Mr. Ashok Sharma, learned ASGI has
taken a preliminary objection of the maintainability of
petition. He has canvassed before us that no part of
cause of action has arisen within the territorial
jurisdiction of this Court. According to him, Hon’ble
Delhi High Court is already seized of the matter.
5. Their Lordships of the Hon’ble Supreme
Court in Navichandra N. Majithia vs. State of
Maharashtra and others, (2000) 7 SCC 640 have
held that in legal parlance the expression “cause of
action” is generally understood to mean a situation or
state of facts that entitles a party to maintain an
action in a court or a tribunal; a group of operative
facts giving rise to one or more bases for suing. Their
Lordships have further explained the expression
territories within which cause of action, wholly or in
part arises and have held that if any part of cause of
action arises within the territorial limits of its
jurisdiction even though the seat of Government or
authority or residence of person against whom
direction, order or writ is sought to be issued is not
within the said territory. Their Lordships have held
as under:
“17. From the provision in clause (2) of Art. 226 it is clear that
the maintainability or otherwise of the writ petition in the High
Court depends on whether the cause of action for filing the
same arose, wholly or in part, within the territorial jurisdiction
of that Court.
18. In legal parlance the expression 'cause of action' is
generally understood to mean a situation or state of facts that
entitles a party to maintain an action in a Court or a tribunal; a
group of operative facts giving rise to one or more bases for
suing; a factual situation that entitles one person to obtain a
remedy in Court from another person. (Black's Law Dictionary).
[22] So far as the question of territorial jurisdiction with
reference to a criminal offence is concerned the main factor to
be considered is the place where the alleged offence was
committed.
High Court of H.P.
CWP No. 4063/2015
Dated;1.10.2015:
2. We have heard the learned counsel for
the parties at length and have gone through the
pleadings.
3. Petitioner No.1 is the Chief Minister of
the State and petitioner No.2 is Ex. Member of
Parliament. Petitioners have challenged the
registration of FIR No.RCAC-1 2015 A-004 and the
raid conducted in their premises. According to the
averments made in the petition, the registration of
the FIR is in violation of the law laid down by the
Hon’ble Supreme Court. The mandatory consent
under section 6 of the Delhi Special Police
Establishment Act has not been obtained from the
State Government at the time of registration of FIR,
investigation and carrying out raid in their premises.
The provisions of the Code of Criminal Procedure and
Central Bureau of Investigation Manual have not
been followed at the time of registration of FIR and at
the time of raiding the premises of the petitioners.
The FIR could not be registered after the closure of
first inquiry report. The part of cause of action has
arisen within the territorial jurisdiction of this Court
in view of Sr. No.5 read with paras 4,5 and 6 of the
FIR dated 23.9.2015. The permission of Hon’ble
Speaker of the H.P. Legislative Assembly has not
been obtained at the time of registration of FIR and
its investigation. The raiding of their residence at the
time when the marriage of their daughter was being
solemnized speaks of wreaking of political vendetta.
The FIR has been registered though there is no order
of the Hon’ble Delhi High Court to register the same.
Petitioners also apprehend their arrest in FIR No.
RCAC-1 2015 A-004.
4. Mr. Ashok Sharma, learned ASGI has
taken a preliminary objection of the maintainability of
petition. He has canvassed before us that no part of
cause of action has arisen within the territorial
jurisdiction of this Court. According to him, Hon’ble
Delhi High Court is already seized of the matter.
5. Their Lordships of the Hon’ble Supreme
Court in Navichandra N. Majithia vs. State of
Maharashtra and others, (2000) 7 SCC 640 have
held that in legal parlance the expression “cause of
action” is generally understood to mean a situation or
state of facts that entitles a party to maintain an
action in a court or a tribunal; a group of operative
facts giving rise to one or more bases for suing. Their
Lordships have further explained the expression
territories within which cause of action, wholly or in
part arises and have held that if any part of cause of
action arises within the territorial limits of its
jurisdiction even though the seat of Government or
authority or residence of person against whom
direction, order or writ is sought to be issued is not
within the said territory. Their Lordships have held
as under:
“17. From the provision in clause (2) of Art. 226 it is clear that
the maintainability or otherwise of the writ petition in the High
Court depends on whether the cause of action for filing the
same arose, wholly or in part, within the territorial jurisdiction
of that Court.
18. In legal parlance the expression 'cause of action' is
generally understood to mean a situation or state of facts that
entitles a party to maintain an action in a Court or a tribunal; a
group of operative facts giving rise to one or more bases for
suing; a factual situation that entitles one person to obtain a
remedy in Court from another person. (Black's Law Dictionary).
[22] So far as the question of territorial jurisdiction with
reference to a criminal offence is concerned the main factor to
be considered is the place where the alleged offence was
committed.
[23] This Court in case of K. Bhaskaran v. Sankaran
Vaidhyan Balan (1999) 7 SCC 510 : (1999 AIR SCW 3809 : AIR
1999 SC 3762 : 1999 Cri LJ 4606) considered the question of
territorial jurisdiction of the Courts relating to the offence under
Section 138 of the Negotiable Instruments Act. In that case on
29-1-1993 the respondent, S. presented a cheque for the
amount of Rs. 1 lakhs bearing the signature of the appellant, B,
at the Kayamkulam (Kerala) Branch of the Syndicate Bank for
encashment. The cheque was returned by the bank unpaid,
because of the insufficiency of funds in the account of B. S
issued a notice by registered post on 2-2-1993. The notice was
returned to S on 15-2-1993 with the endorsements "Addressee
absent" for three dates and "Intimation served on addressee's
house" for 6-3-1993. The postal article remained unclaimed till
15-2-1993 and was then returned to the sender, S, with the
endorsement unclaimed. S, filed a complaint on 4-3-1993 before
the Court of the Judicial Magistrate, First Class, Adoor (District
Pathanamathitta) against B under Section 138 of the Negotiable
Instruments Act, 1881. B denied that the Court had territorial
jurisdiction on the basis that the cheque had been dishonoured
in Kayamkulam District.
6. Their Lordships of the Hon’ble Supreme
Court in State of West Bengal and others vs.
Committee for Protection of Democratic Rights,
West Bengal and others, (2010)3 SCC 571 have
held that words “life” and “personal liberty” are used
in Article 21 as compendious terms to include within
themselves all the varieties of life which go to make
up the personal liberties of a man and not merely the
right to the continuance of a person’s animal
existence. The State has a duty to enforce the
human rights of a citizen providing for fair and
impartial investigation against any person accused of
commission of a cognizable offence, which may
include its own officers. Article 21 in its broad
application not only takes within its fold enforcement
of the rights of an accused but also the rights of the
victim. Their Lordships have further held that High
Courts have not only the power and jurisdiction but
also an obligation to protect the fundamental rights,
guaranteed by Part III in general and under Article 21
of the Constitution in particular, zealously and
vigilantly If the federal structure is violated by any
legislative action, the Constitution takes care to
protect the federal structure by ensuring that Courts
act as guardians and interpreters of the Constitution
and provide remedy under Articles 32 and 226. Their
Lordships have held as under:
60. Article 21, one of the fundamental rights enshrined in Part
III of the Constitution declares that no person shall be deprived
of his "life" or "personal liberty" except according to the
procedure established by law. It is trite that the words "life" and
"personal liberty" are used in the Article as compendious terms
to include within themselves all the varieties of life which go to
make up the personal liberties of a man and not merely the
right to the continuance of person's animal existence. (See:
Kharak Singh Vs. State of U.P., 1964 1 SCR 332)
[61] The paramountcy of the right to "life" and "personal
liberty" was highlighted by the Constitution Bench in Kehar
Singh (supra). It was observed thus:
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"To any civilised society, there can be no attributes more
important than the life and personal liberty of its members. That
is evident from the paramount position given by the courts to
Article 21 of the Constitution. These twin attributes enjoy a
fundamental ascendancy over all other attributes of the political
and social order, and consequently, the Legislature, the
Executive and the Judiciary are more sensitive to them than to
the other attributes of daily existence. The deprivation of
personal liberty and the threat of the deprivation of life by the
action of the State is in most civilised societies regarded
seriously and, recourse, either under express constitutional
provision or through legislative enactment is provided to the
judicial organ."
[62] In Minerva Mills (supra), Y.V. Chandrachud, C.J.,
speaking for the majority observed that Articles 14 and 19 do
not confer any fanciful rights. They confer rights which are
elementary for the proper and effective functioning of
democracy. They are universally regarded by the Universal
Declaration of Human Rights. If Articles 14 and 19 are put out
of operation, Article 32 will be drained of its life blood.
Emphasising the significance of Articles 14, 19 and 21, the
learned Chief Justice remarked:
"74. Three Articles of our Constitution, and only three,
stand between the heaven of freedom into which Tagore wanted
his country to awake and the abyss of unrestrained power. They
are Articles 14, 19 and 21. Article 31-C has removed two sides
of that golden triangle which affords to the people of this
country an assurance that the promise held forth by the
preamble will be performed by ushering an egalitarian era
through the discipline of fundamental rights, that is, without
emasculation of the rights to liberty and equality which alone
can help preserve the dignity of the individual."
[64] Thus, the opinion of this Court in A.K. Gopalan
(supra) to the effect that a person could be deprived of his
liberty by 'any' procedure established by law and it was not for
the Court to go into the fairness of that procedure was perceived
in Maneka Gandhi (supra) as a serious curtailment of liberty of
an individual and it was held that the law which restricted an
individual's freedom must also be right, just and fair and not
arbitrary, fanciful or oppressive. This judgment was a significant
step towards the development of law with respect to Article 21 of
the Constitution, followed in a series of subsequent decisions.
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This Court went on to explore the true meaning of the word
"Life" in Article 21 and finally opined that all those aspects of
life, which make a person live with human dignity are included
within the meaning of the word "Life".
[68] Thus, having examined the rival contentions in the
context of the Constitutional Scheme, we conclude as follows:
(i) The fundamental rights, enshrined in Part III of the
Constitution, are inherent and cannot be extinguished by any
Constitutional or Statutory provision. Any law that abrogates or
abridges such rights would be violative of the basic structure
doctrine. The actual effect and impact of the law on the rights
guaranteed under Part III has to be taken into account in
determining whether or not it destroys the basic structure.
(iv) If the federal structure is violated by any legislative
action, the Constitution takes care to protect the federal
structure by ensuring that Courts act as guardians and
interpreters of the Constitution and provide remedy under
Articles 32 and 226, whenever there is an attempted violation.
In the circumstances, any direction by the Supreme Court or
the High Court in exercise of power under Article 32 or 226 to
uphold the Constitution and maintain the rule of law cannot be
termed as violating the federal structure.
7. Their Lordships of the Hon’ble Supreme
Court in Ms. Mayawati vs. Union of India and
others (2012) 8 SCC 106 their Lordships have held
as under:
[30] As rightly pointed out that in the absence of any direction
by this Court to lodge an FIR into the matter of alleged
disproportionate assets against the petitioner, the Investigating
Officer could not take resort to Section 157 of the Code of
Criminal Procedure, 1973 (in short 'the Code') wherein the
Officer-in-charge of a Police Station is empowered under Section
156 of the Code to investigate on information received or
otherwise. Section 6 of the DSPE Act prohibits the CBI from
exercising its powers and jurisdiction without the consent of the
Government of the State. It is pointed out on the side of the
petitioner that, in the present case, no such consent was
obtained by the CBI and submitted that the second FIR against
the petitioner is contrary to Section 157 of the Code and Section
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8
6 of the DSPE Act. It is not in dispute that the consent was
declined by the Governor of the State and in such circumstance
also the second FIR No. R.C. 0062003A0019 dated 05.10.2003
is not sustainable.
[40] As discussed above and after reading all the orders of this
Court which are available in the 'compilation', we are satisfied
that this Court being the ultimate custodian of the fundamental
rights did not issue any direction to the CBI to conduct a roving
inquiry against the assets of the petitioner commencing from
1995 to 2003 even though the Taj Heritage Corridor Project was
conceived only in July, 2002 and an amount of Rs. 17 crores
was released in August/September, 2002. The method adopted
by the CBI is unwarranted and without jurisdiction. We are also
satisfied that the CBI has proceeded without proper
understanding of various orders dated 16.07.2003, 21.08.2003,
18.09.2003, 25.10.2003 and 07.08.2003 passed by this Court.
We are also satisfied that there was no such direction relating to
second FIR, namely, FIR No. R.C. 0062003A0019 dated
05.10.2003.
41. We have already referred to the Constitution Bench
decision of this Court in Committee for Protection of Democratic
Rights, West Bengal wherein this Court observed that only when
this Court after considering material on record comes to a
conclusion that such material does disclose a prima facie case
calling for investigation by the CBI for the alleged offence, an
order directing inquiry by the CBI could be passed and that too
after giving opportunity of hearing to the affected person. We are
satisfied that there was no such finding or satisfaction recorded
by this Court in the matter of disproportionate assets of the
petitioner on the basis of the status report dated 11.09.2003
and, in fact, the petitioner was not a party before this Court in
the case in question. From the perusal of those orders, we are
also satisfied that there could not have been any material before
this Court about the disproportionate assets case of the
petitioner beyond the Taj Corridor Project case and there was no
such question or issue about disproportionate assets of the
petitioner. In view of the same, giving any direction to lodge FIR
relating to disproportionate assets case did not arise.
8. Their Lordships of the Hon’ble Supreme
Court in Manohar Lal Sharma vs. Principal
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9
Secretary and others, (2014) 2 SCC 532 have held
that the courts ordinarily do not interfere in the
matters of investigation by police, particularly, when
the facts and circumstances do not indicate that the
investigating officer is not functioning bona fide, but
in very exceptional cases, where the court finds that
the police officer has exercised his investigatory
powers in breach of the statutory provisions, the
court may intervene. Their Lordships have further
held that proper investigtation into crime is one of the
essentials of the criminal justice system and an
integral facet of rule of law. Central Bureau of
Investigation is regulated by Code of Criminal
Procedure CBI (Crime) Manual, 2005 and guidelines.
Their Lordships have further held that the
investigation should conclude expeditiously from the
point of view of all concerned. Their Lordships have
held as under:
[24] In the criminal justice system the investigation of an offence
is the domain of the police. The power to investigate into the
cognizable offences by the police officer is ordinarily not
impinged by any fetters. However, such power has to be
exercised consistent with the statutory provisions and for
legitimate purpose. The Courts ordinarily do not interfere in the
matters of investigation by police, particularly, when the facts
and circumstances do not indicate that the investigating officer
is not functioning bona fide. In very exceptional cases, however,
where the Court finds that the police officer has exercised his
investigatory powers in breach of the statutory provision putting
the personal liberty and/or the property of the citizen in
jeopardy by illegal and improper use of the power or there is
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10
abuse of the investigatory power and process by the police
officer or the investigation by the police is found to be not bona
fide or the investigation is tainted with animosity, the Court may
intervene to protect the personal and/or property rights of the
citizens.
[26] One of the responsibilities of the police is protection of life,
liberty and property of citizens. The investigation of offences is
one of the important duties the police has to perform. The aim of
investigation is ultimately to search for truth and bring the
offender to the book.
[29] Once jurisdiction is conferred on the CBI to investigate the
offence by virtue of notification under Section 3 of the DSPE Act
or the CBI takes up investigation in relation to the crime which
is otherwise within the jurisdiction of the State police on the
direction of the constitutional court, the exercise of the power of
investigation by the CBI is regulated by the Code and the
guidelines are provided in the CBI (Crime) Manual. Paragraph
9.1 of the Manual says that when, a complaint is received or
information is available which may, after verification, as
enjoined in the Manual, indicate serious misconduct on the part
of a public servant but is not adequate to justify registration of a
regular case under the provisions of Section 154 of the Code, a
preliminary enquiry (PE) may be registered after obtaining
approval of the competent authority. It also says that where
High Courts and Supreme Court entrust matters to CBI for
inquiry and submission of report, a PE may be registered after
obtaining orders from the head office. When the complaint and
source information reveal commission of a prime facie
cognizable offence, a regular case is to be registered as enjoined
by law. PE may be converted into RC as soon as sufficient
material becomes available to show that prima facie there has
been commission of a cognizable offence. When information
available is adequate to indicate commission of cognizable
offence or its discreet verification leads to similar conclusion, a
regular case may be registered instead of a PE.
[30] Paragraph 9.10 of the Manual states that PE relating to
allegations of bribery and corruption should be limited to the
scrutiny of records and interrogation of bare minimum persons
which may be necessary to judge whether there is any
substance in the allegations which are being enquired into and
whether the case is worth pursuing further or not.
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[32] Paragraph 10.6 of the Manual, inter alia, provides that if a
case is required to be registered under the PC Act against an
officer of the rank of Joint Secretary and above, prior permission
of the Government should be taken before inquiry/investigation
as required under Section 6A of the DSPE Act except in a case
under Section 7 of the PC Act where registration is followed by
immediate arrest of the accused.
[33] A proper investigation into crime is one of the essentials of
the criminal justice system and an integral facet of rule of law.
The investigation by the police under the Code has to be fair,
impartial and uninfluenced by external influences. Where
investigation into crime is handled by the CBI under the DSPE
Act, the same principles apply and CBI as an investigating
agency is supposed to discharge its responsibility with
competence, promptness, fairness and uninfluenced and
unhindered by external influences.
81. What is an investigation has already been discussed by
Brother Justice Lodha and I endorse his views on this. However,
what is crucial for an investigation is that it should conclude
expeditiously from the point of view of all concerned: from the
point of view of the accused, a quick conclusion to the
investigation will clear his name and image in society if he is
innocent. This is certainly of considerable importance to a
person who has been wrongly accused or framed for an offence;
from the point of view of society, a quick closure to investigation
is necessary so that those against whom there is evidence of the
commission of a crime are tried at the earliest and punished if
they are guilty. This, so far as society is concerned, is essential
for maintaining the rule of law; and from the point of view of the
investigator, an expeditious conclusion of investigations is
necessary because greater the delay, greater the chances of
evidence being destroyed, witnesses being compromised or the
accused being able to manipulate circumstances to his or her
advantage.
9. On the basis of the pleadings and the
arguments advanced by the learned counsel for the
parties and with their assistance, the following
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12
questions are formulated for determination in this
petition:
1. Whether cause of action has arisen within the territorial
jurisdiction of this Court qua FIR No. RCAC-1 2015 A-
004 registered on 23.9.2015, more particularly, in view
of Sr. No.5 read in conjunction with paras 4, 5 and 6 of
the FIR?
2. Whether there could be second preliminary inquiry after
the closure of earlier preliminary inquiry purportedly as
per para 9.26 of the Central Bureau of Investigation
Manual?
3. Whether registration of FIR No. RCAC-1 2015 A-004
dated 23.9.2015 violates the dicta of Hon’ble Supreme
Court in Ms. Mayawati vs. Union of India and others,
(2012) 8 SCC 106?
4. Whether it was mandatory for the Central Bureau of
Investigation to seek the consent of the State
Government as per section 6 of the Delhi Special Police
Establishment Act at the time of registration of FIR and
its subsequent investigation and raiding the residential
premises of the petitioners and non conforming to
mandatory provisions of section 6 of the Delhi Special
Police Establishment Act vitiates the investigation as well
as raid in the official premises of the petitioners?
5. Whether the raid at the residential premises of the sitting
Chief Minister without conforming to section 6 of the
Delhi Special Police Establishment Act would dilute the
basic federal structure of the Constitution of India?
6. Whether the FIR No. RCAC-1 2015 A-004 could be
registered when the Income Tax Department and this
Court is seized of the matter?
7. Whether the Central Bureau of Investigation has
complied with the mandatory provisions of Code of
Criminal Provisions and the guidelines provided in
Central Bureau of Investigation Manual while registering
the FIR and also while undertaking the investigation?
8. What is the true import of Entry 2-A, 80 of the Union
List vis-à-vis 2 of the State List and their inter-play?
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13
9. Whether the income reflected in paras 5 and 6 of the FIR
can be treated as disproportionate assets in the hands of
petitioner No.1?
10. Whether the registration of FIR against the petitioners is
actuated with legal and factual mala fide and political
vendetta?
11. Whether the permission of the Speaker of the H.P.
Legislative Assembly was mandatory before registration
of FIR?
CMP No. 10271 of 2015.
10. Notice in the aforesaid terms. There is a
prima facie case in favour of the petitioners and the
balance of convenience is also in their favour.
Petitioners will suffer irreparable loss and injury in
case interim directions are not issued at this stage.
The CBI is directed to go ahead with the investigation
but the statements of the petitioners shall not be
recorded without the leave of the Court. Mr. Ashok
Sharma, learned ASGI, submitted at the Bar that
there is no proposal of petitioners’ arrest at this
stage. However, by way of abundant precaution, it is
made clear that the petitioners shall not be arrested.
It is also made clear that as and when the dossier is
complete, it shall be open for the Central Bureau of
Investigation to approach this Court for permission to
interrogate the petitioners in accordance with law.
The Central Bureau of Investigation shall not file
challan without the express leave of this Court in FIR
No.RCAC-1 2015 A-004. The observations made
hereinabove shall have no bearing on the pendency of
any case, including before the Hon’ble Delhi High
Court.
11. The Court places on record its
appreciation of the professional and fair stand
adopted by the Central Bureau during the hearing of
this matter.
12. With the consent of the learned counsel
for the parties, list this case for final hearing on
18.11.2015. Copy Dasti on usual terms.
(Rajiv Sharma),
Judge.
(Sureshwar Thakur), Judge.
1.10.2015
Print Page
taken a preliminary objection of the maintainability of
petition. He has canvassed before us that no part of
cause of action has arisen within the territorial
jurisdiction of this Court. According to him, Hon’ble
Delhi High Court is already seized of the matter.
5. Their Lordships of the Hon’ble Supreme
Court in Navichandra N. Majithia vs. State of
Maharashtra and others, (2000) 7 SCC 640 have
held that in legal parlance the expression “cause of
action” is generally understood to mean a situation or
state of facts that entitles a party to maintain an
action in a court or a tribunal; a group of operative
facts giving rise to one or more bases for suing. Their
Lordships have further explained the expression
territories within which cause of action, wholly or in
part arises and have held that if any part of cause of
action arises within the territorial limits of its
jurisdiction even though the seat of Government or
authority or residence of person against whom
direction, order or writ is sought to be issued is not
within the said territory. Their Lordships have held
as under:
“17. From the provision in clause (2) of Art. 226 it is clear that
the maintainability or otherwise of the writ petition in the High
Court depends on whether the cause of action for filing the
same arose, wholly or in part, within the territorial jurisdiction
of that Court.
18. In legal parlance the expression 'cause of action' is
generally understood to mean a situation or state of facts that
entitles a party to maintain an action in a Court or a tribunal; a
group of operative facts giving rise to one or more bases for
suing; a factual situation that entitles one person to obtain a
remedy in Court from another person. (Black's Law Dictionary).
[22] So far as the question of territorial jurisdiction with
reference to a criminal offence is concerned the main factor to
be considered is the place where the alleged offence was
committed.
High Court of H.P.
CWP No. 4063/2015
Dated;1.10.2015:
2. We have heard the learned counsel for
the parties at length and have gone through the
pleadings.
3. Petitioner No.1 is the Chief Minister of
the State and petitioner No.2 is Ex. Member of
Parliament. Petitioners have challenged the
registration of FIR No.RCAC-1 2015 A-004 and the
raid conducted in their premises. According to the
averments made in the petition, the registration of
the FIR is in violation of the law laid down by the
Hon’ble Supreme Court. The mandatory consent
under section 6 of the Delhi Special Police
Establishment Act has not been obtained from the
State Government at the time of registration of FIR,
investigation and carrying out raid in their premises.
The provisions of the Code of Criminal Procedure and
Central Bureau of Investigation Manual have not
been followed at the time of registration of FIR and at
the time of raiding the premises of the petitioners.
The FIR could not be registered after the closure of
first inquiry report. The part of cause of action has
arisen within the territorial jurisdiction of this Court
in view of Sr. No.5 read with paras 4,5 and 6 of the
FIR dated 23.9.2015. The permission of Hon’ble
Speaker of the H.P. Legislative Assembly has not
been obtained at the time of registration of FIR and
its investigation. The raiding of their residence at the
time when the marriage of their daughter was being
solemnized speaks of wreaking of political vendetta.
The FIR has been registered though there is no order
of the Hon’ble Delhi High Court to register the same.
Petitioners also apprehend their arrest in FIR No.
RCAC-1 2015 A-004.
4. Mr. Ashok Sharma, learned ASGI has
taken a preliminary objection of the maintainability of
petition. He has canvassed before us that no part of
cause of action has arisen within the territorial
jurisdiction of this Court. According to him, Hon’ble
Delhi High Court is already seized of the matter.
5. Their Lordships of the Hon’ble Supreme
Court in Navichandra N. Majithia vs. State of
Maharashtra and others, (2000) 7 SCC 640 have
held that in legal parlance the expression “cause of
action” is generally understood to mean a situation or
state of facts that entitles a party to maintain an
action in a court or a tribunal; a group of operative
facts giving rise to one or more bases for suing. Their
Lordships have further explained the expression
territories within which cause of action, wholly or in
part arises and have held that if any part of cause of
action arises within the territorial limits of its
jurisdiction even though the seat of Government or
authority or residence of person against whom
direction, order or writ is sought to be issued is not
within the said territory. Their Lordships have held
as under:
“17. From the provision in clause (2) of Art. 226 it is clear that
the maintainability or otherwise of the writ petition in the High
Court depends on whether the cause of action for filing the
same arose, wholly or in part, within the territorial jurisdiction
of that Court.
18. In legal parlance the expression 'cause of action' is
generally understood to mean a situation or state of facts that
entitles a party to maintain an action in a Court or a tribunal; a
group of operative facts giving rise to one or more bases for
suing; a factual situation that entitles one person to obtain a
remedy in Court from another person. (Black's Law Dictionary).
[22] So far as the question of territorial jurisdiction with
reference to a criminal offence is concerned the main factor to
be considered is the place where the alleged offence was
committed.
[23] This Court in case of K. Bhaskaran v. Sankaran
Vaidhyan Balan (1999) 7 SCC 510 : (1999 AIR SCW 3809 : AIR
1999 SC 3762 : 1999 Cri LJ 4606) considered the question of
territorial jurisdiction of the Courts relating to the offence under
Section 138 of the Negotiable Instruments Act. In that case on
29-1-1993 the respondent, S. presented a cheque for the
amount of Rs. 1 lakhs bearing the signature of the appellant, B,
at the Kayamkulam (Kerala) Branch of the Syndicate Bank for
encashment. The cheque was returned by the bank unpaid,
because of the insufficiency of funds in the account of B. S
issued a notice by registered post on 2-2-1993. The notice was
returned to S on 15-2-1993 with the endorsements "Addressee
absent" for three dates and "Intimation served on addressee's
house" for 6-3-1993. The postal article remained unclaimed till
15-2-1993 and was then returned to the sender, S, with the
endorsement unclaimed. S, filed a complaint on 4-3-1993 before
the Court of the Judicial Magistrate, First Class, Adoor (District
Pathanamathitta) against B under Section 138 of the Negotiable
Instruments Act, 1881. B denied that the Court had territorial
jurisdiction on the basis that the cheque had been dishonoured
in Kayamkulam District.
6. Their Lordships of the Hon’ble Supreme
Court in State of West Bengal and others vs.
Committee for Protection of Democratic Rights,
West Bengal and others, (2010)3 SCC 571 have
held that words “life” and “personal liberty” are used
in Article 21 as compendious terms to include within
themselves all the varieties of life which go to make
up the personal liberties of a man and not merely the
right to the continuance of a person’s animal
existence. The State has a duty to enforce the
human rights of a citizen providing for fair and
impartial investigation against any person accused of
commission of a cognizable offence, which may
include its own officers. Article 21 in its broad
application not only takes within its fold enforcement
of the rights of an accused but also the rights of the
victim. Their Lordships have further held that High
Courts have not only the power and jurisdiction but
also an obligation to protect the fundamental rights,
guaranteed by Part III in general and under Article 21
of the Constitution in particular, zealously and
vigilantly If the federal structure is violated by any
legislative action, the Constitution takes care to
protect the federal structure by ensuring that Courts
act as guardians and interpreters of the Constitution
and provide remedy under Articles 32 and 226. Their
Lordships have held as under:
60. Article 21, one of the fundamental rights enshrined in Part
III of the Constitution declares that no person shall be deprived
of his "life" or "personal liberty" except according to the
procedure established by law. It is trite that the words "life" and
"personal liberty" are used in the Article as compendious terms
to include within themselves all the varieties of life which go to
make up the personal liberties of a man and not merely the
right to the continuance of person's animal existence. (See:
Kharak Singh Vs. State of U.P., 1964 1 SCR 332)
[61] The paramountcy of the right to "life" and "personal
liberty" was highlighted by the Constitution Bench in Kehar
Singh (supra). It was observed thus:
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"To any civilised society, there can be no attributes more
important than the life and personal liberty of its members. That
is evident from the paramount position given by the courts to
Article 21 of the Constitution. These twin attributes enjoy a
fundamental ascendancy over all other attributes of the political
and social order, and consequently, the Legislature, the
Executive and the Judiciary are more sensitive to them than to
the other attributes of daily existence. The deprivation of
personal liberty and the threat of the deprivation of life by the
action of the State is in most civilised societies regarded
seriously and, recourse, either under express constitutional
provision or through legislative enactment is provided to the
judicial organ."
[62] In Minerva Mills (supra), Y.V. Chandrachud, C.J.,
speaking for the majority observed that Articles 14 and 19 do
not confer any fanciful rights. They confer rights which are
elementary for the proper and effective functioning of
democracy. They are universally regarded by the Universal
Declaration of Human Rights. If Articles 14 and 19 are put out
of operation, Article 32 will be drained of its life blood.
Emphasising the significance of Articles 14, 19 and 21, the
learned Chief Justice remarked:
"74. Three Articles of our Constitution, and only three,
stand between the heaven of freedom into which Tagore wanted
his country to awake and the abyss of unrestrained power. They
are Articles 14, 19 and 21. Article 31-C has removed two sides
of that golden triangle which affords to the people of this
country an assurance that the promise held forth by the
preamble will be performed by ushering an egalitarian era
through the discipline of fundamental rights, that is, without
emasculation of the rights to liberty and equality which alone
can help preserve the dignity of the individual."
[64] Thus, the opinion of this Court in A.K. Gopalan
(supra) to the effect that a person could be deprived of his
liberty by 'any' procedure established by law and it was not for
the Court to go into the fairness of that procedure was perceived
in Maneka Gandhi (supra) as a serious curtailment of liberty of
an individual and it was held that the law which restricted an
individual's freedom must also be right, just and fair and not
arbitrary, fanciful or oppressive. This judgment was a significant
step towards the development of law with respect to Article 21 of
the Constitution, followed in a series of subsequent decisions.
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This Court went on to explore the true meaning of the word
"Life" in Article 21 and finally opined that all those aspects of
life, which make a person live with human dignity are included
within the meaning of the word "Life".
[68] Thus, having examined the rival contentions in the
context of the Constitutional Scheme, we conclude as follows:
(i) The fundamental rights, enshrined in Part III of the
Constitution, are inherent and cannot be extinguished by any
Constitutional or Statutory provision. Any law that abrogates or
abridges such rights would be violative of the basic structure
doctrine. The actual effect and impact of the law on the rights
guaranteed under Part III has to be taken into account in
determining whether or not it destroys the basic structure.
(iv) If the federal structure is violated by any legislative
action, the Constitution takes care to protect the federal
structure by ensuring that Courts act as guardians and
interpreters of the Constitution and provide remedy under
Articles 32 and 226, whenever there is an attempted violation.
In the circumstances, any direction by the Supreme Court or
the High Court in exercise of power under Article 32 or 226 to
uphold the Constitution and maintain the rule of law cannot be
termed as violating the federal structure.
7. Their Lordships of the Hon’ble Supreme
Court in Ms. Mayawati vs. Union of India and
others (2012) 8 SCC 106 their Lordships have held
as under:
[30] As rightly pointed out that in the absence of any direction
by this Court to lodge an FIR into the matter of alleged
disproportionate assets against the petitioner, the Investigating
Officer could not take resort to Section 157 of the Code of
Criminal Procedure, 1973 (in short 'the Code') wherein the
Officer-in-charge of a Police Station is empowered under Section
156 of the Code to investigate on information received or
otherwise. Section 6 of the DSPE Act prohibits the CBI from
exercising its powers and jurisdiction without the consent of the
Government of the State. It is pointed out on the side of the
petitioner that, in the present case, no such consent was
obtained by the CBI and submitted that the second FIR against
the petitioner is contrary to Section 157 of the Code and Section
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6 of the DSPE Act. It is not in dispute that the consent was
declined by the Governor of the State and in such circumstance
also the second FIR No. R.C. 0062003A0019 dated 05.10.2003
is not sustainable.
[40] As discussed above and after reading all the orders of this
Court which are available in the 'compilation', we are satisfied
that this Court being the ultimate custodian of the fundamental
rights did not issue any direction to the CBI to conduct a roving
inquiry against the assets of the petitioner commencing from
1995 to 2003 even though the Taj Heritage Corridor Project was
conceived only in July, 2002 and an amount of Rs. 17 crores
was released in August/September, 2002. The method adopted
by the CBI is unwarranted and without jurisdiction. We are also
satisfied that the CBI has proceeded without proper
understanding of various orders dated 16.07.2003, 21.08.2003,
18.09.2003, 25.10.2003 and 07.08.2003 passed by this Court.
We are also satisfied that there was no such direction relating to
second FIR, namely, FIR No. R.C. 0062003A0019 dated
05.10.2003.
41. We have already referred to the Constitution Bench
decision of this Court in Committee for Protection of Democratic
Rights, West Bengal wherein this Court observed that only when
this Court after considering material on record comes to a
conclusion that such material does disclose a prima facie case
calling for investigation by the CBI for the alleged offence, an
order directing inquiry by the CBI could be passed and that too
after giving opportunity of hearing to the affected person. We are
satisfied that there was no such finding or satisfaction recorded
by this Court in the matter of disproportionate assets of the
petitioner on the basis of the status report dated 11.09.2003
and, in fact, the petitioner was not a party before this Court in
the case in question. From the perusal of those orders, we are
also satisfied that there could not have been any material before
this Court about the disproportionate assets case of the
petitioner beyond the Taj Corridor Project case and there was no
such question or issue about disproportionate assets of the
petitioner. In view of the same, giving any direction to lodge FIR
relating to disproportionate assets case did not arise.
8. Their Lordships of the Hon’ble Supreme
Court in Manohar Lal Sharma vs. Principal
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Secretary and others, (2014) 2 SCC 532 have held
that the courts ordinarily do not interfere in the
matters of investigation by police, particularly, when
the facts and circumstances do not indicate that the
investigating officer is not functioning bona fide, but
in very exceptional cases, where the court finds that
the police officer has exercised his investigatory
powers in breach of the statutory provisions, the
court may intervene. Their Lordships have further
held that proper investigtation into crime is one of the
essentials of the criminal justice system and an
integral facet of rule of law. Central Bureau of
Investigation is regulated by Code of Criminal
Procedure CBI (Crime) Manual, 2005 and guidelines.
Their Lordships have further held that the
investigation should conclude expeditiously from the
point of view of all concerned. Their Lordships have
held as under:
[24] In the criminal justice system the investigation of an offence
is the domain of the police. The power to investigate into the
cognizable offences by the police officer is ordinarily not
impinged by any fetters. However, such power has to be
exercised consistent with the statutory provisions and for
legitimate purpose. The Courts ordinarily do not interfere in the
matters of investigation by police, particularly, when the facts
and circumstances do not indicate that the investigating officer
is not functioning bona fide. In very exceptional cases, however,
where the Court finds that the police officer has exercised his
investigatory powers in breach of the statutory provision putting
the personal liberty and/or the property of the citizen in
jeopardy by illegal and improper use of the power or there is
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abuse of the investigatory power and process by the police
officer or the investigation by the police is found to be not bona
fide or the investigation is tainted with animosity, the Court may
intervene to protect the personal and/or property rights of the
citizens.
[26] One of the responsibilities of the police is protection of life,
liberty and property of citizens. The investigation of offences is
one of the important duties the police has to perform. The aim of
investigation is ultimately to search for truth and bring the
offender to the book.
[29] Once jurisdiction is conferred on the CBI to investigate the
offence by virtue of notification under Section 3 of the DSPE Act
or the CBI takes up investigation in relation to the crime which
is otherwise within the jurisdiction of the State police on the
direction of the constitutional court, the exercise of the power of
investigation by the CBI is regulated by the Code and the
guidelines are provided in the CBI (Crime) Manual. Paragraph
9.1 of the Manual says that when, a complaint is received or
information is available which may, after verification, as
enjoined in the Manual, indicate serious misconduct on the part
of a public servant but is not adequate to justify registration of a
regular case under the provisions of Section 154 of the Code, a
preliminary enquiry (PE) may be registered after obtaining
approval of the competent authority. It also says that where
High Courts and Supreme Court entrust matters to CBI for
inquiry and submission of report, a PE may be registered after
obtaining orders from the head office. When the complaint and
source information reveal commission of a prime facie
cognizable offence, a regular case is to be registered as enjoined
by law. PE may be converted into RC as soon as sufficient
material becomes available to show that prima facie there has
been commission of a cognizable offence. When information
available is adequate to indicate commission of cognizable
offence or its discreet verification leads to similar conclusion, a
regular case may be registered instead of a PE.
[30] Paragraph 9.10 of the Manual states that PE relating to
allegations of bribery and corruption should be limited to the
scrutiny of records and interrogation of bare minimum persons
which may be necessary to judge whether there is any
substance in the allegations which are being enquired into and
whether the case is worth pursuing further or not.
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[32] Paragraph 10.6 of the Manual, inter alia, provides that if a
case is required to be registered under the PC Act against an
officer of the rank of Joint Secretary and above, prior permission
of the Government should be taken before inquiry/investigation
as required under Section 6A of the DSPE Act except in a case
under Section 7 of the PC Act where registration is followed by
immediate arrest of the accused.
[33] A proper investigation into crime is one of the essentials of
the criminal justice system and an integral facet of rule of law.
The investigation by the police under the Code has to be fair,
impartial and uninfluenced by external influences. Where
investigation into crime is handled by the CBI under the DSPE
Act, the same principles apply and CBI as an investigating
agency is supposed to discharge its responsibility with
competence, promptness, fairness and uninfluenced and
unhindered by external influences.
81. What is an investigation has already been discussed by
Brother Justice Lodha and I endorse his views on this. However,
what is crucial for an investigation is that it should conclude
expeditiously from the point of view of all concerned: from the
point of view of the accused, a quick conclusion to the
investigation will clear his name and image in society if he is
innocent. This is certainly of considerable importance to a
person who has been wrongly accused or framed for an offence;
from the point of view of society, a quick closure to investigation
is necessary so that those against whom there is evidence of the
commission of a crime are tried at the earliest and punished if
they are guilty. This, so far as society is concerned, is essential
for maintaining the rule of law; and from the point of view of the
investigator, an expeditious conclusion of investigations is
necessary because greater the delay, greater the chances of
evidence being destroyed, witnesses being compromised or the
accused being able to manipulate circumstances to his or her
advantage.
9. On the basis of the pleadings and the
arguments advanced by the learned counsel for the
parties and with their assistance, the following
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questions are formulated for determination in this
petition:
1. Whether cause of action has arisen within the territorial
jurisdiction of this Court qua FIR No. RCAC-1 2015 A-
004 registered on 23.9.2015, more particularly, in view
of Sr. No.5 read in conjunction with paras 4, 5 and 6 of
the FIR?
2. Whether there could be second preliminary inquiry after
the closure of earlier preliminary inquiry purportedly as
per para 9.26 of the Central Bureau of Investigation
Manual?
3. Whether registration of FIR No. RCAC-1 2015 A-004
dated 23.9.2015 violates the dicta of Hon’ble Supreme
Court in Ms. Mayawati vs. Union of India and others,
(2012) 8 SCC 106?
4. Whether it was mandatory for the Central Bureau of
Investigation to seek the consent of the State
Government as per section 6 of the Delhi Special Police
Establishment Act at the time of registration of FIR and
its subsequent investigation and raiding the residential
premises of the petitioners and non conforming to
mandatory provisions of section 6 of the Delhi Special
Police Establishment Act vitiates the investigation as well
as raid in the official premises of the petitioners?
5. Whether the raid at the residential premises of the sitting
Chief Minister without conforming to section 6 of the
Delhi Special Police Establishment Act would dilute the
basic federal structure of the Constitution of India?
6. Whether the FIR No. RCAC-1 2015 A-004 could be
registered when the Income Tax Department and this
Court is seized of the matter?
7. Whether the Central Bureau of Investigation has
complied with the mandatory provisions of Code of
Criminal Provisions and the guidelines provided in
Central Bureau of Investigation Manual while registering
the FIR and also while undertaking the investigation?
8. What is the true import of Entry 2-A, 80 of the Union
List vis-à-vis 2 of the State List and their inter-play?
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9. Whether the income reflected in paras 5 and 6 of the FIR
can be treated as disproportionate assets in the hands of
petitioner No.1?
10. Whether the registration of FIR against the petitioners is
actuated with legal and factual mala fide and political
vendetta?
11. Whether the permission of the Speaker of the H.P.
Legislative Assembly was mandatory before registration
of FIR?
CMP No. 10271 of 2015.
10. Notice in the aforesaid terms. There is a
prima facie case in favour of the petitioners and the
balance of convenience is also in their favour.
Petitioners will suffer irreparable loss and injury in
case interim directions are not issued at this stage.
The CBI is directed to go ahead with the investigation
but the statements of the petitioners shall not be
recorded without the leave of the Court. Mr. Ashok
Sharma, learned ASGI, submitted at the Bar that
there is no proposal of petitioners’ arrest at this
stage. However, by way of abundant precaution, it is
made clear that the petitioners shall not be arrested.
It is also made clear that as and when the dossier is
complete, it shall be open for the Central Bureau of
Investigation to approach this Court for permission to
interrogate the petitioners in accordance with law.
The Central Bureau of Investigation shall not file
challan without the express leave of this Court in FIR
No.RCAC-1 2015 A-004. The observations made
hereinabove shall have no bearing on the pendency of
any case, including before the Hon’ble Delhi High
Court.
11. The Court places on record its
appreciation of the professional and fair stand
adopted by the Central Bureau during the hearing of
this matter.
12. With the consent of the learned counsel
for the parties, list this case for final hearing on
18.11.2015. Copy Dasti on usual terms.
(Rajiv Sharma),
Judge.
(Sureshwar Thakur), Judge.
1.10.2015
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