleged corrupt practices only after he was transferred out of the office of Police Commissioner. Kumbhakoni also submitted that PILs could not filed in service-related matters.

The AG cited the decision of the Supreme Court in Kunga Nima Lepcha & Ors vs State Of Sikkim in which the top court had dismissed a petition under Article 32 seeking investigation against the then Chief Minister of Sikkim. It was held then that to launch an investigation was the executive's domain.

Another petitioner, Dr. Jayshri Patil, informed the court that she had filed a complaint at the Malabar Hill Police station but they had not acted on it.

The court asked the AG to call for the station diary for the court's pursual. Later in the evening, the court was informed by the AG that there was an entry in the inward register, but there was no mention of Jaishhri Patil's complaint in the station diary. To this, advocate Nankani said he was right in his apprehension.

The court also heard petitioner Ghanshyam Upadhyay, seeking the formation of a court-monitored Special Investigation Team (SIT) which would include a member each the CBI, Enforcement Directorate (ED) and the National Investigation Agency (NIA) to look into the extortion charges alleged by Param Bir Singh.

Days after Singh was shunted out of his position as police commissioner, he addressed a letter to the Chief Minister, alleging that Deshmukh would direct police officers to collect money on his behalf from various establishments and other sources.

Singh's transfer came as a fallout of the arrest of crime branch officer Sachin Waze in connection with the parking of an explosives-laden vehicle outside the south Mumbai residence of industrialist Mukesh Ambani on February 25 and in the murder of businessman Mansukh Hiran, who purportedly owned that vehicle.

Singh also alleged that  Deshmukh had been interfering in various investigations and instructing police officers on how to conduct them.

Earlier Singh approached the Supreme Court seeking a CBI probe against Deshmukh but was asked by it to approach the high court first.

Meanwhile, the Maharashtra Government Tuesday issued a notification constituting a one-member high-level enquiry committee headed by a former judge of the Bombay High Court Justice KU Chandiwal, to probe the allegations made by Singh against Deshmukh.

The government notification said the committee would be submitting its report within six months.

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