REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
1 WRIT PETITION (CRIMINAL) NO. 135 OF 2008
Ms. Mayawati .... Petitioner (s)
Versus
Union of India & Ors. .... Respondent(s)
2
J U D G M E N T
P.Sathasivam,J.
1) The only question raised in this writ petition, filed under Article
32 of the Constitution of India, is as to whether FIR No. R.C. 0062003A0019
dated 05.10.2003 lodged under Section 13(2) read with Section 13 (1) (e) of
the Prevention of Corruption Act, 1988 (hereinafter referred to as “the PC
Act”) against the petitioner herein to investigate into the matter of
alleged disproportionate assets is beyond the scope of the directions
passed by this Court in the order dated 18.09.2003 in I.A. No. 376 of 2003
in W.P. (C) No. 13381 of 1984 titled M.C. Mehta vs. Union of India and
Others, (2003) 8 SCC 696?
2) The case of the petitioner as stated in the writ petition, is
summarized hereunder:
(a) On the date of filing of this writ petition before this Court, the
petitioner was the Chief Minister of U.P. Earlier also, the petitioner had
been the Chief Minister of U.P. for three times. The petitioner had also
served as a Member of Parliament many a time both as a Member of Lok Sabha
and Rajya Sabha and had also served as a Member of Legislative Assembly and
Legislative Council of the State of U.P. The petitioner is a law graduate
and had been a teacher from 1977 to 1984. At present, the petitioner is
the President of a National Political Party called as “Bahujan Samaj Party
(BSP)”, which is one of the six National Parties recognized by the Election
Commission of India.
(b) This Court, by order dated 16.07.2003 in I.A. No. 387 of 2003 in Writ
Petition (C) No. 13381 of 1984 titled M.C. Mehta vs. Union of India & Ors.
directed the CBI to conduct an inquiry on the basis of an I.A. filed in the
aforesaid writ petition alleging various irregularities committed by the
officers/persons in the Taj Heritage Corridor Project and to submit a
Preliminary Report.
(c) By means of an order dated 21.08.2003, this Court issued certain
directions to the CBI to interrogate and verify the assets of the persons
concerned with regard to outflow of Rs. 17 crores which was alleged to have
been released without proper sanction for the said Project. When the case
was taken up for hearing on 11.09.2003, a report was submitted by the CBI
and it was directed to be kept in a sealed cover in the Registry.
(d) This Court, in its further order dated 18.09.2003, on the basis of
the report dated 11.09.2003, granted further time to the CBI for
verification of the assets of the officers/persons involved. The CBI-
Respondent No. 2 herein submitted a report on 18.09.2003 before this Court
which formed the basis of order dated 18.09.2003 wherein the CBI was
directed to conduct an inquiry with respect to the execution of the Taj
Heritage Corridor Project under Taj Trapezium Zone (TTZ) Area at Agra.
(e) Pursuant to the orders of this Court, an FIR was lodged on 05.10.2003
being RC No. 0062003A0018/2003 under Section 120-B read with Sections 420,
467, 468 and 471 IPC and under Section 13(2) read with Section 13(1)(d) of
the PC Act against several persons including the petitioner herein. In the
said FIR, certain details and several developments which took place with
regard to the aforesaid Project have been given. As per the allegations
contained in the report dated 11.09.2003, several irregularities were
allegedly being found in the aforesaid Project. Pursuant to the same,
investigation has been completed and the report was forwarded to obtain the
sanction from the competent authority, namely, the Governor for prosecuting
the Chief Minster of the State. The Governor, by order dated 03.06.2007,
declined to accord sanction to prosecute the petitioner.
(f) According to the petitioner, in the aforesaid FIR, it was stated that
this Court also directed the CBI to conduct an inquiry pertaining to the
assets of the officers/individuals concerned in the aforesaid Project as
mentioned in the judgment passed by this Court in the aforesaid case in
order to ascertain whether any mis-appropriation of funds have been done
with regard to outflow of Rs. 17 crores released for the construction of
said Project. A perusal of the order dated 18.09.2003 would reveal that
whatever directions were issued by this Court were only in respect of Rs.
17 crores alleged to have been released without proper sanction and there
is not even a whisper about making an investigation into any other assets
of the persons involved in general. In other words, the scope of the order
of this Court was limited to the extent of money released in the said
Project and not otherwise. This is clear from the order of this Court
dated 18.09.2003 wherein it had specifically observed about lodging of FIR
only with regard to Taj Heritage Corridor Project case. That order nowhere
mentioned about lodging of second FIR in regard to the disproportionate
assets of the petitioner.
(g) It is the further case of the petitioner that contrary to the orders
of this Court, with mala fide intentions, the CBI registered another FIR
being R.C. No. 19 of 2003 on the same date i.e. 05.10.2003 only against the
petitioner alleging therein that in pursuance of the orders dated
21.08.2003, 11.09.2003 and 18.09.2003 passed by this Court, they conducted
an inquiry with regard to the acquiring of disproportionate movable and
immovable assets by the petitioner and her close relatives and on the basis
of this inquiry lodged the said FIR, whereas there was no direction or
observation by this Court to inquire into the assets of the petitioner not
related to the said Project case.
(h) The said FIR has been lodged by Shri K.N. Tewari, Superintendent of
Police, CBI/ACP, Lucknow, however, in the column of complaint at page No. 2
of the FIR, the name of the complainant/informant has been mentioned as
Shri Inder Pal, Assistant Registrar, PIL Branch, Supreme Court of India,
New Delhi even though no such order or direction issued by him for
registration of the case. It is further pointed out that Shri Inder Pal
has not signed any such FIR as complainant/informant. Pursuant to the
impugned FIR - R.C. No. 19 of 2003 the CBI conducted raids, search and
seizure operations at all the premises of the petitioner and her relatives
and seized all the bank accounts.
(i) The petitioner has made several representations to the CBI officials,
the State Minister of Personnel and the Hon’ble Prime Minister who heads
the Personnel Department drawing their attention that the Supreme Court had
not given any such direction or authority to the CBI to lodge an FIR in
respect to the alleged disproportionate assets and investigate the entire
assets of the petitioner from the year 1995 which have no relation with the
case of Taj Heritage Corridor Project which came into being only in August,
2003. In spite of several reminders and further representations, till date
no communication has been received from the CBI. The absence of any reply
by any of the authorities including the CBI shows that there was no
direction or authority to the CBI in the order dated 18.09.2003 to lodge an
FIR or to investigate into the assets of the petitioner which are not
related to the said Project. Hence, it was incumbent upon the CBI to
comply with the provisions of Section 6 of the Delhi Special Police
Establishment Act, 1946 (in short ‘DSPE Act’) which makes it obligatory to
obtain the consent of the Government of the concerned State to confer
jurisdiction on the CBI to investigate in any case arising within the
jurisdiction of a State. In the present case, FIR was lodged and
investigation was conducted without obtaining consent of the State
Government which is in flagrant violation of Section 6 of the DSPE Act. In
the absence of the consent of the State Government, the whole exercise of
the CBI about lodging of FIR and investigating into the assets of the
petitioner not related to Taj Heritage Corridor Project is without
jurisdiction and, therefore, the same is non est and void ab initio.
(j) It is further pointed out that this Court in its order dated
25.10.2004, after perusing the investigation reports filed by the CBI, held
that no link was found between the irregularities alleged to have been
found in respect to the assets matter and the Taj Heritage Corridor Project
which was the subject-matter of the reference before the Special Bench.
(k) The fact that this Court had stopped monitoring the assets case was
again reiterated in the order dated 07.08.2006 passed by this Court.
(l) On 27.11.2006, this Court finally decided the issue in respect to the
FIR being R.C. No. 18 relating to the Taj Heritage Corridor matter reported
in M.C. Mehta (Taj Corridor Scam) vs. Union of India & Ors., (2007) 1 SCC
110. In the said judgment, this Court observed that it should not embark
upon an enquiry in regard to the allegations of criminal misconduct in
order to form an opinion one way or the other so as to prima facie
determine guilt of a person or otherwise. When the matter came up before
the Governor of U.P. to grant or refuse sanction for prosecution, he sought
legal opinion from the Additional Solicitor General of India and based on
his opinion and on appreciation of entire materials, the Governor has
concluded that the petitioner was not even remotely connected with the
sanction of the said Project or the payment released for the same. After
the above order of the Governor, the directions given by this Court in the
order dated 18.09.2003 were fully complied with including in respect to
consider violations of the provisions of the PC Act. After this, there was
no justification or authority with the CBI to continue with the
investigation in other personal assets of the petitioner.
(m) On 05.06.2007, the CBI moved an application before the Special Judge,
Anti Corruption Bureau, (CBI), Lucknow informing that the Governor had
refused to grant sanction. On perusal of all the materials including the
order of the Governor declining to grant sanction, the Special Judge held
that in the absence of sanction to prosecute the petitioner, the Court has
no jurisdiction to take cognizance.
(n) The order of the Governor was also challenged before this Court in
Writ Petition (Civil) No. 434 of 2007. However, this Court, by order dated
06.08.2007, dismissed the same as withdrawn. Even thereafter, the
petitioner has made several representations to the Director, CBI to drop
the investigation on the basis of the aforesaid FIR. However, the CBI is
bent upon harassing the petitioner. Hence, she approached this Court by
filing the present writ petition.
Stand of the CBI-Respondent No.2:
3) Pursuant to the notice issued on 15.05.2008, the CBI-Respondent No.2
herein has filed its counter affidavit wherein it was stated that in the
order dated 18.09.2003 of this Court, there was a clear direction to
register an FIR for investigating into disproportionate assets of the
petitioner on the ground that in the said order it was mentioned that
“apart from what has been stated in the reports with regard to the assets,
the learned ASG Mr. Altaf Ahmad has submitted that further
inquiry/investigation is necessary by the CBI”. It is further stated that
the validity of the aforesaid FIRs was not disturbed by the Allahabad High
Court by its order dated 22.10.2003 on the ground that the FIR in question
was filed as per the directions of this Court. It is further stated by the
CBI that the FIR No. RC 19 dated 05.10.2003 under Section 13(2) read with
Section 13(1)(e) of the PC Act reveal the details of huge amount of
disproportionate assets possessed by the petitioner and her family members
beyond their known sources of income.
Further case of the petitioner:
4) A rejoinder affidavit, supplementary affidavit and supplementary
counter affidavits have also been filed wherein subsequent developments
which took place during the pendency of the writ petition, especially,
passing of various orders by the Income Tax Authorities, Income Tax
Appellate Tribunal and the Delhi High Court in favour of the petitioner for
different assessment years have been mentioned holding that all income
shown in her accounts in the form of gift or otherwise are genuine and
legal, covering from 1995 to 2004 of which period the assessments were
reopened, investigated and reassessed.
Case of the intervenor:
5) During the pendency of this writ petition, which was filed in 2008,
one Mr. Kamlesh Verma has filed I.A. No. 8 of 2010 claiming that he is a
social worker and petitioner in Writ Petition No. 2019 of 2009 (M/B)
concerning FIR being RC No. 18 dated 05.10.2003 for intervention in the
above matter and to assist the Court. By pointing out that it was he who
challenged the order of the Governor declining to grant sanction in respect
of FIR No. 18 and filed Writ Petition No. 2019 of 2009 which is pending in
the Allahabad High Court, Lucknow Bench, sought to intervene to put-forth
certain factual details. In the said application, the intervener has also
highlighted various earlier orders of this Court. The said I.A. was
resisted by the petitioner by pointing out that in the present writ
petition the petitioner seeks quashing of the second FIR i.e. R.C. No. 19
only on the ground that there was no such direction in the order dated
18.09.2003 passed by this Court. The intervention application is
therefore, misconceived. It is also pointed out that the intervener has
filed his writ petition in Lucknow in 2009 and his intervention application
was filed on 08.09.2010 whereas the petitioner had filed writ petition in
May, 2008 and this Court had issued notice on 15.05.2008. It is also
pointed out that the intervener was not associated with the Project matter
before this Court at any stage when orders were passed on several dates
commencing from 2003 ending with 2009.
6) In the light of the above pleadings of the parties, we heard Mr.
Harish Salve, learned senior counsel for the petitioner, Mr. Mohan
Parasaran, learned Additional Solicitor General for the Union of India and
CBI and Ms. Kamini Jaiswal, learned counsel for the intervener.
7) The relief(s) sought for in the writ petition are reproduced
hereunder:-
“I. Issue a Writ, Order or direction in the nature of certiorari
quashing the FIR No. R.C. 0062003A0019/2003 dated 05.10.2003 lodged by
Superintendent of Police, CBI/ACB, Lucknow and investigation
proceedings being made in pursuance thereof.
II. Issue a Writ, Order or direction in the nature of Mandamus
restraining the respondent no.2 and 3 from proceeding further in
pursuance to the said FIR and direct them to close and drop the said
proceedings;
III. Issue a writ, order or direction in the nature of mandamus
directing the release of all seized bank accounts of the petitioner
which have been seized by CBI in pursuance to the impugned FIR.
IV. Issue an appropriate writ, order or direction declaring that
this Hon’ble court under Article 32/136/142 of the Constitution of
India or the High Court under Article 226 of the Constitution of India
can not direct the Central Bureau of Investigation (CBI), an
establishment created under the Delhi Special Police Establishment
Act, 1946 to investigate a cognizable offence which is alleged to have
taken place in a State without the consent of the State Government
under Section 6 of the Delhi Special Police Establishment Act, 1946.
V. Issue any other Writ, order or direction which this Hon’ble
Court may deem fit and proper in the circumstances of the present
case.”
8) It is clear from the narration of facts as well as the relief(s)
sought for in the writ petition that the petitioner is aggrieved of second
FIR being No. R.C. 0062003A0019 dated 05.10.2003. It is also clear that
the petitioner has assailed the said FIR on the ground that there was no
direction by this Court in its order dated 18.09.2003 which could have
empowered the CBI to lodge two FIRs, namely, (i) FIR No. R.C. 0062003A0018
dated 05.10.2003 under Section 120-B read with Sections 420, 467, 468, and
471 IPC and Section 13(2) read with Section 13(1)(d) of the P.C. Act
against the petitioner as well as 10 other accused persons in respect of
Taj Corridor matter and (ii) FIR No. R.C. 0062003A0019 dated 05.10.2003
under Section 13(2) read with Section 13(1)(e) of the P.C. Act against the
petitioner only. It is the specific stand of the CBI that in the order
dated 18.09.2003 passed by this Court in I.A. No. 376 of 2003 in Writ
Petition No. 13381 of 1984 - M.C. Mehta vs. Union of India and Others,
(2003) 8 SCC 696, there was a clear direction to register an FIR for
investigating into disproportionate assets of the petitioner on the ground
that in the said order, it is mentioned that “apart from what has been
stated in the reports with regard to the assets, the learned ASG Mr. Altaf
Ahmed has submitted that further inquiry/investigation is necessary by the
CBI”. It is also their stand that the validity of the aforesaid FIRs was
not disturbed by the Allahabad High Court by its order dated 22.10.2003 on
the ground that the FIR in question was filed as per the directions of this
Court. It is further stated that the second FIR being No. R.C.
0062003A0019 dated 05.10.2003 revealed the details of huge amount of
disproportionate assets possessed by the petitioner and her family members
beyond their known sources of income.
9) As against the abovesaid stand of the CBI, the petitioner, in the
form of rejoinder and supplementary affidavits, has pointed out that all
income shown in her accounts in the form of gift or otherwise are genuine
and legal covering from 1995 to 2004. It is further pointed out that all
orders passed by the Income Tax Authorities have been brought on record and
all of them attained finality and no further appeal is pending against them
and all the assessments were reopened investigated and re-assessed.
10) The petitioner has also filed a consolidated compilation of orders
passed by this Court commencing from 16.07.2003 ending with 27.04.2009.
Mr. Harish Salve, learned senior counsel for the petitioner and Mr. Mohan
Parasaran, learned ASG took us through all those orders. Among those
orders, we are very much concerned about the order dated 18.09.2003. Before
going into the various directions issued in the said order, it is also
relevant to refer the earlier orders dated 16.07.2003, 21.08.2003 and
11.09.2003. It is clear from those orders that this Court by order dated
30.12.1996 in M.C. Mehta (Taj Trapezium Matter) vs. Union of India and
Others, (1997) 2 SCC 353 issued a number of directions to protect the
national and world heritage monument, namely, the Taj. Thereafter, a
number of interim applications were filed by the persons concerned who were
required to shift their business or manufacturing activities. This Court
has also appointed a Monitoring Committee to report whether those
directions issued by this Court are complied with or not.
11) In the order dated 16.07.2003 – M.C. Mehta vs. Union of India and
Others, (2003) 8 SCC 706, this Court, in order to find out who cleared the
project, i.e., construction of the ‘Heritage Corridor’ at Agra and for what
purpose it was cleared without obtaining necessary sanction from the
Department concerned and whether there was any illegality or irregularity
committed by the officers/persons, came to the conclusion that inquiry by
CBI is necessary. Accordingly, in para 16 of the said order, this Court
directed the Director of CBI to see that inquiry with regard to any
illegality/irregularity committed by the officers/persons be conducted at
the earliest and directed to submit a report to this Court. This Court
also directed the CBI to submit Preliminary report within four weeks and
final report within two months from 16.07.2003.
12) In the next order dated 21.08.2003, M.C Mehta vs. Union of India,
(2003) 8 SCC 711, this Court, after going through the Preliminary
Confidential Report submitted by the CBI, directed the higher officer of
CBI to interrogate four, five or six more persons who are involved in the
decision-making of granting contract for construction of the Taj Heritage
Corridor. In the same order, this Court observed that it would be open to
the CBI officer to interrogate and verify their assets because it was
alleged that Rs. 17 crores were released without proper sanction.
13) The next order is dated 18.09.2003 - M.C. Mehta vs. Union of India
and Others, 2003 (8) SCC 696. In this order, this Court referred to the
earlier directions and orders, more particularly, the direction to CBI to
interrogate the persons involved and verify their assets in view of the
fact that it was alleged that an amount of Rs. 17 crores was released
without proper sanction. After going through the report of the CBI
submitted on 11.09.2003, further time was given to the CBI for verification
of the assets of the persons/officers involved. In the course of hearing,
the CBI has pointed out that income tax returns of various persons
including the petitioner were collected from different income tax
authorities. In the course of the said proceedings, apart from various
reports with regard to the assets, the learned ASG - Mr. Altaf Ahmed
submitted that further inquiry/investigation is necessary by the CBI.
Based on his request, this Court issued the following directions:
“13. Considering the aforesaid report and the serious
irregularities/illegalities committed in carrying out the so-called
Taj Heritage Corridor Project, we direct:
(a) the Central Government to hold immediate departmental inquiry
against Shri K.C. Mishra, former Secretary, Environment, Union of
India;
(b) the State of Uttar Pradesh to hold departmental inquiry against
Shri R.K. Sharma, former Principal Environment Secretary, Shri P.L.
Punia, former Principal Secretary to Chief Minister, Shri D.S. Bagga,
Chief Secretary and Shri V.K. Gupta, former Secretary, Environment;
(c) NPCC or the competent authority including the Central Government
to hold inquiry against Shri S.C. Bali, Managing Director of NPCC;
(d) the State Government as well as the officers concerned of the
Central Government are directed to see that departmental inquiry is
completed within four months from today. The State of U.P. and the
Central Government would appoint respective inquiry officers for
holding inquiry, within a period of seven days from today;
(e) it would be open to the State Government if called for to pass
order for suspension of the delinquent officers in accordance with the
rules;
(f) for the officers and the persons involved in the matter, CBI is
directed to lodge an FIR and make further investigation in accordance
with law;
(g) CBI shall take appropriate steps for holding investigation against
the Chief Minister Ms Mayawati and Naseemuddin Siddiqui, former
Minister for Environment, U.P. and other officers involved;
(h) the Income Tax Department is also directed to cooperate in further
investigation which is required to be carried out by CBI;
(i) CBI would take into consideration all the relevant Acts i.e.
IPC/Prevention of Corruption Act and the Water (Prevention and Control
of Pollution) Act, 1974 etc.;
(j) CBI to submit a self-contained note to the Chief Secretary to the
Government of Uttar Pradesh as well as to the Cabinet Secretary, Union
Government and to the Ministry concerned dealing with NPCC.”
14) A perusal of the orders prior to the order dated 18.09.2003 and
several directions in the order dated 18.09.2003 clearly show that this
Court was concerned with illegality/irregularity committed by the
officers/persons in carrying out the Taj Heritage Corridor Project. The
main allegation relates to an amount of Rs. 17 crores which was released by
the State Government without proper sanction. It is also clear that in
order to find out who cleared the project and for what purpose it was
cleared without obtaining necessary sanction from the Department concerned
and whether there was any illegality/irregularity committed by the
officers/persons, this Court thought an inquiry by CBI was considered
necessary. In such a situation, the CBI was directed to interrogate and
verify their assets. As rightly pointed out by Mr. Harish Salve, there was
no occasion for this Court to consider the alleged disproportionate assets
of the petitioner separately that too from 1995 to 2003 when admittedly Rs.
17 crores were released in September, 2002.
15) A thorough scrutiny of all the orders including the specific
directions dated 18.09.2003 clearly show that the same was confined only in
respect to the case relating to Taj Corridor Project which was the subject-
matter of reference before the Special Bench. It is relevant to point out
para 13(f) of the order dated 18.09.2003 which makes it clear that the CBI
could have lodged only one FIR No. R.C. 0062003A0018 dated 05.10.2003. In
other words, inasmuch as there being no consideration of alleged
disproportionate assets at any stage of the proceedings while dealing with
the Taj Corridor matter, there could not have been and in fact there was no
such direction to lodge another FIR being No. R.C. 0062003A0019 dated
05.10.2003 exclusively against the petitioner under the P.C. Act.
16) In this regard, learned senior counsel for the petitioner pressed
into service a Constitution Bench decision rendered in the case of State of
West Bengal & Ors. vs. Committee for Protection of Democratic Rights, West
Bengal & Ors., (2010) 3 SCC 571. After considering various constitutional
provisions relating to the State and the Union as well as Section 6 of the
DSPE Act, the Bench has concluded thus:
“69. In the final analysis, our answer to the question referred is
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 alleged to have been committed within the territory
of a State without the consent of that State will neither impinge upon
the federal structure of the Constitution nor violate the doctrine of
separation of power and shall be valid in law. Being the protectors of
civil liberties of the citizens, this 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.
70. Before parting with the case, we deem it necessary to emphasise
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 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.
71. In Minor Irrigation & Rural Engg. Services, U.P. v. Sahngoo Ram
Arya this Court had said that an order directing an enquiry by CBI
should be passed only when the High Court, after considering the
material on record, comes to a conclusion that such material does
disclose a prima facie case calling for an investigation by CBI or any
other similar agency. We respectfully concur with these observations.”
17) 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 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.
18) Mr. Mohan Parasaran, learned ASG as well as Ms. Kamini Jaiswal,
learned counsel for the intervener after taking us through the order dated
18.09.2003 and other orders submitted that the CBI was well within its
power to pursue the second FIR No. R.C. 0062003A0019 dated 05.10.2003.
Among various directions, Mr. Mohan Parasaran, learned ASG very much
pressed into service the direction in para 13(g) of the order dated
18.09.2003. The said direction reads as under:-
“(g) CBI shall take appropriate steps for holding investigation
against the Chief Minister Ms Mayawati and Naseemuddin Siddiqui,
former Minister for Environment, U.P. and other officers involved;”
According to Mr. Mohan Parasaran, liberty was granted by this Court to
proceed against the petitioner. He also relied on para 9 of the order
dated 25.10.2004 – M.C. Mehta vs. Union of India and Others, (2007) 1 SCC
137, which reads as under:-
“Re: FIR RC 0062003A0019
9. The further investigation report filed by CBI in this connection
while indicating large-scale irregularities does not in fact show any
link between such irregularities and the Taj Corridor matter which is
the subject-matter of reference before the Special Bench. CBI
therefore is at liberty to proceed with and take action on the basis
of their investigation in respect of this FIR. In the event any link
is disclosed in the course of such investigation between facts as
found and the Taj Corridor Project, CBI will bring the same to the
notice of this Court. In any event, CBI will be entitled to take
action on the basis of the investigation as it may think fit.”
In addition to the above, he also pressed into service para 4 of the order
dated 19.07.2004 – M.C. Mehta vs. Union of India and Others, (2007) 1 SCC
136. The said order reads as under: -
“4. CBI is permitted further eight weeks’ time to complete the
investigation in respect of FIR No. RC 0062003A0018. As far as FIR
No. RC 0062003A0019 is concerned, three months’ time is granted.”
In view of the argument of Mr. Mohan Parasaran as well as Ms. Kamini
Jaiswal relying on the above directions, we have gone through all those
orders meticulously. According to us, the entire issue revolves around the
order dated 18.09.2003 passed by this Court as the FIR was filed
immediately thereafter on 05.10.2003. The said FIR as well as the counter
affidavit filed by the CBI states that the FIR has been filed as per the
directions contained in the order dated 18.09.2003. A perusal of the same
shows that the Assistant Registrar of this Court has been described as the
Complainant. On going through all the orders, we are of the view that the
said objection of the petitioner cannot be rejected. A perusal of the
series of orders passed in W.P. No. 13381 of 1984 - M.C. Mehta vs. Union of
India and Others clearly show that the order dated 18.09.2003 is preceded
by other orders issued from time to time only in connection with Taj
Heritage Corridor Project. While considering the directions issued in the
order dated 18.09.2003, it is incumbent to refer the orders dated
16.07.2003, 21.08.2003 and 11.09.2003. We have already noted that those
previous three orders passed by this Court state that the CBI was directed
to interrogate the persons involved and also to verify their assets because
it was alleged that the amount of Rs. 17 crores was released without proper
sanction. It is relevant to mention that in the order dated 25.10.2003
(which we have already quoted in the earlier paras) this Court mentioned
that it was not monitoring disproportionate assets case since no link could
be found between the Taj Corridor matter and the assets of the petitioner.
(para 9 of the order dated 25.10.2004) It is also relevant to refer the
next order dated 07.08.2006 wherein the same was once again reiterated. It
is true that in the order dated 25.10.2004, liberty was granted to the CBI
that in the event any link is disclosed in the course of such investigation
between the Taj Corridor Project and the assets, CBI is free to bring it to
the notice of this Court. The fact remains that the investigation report
filed by the CBI before this Court which was considered on 25.10.2004 shows
that large-scale irregularities does not show any link between such
irregularities and the Taj Corridor matter. The said finding/conclusion by
this Court was based on the investigation report of the CBI. In view of
the same, we are satisfied that CBI cannot be permitted to take the view
that two cases, namely, Taj Corridor and Disproportionate Assets case are
same and the investigation was done in both the cases as per the directions
of this Court. After reading the entire orders dated 18.09.2003 and
25.10.2004, the stand of the CBI is to be rejected as unacceptable.
19) It is also brought to our notice that merely because various orders
of this Court including the order dated 18.09.2003 has been communicated to
various authorities in terms of the provisions of the rules of this Court,
the CBI is not justified in putting the Assistant Registrar of this Court
as informant/complainant. Further as rightly pointed out by Mr. Salve, the
complainant/Assistant Registrar would not and cannot be a witness in the
case to corroborate the statements made in the FIR No. R.C. 0062003A0019
dated 05.10.2003. As rightly pointed out, proceeding further, as if the
said Assistant Registrar of this Court made a complaint cannot be
sustained.
20) We have already pointed out after reading various orders of this
Court which show that Taj Corridor was the subject matter of reference
before the Special Bench. Various directions issued in the order dated
18.09.2003 have to be read in the light of the previous orders dated
16.07.2003, 21.08.2003 and 11.09.2003 as well as subsequent orders dated
25.10.2004 and 07.08.2006 wherein this Court has clarified that it was not
monitoring the disproportionate assets case. We are satisfied that reading
of all the orders of this Court clearly show the direction to lodge FIR was
issued only with respect to Taj Corridor matter, more particularly,
irregularities therein. In fact, the direction was confined to find out as
to who cleared the project of Taj Corridor and for what purpose it was
cleared and whether there was any illegality or irregularity committed by
officers and other persons concerned in the State. We have already noted
all those orders which clearly state that the CBI is free to interrogate
and verify the assets of the officers/persons relating to release of Rs. 17
crores in connection with Taj Corridor matter.
21) 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.
We have already referred to the Constitution Bench decision of this Court
in Committee for Protection of Democratic Rights, West Bengal (supra)
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.
22) We finally conclude that anything beyond the Taj Corridor matter was
not the subject-matter of reference before the Taj Corridor Bench. Since
the order dated 18.09.2003 does not contain any specific direction
regarding lodging of FIR in the matter of disproportionate assets case
against the petitioner, CBI is not justified in proceeding with the FIR No.
R.C. 0062003A0019 dated 05.10.2003. In view of the above discussion, we
are satisfied that the CBI exceeded its jurisdiction in lodging FIR No.
R.C. 0062003A0019 dated 05.10.2003 in the absence of any direction from
this Court in the order dated 18.09.2003 or in any subsequent orders.
23) Regarding the intervention application - I.A. No. 8 of 2010 filed by
Shri Kamlesh Verma, though an objection was raised about his right to
intervene in the matter, it is not in dispute that against the rejection of
the sanction to proceed against the petitioner by the State, he had
preferred a Writ Petition (C) No. 2019 of 2009 in the Allahabad High Court
which is still pending. It is pointed out that intervener was not
associated with the Taj Corridor matter before this Court at any stage when
the orders dated 16.07.2003, 21.08.2003, 11.09.2003, 18.09.2003,
19.07.2004, 25.10.2004, 07.08.2006, 27.11.2006, 06.08.2007, 10.10.2007 and
27.04.2007 were passed. It is true that the intervener has no legal right
to intervene in the matter of this kind where CBI has been prosecuting the
case vigorously against the petitioner. Inasmuch as the intervener has
challenged the order of the Governor of U.P. declining to grant sanction to
prosecute the petitioner and the said matter is pending in the Lucknow
Bench of the Allahabad High Court, in order to assist the Court, we heard
his counsel Ms. Kamini Jaiswal. It is true that this Court has held that
when investigating agency like CBI and Union of India are contesting the
matter effectively, the third party was not permitted to canvass
correctness of the judgment by way of PIL (Union of India & Anr. vs. W.N.
Chadha, 1993 (Supp) 4 SCC 260) and Janata Dal vs. H.S. Chowdhary & Ors.,
(1991) 3 SCC 756. While accepting the above principles reiterated in those
decisions, in view of the peculiar facts that the intervener - Kamlesh
Verma is pursuing his writ petition against the petitioner in the High
Court, we heard his counsel to assist the Court. In view of the above
special circumstance, we allow I.A. No. 8 of 2010 and the same cannot be
cited as a precedent for other cases.
24) In the light of the above discussion, we hold that in the absence of
any specific direction from this Court in the order dated 18.09.2003 or any
subsequent orders, the CBI has exceeded its jurisdiction in lodging FIR No.
R.C. 0062003A0019 dated 05.10.2003. The impugned FIR is without
jurisdiction and any investigation pursuant thereto is illegal and liable
to be quashed, accordingly quashed. The writ petition is allowed.
………….…………………………J.
(P. SATHASIVAM)
………….…………………………J.
(DIPAK MISRA)
NEW DELHI;
JULY 6, 2012.
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