CBI Headed By Interim Director, Legality Of Which Is Sub-Judice : Anil Deshmukh In Plea Before Supreme Court

Former Maharashtra Home Minister Anil Deshmukh has raised the issue of legality of the appointment of interim director for the CBI in his petition filed in the Supreme Court challenging the Bombay High Court order for preliminary enquiry by the national probe agency into the extortion allegation raised by former Mumbai Police Commissioner Param Bir Singh.

"Presently, the CBI today is being headed by an interim Director, the legality of which is also sub-judice before this Hon'ble Court. This also is a factor that should have been taken into account, before the Court passed the Order that it did", the Special Leave Petition filed by Deshmukh in the top court states.

He is referring to the petition filed by NGO Common Cause in the Supreme Court challenging the appointment of Mr. Praveen Sinha as an interim / acting CBI Director, after expiry of the term of the last incumbent viz. Mr. Rishi Kumar Shukla on February 2 this year.

While considering the Common Cause petition yesterday, a bench headed by Justice L Nageswara Rao had orally observed that the interim appointments of CBI Director cannot go on. The Attorney General had told the bench that the meeting of the Committee for the selection of CBI Director is scheduled on May 2.

Other grounds in Deshmukh's petition

Deshmukh raises the following arguments to challenge the judgment passed by a division bench of Chief Justice Dipankar Dutta and Justice GS Kulkarni on April 5 :

1. The order was passed without hearing Deshmukh. The ex-parte procedure adopted by the Court caused prejudice.
   
2. The Court did not take into account the fact that Maharashtra Government has revoked the general consent given to CBI.
3. The Court did not give an opportunity for the State Police Machinery to respond to the allegations.
4. The Court did not take into account the fact that Param Bir Singh made the allegations immediately after he was removed from the post of Mumbai Police Commissioner.
5. CBI enquiry is ordered under Article 226 in exceptional circumstances after the failure of state police is demonstrated. However, no opportunity was given to the State Police to deal with the matter. As per Supreme Court precedents, CBI investigation is ordered after the State Police investigates the matter at the first instance.
   
6. The Court did not consider the non-exhaustion of alternate remedy of approaching the Magistrate under Section 156(3) of CrPC.

The plea states :

"In the annals of judicial history, there has hardly been an occasion when the court has taken the statements made against a sitting minister at face value and proceeded to direct an outside agency, without calling for a response from the minister, to conduct a preliminary inquiry. These allegations wele made after the erstwhile commissioner of police was transferred, and evidence sought to be created with intent. These aspects require to be looked into before the Court took the extreme step of directing a preliminary enquiry by the CBI".

Deshmukh takes objection to the fact that the High Court did not opt to follow the well settled procedure of ordering a court-monitored investigation by a Special Investigation Team constituted by it, instead of handing over the investigation to an agency "controlled by the Central Government".

It is also highlighted in the petition that Parambir Singh's allegations are not substantiated and are motivated. Had the Court given an opportunity to him to respond, he could have demonstrated the falsity of the allegations, Deshmukh says in the plea.

"The erstwhile Commissioner of police has referred to alleged conversations by others, which is pure hearsay, not produced any substantive evidence before Court, that can, in law, be relied upon, and without giving notice to the Petitioner, has handed over investigation to an agency which the State Government has least confidence in. If this principle were to be followed, and courts under Article 226 of the Constitution were to accept bald and motivated statements of this nature, made much after the alleged incidents, without any actionable evidence before Court, then the Petitioner believes that such processes may well be followed to destabilize governments", the plea states.

The Maha Vikas Agadi government of Maharashtra has also filed a separate petition challenging the Bombay High Court order.