AJN 00-CRIPIL28.11GROUP : 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL PIL PETITION NO.28 OF 2011 AND CRIMINAL APPLICATION NO.13 OF 2011 V.P. Patil ... Petitioner Vs. The State of Maharashtra through the Chief Secretary, General Administration Department, Mantralaya, Mumbai & Ors. ... Respondents Mr. V.P. Patil, petitioner in person. Mr. Ravi Kadam, Advocate General with Mr. P.A. Pol and Mr. A.S. Gadkari, A.P.P. for the State. Mr. N.H. Seervai, senior counsel with Ms. Gulnar Mistry, Mr. Z. Dastur and Mr. Farah Karachiwala i/b J.Sagar Associate for respondents 6 and 7. ALONG WITH CRIMINAL PIL PETITION NO.29 OF 2011 Mr. S. Balakrishnan ... Petitioner Vs. The State of Maharashtra & Ors. ... Respondents Mr. S.K. Nair i/b M/s. S.K. Nair & Co. for the petitioner. Mr. Ravi Kadam, Advocate General with Mr. P.A. Pol and Mr. A.S. Gadkari, A.P.P. for the State. AJN 00-CRIPIL28.11GROUP : 2 : ALONG WITH WRIT PETITION NO.1629 OF 2011 Ketan K. Tirodkar ... Petitioner Vs. The State via Home Principal Secretary. & Anr. ... Respondents Mr. K.K. Tirodkar, petitioner in person. Mr. Ravi Kadam, Advocate General with Mr. P.A. Pol and Mr. A.S. Gadkari, A.P.P. for the State. CORAM: MRS. RANJANA DESAI & RANJIT MORE, JJ. DATE ON WHICH THE JUDGMENT IS RESERVED : 12TH JULY, 2011. DATE ON WHICH THE JUDGMENT IS PRONOUNCED: 18TH JULY, 2011. JUDGMENT :- (Per Smt. Ranjana Desai, J.) 1. On 11/6/2011, Senior Journalist J. Dey, who was working with Mid Day newspaper was shot dead at 4.00 p.m. at Powai by unidentified gunmen. The basic prayer in the present writ petitions is that the investigation of the AJN 00-CRIPIL28.11GROUP : 3 : case pertaining to the murder of J. Dey be transferred to Central Bureau of Investigation (for short, “the CBI”). PIL Petition No.28 of 2011 is filed by Mr. V.P. Patil, who is an advocate practising in this court. He is appearing in person. PIL Petition No.29 of 2011 is filed by Mr. S. Balakrishnan, who is also a journalist. Writ Petition No. 1629 of 2011 is filed by one Mr. Ketan Tirodkar in public interest. In PIL Petition No.28 of 2011, intervention application was filed by the Press Club, Mumbai and Marathi Patrakar Parishad, Mumbai. The applicants have been permitted to intervene by us. 2. Mr. Patil, who is petitioner in PIL Petition No.28 of 2011 has submitted that the investigation needs to be transferred to CBI because though more than about a month has elapsed after the murder, the police have not been able to collect any credible evidence. While the so- called investigation is on, the investigating officers are leaking out information to the public. Contradictory statements are issued to the Press which create doubt AJN 00-CRIPIL28.11GROUP : 4 : about the honesty and integrity of the investigating agency. In support of his submissions, Mr. Patil relied on the judgment of the Supreme Court in Narmada Bai v. State of Gujarat & Ors. 1 and judgment of this court in Shamin @ Chintu Jamaluddin Shaikh v. The Senior Inspector of Police, Khar Police Station, Mumbai & Ors. 2 Mr. Patil submitted that when there is public cry, there is no reason why the investigation should not be transferred to the CBI and it is not understood why the Mumbai Police should keep the investigation with themselves when they are not successful in tracing the real culprits. 3. Mr. Nair, learned counsel appearing for the petitioner in PIL Petition No.29 of 2011 submitted that there is a nexus between some senior police officers of Mumbai Police and the underworld. This is acknowledged by the Vohra Committee which was established by the Government to take stock of all available information 1 2011 All SCR 1339. 2 2011 All MR (Cri.) 1560. AJN 00-CRIPIL28.11GROUP : 5 : about the activities of crime syndicates which had developed links with and were being protected by the Government functionaries and political personalities. Our attention was drawn to the conclusion of the said report that the organized crime in Mumbai is a reality that was created by the commissions and omissions of various Governments; that the organized crime gangs' penetration in various systems of governance is considerable and that the situation is such that the said penetration cannot be eradicated but can only be contained. Mr. Nair submitted that J. Dey was concerned with investigative journalism and was tracking the movements of oil mafia which is operating with the blessings of Mumbai Police. Therefore, the Mumbai Police cannot be trusted with the investigation. Mr. Nair submitted that it is surprising as to why the Mumbai Police are not able to find out who is behind this murder. This case has national and international ramifications and only agency like CBI can effectively investigate it. AJN 00-CRIPIL28.11GROUP : 6 : 4. Mr. Seervai, learned senior counsel for the intervenors was highly critical of the investigating agency. He submitted that the investigating agency has failed to crack the case. Free and independent Press is one of the pillars of Indian democracy. Murder of J. Dey is attack on freedom of Press and attack on Indian democracy. It is an attempt to silence the Press. Counsel submitted that this case has national significance. It requires a sensitized approach. It should, therefore, be investigated by an impartial police force like the CBI. There is grave doubt about the integrity of the Mumbai Police as its officers have established links with the underworld. Counsel submitted that therefore, a case for transfer of investigation is made out. Counsel submitted that the Mumbai Police are leaking out information allegedly gathered by them, everyday. Various contradictory statements are issued to the Press. It is clear that there is no real investigation. The police are just trying to hoodwink the people. They are trying to traumatize the family members of J. Dey by issuing scandalous AJN 00-CRIPIL28.11GROUP : 7 : statements. Counsel has drawn our attention to the intervention application and to the affidavit of Mr. Sunil Shivdasani, the Secretary of the Intervenors – the Press Club. Counsel also drew our attention to the averments made in PIL Petition No.29 of 2011. Counsel submitted that it is specifically alleged in the intervention application, in the affidavit of Mr. Shivdasani and in PIL Petition No.29 of 2011 that there is nexus between the Mumbai Police and the underworld. No affidavit is filed by the Mumbai Police. Counsel submitted that the Mumbai police have chosen not to file affidavit in reply because they have no explanation to offer. Counsel submitted that the underworld connection involved in this case will have to be unearthed. This can only be done by an impartial investigating agency and not by tainted Mumbai Police force. In support of his submissions, counsel relied on the judgments of the Supreme Court in State of West Bengal & Ors. v. Committee for Protection of Democratic Rights, West Bengal & Ors. 3 Rubabbuddin Sheikh v. State of Gujarat & 3 (2010) 3 SCC 571. AJN 00-CRIPIL28.11GROUP : 8 : Ors. 4 Punjab and Haryana High Court Bar Association, Chandigarh through its Secretary v. State of Punjab & Ors. 5 and Mohammed Anis v. Union of India & Ors. 6 5. Mr. Tirodkar, the petitioner in person in Writ Petition No.1629 of 2011 submitted that he has full faith in the officers of Mumbai Police particularly Mr. Arup Patnaik, the Commissioner of Police and Mr. Himanshu Roy, Joint Commissioner of Police. He submitted that they are excellent officers, who have done their job remarkably well. He has no grievance about them. However, the investigation needs to be transferred because some pressure may be brought on them. Mr. Tirodkar submitted that this is a fit case where the Maharashtra Control of Organized Crime Act, 1999 (for short, “the MCOCA”) must be applied to the accused. It must be stated here that learned Advocate General Mr. Kadam has made a statement that MCOCA is applied to the accused. 4 (2010) 2 SCC 200. 5 (1994) 1 SCC 616. 6 1994 Supp. (1) SCC 145. AJN 00-CRIPIL28.11GROUP : 9 : 6. Learned Advocate General submitted that so far, the police have arrested eight persons. He submitted that transfer of investigation by CBI can be done only in exceptional cases. There has to be material to justify such transfer. In this case, except the pleadings, which are general in nature, no material has been brought on record by the petitioners to justify their plea of transfer to the CBI. Counsel submitted that the Mumbai Police have conducted thorough investigation. They have arrested the culprits. They have applied MCOCA to them. The investigation is still in progress. There are no exceptional circumstances justifying transfer of investigation to CBI and, at this stage, if the investigation is transferred, it would have deleterious effect on the Mumbai Police. The Mumbai Police would be demoralized. Counsel submitted that in Criminal PIL Petition No.28 of 2011, there are no allegations against the Mumbai Police. It is not alleged that the Mumbai Police have connection with the underworld. The allegation is that the Mumbai Police AJN 00-CRIPIL28.11GROUP : 10 : have failed to investigate the crime is now belied by the excellent progress of investigation made by them which has resulted in the arrest of eight accused. Counsel submitted that in Criminal Application No.13 of 2011 and in the affidavit of Mr. Shivdasani also, general allegations are made against Mumbai Police but no particulars have been given. It is stated in the affidavit of Mr. Shivdasani that Mr. Dey had lodged complaints in respect of ACP Anil Mahabole with the Home Minister, State of Maharashtra. It is suggested that it is because of this that Mr. Dey was murdered. Counsel submitted that in paragraph 6(vi) of his affidavit, Mr. Shivdasani has admitted that ACP Anil Mahabole was questioned by Mumbai Police approximately for six hours and his statement came to be recorded. Therefore, it is clear that the Mumbai Police have impartially conducted the investigation. The general allegation that they would not conduct proper investigation because of underworld connection is baseless. So far as the Vohra Committee Report is concerned, counsel submitted that the Vohra Committee AJN 00-CRIPIL28.11GROUP : 11 : report has not gone into the specifics of any case. Suggestions were made by heads of different departments of Government and investigating agencies and general conclusions were drawn. Those conclusions, without there being any other material on record in this case establishing connection of Mumbai Police with the underworld, cannot be used against them in support of prayer for transfer of investigation. Counsel submitted that the cases on which reliance is placed by Mr. Seervai are cases where the police are the accused and, therefore, the investigation was transferred to CBI. Such is not the case here. Counsel relied on the judgment of the Supreme Court in Secretary, Minor Irrigation & Rural Engineering Services, U.P. & Ors. v. Sahngoo Ram Arya & Anr. 7 where the Supreme Court has stated that the High Court has power under Article 226 to direct an inquiry by CBI but that power will have to be exercised only in cases where there is sufficient material to come to a prima facie conclusion that there is need to make such an inquiry. Counsel also relied on the judgment of the 7 (2002) 5 SCC 521. AJN 00-CRIPIL28.11GROUP : 12 : Supreme Court in Sakiri Vasu v. State of Uttar Pradesh & Ors. 8 where the Supreme Court has observed that an aggrieved person can only claim that the offence he alleges must be investigated properly but has no right to claim investigation by a particular agency like the CBI. The Supreme Court has also stated that mere allegations made against the police would not justify transfer of investigation unless there is some material on record to support the allegations. Counsel pointed out that in this case, the Supreme Court has reaffirmed what it has said in Secretary, Minor Irrigation & Rural Engineering Services, U.P. 7. Counsel submitted that the allegation that the police have leaked out vital information, is baseless. The police also have a duty to inform the public about the investigation, but it must be done in a manner which will not hamper the investigation. Counsel submitted that in this case, the police have given Press releases only through authorized officers. The police have not leaked 8 (2008) 2 SCC 409. AJN 00-CRIPIL28.11GROUP : 13 : out any vital aspect of the investigation or the statements made by the witnesses. Counsel submitted that if unfortunately, any witness has disclosed the contents of his statement to the Press, the police cannot be held responsible for it. Counsel submitted that looking to the sensitive nature of this case, the police have carried out the investigation with a sense of responsibility. No positive conclusion can be drawn that the local police have not carried out effective investigation and, therefore, this case needs to be transferred to the CBI. Counsel submitted that assuming that this case has international ramifications, Mumbai Police are capable of investigating it. He submitted that the case relating to terrorist attack on Mumbai on 26/11/2008 in which accused Ajmal Kasab has been sentenced to death was successfully investigated by the Crime Branch of Mumbai Police. Counsel submitted that in the circumstances of the case, looking to the progress made by the Mumbai Police in the investigation and the fact that they have arrested eight accused, the only conclusion which can be drawn is that AJN 00-CRIPIL28.11GROUP : 14 : they are on the right track. Counsel submitted that this court should, therefore, dismiss the petition. 8. Seriousness of the crime in question obviously cannot be debated upon. The investigation of the case is on. It is, therefore, not possible for us, at this stage, to say what led to the murder. We cannot express any opinion on this aspect and nothing said by us in this order may be interpreted to mean our expression of opinion on this aspect. The reasons for murder would come to light only when the investigation is complete, charge-sheet is filed and trial is concluded. But we record our total agreement with the submission of learned counsel for the petitioners that free and independent Press is a pillar of our democracy and if an attack is made on a journalist to silence him, because he is probing into a scam or is likely to bring some unsavoury facts to light, it is a cause for concern. All offences must be properly and impartially investigated more so a case like the present, involving a serious offence. AJN 00-CRIPIL28.11GROUP : 15 : 9. As already noted by us, the basic prayer in these petitions, is that the investigation of the case should be transferred to CBI because the Mumbai Police will not conduct an impartial and honest investigation for the reason that Mr. Dey was doing investigative journalism. He had focused his attention on the unholy nexus between Mumbai Police and the underworld and therefore, he was gunned down. 10. Before going to the allegation about the nexus of Mumbai Police with the underworld, we must go to the relevant judgments which are cited before us to ascertain the law on the question of transfer of investigation to CBI or any other agency. We must first refer to the Constitution Bench judgment in Committee For Protection of Democratic Rights, West Bengal, which is the lead case on the point. The issue which was referred to the Constitution Bench was whether the High Court, in exercise of its jurisdiction under Article 226 of AJN 00-CRIPIL28.11GROUP : 16 : the Constitution of India can direct the CBI established under the Delhi Special Police Establishment Act, 1946 to investigate a cognizable offence, which is alleged to have taken place within the territorial jurisdiction of a State, without the consent of the State Government. After considering several judgments, the Supreme Court inter alia observed that the State has a duty to enforce the human rights of a citizen by providing fair and impartial investigation against any person accused of commission of a cognizable offence which may include its own officers. Victim's rights also need to be protected. The Supreme Court further observed that being the protectors of civil liberties of the citizens, the Supreme Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly. The Supreme Court concluded that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to CBI to investigate a cognizable offence AJN 00-CRIPIL28.11GROUP : 17 : alleged to have been committed within the territory of a State without the consent of that State, shall be valid in law. In paragraph 70, the Supreme Court added a caveat. It is necessary to quote it. “70. Before parting with the case, we deem it necessary to emphasis that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental AJN 00-CRIPIL28.11GROUP : 18 : rights. Otherwise, CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.” 11. In Rubabbuddin Sheikh, the petitioner was the brother of one Sohrabuddin who was alleged to have been killed by officials of Gujarat Police in fake encounter. The Supreme Court was considering whether investigation of the case could be transferred to CBI after charge-sheet was filed. The Supreme Court noted that admittedly the accusations were directed against the police personnel. In the facts of the case before it, the Supreme Court observed that in an appropriate case when the court feels that the investigation by the police authorities is not in the proper direction and in order to do complete justice in the case and as the high officials are involved in the case, it was always open to the court to hand over the investigation to the independent agency like CBI. AJN 00-CRIPIL28.11GROUP : 19 : 12. In Punjab & Haryana High Court Bar Association, Chandigarh, the lawyer Mr. Kulwant Singh, his wife and minor child were abducted while they were on their way to the police station. Mr. Kulwant Singh was going to the police station to get one Mrs. Manjit Kaur and her son released from illegal custody of the police. The lawyers were agitated by this incident. They were not satisfied with the police investigation. The Bar Association demanded a judicial inquiry which was not ordered by the State Government. A PIL was filed in the Punjab and Haryana High Court praying inter alia for a judicial inquiry. The writ petition was heard by the High Court. It was dismissed as withdrawn. The Bar Association challenged the order in the Supreme Court. The Supreme Court observed that the High Court was wholly unjustified in closing its eyes and ears to the controversy which had shaken the lawyer fraternity. The Supreme Court further observed that the least the High Court could have done was to direct an independent investigation/inquiry into the mysterious and most tragic AJN 00-CRIPIL28.11GROUP : 20 : abduction and murder of the lawyer and his family. Noting that charge-sheet was filed, the Supreme Court went on to observe that in the facts and circumstances of the case, to do complete justice in the matter and to instill confidence in the public mind, it is necessary to have fresh investigation through a specialized agency like the CBI. The Supreme Court directed the CBI to take up the investigation of the case. 13. In Mohammed Anis, the police were accused of causing encounter deaths. A writ petition was filed by an advocate in the Supreme Court under Article 32 of the Constitution alleging infringement of Article 21 of the Constitution. The Supreme Court observed that since the allegations were mainly directed against the local police and doubts were expressed regarding the fairness of the investigation as the police were accused of murder, without expressing any opinion, in public interest, it had directed that the investigation be conducted by local police. Thereafter, a petition came to be filed by a police AJN 00-CRIPIL28.11GROUP : 21 : inspector claiming that it was in public interest. It was contended that the transfer of investigation to CBI was destructive of the exclusive powers of the State of Uttar Pradesh and it was in flagrant disregard to the mandatory provisions of the Code of Criminal Procedure. The Supreme Court observed that fair and impartial investigation by an independent agency, not involved in the controversy, is the demand of public interest. If the investigation is by an agency which is allegedly privy to the dispute, the credibility of the investigation will be doubted and that will be contrary to public interest as well as the interest of justice. While dismissing the petition the Supreme Court observed that factual situation arising from the incident in question had persuaded it to transfer the investigation to CBI not only in the interest of fair and impartial investigation but also in the interest of U.P. police as there may not remain any lingering doubt regarding the credibility of investigation. 14. In Narmada Bai, according to the petitioner, AJN 00-CRIPIL28.11GROUP : 22 : Narmada Bai, her son Tulsiram Prajapati was killed in a fake encounter by the officials of Gujarat and Rajasthan Police. Narmada Bai filed a writ petition under Article 32 of the Constitution in the Supreme Court seeking inter alia a direction to the CBI to register FIR and investigate into the fake encounter killing of her son. The Supreme Court took a resume of the relevant cases and though charge-sheet was filed, directed the police authorities of Gujarat State to hand over the investigation to CBI. 15. In Secretary, Minor Irrigation & Rural Engineering Services, U.P., the petitioner had filed number of writ petitions challenging the actions taken by the Department against him. In the said writ petitions, he made serious allegations against a Minister who denied the allegations. The High Court passed interim orders staying the actions initiated by the Department against the petitioner. The Department filed special leave petition against those orders. The Supreme Court directed the High Court to dispose of the writ petitions within six AJN 00-CRIPIL28.11GROUP : 23 : months. The High Court observed that if the allegations made in the petitions are found to be true then the affairs of the State cannot be said to be running in accord with the Constitution. The High Court disposed of the petitions by directing the CBI to hold inquiry into the allegations made against the Minister. The Supreme Court set aside the High Court's order and remanded the matter to the High Court with a direction to consider whether the material on record was sufficient to direct inquiry by CBI. While remanding