Bombay High Court
V.P. Patil vs The State Of Maharashtra Through on 18 July, 2011
Author: Ranjana Desai
Bench: Ranjana Desai, Ranjit More
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL PIL PETITION NO.28 OF 2011
AND
CRIMINAL APPLICATION NO.13 OF 2011
V.P. Patil ... Petitioner
Vs.
The State of Maharashtra through
Administration
the Chief Secretary, General
Department,
Mantralaya, Mumbai & Ors. ... Respondents
Mr. V.P. Patil, petitioner in person.
Mr. Ravi Kadam, Advocate General with Mr. P.A. Pol and
Mr. A.S. Gadkari, A.P.P. for the State.
Mr. N.H. Seervai, senior counsel with Ms. Gulnar Mistry,
Mr. Z. Dastur and Mr. Farah Karachiwala i/b J.Sagar
Associate for respondents 6 and 7.
ALONG WITH
CRIMINAL PIL PETITION NO.29 OF 2011
Mr. S. Balakrishnan ... Petitioner
Vs.
The State of Maharashtra & Ors. ... Respondents
Mr. S.K. Nair i/b M/s. S.K. Nair & Co. for the petitioner.
Mr. Ravi Kadam, Advocate General with Mr. P.A. Pol and
Mr. A.S. Gadkari, A.P.P. for the State.
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ALONG WITH
WRIT PETITION NO.1629 OF 2011
Ketan K. Tirodkar ... Petitioner
Vs.
The State via Home Principal
Secretary. & Anr. ... Respondents
Mr. K.K. Tirodkar, petitioner in person.
Mr. Ravi Kadam, Advocate General with Mr. P.A. Pol and
Mr. A.S. Gadkari, A.P.P. for the State.
CORAM: MRS. RANJANA DESAI &
RANJIT MORE, JJ.
DATE ON WHICH THE JUDGMENT IS
RESERVED : 12TH JULY, 2011.
DATE ON WHICH THE JUDGMENT IS
PRONOUNCED: 18TH JULY, 2011.
JUDGMENT :- (Per Smt. Ranjana Desai, J.)
1. On 11/6/2011, Senior Journalist J. Dey, who was working with Mid Day newspaper was shot dead at 4.00 p.m. at Powai by unidentified gunmen. The basic prayer in the present writ petitions is that the investigation of the ::: Downloaded on - 09/06/2013 17:31:02 ::: AJN 00-CRIPIL28.11GROUP :3: case pertaining to the murder of J. Dey be transferred to Central Bureau of Investigation (for short, "the CBI"). PIL Petition No.28 of 2011 is filed by Mr. V.P. Patil, who is an advocate practising in this court. He is appearing in person. PIL Petition No.29 of 2011 is filed by Mr. S. Balakrishnan, who is also a journalist. Writ Petition No. 1629 of 2011 is filed by one Mr. Ketan Tirodkar in public interest.
In PIL Petition No.28 of 2011, intervention application was filed by the Press Club, Mumbai and Marathi Patrakar Parishad, Mumbai. The applicants have been permitted to intervene by us.
2. Mr. Patil, who is petitioner in PIL Petition No.28 of 2011 has submitted that the investigation needs to be transferred to CBI because though more than about a month has elapsed after the murder, the police have not been able to collect any credible evidence. While the so-
called investigation is on, the investigating officers are leaking out information to the public. Contradictory statements are issued to the Press which create doubt ::: Downloaded on - 09/06/2013 17:31:02 ::: AJN 00-CRIPIL28.11GROUP :4: about the honesty and integrity of the investigating agency. In support of his submissions, Mr. Patil relied on the judgment of the Supreme Court in Narmada Bai v.
State of Gujarat & Ors. 1 and judgment of this court in Shamin @ Chintu Jamaluddin Shaikh v. The Senior Inspector of Police, Khar Police Station, Mumbai & Ors.2 Mr. Patil submitted that when there is public cry, there is no reason why the investigation should not be transferred to the CBI and it is not understood why the Mumbai Police should keep the investigation with themselves when they are not successful in tracing the real culprits.
3. Mr. Nair, learned counsel appearing for the petitioner in PIL Petition No.29 of 2011 submitted that there is a nexus between some senior police officers of Mumbai Police and the underworld. This is acknowledged by the Vohra Committee which was established by the Government to take stock of all available information 1 2011 All SCR 1339.
2 2011 All MR (Cri.) 1560.
::: Downloaded on - 09/06/2013 17:31:02 :::AJN 00-CRIPIL28.11GROUP :5: about the activities of crime syndicates which had developed links with and were being protected by the Government functionaries and political personalities. Our attention was drawn to the conclusion of the said report that the organized crime in Mumbai is a reality that was created by the commissions and omissions of various Governments; that the organized crime gangs' penetration in various systems of governance is considerable and that the situation is such that the said penetration cannot be eradicated but can only be contained. Mr. Nair submitted that J. Dey was concerned with investigative journalism and was tracking the movements of oil mafia which is operating with the blessings of Mumbai Police. Therefore, the Mumbai Police cannot be trusted with the investigation. Mr. Nair submitted that it is surprising as to why the Mumbai Police are not able to find out who is behind this murder. This case has national and international ramifications and only agency like CBI can effectively investigate it.
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4. Mr. Seervai, learned senior counsel for the
intervenors was highly critical of the investigating agency.
He submitted that the investigating agency has failed to crack the case. Free and independent Press is one of the pillars of Indian democracy. Murder of J. Dey is attack on freedom of Press and attack on Indian democracy. It is an attempt to silence the Press. Counsel submitted that this case has national significance. It requires a sensitized approach. It should, therefore, be investigated by an impartial police force like the CBI. There is grave doubt about the integrity of the Mumbai Police as its officers have established links with the underworld. Counsel submitted that therefore, a case for transfer of investigation is made out. Counsel submitted that the Mumbai Police are leaking out information allegedly gathered by them, everyday. Various contradictory statements are issued to the Press. It is clear that there is no real investigation. The police are just trying to hoodwink the people. They are trying to traumatize the family members of J. Dey by issuing scandalous ::: Downloaded on - 09/06/2013 17:31:02 ::: AJN 00-CRIPIL28.11GROUP :7: statements. Counsel has drawn our attention to the intervention application and to the affidavit of Mr. Sunil Shivdasani, the Secretary of the Intervenors - the Press Club. Counsel also drew our attention to the averments made in PIL Petition No.29 of 2011. Counsel submitted that it is specifically alleged in the intervention application, in the affidavit of Mr. Shivdasani and in PIL Petition No.29 of 2011 that there is nexus between the Mumbai Police and the underworld. No affidavit is filed by the Mumbai Police. Counsel submitted that the Mumbai police have chosen not to file affidavit in reply because they have no explanation to offer. Counsel submitted that the underworld connection involved in this case will have to be unearthed. This can only be done by an impartial investigating agency and not by tainted Mumbai Police force. In support of his submissions, counsel relied on the judgments of the Supreme Court in State of West Bengal & Ors. v. Committee for Protection of Democratic Rights, West Bengal & Ors.3 Rubabbuddin Sheikh v. State of Gujarat & 3 (2010) 3 SCC 571.
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Ors.4 Punjab and Haryana High Court Bar
Association, Chandigarh through its Secretary v.
State of Punjab & Ors.5 and Mohammed Anis v.
Union of India & Ors.6
5. Mr. Tirodkar, the petitioner in person in Writ Petition No.1629 of 2011 submitted that he has full faith in the officers of Mumbai Police particularly Mr. Arup Patnaik, the Commissioner of Police and Mr. Himanshu Roy, Joint Commissioner of Police. He submitted that they are excellent officers, who have done their job remarkably well. He has no grievance about them. However, the investigation needs to be transferred because some pressure may be brought on them. Mr. Tirodkar submitted that this is a fit case where the Maharashtra Control of Organized Crime Act, 1999 (for short, "the MCOCA") must be applied to the accused. It must be stated here that learned Advocate General Mr. Kadam has made a statement that MCOCA is applied to the accused.
4 (2010) 2 SCC 200.
5 (1994) 1 SCC 616.
6 1994 Supp. (1) SCC 145.
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6. Learned Advocate General submitted that so far, the police have arrested eight persons. He submitted that transfer of investigation by CBI can be done only in exceptional cases. There has to be material to justify such transfer. In this case, except the pleadings, which are general in nature, no material has been brought on record by the petitioners to justify their plea of transfer to the CBI. Counsel submitted that the Mumbai Police have conducted thorough investigation. They have arrested the culprits. They have applied MCOCA to them. The investigation is still in progress. There are no exceptional circumstances justifying transfer of investigation to CBI and, at this stage, if the investigation is transferred, it would have deleterious effect on the Mumbai Police. The Mumbai Police would be demoralized. Counsel submitted that in Criminal PIL Petition No.28 of 2011, there are no allegations against the Mumbai Police. It is not alleged that the Mumbai Police have connection with the underworld. The allegation is that the Mumbai Police ::: Downloaded on - 09/06/2013 17:31:02 ::: AJN 00-CRIPIL28.11GROUP : 10 : have failed to investigate the crime is now belied by the excellent progress of investigation made by them which has resulted in the arrest of eight accused. Counsel submitted that in Criminal Application No.13 of 2011 and in the affidavit of Mr. Shivdasani also, general allegations are made against Mumbai Police but no particulars have been given. It is stated in the affidavit of Mr. Shivdasani that Mr. Dey had lodged complaints in respect of ACP Anil Mahabole with the Home Minister, State of Maharashtra.
It is suggested that it is because of this that Mr. Dey was murdered. Counsel submitted that in paragraph 6(vi) of his affidavit, Mr. Shivdasani has admitted that ACP Anil Mahabole was questioned by Mumbai Police approximately for six hours and his statement came to be recorded. Therefore, it is clear that the Mumbai Police have impartially conducted the investigation. The general allegation that they would not conduct proper investigation because of underworld connection is baseless. So far as the Vohra Committee Report is concerned, counsel submitted that the Vohra Committee ::: Downloaded on - 09/06/2013 17:31:02 ::: AJN 00-CRIPIL28.11GROUP : 11 : report has not gone into the specifics of any case.
Suggestions were made by heads of different departments of Government and investigating agencies and general conclusions were drawn. Those conclusions, without there being any other material on record in this case establishing connection of Mumbai Police with the underworld, cannot be used against them in support of prayer for transfer of investigation. Counsel submitted that the cases on which reliance is placed by Mr. Seervai are cases where the police are the accused and, therefore, the investigation was transferred to CBI. Such is not the case here. Counsel relied on the judgment of the Supreme Court in Secretary, Minor Irrigation & Rural Engineering Services, U.P. & Ors. v. Sahngoo Ram Arya & Anr.7 where the Supreme Court has stated that the High Court has power under Article 226 to direct an inquiry by CBI but that power will have to be exercised only in cases where there is sufficient material to come to a prima facie conclusion that there is need to make such an inquiry. Counsel also relied on the judgment of the 7 (2002) 5 SCC 521.
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Supreme Court in Sakiri Vasu v. State of Uttar
Pradesh & Ors.8 where the Supreme Court has observed that an aggrieved person can only claim that the offence he alleges must be investigated properly but has no right to claim investigation by a particular agency like the CBI.
The Supreme Court has also stated that mere allegations made against the police would not justify transfer of investigation unless there is some material on record to support the allegations. Counsel pointed out that in this case, the Supreme Court has reaffirmed what it has said in Secretary, Minor Irrigation & Rural Engineering Services, U.P.
7. Counsel submitted that the allegation that the police have leaked out vital information, is baseless. The police also have a duty to inform the public about the investigation, but it must be done in a manner which will not hamper the investigation. Counsel submitted that in this case, the police have given Press releases only through authorized officers. The police have not leaked 8 (2008) 2 SCC 409.
::: Downloaded on - 09/06/2013 17:31:02 :::AJN 00-CRIPIL28.11GROUP : 13 : out any vital aspect of the investigation or the statements made by the witnesses. Counsel submitted that if unfortunately, any witness has disclosed the contents of his statement to the Press, the police cannot be held responsible for it. Counsel submitted that looking to the sensitive nature of this case, the police have carried out the investigation with a sense of responsibility. No positive conclusion can be drawn that the local police have not carried out effective investigation and, therefore, this case needs to be transferred to the CBI. Counsel submitted that assuming that this case has international ramifications, Mumbai Police are capable of investigating it. He submitted that the case relating to terrorist attack on Mumbai on 26/11/2008 in which accused Ajmal Kasab has been sentenced to death was successfully investigated by the Crime Branch of Mumbai Police.
Counsel submitted that in the circumstances of the case, looking to the progress made by the Mumbai Police in the investigation and the fact that they have arrested eight accused, the only conclusion which can be drawn is that ::: Downloaded on - 09/06/2013 17:31:02 ::: AJN 00-CRIPIL28.11GROUP : 14 : they are on the right track. Counsel submitted that this court should, therefore, dismiss the petition.
8. Seriousness of the crime in question obviously cannot be debated upon. The investigation of the case is on. It is, therefore, not possible for us, at this stage, to say what led to the murder. We cannot express any opinion on this aspect and nothing said by us in this order may be interpreted to mean our expression of opinion on this aspect. The reasons for murder would come to light only when the investigation is complete, charge-sheet is filed and trial is concluded. But we record our total agreement with the submission of learned counsel for the petitioners that free and independent Press is a pillar of our democracy and if an attack is made on a journalist to silence him, because he is probing into a scam or is likely to bring some unsavoury facts to light, it is a cause for concern. All offences must be properly and impartially investigated more so a case like the present, involving a serious offence.
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9. As already noted by us, the basic prayer in these petitions, is that the investigation of the case should be transferred to CBI because the Mumbai Police will not conduct an impartial and honest investigation for the reason that Mr. Dey was doing investigative journalism.
He had focused his attention on the unholy nexus between Mumbai igPolice and the underworld and therefore, he was gunned down.
10. Before going to the allegation about the nexus of Mumbai Police with the underworld, we must go to the relevant judgments which are cited before us to ascertain the law on the question of transfer of investigation to CBI or any other agency. We must first refer to the Constitution Bench judgment in Committee For Protection of Democratic Rights, West Bengal, which is the lead case on the point. The issue which was referred to the Constitution Bench was whether the High Court, in exercise of its jurisdiction under Article 226 of ::: Downloaded on - 09/06/2013 17:31:02 ::: AJN 00-CRIPIL28.11GROUP : 16 : the Constitution of India can direct the CBI established under the Delhi Special Police Establishment Act, 1946 to investigate a cognizable offence, which is alleged to have taken place within the territorial jurisdiction of a State, without the consent of the State Government. After considering several judgments, the Supreme Court inter alia observed that the State has a duty to enforce the human rights of a citizen by providing fair and impartial investigation against any person accused of commission of a cognizable offence which may include its own officers. Victim's rights also need to be protected. The Supreme Court further observed that being the protectors of civil liberties of the citizens, the Supreme Court and the 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.
The Supreme Court concluded that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to CBI to investigate a cognizable offence ::: Downloaded on - 09/06/2013 17:31:02 ::: AJN 00-CRIPIL28.11GROUP : 17 : alleged to have been committed within the territory of a State without the consent of that State, shall be valid in law. In paragraph 70, the Supreme Court added a caveat.
It is necessary to quote it.
"70. Before parting with the case, we deem it necessary to emphasis that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental ::: Downloaded on - 09/06/2013 17:31:02 ::: AJN 00-CRIPIL28.11GROUP : 18 : rights. Otherwise, CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations."
11. In Rubabbuddin Sheikh, the petitioner was the brother of one Sohrabuddin who was alleged to have been killed by officials of Gujarat Police in fake encounter. The Supreme Court was considering whether investigation of the case could be transferred to CBI after charge-sheet was filed. The Supreme Court noted that admittedly the accusations were directed against the police personnel. In the facts of the case before it, the Supreme Court observed that in an appropriate case when the court feels that the investigation by the police authorities is not in the proper direction and in order to do complete justice in the case and as the high officials are involved in the case, it was always open to the court to hand over the investigation to the independent agency like CBI.
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12. In Punjab & Haryana High Court Bar
Association, Chandigarh, the lawyer Mr. Kulwant Singh, his wife and minor child were abducted while they were on their way to the police station. Mr. Kulwant Singh was going to the police station to get one Mrs. Manjit Kaur and her son released from illegal custody of the police. The lawyers were agitated by this incident. They were not satisfied with the ig police investigation. The Bar Association demanded a judicial inquiry which was not ordered by the State Government. A PIL was filed in the Punjab and Haryana High Court praying inter alia for a judicial inquiry. The writ petition was heard by the High Court. It was dismissed as withdrawn. The Bar Association challenged the order in the Supreme Court.
The Supreme Court observed that the High Court was wholly unjustified in closing its eyes and ears to the controversy which had shaken the lawyer fraternity. The Supreme Court further observed that the least the High Court could have done was to direct an independent investigation/inquiry into the mysterious and most tragic ::: Downloaded on - 09/06/2013 17:31:02 ::: AJN 00-CRIPIL28.11GROUP : 20 : abduction and murder of the lawyer and his family.
Noting that charge-sheet was filed, the Supreme Court went on to observe that in the facts and circumstances of the case, to do complete justice in the matter and to instill confidence in the public mind, it is necessary to have fresh investigation through a specialized agency like the CBI. The Supreme Court directed the CBI to take up the investigation of the case.
13. In Mohammed Anis, the police were accused of causing encounter deaths. A writ petition was filed by an advocate in the Supreme Court under Article 32 of the Constitution alleging infringement of Article 21 of the Constitution. The Supreme Court observed that since the allegations were mainly directed against the local police and doubts were expressed regarding the fairness of the investigation as the police were accused of murder, without expressing any opinion, in public interest, it had directed that the investigation be conducted by local police. Thereafter, a petition came to be filed by a police ::: Downloaded on - 09/06/2013 17:31:02 ::: AJN 00-CRIPIL28.11GROUP : 21 : inspector claiming that it was in public interest. It was contended that the transfer of investigation to CBI was destructive of the exclusive powers of the State of Uttar Pradesh and it was in flagrant disregard to the mandatory provisions of the Code of Criminal Procedure. The Supreme Court observed that fair and impartial investigation by an independent agency, not involved in the controversy, is the demand of public interest. If the investigation is by an agency which is allegedly privy to the dispute, the credibility of the investigation will be doubted and that will be contrary to public interest as well as the interest of justice. While dismissing the petition the Supreme Court observed that factual situation arising from the incident in question had persuaded it to transfer the investigation to CBI not only in the interest of fair and impartial investigation but also in the interest of U.P. police as there may not remain any lingering doubt regarding the credibility of investigation.
14. In Narmada Bai, according to the petitioner, ::: Downloaded on - 09/06/2013 17:31:02 ::: AJN 00-CRIPIL28.11GROUP : 22 : Narmada Bai, her son Tulsiram Prajapati was killed in a fake encounter by the officials of Gujarat and Rajasthan Police. Narmada Bai filed a writ petition under Article 32 of the Constitution in the Supreme Court seeking inter alia a direction to the CBI to register FIR and investigate into the fake encounter killing of her son. The Supreme Court took a resume of the relevant cases and though charge-sheet was filed, directed the police authorities of Gujarat State to hand over the investigation to CBI.
15. In Secretary, Minor Irrigation & Rural Engineering Services, U.P., the petitioner had filed number of writ petitions challenging the actions taken by the Department against him. In the said writ petitions, he made serious allegations against a Minister who denied the allegations. The High Court passed interim orders staying the actions initiated by the Department against the petitioner. The Department filed special leave petition against those orders. The Supreme Court directed the High Court to dispose of the writ petitions within six ::: Downloaded on - 09/06/2013 17:31:02 ::: AJN 00-CRIPIL28.11GROUP : 23 : months. The High Court observed that if the allegations made in the petitions are found to be true then the affairs of the State cannot be said to be running in accord with the Constitution. The High Court disposed of the petitions by directing the CBI to hold inquiry into the allegations made against the Minister. The Supreme Court set aside the High Court's order and remanded the matter to the High Court with a direction to consider whether the material on record was sufficient to direct inquiry by CBI.
While remanding the matter, the Supreme Court observed that while none can dispute the power of the High Court under Article 226 of the Constitution to direct an inquiry by CBI, the said power can be exercised only in cases where there is sufficient material to come to a prima facie conclusion that there is need for such inquiry.
The Supreme Court further observed that it is not sufficient to have such material in the pleadings. On the contrary, there is need for the High Court on consideration of such material to come to a prima facie conclusion that there is need for such inquiry by CBI. The Supreme Court ::: Downloaded on - 09/06/2013 17:31:02 ::: AJN 00-CRIPIL28.11GROUP : 24 : further observed that transfer of investigation to CBI or other agency cannot be done as a matter of routine or merely because a party makes such allegations. It is pertinent to note that in Committee for Protection of Democratic Rights, West Bengal, the Constitution Bench has approved the view taken by it in this case.
16. In Sakiri Vasu, the dead body of Major Ravishankar, son of the appellant was found at Mathura Railway Station. The court of inquiry held that Major Ravishankar had committed suicide. The appellant alleged that it was a murder. He alleged that Major Ravishankar had made oral complaints about the corruption prevalent in the army and, hence, he was murdered. He filed a petition in the Allahabad High Court challenging report of the court of inquiry. The writ petition was dismissed by the Allahabad High Court. The appellant field a writ petition in the Supreme Court that investigation be handed over to CBI. The Supreme Court held that no one can insist that an offence can be investigated by a particular agency.
::: Downloaded on - 09/06/2013 17:31:02 :::AJN 00-CRIPIL28.11GROUP : 25 : The Supreme Court reiterated its view in Secretary, Minor Irrigation and Rural Engineering Services, U.P. and observed that material on record does not disclose a prima facie case calling for an investigation by CBI. The Supreme Court dismissed the appeal by observing that mere allegation made by the appellant that his son was murdered because he had discovered some corruption cannot justify a CBI inquiry, particularly when inquires were held by the army authorities as well as GRP at Mathura which revealed that it was a case of suicide.
17. We must also refer to judgment of the Division Bench of this court in Shamin @ Chintu on which reliance is placed by Mr. Patil. In that case, the petitioner had sought transfer of investigation from Khar Police Station to CBI.
The case involved son of a Minister. The CR was registered inter alia under sections 323, 307 and 504 read with Section 34 of the Indian Penal Code and under Sections 3 and 25 of the Indian Arms Act. While ::: Downloaded on - 09/06/2013 17:31:02 ::: AJN 00-CRIPIL28.11GROUP : 26 : transferring the case to CBI, the Division Bench observed as under :
"However, considering the over all situation, coupled with the fact that the right of the complainant of a free, fair and impartial investigation of his complaint is a fundamental right under Article 21 of the Constitution of India, and that there are inexplicable circumstances borne out from the record which create doubt about the manner in which the investigation has had taken off soon after the incident, it has become necessary to provide credibility and instil confidence in the investigation of this case, which involves son of the sitting Cabinet Minister of the State and brother of a Member of Parliament. Merely because the investigation is now transferred to Crime Branch does not mean that it is a free, fair and impartial investigation of the case as such. For, the Crime Branch has taken over the investigation from the stage it was left by Khar Police Station and has toed the same line on account of the record already created in that regard. The quintessence is not only to do free, fair and impartial investigation of a criminal case, but it should also be seen to be so done.::: Downloaded on - 09/06/2013 17:31:02 :::
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18. The following principles can be deduced from the above judgments.
(a) The State has a duty to provide fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. Victim's rights also need to be protected. Fair and independent investigation by an independent agency not involved in the controversy is the demand of public interest.
(b) An aggrieved person can only claim that the offence he alleges be investigated properly, but he has no right to claim that it be investigated by any particular agency of his choice. Only in exceptional cases he can invoke ::: Downloaded on - 09/06/2013 17:31:02 ::: AJN 00-CRIPIL28.11GROUP : 28 : extraordinary powers of the High Court under Article 226 of the Constitution and seek a transfer of investigation to CBI or other agencies.
(c) Being protector of civil liberties of the citizens, the High Court can, in exercise of its jurisdiction under Article 226 of the Constitution, transfer the investigation to CBI and give a direction to it to investigate the crime.
(d) No inflexible guidelines can be laid down to decide whether or not such power should be exercised. It would depend on facts and circumstances of each case.
(e) Order transferring investigation to CBI is not to be done as a matter of routine or ::: Downloaded on - 09/06/2013 17:31:02 ::: AJN 00-CRIPIL28.11GROUP : 29 : merely because a party has levelled some allegations against local police.
(f) This extraordinary power must be exercised sparingly, cautiously and in exceptional circumstances when it becomes necessary to provide and instil confidence in investigation or where the incident may have national and international ramification or where such an order may be necessary for doing complete justice and enforcing fundamental rights. An order directing enquiry by CBI should be passed only when the High Court, after considering the material on record, comes to a conclusion that such material does disclose a prima facie case calling for an investigation by CBI.::: Downloaded on - 09/06/2013 17:31:02 :::
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(g) In an appropriate case, where high officials are involved in crime, when the court feels that the police investigation is not in the proper direction in order to do complete justice, investigation can be transferred to CBI even after the charge-sheet is submitted.
19. We shall examine the present case in the light of the above principles. The report of investigation dated 4/7/2011 submitted by learned Advocate General has been perused by us. Investigation has proceeded further and as of today, the police have arrested eight persons involved in the crime. The provisions of MCOCA have been applied to the accused. We must state that having perused the report and having heard learned Advocate General, it is not possible for us to come to a conclusion that investigation of this case is lackadaisical, perfunctory or is not on proper lines.
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20. In our opinion, the allegation that because Mr. Dey was conducting investigative journalism, he has been silenced by underworld and that because the Mumbai Police have links with underworld, they will not carry out impartial investigation is extremely general in nature. In PIL Petition No.28 of 2011, no such allegations are made.
Averments in Criminal Application No.13 of 2011 describe the type of reporting Mr. Dey was doing. There is a general allegation that because Mr. Dey was reporting on an alleged nexus between the underworld and Mumbai Police and the oil mafia in the larger public interest, the investigation should be done by CBI. No particulars about the alleged underworld connection are disclosed. In the affidavit of Mr. Shivdasani again there is a reference to the alleged nexus between Mumbai Police and the underworld on which Mr. Dey was reporting. There is a reference to ACP Mahabole in respect of whom Mr. Dey is stated to have made a complaint to the Home Minister Mr. Patil. It is stated that Mr. Dey had worked on stories that suggested that ACP Mahabole was close to "D" Company.
::: Downloaded on - 09/06/2013 17:31:02 :::AJN 00-CRIPIL28.11GROUP : 32 : It is stated that Mr. Dey was unearthing links between the Mumbai Police and the underworld. It is suggested that ACP Mahabole was responsible for the murder of Mr. Dey.
We find it difficult to come to a conclusion on the basis of these general averments that the nexus between the Mumbai Police and the underworld is established; that therefore, they would not investigate this case properly and, hence, it should be transferred to CBI. It is pertinent to note that in paragraph 6(vi) of the affidavit, Mr. Shivdasani has admitted that Mumbai Crime Branch questioned ACP Mahabole for about six hours during which time his statement was recorded. Thus, it cannot be said that Mumbai Police have been partial or they have purposely overlooked the allegations about involvement of its police officer in this case. In PIL Petition No.29 of 2011 names of certain officers who are stated to have been dismissed because of underworld connection have been given. However, there is nothing to even prima facie establish that the officers investigating J. Dey murder have links with the underworld. The necessary ::: Downloaded on - 09/06/2013 17:31:02 ::: AJN 00-CRIPIL28.11GROUP : 33 : material particulars are lacking.
21. Reliance is placed on Vohra Committee Report. This Committee, as its first paragraph itself indicates, was established by Ministry of Home Affairs to take stock of all available informations about the activities of crime Syndicates/Mafia organizations which had developed links with and were being protected by Government functionaries and political personalities. Heads of different departments of Government were members of this Committee. We have carefully perused the report.
Suggestions and recommendations made by the heads of departments are noted in the report and conclusions are drawn about penetration of organized crime gangs in Mumbai into various systems of governance due to commissions and omissions of various Governments in India. These conclusions are drawn considering the overall prevalent circumstances. From these conclusions, it is difficult for us to infer that in this case, there is nexus between the Mumbai Police, who are investigating the ::: Downloaded on - 09/06/2013 17:31:02 ::: AJN 00-CRIPIL28.11GROUP : 34 : case and the underworld who is responsible for the murder of J. Dey. The averments made in the petitions, in the intervention application and Mr. Shivdasani's affidavit do not constitute sufficient material disclosing a prima facie case calling for an investigation by CBI. Though we have power to transfer investigations to CBI, this power has to be used sparingly and in exceptional cases. In the absence of any material on record substantiating the allegation that Mumbai Police, who are investigating this case, have links with the underworld, it is difficult for us to hold that this is an exceptional case warranting transfer to CBI. Assuming that this case has not only national but international ramifications, we do not feel that Mumbai Police cannot successfully investigate it. In this connection, learned Advocate General has rightly cited example of the case involving terrorist attack on Mumbai on 26/11/2008 in which Ajmal Kasab, a Pakistani national was involved. The said case was successfully investigated by the Mumbai Police.
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22. So far as the cases cited by Mr. Seervai are concerned, we find force in the submission of learned Advocate General that in all those cases, local police officers were directly involved. They were the main culprits. Impartial investigation was found to be not possible in the peculiar facts of those cases. In this case, there are no direct allegations against local police officers.
None of them are accused of murder. Undoubtedly, transfer to CBI can be ordered even in a case where police are not the accused. But, a very strong case based on material brought on record must be made out for such a transfer. Transfer to CBI cannot be ordered in a routine manner.
23. In any case, the police have cracked the case and arrested eight accused. Provisions of MCOCA have been applied to them. We must note that one of the petitioners, Mr. Tirodkar has expressed great confidence in the Commissioner of Police, Mumbai and Joint Commissioner of Police, Mumbai. His only fear was that some pressure may be brought on them and MCOCA may ::: Downloaded on - 09/06/2013 17:31:02 ::: AJN 00-CRIPIL28.11GROUP : 36 : not be applied to the accused. As we have already noted, MCOCA has already been applied to the accused. Having perused the report, having heard learned Advocate General Mr. Kadam and counsel for the parties and the petitioners and having seen the progress of the investigation, we are unable to come to a conclusion that the Mumbai Police are working under any pressure. After examining this case, in the light of principles laid down by the Supreme Court in the cases cited by the counsel, we are of the considered opinion that the petitioners have failed to make out a case for transfer of investigation to CBI. Needless to say that in the circumstances, there is no question of giving a direction that a Special Committee be constituted.
24. That takes us to another important issue. It is the contention of the petitioners that Mumbai Police are leaking out details of the investigation to the people by making statements to the Press. Contradictory statements are issued by them making the entire investigation suspect. Some of these statements are ::: Downloaded on - 09/06/2013 17:31:02 ::: AJN 00-CRIPIL28.11GROUP : 37 : scandalous causing embarrassment to J. Dey's family. Mr. Kadam, learned Advocate General has denied these allegations. He submitted that the Press statements were issued only by authorized representatives. It could be a case of incorrect reporting. Some witnesses on their own might have made statements to the Press for which Mumbai Police are not responsible. We do not want to express any opinion on this disputed factual aspect. It may be, as stated by learned Advocate General that in some cases, it is the duty of the police to issue Press release about the progress of investigation to instil confidence in general public. Though we do not want to interfere with the administration of the police department, we do feel that time has come for Mumbai Police to take some decision on this issue. As to how much information should be supplied to the Press and who should supply it must be decided. Frequent issuance of statements unnecessarily giving minute details of investigation will adversely affect the investigation and in the long run damage the prosecution case. Such disclosures are not in ::: Downloaded on - 09/06/2013 17:31:02 ::: AJN 00-CRIPIL28.11GROUP : 38 : public interest. A balance must be struck. This applies to the investigating agencies and also to the public prosecutors or police prosecutors, some of whom are seen giving detailed interviews to the Press even when the cases are subjudice. We hope and trust that this issue will be examined by the police at the highest level. We make it clear that these observations are unconnected with the present case.
They are made because arguments were advanced on this issue and we felt that in the interest of fair trial, we must touch this issue.
25. In the view that we have taken, the petitions must be dismissed and are dismissed as such.
[SMT. RANJANA DESAI, J.] [RANJIT MORE, J.] ::: Downloaded on - 09/06/2013 17:31:02 :::