Is it possible for CBI to probe and prove?
It is almost impossible to prove ‘bribery’ at the top level of governance, especially to punish a minister or a police officer or even a Chief Minister, because the criminal justice system demands evidence of very high standard, i.e. beyond reasonable doubt
It is almost impossible to prove 'bribery' at the top level of governance, especially to punish a minister or a police officer or even a Chief Minister, because the criminal justice system demands evidence of very high standard, i.e. beyond reasonable doubt. The media gives a misleading headline whenever a charged public servant is acquitted in a corruption case that 'court gave a clean chit'. If some one could not be punished for want of evidence, it does not mean his innocence. Perhaps it is a testimonial for his capacity to prevent evidence reaching the court.
Justice is impossible in any country without evidence, and genuine evidence is impossible to be brought to the court of law in our country. Param Bir Singh, who was shunted out of the Mumbai Police Commissionerate and took charge as the Commandant General Home Guards, wrote an eight-page letter to CM Uddhav Thackeray on March 20, accusing Deshmukh of holding meetings with subordinate police officers, including suspended API Sachin Waze, and seeking a collection of Rs 100 crore from the 1750 bars and restaurants, in Mumbai. Home Minister Deshmukh has denied the allegations.
"It is said that none can see time, but many a time, time makes us see many things hitherto before unseen. So true. The proceedings of which we are seized lays bare incidents, allegations and approaches of a kind which, at least, the two of us have not experienced before. It is time that has made us realize that the realities of life would have to be examined to give shape to law, for, law would cease to serve its purpose if justice cannot be administered". These are the words of the division of Bench of Bombay High Court on 5th April 2021, while recognizing the need to investigate allegation of 100 crore bribe from 'police department'.
Threat to justice
An accredited police officer, an advocate and a self-proclaimed criminologist, an advocate, and a chartered accountant-cum-teacher along with a social worker filed PILs seeking probe into this allegation. Before the High Court, advocates raised some technical issues and legal hitches in dealing with such allegations. Answering this the HC said: "We are thus of the view that since the law courts exist for the society, technicalities ought not to stand in the way".
The Court quoted Martin Luther King, Jr., who said: "Injustice anywhere is a threat to justice everywhere", which has been accepted by the Supreme Court to be true in N. Kannadasan V/s. Ajay Khose, reported in (2009) 7 SCC 1, while proceeding to hold that the people's faith in the judiciary cannot be afforded to be eroded. Bench of Chief Justice Dipankar Dutta and Justice GS Kulkarni concluded:
1. Allegations by former PC Parambir Singh against the Maharashtra Home Minister Anil Deshmukh are of a "serious nature" that warrant a preliminary enquiry by the Central Bureau of Investigation.
Faith in police and credibility
2. Prima facie, the issues are such that the very faith of citizens in the functioning of the police department is at stake.
3. If there is any amount of truth in such allegations, certainly it has a direct effect on the citizens' confidence in the police machinery in the State. Such allegations, therefore, cannot remain unattended and are required to be looked into in the manner known to law when, prima facie, they indicate commission of a cognizable offence.
4. It is, hence, certainly an issue of credibility of the State machinery, which would stare at the face when confronted with the expectations of the law and when such complaints are received against high ranking public officials".
Court cannot be a spectator
5. This Court cannot be a "mere spectator in these circumstances". The bench rejected the objections raised by the Advocate General of Maharashtra AG Kumbhakoni against the maintainability of the PILs. These objections are frivolous.
6. Dr. Patil, had lodged a complaint before the police seeking action on the allegations made by Singh against the Home Minister. However, no legal action followed on Dr.Patil's complaint. The CrWP of Dr. Patil raises an important issue of lack of enforcement of law by the police.
Allegation unheard of
7. Since Dr. Patil has prayed for investigation into her complaint by the CBI, she could not have moved the Magistrate under Section 156(3), CrPC, the High Court noted. Only the High Court has the power to order CBI investigation. Dr. Patil had submitted her complaint to the Senior Police Inspector of the Malabar Hill Police Station on March 21, 2021; however, except for making an entry in the Inward Register, no action whatsoever, as the law would mandate, was initiated. The bench said that the serious nature of the allegations and the issue of public faith in police machinery in the State justified the demand for CBI investigation. "...it is indeed unheard of and unprecedented that a Minister could be so openly accused of wrongdoings and corrupt practices by none other than a senior police officer attracting wide attention from all and sundry.
8. There is certainly a legitimate public expectation of a free, fair, honest and impartial inquiry and investigation into such allegations which have surfaced in the public domain. The necessity to have a probe into such allegations by an independent agency, would also certainly be a requirement of the rule of law. To instil public confidence and safeguard the Fundamental Rights of the citizens, it is necessary that an inquiry and investigation is conducted by an independent agency and for such reasons, we consider it to be in the paramount public interest that an independent probe in the present circumstances would meet the ends of justice.
9. Here, Shri Deshmukh is the Home Minister. The police department is under his control and direction. There can be no fair, impartial, unbiased, and untainted probe, if the same were entrusted to the State Police Force. As of necessity, the probe has to be entrusted to an independent agency like the CBI.
10. Constitution envisages rule of law and not rule of goons. Rule of law, in terms of the Constitution, pervades over the entire field of administration and every organ of the State is regulated by it. In fact, what the Constitution envisages is a rule of law and not rule of goons having political support.
11. An ordered polity within India to promote the integrity of the country and to enliven liberty, equality and fraternity, which Dr. B.R. Ambedkar was heard to say in the Constituent Assembly are not to be treated as separate entities but as a trinity, are the fundamental principles engrained in the Constitution. This trinity can be bypassed or overlooked only if the fabric of which the Constitution is woven be torn to pieces. Regrettably, for indolent State mechanisms and politicians, this can never happen for the courts shall not countenance violation of Constitutional principles by anyone, howsoever high an office he occupies, and hence while acting as the sentinel on the qui vive and being always there as a watch guard of the Constitution to repel any attack on it, the courts would ensure that the democratic values enshrined in the Constitution are respected and the ideals upheld."
Finally, the Bench ordered the CBI director to conclude the inquiry within 15 days and take further action in accordance with law.
After such a clear order, the Minister Anil Deshmukh, because he holds Home Portfolio cannot continue in such position for facilitation of fair inquiry. Within hours of this order, he has rightly resigned. He wrote to CM: I find it ethically wrong to continue to hold office as the Minister (Home), so I am handing over my resignation. Therefore, I request to be relieved from the office".
The politics apart, the CBI must conduct an unbiased probe into these allegations. BJP not being in power in Maharashtra, or BJP being in power in Centre, or need for BJP being in power in Maharashtra, should not matter.
(The writer is Professor of Law, Bennett University and former Central Information Commissioner)