26 March 2021 2:39 AM GMT
The Supreme Court on Thursday granted ad interim protection from arrest to the prime accused in the West Bengal coal scam probe, Anup Majee, conditional on him joining in the investigation before the CBI and cooperating in the same. The bench of Justices DY Chandrachud, MR Shah and Sanjiv Khanna further clarified that this order is passed without expression of any opinion on the merits of...
The Supreme Court on Thursday granted ad interim protection from arrest to the prime accused in the West Bengal coal scam probe, Anup Majee, conditional on him joining in the investigation before the CBI and cooperating in the same.
The bench of Justices DY Chandrachud, MR Shah and Sanjiv Khanna further clarified that this order is passed without expression of any opinion on the merits of the rival contentions, only as a pro-tem measure in view of the forthcoming Holi recess. "The order will not be a restraint on the investigation in the meantime", added the bench.
"This is a matter where an FIR has been lodged by the CBI and the investigation has been commenced within the territory of the state of West Bengal. This is not a 482 situation, I am not arguing whether I am guilty or not, this is not about whether it is a civil case or a criminal case. I am only on the point of jurisdiction, which arises because of the federal character of the Constitution", began Senior Advocate Mukul Rohatgi for Majee.
"Police is a state subject. CBI is the central police authority. It cannot march its army into the state to investigate an offence without the consent of the state. The only exception is where the High Court or the Supreme Court directs the CBI to proceed with the investigation. This has been established in the State of West Bengal case (State of West Bengal v The Committee for Protection of Democratic Rights, West Bengal; 2010) by Justice DK Jain", continued Mr. Rohatgi.
"The state of West Bengal withdrew its consent so far as the CBI is concerned on 16.11.2018. Still, the FIR came to be lodged on 27.11.2020. We are here in appeal against the decision of the single judge. The single judge gave a strange finding that the CBI can investigate in the railway area within the state. The High Court cannot carve out an island within the territory of the state!", he pressed.
"This is completely mixed up! I am not a fly-by-night operator! I am a purchaser of coal for my own purposes. I have been roped in on account of what is happening in West Bengal, which I don't want to get into! I don't want to run away. I am a businessman. But, every time the CBI registers an FIR, it leads to the involvement of the ED. I am looking for an order of 'no coercive steps'. I assure that I will join the investigation", he pleaded.
"What do you mean 'no coercive steps'?", asked Justice Shah.
"Are you looking for a stay of arrest on your statement to cooperate in the investigation?", asked Justice Chandrachud.
"I will join the investigation. I will report every day. I will comply with whatever conditions Your Lordships deem fit to impose", said Mr Rohatgi
At this point, SG Tushar Mehta, for the CBI, sought to intervene-
"Let me please complete the chain, in a lighter vein. Mr Rohatgi says that registration of the FIR by the CBI leads to ED. I feel that that leads to Mr Rohatgi which, in turn, leads to 'no coercive steps'...There are certain subsequent facts – the CBI found that this is not just one instance of the offence. I am saying this after perusing the records of the case. It is a systematic racket where coal of the ECL is stolen. The coal is loaded in the railways. It is a multi-state offence. The ECL had itself carried out an in-house enquiry. Their officers in collusion with the petitioner, as well as the railway officials, were found to be involved in the illegal extraction of huge amounts of coal clandestinely. We registered the case. The investigation is ongoing. A prima facie case has been made out. The role attributed to the petitioner is very serious!"
"The LPA was rightly filed by the CBI and by the accused. Although now they are changing their stance. There is no estoppel to it, but it is a question of law which Your Lordships may decide. Your Lordships are examining the interim order of the High Court division bench, which allowed that for protecting his personal liberty, the petitioner may move 438 jurisdiction for anticipatory bail! If Your Lordships are disturbing the finding that the CBI has jurisdiction, only then it is a question of this court granting any interim relief", continued the SG.
"But he is stating that he will cooperate in the investigation. There is no question of not cooperating. Should you want to arrest him, give him time to move anticipatory bail...", ventured Justice Chandrachud.
"There are many people in the fray. They will all come in petitions before this court. He is the main kingpin and the maximum role has been imputed to him. Everybody who comes after him will be implicated in an offence of lesser gravity. All the accused will file similar petitions for similar order then. In 438, We can show the serious material that we have gathered that we cannot show before this Court! He may move the 438 court tomorrow, there is no difficulty! 438 court will have jurisdiction and we will show the host of materials we have gathered!", argued the SG.
"But we are not staying the investigation even qua the petitioner. It will be a conditional order. You just have to give two days' notice, before effecting the arrest, to approach the 438 court", clarified Justice Shah.
"If we make it an order of the court, it still could not affect anticipatory bail. Just because the Supreme Court is granting interim relief, it does not become a charter for anticipatory bail", added Justice Chandrachud.
"This man has successfully evaded arrest so far. We don't know if he is even in India. Does he even need this protection?", argued the SG.
"The question is of the jurisdiction of the CBI. The Division bench has taken a prima facie view, it is not even a final view. We thought that this would be an equitable and fair order in these circumstances", observed Justice Khanna.
"Since the issue jurisdiction is involved, we have to balance both the sides ", added Justice Chandrachud.
"Vineet Narain (1997) empowers the CVC to direct investigation by the CBI. The Commission noted 'the unfolding of a large-scale multi-state scam of coal theft, a national asset'. Noting that it may involve government officials and threatens to hamper the energy security of the nation, besides other industries, the CVC by its order of February 22, directed investigation by the CBI. We are now one month down and these proceedings have become infructuous as nobody challenged that CVC order! The cloud over the jurisdiction goes away", pressed the SG.
He pointed out that by virtue of section 8 of the CVC Act, the Commission is authorised to exercise superintendence over the functioning of the Delhi Special Police Establishment in so far as it relates to the investigation of offences alleged to have been committed under the Prevention of Corruption Act, 1988 or an offence with which a public servant (including employees of a government corporation, the officials of ECL in the instant case) may be charged at the same trial; and to inquire or cause an inquiry or investigation to be made into any complaint against any official belonging to such category of officials wherein it is alleged that he has committed an offence under the Prevention of Corruption Act, 1988 and an offence with which a public servant may, under the CrPC, be charged at the same trial.
He indicated the April 2020 judgement in Kanval Tanuj v. State of Bihar in which the Supreme Court has observed that the CBI can investigate into specified offence committed within the Union Territory, by an accused residing in or employed in connection with the affairs of another State, without the consent of that state, even if part of the offence was committed in that state.
"Let him approach the 438 court tomorrow. There is no difficulty with the competent court", he pressed. He indicated the 2008 case of Padam Narain Agarwal, where it was held by the Supreme Court that a condition of 10 days' notice prior to the arrest is not warranted by law.
Mr Rohatgi sought to quash these arguments-
"Every argument made by the SG is misconceived. He is turning Article 21 on its head in saying that this court should not grant protection if even if I have made out a case. The CVC Act cannot give jurisdiction if the CBI has no jurisdiction. The CVC order need not be under challenge. The CVC was enacted to oversee the working of the CBI. Jurisdiction is a matter of law, the CVC cannot clothe the CBI with jurisdiction", he advanced.
"We will consider these things but not today. The consequences of the subsequent CVC order on investigation will be considered at the appropriate state", assured Justice Shah.
"If by virtue of the Constitution, the CBI cannot walk into a state, section 8 of the CVC Act cannot grant it the power. Is it a case of a hardened criminal? Have I committed a heinous offence? Day in and day out, Your Lordships grant 'no coercive steps' in a normal case of 482! Can I argue the point of jurisdiction in 438? It is the duty of the apex court to protect the liberty of the individual!", continued Mr Rohatgi.
"Your Lordships may not take the trouble of passing the order. This matter needs interrogation. Let him go to the competent court under 438 in 3 to 4 days. I assure that he will not be arrested. In the 438 court, we will show the justification for the arrest", said the SG.
"The investigation has to proceed, you have to ask him questions and interrogate him, only then will you come to the conclusion", noted Justice Khanna.
"And for custodial interrogation and remand, you may move the application! That right is available to you!", explained Justice Shah.
"We will ensure that he joins the investigation. Should you want to arrest him, then give two working days' notice to enable him to apply for 438. If you arrest him on Friday, he will not have two working days. He should not be in a situation where he has to move the duty magistrate on Sunday", added Justice Chandrachud.
"No, no…I only don't want a queue of petitions", assured the SG.
"If I have a case on jurisdiction, why can I not be protected by the Supreme Court? Why must I be driven to another remedy, to start from the district court to the High Court? Which court will grant me protection if this court does not? Especially when the other side is stating clearly that I am to be arrested! The CBI has no right to collect or show any evidence! This is absolute absurdity! Let me show the DSPE Act and the Constitution! Even the police of one state cannot go to another, forget that of the Union! Sections 5 and 6 of the DSPE Act make it clear that you cannot walk into a state! There are been a flurry of cases where the states are withdrawing their consent to the CBI for political reasons- Maharashtra has withdrawn and then West Bengal has withdrawn. Whatever they have collected is illegal and ultra wires the Constitution. '2 working days notice' is like saying the Supreme Court thinks I don't have a case for protection. Will the district judge grant me bail after this order of the Supreme Court?", argued Mr. Rohatgi.
The SG indicated the apex court decision in Dorji (1994) where it was observed that the withdrawal of consent operates only prospectively and the said withdrawal would not apply to cases which were pending investigation.
"It is not just you, a private individual. What if public servants and railway officials are also involved?...You are not being arrested today. We are only asking you to join the investigation. Should they wish to arrest after that, they will give you time", Justice Chandrachud explained Mr. Rohatgi.
"In one line, Mr Rohatgi's submission is 'protect me on technical grounds'", commented the SG.
"The federal structure is not a technicality! This is not a course to be adopted in the facts of the case. It is unfair to the citizen that his liberty may be taken away even though he has made out a case in the Supreme Court only because the government is opposing it ", submitted Mr Rohatgi.
"The issue of jurisdiction has been raised. It is gravely doubtful if the CVC Act can override the restrictions in the DSPE Act. That would go against the federal structure...Firstly, you have undertaken to join the investigation. Secondly, in the course of investigation, should they wish to effect arrest, we will record the SG's submission for notice of at least 72 hours. Thirdly, you have liberty to take recourse to other available remedies in law. We will not even say 438. And we will place the matter immediately after the Holi holidays", suggested Justice Chandrachud.
"Experience shows that notice will be issued to me when I appear. 72 hours will expire on Holi. All the courts will be closed them. I cannot even file 482 or 226 because it is that which has landed me here! My only remedy will be 438 or to get arrested and then seek regular bail under 439. And no court will give me bail or anticipatory bail! After 72 hours, I will get arrested and not get bail! The writing on the wall is clear! If that is Your Lordships' pleasure, then I can say nothing more", replied Mr. Rohatgi.
"You may come before this court also", assured Justice Shah.
"I reserve my right to oppose. Some court must see the material. He is on technicalities", interjected the SG
"Even this court will be closed for 10 days. Why must Your Lordships be bothered with a simple bail hearing during the break, that too in a pending matter? If I have a case, I must be given protection now! What will happen between today and April 5?", concluded Mr. Rohatgi.
In passing the order, the bench noted that since the Supreme Court will be in recess commencing from March 28 till April 4, it would not be possible for the court to conclude the hearings in these proceedings instituted. Purely because the court cannot conclude the arguments today, let the matter be lifted on April 6. Conditional on the petitioner joining in the investigation before the CBI in cooperating in the same, we direct that the petitioner shall not be arrested until April 6", directed the bench.