High Court cannot ask Parmbeer Singh or any petitioner to go to Magistrate Court when his prayer is for CBI enquiry
[Parambeer Singh
case] High Court cannot
ask Parmbeer Singh or any petitioner to go to Magistrate Court when his prayer is for CBI enquiry.
Supreme Court made the law clear that
Magistrate cannot grant relief of CBI enquiry and only High Court or Supreme
Court can do that.
The legal position in the article is based on the interview given by Adv. Nilesh Ojha to different media and arguments advanced by the Counsel for the parties in High Court.
The Hindi interview can be seen on NDTV news channel at link:
https://youtu.be/_15CpFvZYCM
Title:
Bombay High Court में दिन भर चली सुनवाई में क्या क्या हुआ, ये जानिए सुनवाई में शामिल वकील से
Mumbai :- Many media persons have wrongly reported the hearings of the
Parmbeer Singh’s Case. The important argument of Adv. Subhash Jha representing
Petitioner Ghanshyam Upadhyay and the appreciation by the Chief justice is not
properly covered by the media
The actual happening is reproduced here which will make it clear that the only remedy to Parmbeer Singh is High Court only.
Que:- Have you approached the Police by registering an FIR. If police refuse to register an FIR then go to Magistrate Court under Section 156(3) of Cr.P.C. Why you come to High Court directly ?
Ans:- As per law settled by the Supreme Court in many cases the
petition with prayer to CBI investigation cannot be entertained by the
Magistrate. Only remedy is to file Writ Petition before High Court Or Supreme
Court. [CBI Vs. State of Rajasthan (2001) 3 SCC 333, Sakri Vasu Vs. State (2009) 2 SCC 409, State of W.B. v. Committee for Protection of
Democratic Rights (2010) 3 SCC 571.]
The Supreme Court in the petition filed by
Mr. Prambeer Singh in its order dated 24.03.2021. had itself observed that the matter is serious and remedy is before High Court then raising
such question is against Article 141
of the Constitution and itself contemptuous and it shows judicial impropriety.
In such cases there is no
discretion to the High Court to take any contrary view.[ Sarwan Singh AIR 1995
SC 1729, Sundarjas
Kanyalal Bhatija Vs. Collector,
Thane, Maharashtra AIR 1990 SC 261, Jinraj Paper Udyog 2008ALL MR ( Cri.) 89, Mohandas
Issardas Vs. A. N. Sattanathan AIR 1995 BOM 113, ]
Que: Why the investigation is sought only through CBI and why
not the Police.
Ans:- The allegations against Home Minister, Senior Police
officials cannot be investigated by the state police. Supreme Court in a
similar case against senior police officials and the then Gujarat Home Minister
Amit Shah had laid down the law that such cases has to be investigated only by
the CBI.[Rabibuddin Shaikh (2010) 2 SCC 200].
It was observed by the SC that since the accusations
are directed against the local police personnel it would be desirable to
entrust the investigation to an independent agency like the Central Bureau of
Investigation so that all concerned including the relatives of the deceased may
feel assured that an independent agency is looking into the matter and that
would lend the final outcome of the investigation credibility. However,
faithfully the local police may carry out the investigation, the same will lack
credibility since the allegations are against them. It is only with that in
mind that we having thought it both advisable and desirable as well as in the
interest of justice, to entrust the investigation to the Central Bureau of
Investigation
Que: What are the proofs for ordering investigation that there
was such a chain for 100 Crore per month
hafta and it was actually been followed.
Ans :- The complaint filed by the party and the Petition filed in the High Court had
given the basic foundation of the cognizable offence. Supreme Court made it clear that in such
cases direct proof is not available and only on the basis of circumstantial
evidence the conspiracy can be proved. The F.I.R / letter / representation/complaint
need not be encyclopedia. The Suspicion
of cognizable offence is sufficient. The investigation will bring the truth to
the surface. The State government itself found the allegations to be serious and constituted Enquiry commission of a retired judge of the high Court.
In Parambeer's petition the SC in its order observed on Wednesday that;
"No doubt the matter is quite serious affecting administration at large. It appears a lot of material has come in public domain due to personas falling apart.."
In State vs. Bhajan Lal 1992 SCC (Cri) 426 it
is ruled that the police officer should not refuse to record an information
relating to the commission of a cognizable offence and to register a case
thereon on the ground that he is not satisfied with the reasonableness or
credibility of the information. In other words, ‘reasonableness’ or
‘credibility’ of the said information is not a condition precedent for
registration of a case. The condition which is sine qua non for recording
a first information report is that there must be an information and that
information must disclose a cognizable offence.
In Raman Lal Vs. State 2001 Cri. L.J. 800 it is ruled as under;
‘‘Conspiracy – I.P.C. Sec. 120 (B) – Accused are on higher posts of IPS officer Sanjeev bhat and Addl High Court judge Raman Lal - Apex court made it clear that an inference of conspiracy has to be drawn on the basis of circumstantial evidence only because it becomes difficult to get direct evidence on such issue – The offence can only be proved largely from the inference drawn from acts or illegal omission committed by them in furtherance of a common design – Once such a conspiracy is proved, act of one conspirator becomes the act of the others – A Co-conspirator who joins subsequently and commits overt acts in furtherance of the conspiracy must also be held liable – Proceeding against accused cannot be quashed.’’
Hon'ble Apex Court in the case of Ram Narain Poply Vs. Central Bureau of Investigation, AIR 2003 SC 2748, it is observed that Privacy and secrecy are more characteristics of a conspiracy, than of a loud discussion in an elevated place open to public view. Direct evidence in proof of a conspiracy is seldom available, offence of conspiracy can be proved by either direct or circumstantial evidence. It is not always possible to give affirmative evidence about the date of the formation of the criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object, which the objectors set before themselves as the object of conspiracy, and about the manner in which the object of conspiracy is to be carried out, all this is necessarily a matter of inference
[ See Also: CBI Vs. Bhupendra Champaklal Dalal 2019 SCC OnLine Bom 140]
EARLIER
BLOG ON SOME CRUCIAL QUESTIONS
Question: When Maharashtra State
Government has appointed retired Judge and constituted a commission of Inquiry
then can a CBI investigation be ordered.
2. Can both the thing go simultaneously without there being an
F.I.R., can the High Court order investigation by C.B.I.
Answer: Similar issue is decided
by the Supreme Court in Noida Entrepreneurs Association Vs. Noida
(2011) 6 SCC 508.
In that case the State Government has already constituted a commission of Inquiry
headed by Justice Murtaza Hussain and there was no F.I.R.
The Supreme Court asked the State Government to treat the petition
as an F.I.R. and give its consent for C.B.I. investigation.
Lastly Supreme Court itself ordered investigation through C.B.I.
(Para 6 & 42 are important)
Secondly the Full bench in Center For Public Interest ... vs Union Of India (2005) 8 SCC
202, had allowed the simultaneous enquiry by the CBI and the commission of a
retired Judge.
THE HIGH COURT CAN ORDER
REGISTRATION OF FIR AND ENQUIRY BY THE CBI NO EARLIER COMPLAINT IS NECESSARY.
Bombay High Court Division Bench headed by Justice Dr. D. Y.
Chandrachud in the case of Provident Investment Co.
Ltd. Vs. Hemlata 2012 (3) MH. L.J. 359, had ordered C.B.I. inquiry
when No F.I.R. was registered.
Bombay High Court in Charu Kishor
Mehta’s case (2010) SCC OnLine Bom 1794, had exercised its power
under Art. 226 and directed the registration of F.I.R. and investigation by
EOW.
So there is no prohibition in that regard.
Question : Why Home
Minister Anil Deshmukh is not made respondent by Mr. Ghanshyam Upadhyay.
Answer: As per Supreme
Court Judgment in Dinubhai Solanki Vs. State of Gujarat and Ors. (2014) 4 SCC 626, the accused will have
no say on the issue of investigation by the C.B.I.
Other law is laid down in Ramesh
Sobati Vs. State 2017 SCC Online Cal 8424.
Question: Parambirsingh is having personal enemity
against Home Minister Anil Deshmukh therefore his complint cannot be relied.
Answer: This question is answered by the
Supreme Court in catena of judgments and more particularly in the case
of M. Narayandas Vs. State Of
Karnataka 2004 Cr. L. J. 822 (SC) where it is ruled
that The High Court cannot anticipate the result of the investigation
or render a finding on question of malafides. Even if the
Appellant had made the complaint on account of personal vendetta that by itself
was not a ground to discard the complaint which had to be tested and weighed
after the evidence was collectedas under;
“Even assuming that Dharam Pal has laid the complaint only on account of his personal animosity, that by itself, will not be a ground to discard the complaint containing serious allegations which have to be tested and weighed after the evidence is collected. …..
***For this reason the submission cannot be accepted. If as claimed there is no substance in the complaint the investigation will say so. At this stage there were only allegations and recriminations. The High Court could not have anticipated the result of the investigation or rendered a finding on question of malafides. Even if the Appellant had made the complaint on account of personal vendetta that by itself was not a ground to discard the complaint which had to be tested and weighed after the evidence was collected. ”
great research
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