The Bombay high court on Wednesday asked former Mumbai police commissioner Param Bir Singh why he did not lodge a police complaint against Maharashtra Home Minister Anil Deshmukh if he was aware of alleged wrongdoing being committed by the leader.
A division bench of Chief Justice Dipankar Datta and Justice G S Kulkarni also said that without an FIR the high court cannot intervene and direct for an independent agency like Central Bureau of Investigation to carry out an investigation.
Singh, who was shifted from the post of Mumbai police commissioner on March 17, had initially approached the Supreme Court, alleging that he was transferred after he complained to Maharashtra Chief Minister Uddhav Thackeray and other senior leaders about the "corrupt malpractices" of Deshmukh.
The top court had, however, asked him to approach the high court.
After his transfer, Singh had claimed that Deshmukh asked police officer Sachin Waze and others to collect Rs 100 crore per month from bars and restaurants. But the minister has denied any wrongdoing.
"You (Singh) are a senior police officer. You are not a layman. You were duty-bound to register a complaint against any wrongdoing. Despite knowing that an offence is being committed by your boss, you (Singh) remained silent," Chief Justice Datta said.
The bench was hearing a public interest litigation filed by Singh, seeking a CBI probe against Deshmukh. He filed the criminal PIL in the high court on March 25.
On Wednesday, after hearing the arguments at length, the court reserved its order on the preliminary objections raised by the state government and the reliefs sought by Singh.
The court also reserved its order on three other petitions filed by two lawyers and a professor seeking an independent probe in the case.
The court, while hearing the arguments noted that when Singh had himself not heard Deshmukh make those statements asking police to extort money, then the allegations would amount to hearsay.
The bench sought to know if any civilian had lodged a complaint with the police in this matter. The court was then informed by Advocate General Ashutosh Kumbhakoni that advocate Jayshri Patil had lodged a complaint with the Malabar Hill police station in south Mumbai on March 21, but no FIR has been registered yet.
Patil, who has also filed a petition in the HC, told the bench that she had in her complaint to the police sought for FIR to be registered into the charges levelled by Singh.
The court then asked Kumbhakoni if any inquiry has been carried out by the police, and also asked him to produce the station diary of the police station.
The court also asked why the police was hesitant to lodge FIR and then carry out its probe.
"Why are you ashamed? What is wrong if FIR is filed? What heavens will fall on the accused? This will only set the criminal law in motion," Chief Justice Datta said, adding that since FIRs are not lodged, people are forced to approach courts.
Kumbhakoni later told the court that the station diary could not be produced before the court immediately, but there is no entry in the diary of the complaint filed by Patil.
The bench said that Singh had the option of either lodging a complaint with the police or file an application before a magistrate.
Singh's counsel Vikram Nankani told the court that Singh wanted to avoid this "chakravyuh" (labyrinth).
The court, however, noted that this was the procedure laid down in law. "Are you saying that you are above the law? Is the law only for common man and not you?" Chief Justice Datta asked.
The court said that if Singh does not trust the state police to carry out a fair probe, then he has the option of approaching the magistrate's court.
"You (Singh) are saying that since the state home minister is involved so the state police would not carry out fair probe. What if in future, god forbid, the allegation is against the prime minister or the Union home minister, who will probe then?" Chief Justice Datta asked.
"Do you want some superpower from outside? Who does the CBI work under?" the court asked.
Nankani argued that Singh did not have any other option than to approach the HC as the complaint and the allegations are against the "very head of the state administration".
The court further asked Nankani if any statements, as alleged by Singh in the petition against Deshmukh that he had asked police officers to extort money, was made by the home minister in Singh's presence.
"Otherwise this is nothing but hearsay," it said.
The bench said that without an FIR it cannot pass an order directing an independent agency to investigate. It said that only in rare and unusual cases, the courts interfere and order probe.
The court further asked if a PIL is maintainable when the issue pertains to a service matter.
"You (Singh) have an axe to grind with the minister (Deshmukh). It is not a case that you do not have any ties with the minister," the court said.
To this, Nankani said the PIL has got nothing to do with Singh's transfer order.
Kumbhakoni, appearing for the Maharashtra government, sought dismissal of the petition with exemplary cost and said the plea was filed with personal vendetta.
"The PIL is not filed in public interest, but is riddled with personal grievances and interests. The petitioner has come to this court with dirty hands and dirty mind," Kumbhakoni said.
"This is a classic and textbook case of personal enmity and grudge," he argued.
Singh, in his petition, claimed that Deshmukh had asked police officers, including Waze, who has been arrested by the NIA in the case of bomb scare near industrialist Mukesh Ambani's house, to collect Rs 100 crore per month from bars and restaurants.
The PIL also raised the issue of alleged corruption in police transfers and postings in the state.
Kumbhakoni further told the HC that the state government was eager and anxious to clear the cloud of suspicion and allegations against Deshmukh.
Nankani argued that the entire police force was demoralised and working under pressure due to interference from the political masters.
He added that Singh was constrained to approach the HC as no action was taken by the government.
"On Tuesday, the government has announced that a committee has been set up to look into the allegations. Our contention is that this is not adequate," Nankani said.
Kumbhakoni told the court that the committee has not been set up under the provisions of the Commission of Inquiry Act and hence does not have any statutory provisions.
Singh has filed the PIL in the HC, reiterating his charges against Deshmukh and seeking an "immediate, unbiased, impartial" probe by the CBI against Deshmukh, an NCP leader.
Kumbhakoni argued that Singh in his complaint letter to the chief minister has said that his relation with Deshmukh was strained.
Additional Solicitor General Anil Singh, appearing for the CBI, told the court that the agency would abide by whatever order the court passes.
In his PIL, Param Bir Singh also accused Deshmukh of routinely interfering in police investigations and putting pressure on him to implicate BJP leaders in the case of suicide of Dadra and Nagar Haveli MP Mohan Delkar.
Singh also sought a direction from the HC to the CBI to secure CCTV footage of Deshmukh's residence from earlier this year before it was "destroyed", and a direction to the state government to produce all records of communication received from IPS officer Rashmi Shukla in March 2020.