Bombay High Court
Sanjay Dinanath Tiwari vs Director General Of Police (Anti on 21 July, 2011
Author: Ranjana Desai
Bench: Ranjana Desai, Ranjit More
AJN 00-OS-PIL51.10
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PIL WRIT PETITION NO.51 OF 2010
Sanjay Dinanath Tiwari ... Petitioner
Vs.
Director General of Police (Anti ... Respondents
Corruption) & Ors.
Mr. Mahesh Jethmalani, senior counsel i/b Mr. Mihir Desai
for the petitioner.
Mr. Ravi Kadam, Advocate General with Mr. D.A.
Nalawade, Government Pleader with Mr. R.A. Lokhande,
Hon. Additional Government Pleader for respondents 1 to
3 and 5.
Mr. D.J. Khambatta, Additional Solicitor General for
respondents 4 and 7.
Mr. Mukul Rohatgi, senior counsel with Mr. Rajendra
Raghuvanshi, Mr. Vineet Malhotra and Mr. R.B. Chavan i/b
Mr. G.S. Hiranandani for respondent 9.
Mr. Janak Dwarkadas, senior counsel with Mr. C.G.
Gavnekar i/b Mr. G.S. Hiranandani for respondent 10.
Mr. A.A. Kumbhakoni, senior counsel with Ashutosh C.
Gavnekar i/b Ranvir Shekhawat for respondents 11 and
12.
Mr. Srihari Aane, senior counsel i/b Mr. S.S. Kanetkar for
respondents 13 and 14.
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AJN 00-OS-PIL51.10
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CORAM: MRS. RANJANA DESAI &
RANJIT MORE, JJ.
DATE ON WHICH THE JUDGMENT IS
RESERVED : 7TH JULY, 2011.
DATE ON WHICH THE JUDGMENT IS
PRONOUNCED: 21ST JULY, 2011.
JUDGMENT :- (Per Smt. Ranjana Desai, J.)
1. This petition is filed in public interest by one Mr. Sanjay Dinanath Tiwari, who claims to be an RTI activist.
The grievance of the petitioner is mainly against respondent 9 - Kripa Shankar Ram Niranjan Singh, who is the President of the Mumbai Pradesh Congress Committee. He was a State Minister for Home in the State of Maharashtra and is presently a Member of Legislative Assembly in Maharashtra. In 2006, he was appointed as the All India Congress Committee Observer in the State of Jharkhand. Respondent 10 is the wife of respondent 9.
Respondents 11 and 12 are his son and daughter-in-law respectively. Respondents 13 and 14 are his daughter and son-in-law respectively.
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2. In short, the case of the petitioner is that respondent 9 owns huge properties and assets, which are disproportionate to his known sources of income. The properties which are stated to be ill-gotton are also in the names of members of his family, who are parties to this petition. Those members of his family have no known sources of income. According to the petitioner, though complaints have been lodged to various authorities about the malpractices of respondent 9, the authorities including the police department have not taken any action against respondent 9. Two such complaints are annexed to the petition, one is dated 23/12/2009 addressed by one Arun Deo, who is described as the Vice President and National Convenor, Slum Cell and other is dated 3/2/2010 addressed by the petitioner to various authorities including Joint Director, Central Bureau of Investigation, Commissioner of Police, Mumbai, Deputy Commissioner of Police (Economic Offences Wing), Mumbai, Director of Enforcement (Investigation) Mumbai, the Director General of Police (Anti Corruption), Maharashtra and Directorate of ::: Downloaded on - 09/06/2013 17:32:05 ::: AJN 00-OS-PIL51.10 :4: Income Tax (Investigation), Mumbai. Since the authorities have not taken action, the petitioner has approached this court. He has, inter alia, prayed that (i) a Special Investigation Team be constituted of independent persons to investigate into the financial affairs of respondents 9 to 14 and (ii) a direction be issued to respondents 1 to 7to register offences against respondents 9 to 14 under the relevant provisions of Prevention of Corruption Act, 1988, Prevention of Money Laundering Act, 2002, Income Tax Act and the Indian Penal Code and to prosecute the same expeditiously.
3. On 10/6/2010, a Division Bench of this court directed the respondents to file their affidavits-in-reply.
Thereafter, the petition stood adjourned to 15/7/2010. On 15/7/2010, the petition stood adjourned to 5/8/2010 and time limit to file affidavits-in-reply was extended by one week. The respondents have filed their affidavits-in-reply.
4. On 6/10/2010, this court was informed that ::: Downloaded on - 09/06/2013 17:32:05 ::: AJN 00-OS-PIL51.10 :5: respondents 4 and 7 had started investigation. Mr. Khambatta, learned Additional Solicitor General made a statement that on the next date of hearing, he will submit the reports of the investigation so far conducted by respondents 4 and 7, in a sealed cover for the perusal of this court. Mr. Kadam, learned Advocate General made a statement that he will submit report of the inquiry conducted by respondent 1.
ig After recording the said statements, the petition was adjourned to 27/10/2010.
Thereafter, respondents 1, 4, 7, have filed reports in sealed covers. We have carefully perused the said reports.
It was urged by Mr. Jethmalani, at one stage, on the basis of Full Bench decision of this court in Abasaheb Honmane v. State of Maharashtra 1 that the police could have conducted inquiry only for two days and, thereafter, after registering the FIR, the police must conduct investigation. We do not want to go into that aspect at this stage.
1 2008 (2) Mh.L.J. 856.
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5. Mr. Rohatgi, learned senior counsel appearing for respondent 9 - Kripa Shankar Ram Niranjan Singh raised a preliminary objection that the present petition is not maintainable. Counsel submitted that this objection may be decided first. There is a general consensus amongst counsel that the preliminary objection should be decided first. Hence, we proceed to decide it.
6. Mr. Rohatgi submitted that this is not a public interest litigation because no public interest is involved in the petition. The petition contains attack on an individual and his family members and it is politically motivated.
Counsel submitted that averments made in the petition bear out this submission. Counsel drew our attention to the two complaints which are annexed at Ex-V and Ex-W to the petition, dated 23/12/2009 and 3/2/2010 respectively. Counsel submitted that complaint dated 23/12/2009 is sent by one Arun Deo who claims to be the Vice President and National Convener, Slum Cell. It is written on the letterhead of Bharatiya Janata Party (for ::: Downloaded on - 09/06/2013 17:32:05 ::: AJN 00-OS-PIL51.10 :7: short, "B.J.P.") It bears the symbol of B.J.P. Complaint dated 3/2/2010 sent by the petitioner bears identical subject. There is, therefore, no doubt that the petition is not filed to serve public interest. Respondent 9 is being persecuted by his political opponents by filing this petition. Counsel drew our attention to the guidelines laid down by the Supreme Court in State of Uttaranchal v.
Balwant Singh Chaufal & Ors.2 observance of which will preserve the sanctity of the PIL. Counsel submitted that it is clarified by the Supreme Court in this judgment that the courts must only encourage genuine and bonafide PILs. The courts must verify the credentials of the petitioner before entertaining a PIL. The courts must be satisfied that substantial public interest is involved before entertaining a petition. The courts should also ensure that there is no personal gain, private motive or oblique motive behind filing the petition. Counsel submitted that none of the tests laid down by the Supreme Court are satisfied in this case for the present petition to be qualified as a PIL. Counsel submitted that 2 (2010) 3 SCC 402.
::: Downloaded on - 09/06/2013 17:32:05 :::AJN 00-OS-PIL51.10 :8: credentials of the petitioner are not known. The petitioner claims to be an RTI activist. Apart from this, he has no identity. Counsel submitted that all orders so far passed in this petition are passed being non-cognizant of the legal position or principles which should guide the court while considering whether a PIL should be entertained or not. Counsel submitted that the petitioner has no locus and, hence, the petition must not be entertained.
7. Counsel submitted that it is well settled that the petitioner is not entitled to invoke jurisdiction of this court under Article 226 of the Constitution of India for seeking a direction to the police to register a complaint unless he follows the procedure prescribed under the Criminal Procedure Code (for short, "the Code"). It is only if after exhausting all the remedies available to him he is unable to get relief can he approach this court. In this case, the petitioner has not approached the police. He has not approached the concerned Magistrate. He has directly approached this court. Such a petition cannot be ::: Downloaded on - 09/06/2013 17:32:05 ::: AJN 00-OS-PIL51.10 :9: entertained. In support of his submissions, counsel relied on the judgments of the Supreme Court in All India Institute of Medical Sciences Employees Union v.
Union of India & Ors.,3 Aleque Padamsee & Ors. v.
Union of India & Ors.,4 Sakiri Vasu v. State of Uttar Pradesh & Ors.,5 Kunga Nima Lepcha & Ors.
v. State of Sikkim & Ors.6 and Neetu v. State of Punjab & Ors.7 Counsel also relied on Full Bench judgment of this court in Panchabhai Popotbhai Butani v. State of Maharashtra.8
8. Counsel submitted that it is only in exceptional and rarest of rare cases can this court entertain such a petition directly. This is not such a case. Counsel submitted that the petitioner claims that he had sent a complaint to the authorities on 3/2/2010. Without waiting for the authorities response, the petitioner filed the petition on 18/3/2010. All this clearly establishes that this 3 1999 (11) SCC 582.
4 2007 (6) SCC 171.
5 2008 (2) SCC 409.
6 2010 (4) SCC 513.
7 2007 (10) SCC 614.
8 2010 (1) Mh.L.J. 421.
::: Downloaded on - 09/06/2013 17:32:05 :::AJN 00-OS-PIL51.10 : 10 : is not a genuine or bonafide PIL. Counsel submitted that in the circumstances, the petition must be dismissed as not maintainable.
9. Mr. Dwarkadas, learned senior counsel appearing for respondent 9 adopted the submissions of Mr. Rohatgi.
Counsel added that there is total lack of bona fides on the part of the petitioner.
igIt is absolutely clear that he is attempting to settle political score. The petitioner is merely trying to take advantage of expanded locus available to a person who files a PIL. Counsel relied on certain paragraphs from the affidavits of respondent 9 and respondent 11 in support of his submission that the petition is politically motivated and is, in fact, a publicity interest litigation.
10. Mr. Kumbhakoni, learned senior counsel appearing for respondents 11 and 12 and Mr. Aney, learned senior counsel appearing for respondents 13 and 14 submitted that their clients have been unnecessarily dragged in this ::: Downloaded on - 09/06/2013 17:32:05 ::: AJN 00-OS-PIL51.10 : 11 : petition. They are neither necessary parties nor proper parties and, hence, their names may be deleted from this petition.
11. Mr. Khambatta, learned Additional Solicitor General submitted that respondent 6 i.e. Ministry of External Affairs is unnecessarily dragged in this petition. It must be deleted from the petition. Counsel submitted that the Income Tax Department has taken all the necessary steps. Counsel drew our attention to the affidavit of Mr. Kailash Mangal, Deputy Director, Income Tax Department in this connection. Counsel submitted that the Income Tax Department will follow the necessary procedure and take it to its logical conclusion impartially and honestly.
Counsel submitted that the Enforcement Directorate is looking into the alleged charge of money laundering.
Counsel submitted that the Enforcement Directorate has submitted three reports to this court. Counsel drew our attention to the affidavit of Mr. Anil Wasnik, Assistant Director of Enforcement Directorate. Counsel submitted ::: Downloaded on - 09/06/2013 17:32:05 ::: AJN 00-OS-PIL51.10 : 12 : that Prevention of Money Laundering Act contains scheduled offences. Criminal activity relating to a scheduled offence has to be identified. Property of a person has to be connected with it for it to assume the character of proceeds of crime. Link has to be established between the accused and the proceeds of crime and then it must be examined whether the said proceeds are projected as untainted money. Counsel submitted that as of today, the Enforcement Directorate has not been able to collect any evidence in the investigation so far conducted by it establishing the involvement of respondents 9 to 14 in the offences under the Prevention of Money Laundering Act. Counsel submitted that investigation is, however, in progress.
12. Mr. Kadam, learned Advocate General does not dispute the proposition that in an exceptional case this court can entertain the petition even though the petitioner does not exhaust remedies available to him under the Code. Counsel submitted that he has no ::: Downloaded on - 09/06/2013 17:32:05 ::: AJN 00-OS-PIL51.10 : 13 : instructions to make submissions on the aspect of locus or on the maintainability of the present public interest litigation in view of the fact that the agencies of the State have taken necessary steps. Counsel submitted that there is no lethargy on the part of the investigating agencies. The reports submitted by the investigating agencies bear this out. Counsel drew our attention to the affidavit of S.B. Suryawanshi, Deputy Commissioner of Police, Anti Corruption Bureau, Mumbai Unit and affidavit of Vasant Dhobale, Deputy Commissioner of Police, Economic Offences Wing, Crime Branch, CID, Mumbai and submitted that investigating agencies have done their job in accordance with law.
13. Mr. Jethmalani, learned senior counsel for respondent 9 on the other hand submitted that the petitioner is not affiliated to any political party. In the petition, there is no such averment. The averments made in the affidavit of respondents 9 and 11 on which reliance is placed are farfetched. Counsel submitted that the petitioner had ::: Downloaded on - 09/06/2013 17:32:05 ::: AJN 00-OS-PIL51.10 : 14 : addressed a complaint to the authorities on 3/2/2010.
There was no positive response to it and, therefore, the petitioner filed the petition on 8/3/2010. There is nothing unusual or shocking in this. Counsel submitted that Arun Deo had addressed a complaint to the authorities in November, 2009. No cognizance of that complaint was taken. This shows the approach of the authorities.
Counsel submitted that preliminary objection to the maintainability of this petition ought to have been taken at the earliest. It was not taken. Now that some material adverse to respondent 9 has come on record, this objection is raised at a belated stage. Counsel submitted that none of the judgments cited by Mr. Rohatgi have application to the facts of the present case. Those judgments relate to private disputes. Here, we are concerned with a PIL. Counsel submitted that huge turnover of Rs.60 crores was noticed in the account of respondent 9. No explanation is forthcoming from respondent 9 about this. There is no denial of crucial allegations by respondent 9. Counsel relied on judgment ::: Downloaded on - 09/06/2013 17:32:05 ::: AJN 00-OS-PIL51.10 : 15 : of the Supreme Court in Vishwanath Chaturvedi v.
Union of India & Ors.9 where the Supreme Court has observed that an enquiry should not be shut out at the threshold because political opponent of a person with political difference raises an allegation of commission of offence. Counsel submitted that assuming that the petition is politically motivated, the PIL can still be entertained. We must note at this stage that Mr. Rohatgi has pointed out that the said judgment is under review and therefore, cannot be described as the authoritative pronouncement of the Supreme Court on this issue.
14. Mr. Jethmalani also relied on Charu Kishor Mehta v. State of Maharashtra 10 delivered by the Division Bench of this court where it is observed that normal rule is to leave the party to adopt remedy available under the Code, but this court is not powerless to issue an appropriate writ when the police fail to use the power available to them under the Code to investigate a crime.
9 In Writ Petition (Civil) No.633 of 2005 delivered on 1/3/2007. 10 In Criminal Writ Petition No.1937 of 2010 decided on 26/11/2010.
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Counsel submitted that SLP filed against the said
judgment has been dismissed by the Supreme Court.
Counsel also relied on the judgment of the Supreme Court in Ram Jethmalani & Ors. v. Union of India 11 where the Supreme Court has constituted a Special Investigation Team to investigate into black money. Counsel submitted that this is an exceptional case where a public servant has misused his position and amassed wealth. This PIL is, therefore, perfectly maintainable. Counsel submitted that looking to the performance of the investigating agencies, Special Investigation Team needs to be constituted.
15. Without expressing any opinion on the merits of the petitioner's case, because inquiry/investigation is in progress, it is necessary to give the gist of the facts stated by him in the petition.
Gist of the petitioner's case:
(a) By using his political clout, respondent 9 has been amassing wealth totally 11 In I.A. No.1 of 2009 delivered on 4/7/2011. ::: Downloaded on - 09/06/2013 17:32:05 ::: AJN 00-OS-PIL51.10 : 17 : disproportionate to his known sources of income. Huge amounts are found deposited in the bank account of members of his family. The total turnover in the account of respondent 10 Malti Devi, the wife of respondent 9 for the period of March, 2009 to November, 2009 is Rs.3.40 crores. The total turnover in the account of respondent 11 - Mr. Narendra Mohan Singh, son of respondent 9 for a period of 2 years is about Rs.60 crores. The total turnover in the account of respondent 12 Ankita Narendra Singh, the daughter-in-law of respondent 9 is about Rs.1.25 crores in a period of 4 months and about Rs.1.75 crores in a period of one year. The particulars of various accounts have been given.
Respondent 9 has also been given large ::: Downloaded on - 09/06/2013 17:32:05 ::: AJN 00-OS-PIL51.10 : 18 : sums of money by Madhu Koda who is presently in jail. Respondent 9 has not disclosed properties worth crores of rupees which stand in his wife's name.
The property inter alia includes a Duplex flat approximately valued at Rs.
2.5 crores in Vile Parle (East), Shop admeasuring 1100 sq. feet of market value of Rs.1 crores at Panvel, 250 acres of land at Wadapeth Ratnagiri valued at Rs.25 crores, commercial complex at Jaunpur, U.P. admeasuring about 8000 sq. feet valued at Rs.2 crores. Respondent 11 Narendra Singh son of respondent 9 owns a bungalow known as Tarang situate at Bandra (West) approximately valued at Rs.40 crores. He also owns a triplex flat in the building "The Address" at Mount Mary Road, Bandra, approximately valued at ::: Downloaded on - 09/06/2013 17:32:05 ::: AJN 00-OS-PIL51.10 : 19 : Rs.48 crores. It is under construction.
He owns 22500 sq. feet office building at the HDIL building at Bandra-Kurla Complex approximately valued at Rs.
112 crores. He owns 12000 sq. feet
office building at Wadhwa building at
Trade Link Centre, Bandra-Kurla
Complex, approximately valued at Rs.36 crores. He owns shops at HDIL building at L.B.S. Marg, Bhandup (West), Mumbai. He owns land situate at Plot No.63, Santacruz Town Planning Scheme No.4 bearing CTS No.445 of G Ward, Bandra Danda, admeasuring 959 sq. yards approximately valued at Rs.38 crores.
(b) Flat No.401 admeasuring 700 sq. feet in the building Kingstone B Powai was allotted under the Chief Minister's quota ::: Downloaded on - 09/06/2013 17:32:05 ::: AJN 00-OS-PIL51.10 : 20 : to respondent 9 under the Higher Income Group Quota. He surrendered it. It was then allotted to his daughter and son-in-law - respondents 13 and 14 by producing bogus documents. The flat is worth Rs.1.20 crores. When application under the Right to Information Act was made, the relevant papers were found missing.
(c) Respondent 13 owns Flat No.401 admeasuring 2000 sq. feet in the building known as "Affaire" at Turner Road, Bandra (West), approximately valued at Rs.12 crores. She owns Shop Nos.38 and 39 situate at Hiranandani Gardens, Powai approximately valued at Rs.2.50 crores, which have been given out on lease and licence. She owns Flat No.202 at Abrosia, Hiranandani ::: Downloaded on - 09/06/2013 17:32:06 ::: AJN 00-OS-PIL51.10 : 21 : Gardens, Kurla, Mumbai.
(d) According to the petitioner, respondent 9 is an M.L.A., who earns about Rs.
45,000/- per month. Property owned by respondent 9 is disproportionate to his meager salary. There is no known source of income so far as the other respondents are concerned, which can explain possession of such wealth by them.
(e) It is obvious that respondent 9 has misused his office of a public servant and amassed wealth. Respondent 9 has diverted the said ill-gotton wealth to respondents 10 to 14. This is against public and national interest. The authorities have refused to take action against respondents 9 to 14 though the ::: Downloaded on - 09/06/2013 17:32:06 ::: AJN 00-OS-PIL51.10 : 22 : petitioner has sent a written complaint dated 3/2/2010 and therefore the petitioner had to approach this court.
16. In response to the petition, respondent 9 has filed two affidavits in reply. So far as the allegations of money laundering, corruption, etc. are concerned, they are denied. Respondent 9 has stated that he is not dealing with the averments because the petition is not maintainable. Other respondents, who are members of his family have also filed replies.
17. Pertinently, no serious objection to the maintainability of this petition was taken at the earliest.
As we have already noted, Arun Deo's complaint is dated 23/12/2009 and the petitioner's complaint is dated 3/2/2010. However, the inquiry/investigation appears to have started in the real sense of the term only after the petition was filed on 18/3/2010. Mr. Sheshrao Suryawanshi, the Additional Deputy Commissioner of ::: Downloaded on - 09/06/2013 17:32:06 ::: AJN 00-OS-PIL51.10 : 23 : Police, ACB, Mumbai, has stated in his affidavit that the ACB started inquiry into the matter. However, there is no specific statement as regards the date on which the inquiry was started. Thus, not only that objection to the maintainability of the petition was not taken at the earliest, but the authorities really swung into action after the petition was filed. It is true that objection to the maintainability can be taken at any stage but the fact that it was not raised at the earliest, does make a dent in it.
18. While examining whether the petition is maintainable or not, directions issued by the Supreme Court in Balwant Singh Chaufal, will have to be kept in mind. As stated in the said judgment, before entertaining a PIL, credentials of the petitioner must be verified. Only genuine and bonafide PILs must be encouraged and those filed for extraneous considerations must be discouraged.
The court must be satisfied prima facie about the correctness of the contents of the PIL. The court should be fully satisfied that substantial public interest is ::: Downloaded on - 09/06/2013 17:32:06 ::: AJN 00-OS-PIL51.10 : 24 : involved and the PIL is aimed at redressal of general public harm or public injury. The court must ensure that there is no personal gain, private motive or oblique motive behind filing the PIL. The PILs filed by busybodies with ulterior motives must be discouraged. Similar view is taken in Neetu. We will examine the present petition in the light of the above guidelines.
19. It is contended that the petition is politically motivated. Reliance was also placed by Mr. Rohatgi on the observations of the Supreme Court in Kunga Nima Lepcha to which we shall advert in detail a little later. In that case, the Supreme Court observed that where a petition was motivated by a sense of political rivalry, the writ jurisdiction cannot be turned into an instrument of partisan considerations. But, we do not find that sufficient basis is laid in the reply for the submission that the petition is politically motivated. Respondent 9 has repeatedly stated that the petitioner is put up by his rival political party as he was elected in Maharashtra ::: Downloaded on - 09/06/2013 17:32:06 ::: AJN 00-OS-PIL51.10 : 25 : Legislative Assembly for the third consecutive term.
Respondent 9 has further stated that the rival defeated candidate has challenged his election and the petitioner is set up by his political rivals. No particulars of this allegation are given. It is stated that the petitioner had lodged PIL in this court and counsel who had contested election as a BJP candidate had appeared for him. No particulars of this allegation are given. Respondent 9 has further stated that the petitioner's complaint dated 3/2/2010 and complaint dated 23/10/2009 sent by Mr. Deo on BJP letterhead are identical. This is a factually wrong statement. The contents of both the complaints are not identical. What is common in them is the description of contents under the heading "Subject". Without there being any other concrete material on record, it is not possible to hold on the basis of these averments, that the petition is politically motivated.
20. Assuming, however, that there are some political undercurrents in this petition, the petition need not be ::: Downloaded on - 09/06/2013 17:32:06 ::: AJN 00-OS-PIL51.10 : 26 : dismissed on that count. In this connection, it would be advantageous to refer to Vishwanath Chaturvedi where the Supreme Court has given direction to the CBI to inquire into the allegation of acquisition of wealth by respondents 2 to 5 in regard to assets which were stated to be disproportionate to their known sources of income.
Respondent 2 therein is Mr. Mulayam Singh Yadav, the former Chief Minister of Uttar Pradesh and respondents 3 to 5 therein are his relatives. While dealing with the objection that politically motivated petition should not be entertained, the Supreme Court observed that respondent 2, the former Chief Minister of Uttar Pradesh was a senior politician and it was also in his interest that the truth of the allegation should be determined by a competent forum so that cloud which was cast on his integrity, is removed. The Supreme Court observed that such a course was also in public interest. Relying on its judgment in M.C. Mehta v. Union of India & Ors. 12 where the Supreme Court has given direction to the CBI to collect the income tax returns of a former Chief Minister, 12 (2003) 8 SCC 696.
::: Downloaded on - 09/06/2013 17:32:06 :::AJN 00-OS-PIL51.10 : 27 : the Supreme Court observed that an inquiry should not be shut down at the threshold because a political opponent with a political difference raises an allegation of commission of an offence. In the circumstances, the Supreme Court in Vishwanath Chaturvedi directed the CBI to inquire into the allegation of acquisition of wealth of respondents 2 to 5. We are informed by Mr. Rohatgi that a review petition filed seeking review of the above observations made in Vishwanath Chaturvedi is pending in the Supreme Court. However, no statement is made that the said judgment is, in fact, reviewed. It therefore continues to hold the field.
21. It was submitted that the petitioner addressed complaint to the authorities on 3/2/2010. Without giving reasonable time to the authorities to swing into action, he has approached this court that too after giving publicity to the petition. This submission cannot be accepted. The petition is not filed immediately, but is filed on 18/3/2010.
Publicity given by media to such petitions is a routine ::: Downloaded on - 09/06/2013 17:32:06 ::: AJN 00-OS-PIL51.10 : 28 : matter. Assuming the petitioner has approached this court in haste, at the cost of repetition it must be stated that the authorities have not taken any action on the complaint of Mr. Deo dated 23/10/2009. The petitioner has stated so in the petition. The contesting respondents have not indicated what action they took on the said complaint.
22. Insofar as the first point is concerned, in the ultimate analysis, in our opinion, there is nothing on record to come to a conclusion that the petitioner is a busybody and he has filed this petition for extraneous considerations or with ulterior motives. There is not a single averment in the affidavit in reply which establishes that the credentials of the petitioner are suspect. From the contents of the petition, we cannot infer that there is personal gain or private or oblique motive behind filing of this petition or that it is not bona fide. No such material has been brought on record by respondents 9 to 14.
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23. We are also prima facie satisfied about the
correctness of the contents of the petition. Reports
submitted by the Income Tax Department and Anti Corruption Bureau bear this out. We shall advert to the said reports a little later.
24. We also feel that the petition is filed in the larger public interest. It is argued that the investigating agencies must treat those who hold public office or those who are in public life and ordinary citizens equally. We have no quarrel with this proposition. However, when allegations of serious financial irregularities and corruption are made against such persons, it would be in public interest to look into them and a PIL making such allegations cannot be dismissed in limine on the ground of maintainability if it is otherwise within the parameters of the directions given by the Supreme Court in Balwant Singh Chaufal. We feel that such petitions are really and truly filed for redressal of public harm. This view of ours ::: Downloaded on - 09/06/2013 17:32:06 ::: AJN 00-OS-PIL51.10 : 30 : is supported by the observations of the Supreme Court in Vishwanath Chaturvedi. The first ground of attack on maintainability is, therefore, rejected.
25. We must now turn to the second ground. On the basis of several judgments, it is stated that it was not open to the petitioner to directly approach this court. He should have followed the procedure prescribed under the Code. He should have approached the police, the concerned Magistrate and should have invoked this court's extra-ordinary jurisdiction as a last resort. The petitioner not having followed this course, the petition is not maintainable. We must refer to the judgments of the Supreme Court on which reliance is placed in this behalf.
26. In All India Institute of Medical Sciences Employees' Union, the case of the petitioner - All India Institute of Medical Sciences Employees' Union was that though it had laid all the information before the Director, the concerned Minister and the Prime Minister, no action ::: Downloaded on - 09/06/2013 17:32:06 ::: AJN 00-OS-PIL51.10 : 31 : had been taken against the Director though he had committed offence under Section 409 of the IPC. As a result the petitioner was constrained to approach the High Court under Article 226 of the Constitution. The High Court refused to entertain the petition. The petitioner, therefore, approached the Supreme Court. The Supreme Court observed that the Code prescribes procedure to investigate into the compoundable offences. Without availing the procedure, the petitioner is not entitled to approach the High Court by filing a writ petition and seeking a direction to conduct investigation by the CBI.
27. In Aleque Padamsee, the basic grievance of the petitioner who had approached the Supreme Court under Article 32 of the Constitution was that though cognizable offence was disclosed, the police had not registered offence. The Supreme Court, inter alia, referred to Sections 154 and 156 read with Section 190 read with Section 200 of the Code and after referring to All India Institute of Medical Science Employee's Union, ::: Downloaded on - 09/06/2013 17:32:06 ::: AJN 00-OS-PIL51.10 : 32 : reiterated the principles laid down in it.
28. 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 refused to transfer the investigation to CBI. The Supreme Court observed that in such matters, the High Court should relegate the petitioner to his alternate remedy first under Section 154(3) and under Section 36 of the Code before the police officers concerned and, if that is of no avail, then to remedy of approaching the concerned Magistrate under ::: Downloaded on - 09/06/2013 17:32:06 ::: AJN 00-OS-PIL51.10 : 33 : Section 156(3) of the Code.
29. In Kunga Nima Lepcha , the petitioner had levelled allegations of corruption against the Chief Minister of Sikkim and a writ was sought directing CBI to investigate into the allegations. The Supreme Court dismissed the petition observing that there are provisions in the Code to exercise control over ongoing investigations and it is not advisable for the writ courts to interfere with criminal investigations in the absence of specific standards for the same. The Supreme Court further observed that it is only on the exhaustion of ordinary remedies that perhaps a proceeding can be brought before the writ court and in any case the High Court of Sikkim would be a far more appropriate forum for examining the allegations made in the petition. The relevant paragraph on which Mr. Rohatgi has relied upon needs to be quoted:
"While it is true that in the past, the Supreme Court of India as well as the various High Courts have indeed granted remedies relating to investigations in ::: Downloaded on - 09/06/2013 17:32:06 ::: AJN 00-OS-PIL51.10 : 34 : criminal cases, we must make a careful note of the petitioners' prayer in the present case. In the past, writ jurisdiction has been used to monitor the progress of ongoing investigations or to transfer ongoing investigations from one investigating agency to another. Such directions have been given when a specific violation of fundamental rights is shown, which could be the consequence of apathy or partiality on the part of investigating agencies among other reasons. In some cases, judicial intervention by way of writ jurisdiction is warranted on account of obstructions to the investigation process such as material threats to witnesses, the destruction of evidence or undue pressure from powerful interests. In all of these circumstances, the writ court can only play a corrective role to ensure that the integrity of the investigation is not compromised. However, it is not viable for a writ court to order the initiation of an investigation. That function clearly lies in the domain of the executive and it is up to the investigating agencies themselves to decide whether the material produced before them provides a sufficient basis to launch an investigation".
30. The above judgments undoubtedly state that before approaching the High Court under Article 226 of the Constitution, the petitioner should avail of the remedies ::: Downloaded on - 09/06/2013 17:32:06 ::: AJN 00-OS-PIL51.10 : 35 : available to him in the Code. Ordinarily, if an alternate remedy is available unless it is exhausted by the petitioner, the High Court does not exercise its writ jurisdiction if it is invoked. However, none of the judgments cited by the counsel state that the High Court can never exercise its jurisdiction in such cases. Writ jurisdiction is plenary in nature and one of the reasons why it is efficacious is because in a given case, a petitioner can invoke it directly. In this connection, we must refer to the judgment of the Division Bench of this court in Mrs. Charu Mehta, where the Division Bench was considering the same question. After considering all the relevant judgments of the Supreme Court, the Division Bench observed that it is no doubt true that normal/general rule is to leave the party to adopt remedy available under the Code, but this court is not powerless to issue an appropriate writ when police fail or avoid to use their powers available under the Code to unearth serious economic crimes complained of. In that case, the petitioner therein had sent a complaint to Economic ::: Downloaded on - 09/06/2013 17:32:06 ::: AJN 00-OS-PIL51.10 : 36 : Offences Wing but the police had merely conducted a preliminary enquiry. Looking to the dillydallying and evasiveness of the police, the Division Bench not only entertained the writ petition but directed the police to record FIR, investigate the case and file a final report in the competent court. Special leave petition filed against the said judgment has been dismissed by the Supreme Court.
We concur with the view taken by the Division Bench. We must note that in fact, none of the counsel disputed the proposition that in a given case, this court can directly entertain a writ petition filed under Article 226 of the Constitution and give relief to the petitioner even though he has not availed of the alternative remedy.
It was, however, contended relying on the aforementioned judgments that only in rare cases of exceptional nature, such a course could be adopted. Though this position in law was conceded by counsel, we have referred to all the judgments cited by Mr. Rohatgi lest it is said that we have overlooked them. The debate is now restricted. We must now find out whether this case falls in that category of ::: Downloaded on - 09/06/2013 17:32:06 ::: AJN 00-OS-PIL51.10 : 37 : cases where this court would exercise its jurisdiction under Article 226 though the petitioner has not followed the procedure prescribed under the Code. Our answer to this question is in the affirmative.
31. Respondent 9 is a senior politician. He has held the post of a Minister in the State of Maharashtra. He is a member of the Maharashtra Legislative Assembly. He is admittedly a man of humble upbringing. The allegation against him and members of his family are that their assets are disproportionate to their known sources of income. The bulky report submitted by the Income Tax Department and the report of the Anti Corruption Bureau do not give respondent 9 a clean chit. The Income Tax Department has noted several irregularities. We do not want to disclose all the conclusions but we must note the clear statement made therein that returns of respondent 9 - Kripa Shankar Singh, his family members and persons associated with him which were hardly ever scrutinized have all now been taken up for regular scrutiny and the ::: Downloaded on - 09/06/2013 17:32:06 ::: AJN 00-OS-PIL51.10 : 38 : assessments have been re-opened for escapement of income by them. Report of Anti Corruption Bureau dated 27/4/2011 indicts respondent 9 - Kripa Shankar Singh and respondent 10 - Malti Devi, his wife. It is not possible to ignore this material on the ground suggested by Mr. Dwarkadas, learned counsel for respondent 10 that on hindsight, we cannot do so. This material has come on record only because of this petition. Though we are not expressing any opinion at this stage on the reports submitted by the investigating agencies who are expected to do their job independently and impartially, on the question of maintainability of this petition, for all the above reasons, we have no hesitation in recording our conclusion that the petition is maintainable.
[SMT. RANJANA DESAI, J.] [RANJIT MORE, J.] ::: Downloaded on - 09/06/2013 17:32:06 :::