CBI should arrest Anil Deshmukh and also add section 409 of Indian Penal Code.
Indian Bar Association (IBA) is going to file Writ Petition seeking direction to CBI Director to take immediate steps to start custodial interrogation of accused Ministers.
Strict
action required against Anil Deshmukh & other Ministers involved in the
conspiracy of extortion, murder etc.
If C.B.I. officers fails to take prompt action then the Investigation Officer may face action under sec. 218,201 etc of IPC.[ para 3 ]
Mumbai:- As per Bombay High Court's judgment dated 5th April 2021, the CBI on 21st April 2021 registered an FIR against Ex-Home Minister Anil Deshmukh and others.
In other words it is a clear case of
misappropriation of public property for his ulterior motive.
The allegations and evidences prima facie are
sufficient to prosecute and punish Anil Deshmukh and others under section 409
etc of Indian Penal Code and also sec 13 in
Section 409 reads thus
;
“409.
Criminal breach of trust by public servant, or by banker, merchant or
agent.—Whoever, being in any manner
entrusted with property, or with any dominion over property in his capacity of
a public servant or in the way of his business as a banker, merchant, factor,
broker, attorney or agent, commits
criminal breach of trust in respect of that property, shall be punished with imprisonment
for life, or with imprisonment of either
description for a term which may extend
to ten years, and shall also be liable to fine.”
2.1. The offence
committed by the accused is a most serious and gravest one. The person who has
been given the post of the Public Trust to maintain law and order has breached
the said trust and faith reposed upon him
and he started extortion by using
state police machinery.
2.2. Hon’ble Supreme Court
had time and now ruled that the offences like present one are the cancer to the
society and needs to be dealt with iron hand as they are obstructing the
development of our country.
2.3. In P. Chidambaram’s case (2019) 9 SCC 24, it is ruled by Hon’ble Supreme Court that the accused Minister should not be granted bail and his custodial interrogation is must.
“84. In a case of money-laundering where it involves many stages of “placement”, “layering i.e. funds moved to other institutions to conceal origin” and “interrogation i.e. funds used to acquire various assets”, it requires systematic and analysed investigation which would be of great advantage. As held in Anil Sharma [State v. Anil Sharma, (1997) 7 SCC 187 : 1997 SCC (Cri) 1039] , success in such interrogation would elude if the accused knows that he is protected by a pre-arrest bail order. Section 438 CrPC is to be invoked only in exceptional cases where the case alleged is frivolous or groundless. In the case in hand, there are allegations of laundering the proceeds of the crime. The Enforcement Directorate claims to have certain specific inputs from various sources, including overseas banks. Letter rogatory is also said to have been issued and some response have been received by the Department. Having regard to the nature of allegations and the stage of the investigation, in our view, the investigating agency has to be given sufficient freedom in the process of investigation. Though we do not endorse the approach of the learned Single Judge in extracting the note produced by the Enforcement Directorate, we do not find any ground warranting interference with the impugned order [P. Chidambaram v. CBI, 2019 SCC OnLine Del 9703] . Considering the facts and circumstances of the case, in our view, grant of anticipatory bail to the appellant will hamper the investigation and this is not a fit case for exercise of discretion to grant anticipatory bail to the appellant.
Present matter of money-laundering offence (INX Media case) allegedly showing involvement of appellant i.e. an ex-Finance Minister of India and certain others in crime — Having regard to nature of allegations and stage of investigation, held, investigating agency must be given sufficient freedom in process of investigation – Appellant not entitled to anticipatory bail as the same would hamper the investigation.
2.4. In the case of P. Chidambaram Vs. Directorate of Enforcement 2019 SCC OnLine Del 9703, it is ruled as under;
“23. Supreme Court in Y.S Jagan Mohan Reddy (Supra) while dealing with a money laundering case, has reiterated as under:—
“34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.”
26. The pertinent observations of Supreme Court in CBI v. Anil Sharma (Supra) which aptly apply to the instant case, are as follows:—
“6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders.”
27. Supreme Court in Y.S. Jagan Mohan Reddy (Supra), while dealing with multiple investigations involving multiple conspirators has reiterated that the approach to be followed while dealing with bail plea in cases involving criminal conspiracy to commit economic offences of huge magnitude relating to public money ought to be strict as fraudulent transactions affect the economic system to the detriment of the country. It was pertinently observed that economic crimes of such mammoth scale are craftily planned and executed. Thus, grant of bail in cases like instant one will send a wrong message to the society.
28. In the instant case, in view of the enormous material placed on record in respect of distinguished entities, various transactions etc, this Court unhesitatingly opines that bail plea of petitioner is not acceptable. Recently, Supreme Court in Rohit Tandon v. Directorate of Enforcement (2018) 11 SCC 46 while dealing with the bail plea in a money laundering case, has again reiterated that white collar crimes/economic offenders have deep rooted conspiracies involving huge amount of public funds and this should be viewed seriously and such offences ought to be considered as grave offences. Pertinently, the bail plea in the case of Rohit Tandon (Supra) was repelled by the Supreme Court while observing that duty of the Court at the bail stage is not to weigh the evidence meticulously but to arrive at a finding on the broad probabilities of the case.
29. This is a classic case of money laundering. The twin factors which have weighed to deny pre-arrest bail to petitioner are : (i) Gravity of offence and (ii) evasive replies given by petitioner to the questions put to him while he was under protective cover extended to him by this Court. The parameters governing pre-arrest bail and regular bail are altogether different. I have pondered over this matter for long and after weighing the pros and cons, I am of the considered view that the gravity of the offence committed in the instant case amply justifies denial of pre-arrest bail to petitioner. Grant of pre-arrest bail in a serious matter like instant one to an accused simply on the ground that investigation is complete and charge sheet has been filed, would defeat the ends of justice. In bail matters, gravity of the offence is of utmost consideration which weighs with the Court in granting or refusing pre-arrest bail or regular bail. The facts of this case persuades me to decline pre-arrest bail to petitioner while refraining to comment on the merits of the case.
30. Upon considering the case set up against petitioner in its entirety, this Court is of prima facie opinion that it is not a fit case for grant of pre-arrest bail to petitioner. Consequentially, both these applications are accordingly disposed of, while observing that anything stated herein shall not be taken as an expression on merits at trial.”
3.1. That, when
Hon’ble Suprme Court laid down the ratio,law and given guidelines that in such
cases custodial interrogation of accused is must then the Investigation Officer
or anyone including Judges cannot exercise his discretion and take a different
stand.[Medical Council 2016, Sundarjas
Bhatija AIR 1990 SC 261]
In Kodali
Puranchandra Rao and another V. The
Public Prosecutor, AIR 1975 SUPREME COURT 1925, it is
ruled that the discretion given to the police officer is to be exercised
prudently and honestly.
3.2. If the investigation is not done as per the law ratio laid
down by the Hon’ble Supreme Court in the judgments mentioned in this
representation then it amounts to an offence under sec 218,201 etc of IPC.
In Kodali
Puranchandra Rao (supra), it is ruled as under;
“PROSECUTION OF
INVESTIGATION OFFICER - Under sections 218,468,201 of Penal Code for
framing the record of investigation in a manner which he knew to be incorrect
with intent to save or knowing to be likely that he will thereby save the true
offender or offenders from legal punishment
Held,
47. There can be no doubt that on the basis
of the facts found,the charges under Sections 218,468,Penal Code had been fully
established against the appellant A-2 being a public servant charged with the
preparation of official record relating to the investigation of the cause of
the death of Kalarani, framed that record in a manner which he knew to be
incorrect with intent to save or knowing to be likely that he will thereby save
the true offender or offenders from legal punishment. Obviously, he prepared
this false and forged record with the fraudulent and dishonest intention of
misleading his superior officers and inducing them to do or omit to do anything
which they would not do or omit if they were not so deceived or induced. A-1,
as discussed already, facilitated and intentionally aided A-2 in the
preparation of the false and forded record.
48. For the foregoing reasons we uphold the
convictions and sentences of the appellants on all the counts, as recorded by
the High Court and dismiss the appeal.”
The FIR registered by the CBI reads thus;
“First Information contents (Attach separate sheet, if required)
A complaint dated 21.04.2021 of Sh. R.S. Gunjiyal, DSP AC V, CBI, New Delhi address to the HOB, AC V, CBI, New Delhi has been received. The contents of the complaint are reproduced below:
To,
The Head of the Branch,
AC-V, CBI, New Delhi.
Sub: Complaint against Sh. Anil Deshmukh, the then Home Minister, Govt. of Maharashtra and unknown others on the basis of the findings of the PE.
Sir,
The Hon'ble High Court of judicature at Bombay vide order dated 5th April 2021 in PIL number 06/2021 and batch of connected PILS in the matter of Shri Param Bir Singh versus State of Maharashtra and others (Annexure-A, 52 page) directed CBI to initiate a Preliminary Enquiry into the complaint of Dr. Jaishri Laxmanra Patil (Annexure —B, Il pages)
Pursuant to the said order Preliminary Enquiry vide PE2232021A0001, dated 06.04.2021 was registered in CBI against Sh Anil Deshmukh, he then Home Minister, Government of Maharashtra and unknown others and was assign to the undersigned for conducting enquiry,
The Preliminary Enquiry prima facie revealed that a cognizable offence is made out in the matter, wherein the then Home minister of Maharashtra, Shri Anil Deshmukh and unknown others have attempted to obtain undue advantage for improper and dishonest performance of their public duty.
Enquiry has also revealed that Shri Sachin Vaze, Assistant Police Inspector, Mumbai Police had been reinstated into the police force after being out of the police service for more than 15 years. The enquiry further revealed that Shri Sachin Vaze was entrusted with most of the sensational and important cases of Mumbai City Police and that the then Home Minister was in knowledge of the said fact.
Further, the petition of Shri Param Bir Singh (Annexure-104 pages) also finds mention of the fact that the then Home Minister of Maharashtra and others exercised undue influence over the transfer & posting of officials and thereby exercising undue influence over the performance of official duties by the officials.
Therefore, it is requested that a regular case may be registered under section 7 of the Prevention of Corruption Act, 1988, as amended by the Prevention of Corruption (Amendment) Act, 2018 and section 120 B of IPC against Shri Anil Deshmukh, the then Home Minister of Maharashtra and unknown others.
Submitted for necessary action please.
(RS Gunjiyal)
DS, AC-v, cm, New Delhi
The complaint is annexed herewith as Annexure- D (2 sheets)
The facts as mentioned above prima facie discloses the commission of cognizable offences punishable u/s 7 of the Prevention of Corruption Act, 1988, as amended by the Prevention of Corruption (Amendment) Act, 2018 and section 120 B of IPC against Shri Anil Deshmukh, the then Home Minister of Maharashtra and unknown others, hence, a Regular Case is registered and investigation of this case is entrusted to Sh. Mukesh Kumar, DSP, AC Il, CBI, New Delhi.
Supdt of Police,
CBI: AC – V. New Delhi. ”
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