लखनऊ : इलाहाबाद हाईकोर्ट के लखनऊ बेंच में चीफ जस्टिस डॉ डी वाई चंद्रचूड और जस्टिस एस एन शुक्ला की बेंच द्वारा एक्टिविस्ट डॉ नूतन ठाकुर की यादव सिंह के खिलाफ दायर पीआईएल के पारित आदेश से स्पष्ट होता है कि यादव सिंह के घर पर 27 और 28 नवम्बर 2014 का आयकर छापा मेकॉन-यादव सिंह ग्रुप पर हो रहे ओपरेशन का हिस्सा था.
आदेश में छापे में 25 प्राइवेट लिमिटेड कंपनी के बैलेंस शीट में लीजहोल्ड प्लाट की भारी संख्या की बात भी सामने आई तथा यादव सिंह, उनके परिवार और निकटवर्ती लोगों के नाम पर किये गए कई सारे आवासीय और कमर्शियल प्लाट के अभिलेख कोर्ट के सामने रखे गए.
हाई कोर्ट ने कहा कि 24 फ़रवरी 2015 को भारत सरकार के वित्त मंत्रालय द्वारा यूपी के मुख्य सचिव को भेजे पत्र में स्पष्ट रूप से कहा गया था कि सुप्रीम कोर्ट द्वारा काले धन के लिए बनाए एसआईटी के आदेशों के क्रम में इस मामले की जांच सीबीआई द्वारा की जायेगी. कोर्ट ने डॉ ठाकुर द्वारा यादव सिंह को मायावती, मुलायम सिंह यादव और अखिलेश यादव द्वारा कथित रूप से गलत फायदा पहुँचाने के आरोपों का भी उल्लेख किया.
कोर्ट ने राज्य सरकार के महाधिवक्ता तथा नॉएडा प्राधिकरण के अधिवक्ता द्वारा याचिका का भरपूर विरोध करने की बात भी बतायी और कहा कि जब एसआईटी ने सीबीआई जाँच की बात कह दी थी तो संविधान के अनुच्छेद 142 तथा 144 के अनुसार उसका पालन अनिवार्य था.
कोर्ट ने कहा कि यादव सिंह के खिलाफ मात्र व्यक्तिगत भ्रष्टाचार या धन संचय का आरोप नहीं है बल्कि आरोप यह है कि उन्होंने पूरी व्यवस्था को अपना दास बना कर लगातार सभी सरकारों में गलत लाभ पाए और बड़े-बड़े बिज़नस घरानों को लाभ पहुँचाया. साथ ही उत्तर प्रदेश के पिछले और वर्तमान सरकार में राजनैतिक शह पर खुद को बचाते हुए अपने गलत उद्देश्यों को पूरा किया..
कोर्ट ने यूपी सरकार द्वारा स्थापित जांच समिति को अपर्याप्त पाया और 24 फ़रवरी 2015 के केंद्र सरकार के आदेश के क्रम में यादव सिंह और उनसे जुड़े सभी प्रकरणों में सीबीआई जांच के आदेश पारित कर दिए.
समाचार सविस्तार संलग्न तथ्यों सहित अंग्रेजी में पढ़ें –
Yadav Singh PIL Order: IT raid was for Maconn Yadav Singh Group
The Allahabad High Court, Lucknow bench order passed by the bench consisting of Chief Justice Dr D Y Chandrachud and Justice S N Shukla in the PIL filed by activist Dr Nutan Thakur for CBI enquiry in Yadav Singh case reveals that the income tax raids on Yadav Singh’s residences on 27 and 28 November 2014 was part of operation of the ‘Maccon Infra/Yadav Singh group’
It said that during raids huge assets in the form of leasehold land appeared in the balance sheet of as many as 25 private limited companies and that a very large number of properties in Noida, including residential and commercial plots, were allotted to persons and companies related Yadav Singh.
The High Court said that the letter by the Union Government in the Ministry of Finance (Department of Revenue) dated 24 February 2015 to the Chief Secretary of the State Government for CBI enquiry was mandatory for State government because it was written as per directions of the SIT for Black money constituted by the Supreme Court.
The Court order also mentioned about Dr Thakur alleging favouritism to Yadav Singh by Mayawati, Mulayam Singh Yadav and Akhilesh Yadav.
The order mentioned that the petition was hugely resisted by the Advocate General appearing on behalf of the State and counsel appearing on behalf of NOIDA
The Court said that once instructions have been issued by the SIT for CBI enquiry, the State Government had no option but to comply with the direction under Article 142 and 144 of the Constitution
The Court said that the allegations against Yadav Singh are not just allegations of personal corruption or of personal aggrandizement. The essence of the allegation is that Yadav Singh has been able to use his personal proximity in the corridors of power with successive governments in State by indulging in corruption, amassing wealth for conferring favours on himself, the members of his family and business associates and has been able to shield himself due to his proximity with the corridors of power both in the previous government and the present government in the State of Uttar Pradesh.
The Court did not find constitution of a Commission of Inquiry sufficient and adversely commented on the effort to protract and stall a credible criminal investigation even after the receipt of the letter of the Union Government on 24 February 2015 and directed CBI investigation into all allegations of corruption and amassing of uncounted money by Sri Singh and in regard to all transactions, persons and entities connected thereto.
संलग्न तथ्य –
Copy of HC order in Yadav Singh PIL
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?
Chief Justice’s Court
Case :- MISC. BENCH No. – 12396 of 2014
Petitioner :- Dr. Nutan Thakur [ P.I.L.] (At :- 10:15 A.M.)
Respondent :- State Of U.P.Thoru.Prin.Secy.Home Deptt.Lko.And Ors.
Counsel for Petitioner :- Asok Pande,In Person
Counsel for Respondent :- C.S.C,A.S.G.,Bireshwar Nath,Dr.L.P.Misra,Raj Kumar Singh,Rajnish Kumar,Vinod Kumar Shahi
Hon’ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
Hon’ble Shri Narayan Shukla,J.
Put up tomorrow, i.e. 16 July 2015 at 10.15 a.m. for dictation of judgment.
Order Date :- 15.7.2015
(Dr D Y Chandrachud, CJ)
Chief Justice’s Court
Misc Bench No 12396 of 2014
Dr Nutan Thakur
State of U P through Principal Secretary, Home Department,
Government of U P, Lucknow & Ors
For the petitioner :
Dr Nutan Thakur, in person
Shri Asok Pande, Advocate
For the respondents :
Shri Vijay Bahadur Singh, Advocate General
Smt Bulbul Godiyal, Addl Advocate General
Dr L P Mishra, Sr Advocate (for the ninth respondent)
Shri P Tripathi, Sr Advocate
Shri Uday Pratap Singh, Advocate
Shri Keshav Mohan, Advocate
Ms Anasuya Choudhary, Advocate
Hon’ble Dr Dhananjaya Yeshwant Chandrachud, Chief Justice
Hon’ble Shri Narayan Shukla, J
(Per Hon’ble Dr D Y Chandrachud, CJ)
These proceedings have been instituted in public interest by a social activist, who seeks a reference to the Central Bureau of Investigation1 to take up, enquire and register First Information Reports and investigate into the dealings of the ninth respondent, Yadav Singh who was, prior to his suspension, Chief Engineer in New Okhla Industrial Development Authority2, Greater Noida Industrial Development Authority3 and Yamuna Expressway Authority.
The ninth respondent joined the service of NOIDA as a Junior Engineer on 17 March 1980 and was promoted as Assistant Project Engineer in 1989. After holding officiating charge as Project Engineer, he was promoted on 28 August 1997 as Senior Project Engineer, following which on 20 September 2002 he was promoted as Chief Maintenance Engineer. Ultimately, he was promoted as Chief Engineer. A First Information Report4 was registered as Case Crime No 371 of 2012 under Sections 409, 420, 466, 467, 469, 471 and 120-B of the Indian Penal Code, 18605 and under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 on 13 January 2012 at Police Station Sector 39, Noida, Gautam Budh Nagar, against the ninth respondent, one Ramendra, the then Project Engineer and two construction companies by the name of Tirupati Constructions Private Limited and JSP Constructions. It was alleged that within a brief period between 14 December 2011 and 23 December 2011, agreement bonds for the release of moneys were executed in favour of contractors in the amount of Rs 954.38 crores by the Engineering Department of NOIDA. Besides this allegation, it was also alleged that the work of underground wiring in respect of certain projects had been commenced by the contractor before the finalization of the tender document. The FIR alleged a huge revenue loss to NOIDA. The basis of the FIR was a preliminary enquiry report of three officers submitted on 9 June 2012. During the course of the investigation, an application was submitted on 22 October 2012 to the State Government by one Sanjay Jain, a partner of JSP Constructions seeking a transfer of the investigation. Acting on the request, a Government Order was issued on 3 November 2012 by which the investigation was transferred to the Crime Branch of the Criminal Investigation Department6. The Investigating Officer of CBCID submitted a final report on 3 January 2014 to the court of the District and Sessions Judge, Gautam Budh Nagar. A notice was issued by the court to the informant, R P Singh. The informant stated that he had no objection to the final report being accepted. The District and Sessions Judge, Gautam Budh Nagar accepted the final report by an order dated 27 November 2014.
At or about the time when the final report was being accepted by the District and Sessions Judge, Gautam Budh Nagar, income tax raids were carried out on 27 November 2014 at the premises of the ninth respondent, following which on 28 November 2014 a team of nearly 100 officials conducted search operations at 20 premises situated in Noida, Ghaziabad and Delhi. There was a seizure of documents, jewellery and cash. On 8 December 2014, a communication was addressed by the Assistant Director of Income Tax (Inv))-II, Noida to the Chairperson of NOIDA stating that during the course of a search and seizure operation of the ‘Maccon Infra Group of cases’, it was found that huge assets in the form of leasehold land appeared in the balance sheet of as many as 25 private limited companies. The names of the companies in respect of which a disclosure was sought are as follows:
1 Prajyoti Impex Pvt Ltd
2 Chahat Exim Pvt Ltd
3 Merit Exim Pvt Ltd
4 New Era e-Solutions Pvt Ltd
5 Affe Technologies Pvt Ltd
6 A K D Steels Pvt Ltd
7 Quick Infotech Solutions Pvt Ltd
8 Kinzo Exports Pvt Ltd
9 N M Buildwell Pvt Ltd
10 Business Bay Corporate Parts Pvt Ltd
11 R N Creations Pvt Ltd
12 Sigma Management System Pvt Ltd
13 Ris Fashions Pvt Ltd
14 Power Mech Industries Pvt Ltd
15 Nitya Tradex Pvt Ltd
16 K Biological Pvt Ltd
17 Daffodil Infra-Agro Projects Pvt Ltd
18 Kinzo Infosoft Pvt Ltd
19 Kinzo IT Solutions Pvt Ltd
20 Chahat Technology Pvt Ltd
21 K S Ultratech Pvt Ltd
22 Kusum Garments Pvt Ltd
23 Hitchki Creations Pvt Ltd
24 Norvic Design Pvt Ltd
25 Maconns Infra Pvt Ltd
The income tax authorities sought documents, inter alia, in regard to the date of allotment of land to those companies together with underlying documents and other details. Details were also sought in regard to the allotment of any other land in the name of the ninth respondent, his wife Kusum Lata, son Sunny Yadav and other persons or entities including Rajinder Manocha, Rajesh Manocha, Namrata Manocha, Anil Peshwari and Meenakshi Peshwari either in their names or in the names of companies or firms in which they were associated.
During the course of these proceedings, a compilation of documents has been placed on the record, indicating that in response to the letter of the income tax authorities, the authorities at NOIDA collated and forwarded information pertaining to properties, including residential plots in Noida, allotted to persons and companies allegedly related to the ninth respondent. The compilation which has been placed before the Court includes lists of (i) industrial plots which were allotted directly to the companies or individuals concerned; (ii) industrial plots which were not allotted directly to the companies or individuals but whose names were added on subsequent dates; (iii) industrial plots allotted to the ninth respondent, his wife and son and other persons whose names were added at a subsequent date; (iv) residential plots allotted in the name of the ninth respondent and other persons; and (v) a list of residential plots which, though not allotted originally in the name of the ninth respondent and other persons, came to be allotted subsequently. On 6 January 2015, the Deputy Director of Income Tax (Inv)-II, Noida addressed a communication to the Chief Executive Officer of NOIDA seeking details of contracts awarded to 75 companies, copies of accounts and details of works contracts awarded to them in 2014-15. This information was sought in regard to the income tax investigation going on in the case of ‘Maconn Infra/Yadav Singh Group’.
Following the raid of the income tax authorities on 27 and 28 November 2014, an investigation was being carried out by three instrumentalities of the Union Government, namely (i) the Income Tax Department; (ii) the Directorate of Enforcement; and (iii) the Special Investigation Team7 on black money constituted by the Supreme Court, consisting of Hon’ble Mr Justice M B Shah and Hon’ble Mr Justice Arijit Pasayat, former Judges of the Supreme Court. A communication was addressed by the Union Government in the Ministry of Finance (Department of Revenue) on 24 February 2015 to the Chief Secretary of the State Government. The subject of the letter was the ‘investigation against irregularities by Shri Yadav Singh, ex Engineer-in-Chief, NOIDA, Greater NOIDA and Yamuna Expressway Authority’. The letter stated as follows:
“In pursuance of the instructions by the Special Investigation Team (SIT) on black money, Director, CBI (through Deptt of Personnel, Govt. of India) is to take up investigation of instances of fraud/corruption and other malpractices leading to amassing of large amounts of unaccounted money by Shri Yadav Singh, Ex Engineer-in-Chief of NOIDA, Greater NOIDA and Yamuna Express Way Authority.
In this regard, it is requested that all the relevant material/documents may be handed over to CBI for carrying the necessary investigation. It is reiterated that notification constituting the Special Investigation Team (SIT) issued in light of directions by Hon’ble Supreme Court in Writ Petition (Civil No.176 of 2009 provides as follows:
“All organs, agencies, departments and agents of the State whether at the level of Union of India, or the State Government, including but not limited to all statutorily formed individual bodies, and other constitutional bodies, extend all the cooperation necessary for the functioning of Special Investigation Team.
The Union of India and where needed the State Governments will facilitate the conduct of the investigations, in their fullest measure, by the Special Investigation Team and functioning, by extending all the necessary financial material, legal diplomatic and intelligence resources, whether such investigations or portions of such investigations occur inside the country or abroad.
This issues with the approval of the competent authority.”
Prior to the receipt of the letter dated 24 February 2015, the State Government had issued a notification on 10 February 2015 under Section 3 of the Commissions of Inquiry Act, 1952 by which a former Judge of this Court Shri Justice Amar Nath Verma was appointed as a one-member Commission of Inquiry to investigate into the allegations against the ninth respondent. The terms of reference of the Commission of Inquiry are as follows:
(i) Whether the promotions which were granted to the ninth respondent at various levels were in accordance with the procedures and criteria prescribed;
(ii) Whether in the grant of contracts for development to various firms and individuals by the ninth respondent as Chief Engineer, the prescribed procedure and criteria had been observed;
(iii) Inquiry into the allegations of corruption and misconduct on the part of the ninth respondent; and
(iv) Apart from the above, any other matter which may be required to be investigated by the Commission either on the directions of the High Court or on a reference being made by an authority of the Central Government.
The writ petition seeking the intervention of this Court for transferring the investigation to CBI had already been instituted on 10 December 2014 and was entertained by the Division Bench while passing a preliminary order dated 16 December 2014. While issuing directions for the impleadment of the ninth respondent and calling for counters, this Court, inter alia, took note of the pleadings contained in paragraphs 53 and 54 of the writ petition on the basis of which the writ jurisdiction under Article 226 of the Constitution was invoked. Paragraphs 53 and 54 of the writ petition read as follows:
“53. That again the petitioner prays for this investigation to be undertaken only by the CBI because the facts as narrated above prove it beyond all doubts that the State government is completely biased to Sri Yadav Singh. There are many facts which can easily substantiate this statement of the petitioner regarding complete apathy of the State government- (a) the continuous rise of Sri Singh against all prevailing services rules and regulations; (b) the clear favouritism granted to Sri Yadav during various political governments, including the Bahujan Samaj Party government under Ms Mayawati, the Samajwadi Party under Sri Mulayam Singh Yadav and now under Sri Akhilesh Yadav where he has given plum postings, out of way promotions, key positions and large number of lucrative assignments as explained above; (c) the way initially an FIR was registered against Sri Singh, it was handed over to the State investigation agency CB-CID, he was placed under suspension and the investigation agency went all after him as to get red corner notice issued against him by the Interpol but after some months everything changed quite dramatically after his alleged compromise made with certain top political persons playing key and extremely influential role in the present regime; (d) the way the CB-CID closed the criminal case against Sri Singh in an extremely hush-hush and hurried manner; (e) the way the entire State bureaucracy’s eyes changed towards Sri Yadav Singh after his alleged compromise with the top political leaders of the current political government (f) the way he was reinstated in a surreptitious manner (g) the way he was made the Engineer-in-chief not only of Noida but of Greater Noida and Yamuna expressway also in a very surprising and eye-raising manner (h) the way the State government has so far reacted to this episode (i) the way it took about 12 days for the State government to suspend him while it is seen suspending every other officer on all kind of trifle charges (j) the way the news of top political leaders of SP and BSP being in very close contact with Sri Yadav Singh is coming in news all too loudly and boldly.
54. There are certain other facts which seem to warrant CBI enquiry; (a) the magnitude of the corruption having emerged so far (b) the great spread of the corruption (c) the international/global spread of crime (d) the super-specialization that seems to be need in this particular case (e) the reputation and consistency of the investigation agency needed for this particular scam (f) the huge reputation and faith enjoyed by CBI.”
During the pendency of the writ proceedings, the attention of the Division Bench was drawn on 23 March 2015 by the petitioner to the communication received from the Union Government in the Ministry of Finance by the Chief Secretary. The Court was informed by the learned Advocate General that the State Government was in the process of sending a reply to the communication which would be placed on the record before the Court. The State Government eventually addressed a communication to the Union Government in the Ministry of Finance on 6 April 2015 stating that a Commission of Inquiry headed by a former Judge of this Court has been appointed on 10 February 2015 and that a public interest petition seeking an investigation by CBI was pending before this Court. The State Government informed the Union Government that an appropriate decision would be taken in accordance with the directions that may be issued by this Court in the pending proceedings and as recommended by the one member Commission of Inquiry appointed to enquire into the matter.
After the present proceedings were entertained by the Division Bench of this Court at Lucknow by passing an initial order on 16 December 2014, another PIL on the same subject was instituted at Allahabad in Jitendra Kumar Goel Vs State of U P8. While entertaining the petition on 15 June 2015, a Division Bench of this Court directed that the State must disclose why an FIR had not been registered in respect of the recovery of Rs 10 crores and was directed to respond to the allegations contained in the writ petition by 19 June 2015 when it was placed for further hearing. A Special Leave Petition was filed before the Supreme Court in which by an order dated 18 June 2015, the Supreme Court noted, inter alia, the submission of the State that during the pendency of the present proceedings at Lucknow, the High Court was not justified in entertaining another writ petition at Allahabad. The Supreme Court stayed further proceedings in the second writ petition at Allahabad. During the course of the hearing, the learned Advocate General has fairly stated before the Court that since the pleadings in the second writ petition were virtually lifted from the present proceedings, and since these proceedings had already been entertained at Lucknow in the earlier PIL, the State was constrained to move the Supreme Court against a second PIL being entertained. We have mentioned this fact for the completeness of the record though, as we shall now proceed to narrate, the proceedings have been argued fully on all sides to their fullest on merits.
The jurisdiction of this Court in a public interest petition has been invoked by the petitioner on two counts. The first submission which has been urged is that in pursuance of the judgment and order of the Supreme Court in Ram Jethmalani Vs Union of India9, an SIT has been constituted and has been charged with the responsibility and duty to investigate and initiate proceedings, criminal as well as civil, in respect of all matters relating to unaccounted moneys held in foreign banks by Indians or other entities operating in India. The mandate of the order of the Supreme Court is that both the Union Government as well as the State Governments have to facilitate the conduct of the investigation by the SIT. The Department of Revenue of the Union Ministry of Finance addressed a communication to the Chief Secretary of the State Government on 24 February 2015, that pursuant to the instructions of the SIT, the Director of CBI is to take up investigation of the instances of fraud/corruption and other malpractices leading to the amassing of a large amount of unaccounted money by the ninth respondent. The State Government was requested to hand over to the CBI all relevant material and documents to facilitate the investigation. The attention of the State Government was drawn to the judgment and order of the Supreme Court. The submission is that the State Government was duty bound to effectuate the object and purpose of the order of the Supreme Court by producing all relevant material and documents for investigation by CBI. Instead, the State Government by its letter dated 6 April 2015 took refuge under its notification constituting a Commission of Inquiry presided over by a former Judge of this Court and attempted to obviate its obligation to comply with the order of the Supreme Court on the basis of the pending enquiry and the pendency of the present proceedings. The first submission is that since the State Government has failed in the obligation which was cast upon it by the judgment and order of the Supreme Court to cooperate in all respects with the SIT and since the SIT has instructed the Director of CBI to take up and investigate into the alleged acts of corruption on the part of the ninth respondent, the jurisdiction of this Court can be validly invoked. Reliance has been placed on the provisions of Article 256 of the Constitution under which the executive power of every State is required to be so exercised as to ensure compliance with the laws made by Parliament and the executive power of the Union extends to giving a direction to a State as would appear to the Government of India to be necessary for that purpose.
The second basis for the invocation of the jurisdiction of this Court under Article 226 is that, consistent with the law laid down by the Supreme Court, the present case is a fit and proper case for a reference being made to the CBI to investigate all aspects pertaining to the alleged acts of corruption of the ninth respondent having due regard to (i) the huge corruption involved; (ii) the political support and patronage extended to the ninth respondent cutting across the political spectrum; (iii) the high level at which bureaucratic irregularities have taken place; (iv) the national and global spread of the crime; (v) the need for a specialized investigation by an agency; and (vi) the avowed need to preserve public confidence in the administration of criminal justice. In this regard, the petitioner has averred that initially an FIR was registered against the ninth respondent and he was suspended from service. According to the petitioner, the investigation was abruptly transferred to the CBCID at the behest of a co-accused and a final closure report was submitted to the Court for acceptance. The ninth respondent was reinstated in service and was restored to his position not only as Engineer-in-Chief of NOIDA but he was given additional charge both of the Greater NOIDA and Yamuna Expressway Authorities. The allegations against the ninth respondent which have been set out in great detail in the writ petition are that a raid was conducted on 27 and 28 November 2014 by a team of nearly 100 officials at Noida, Ghaziabad and Delhi. The allegation against the ninth respondent is that he, his spouse, members of his family and his associates have been involved in setting up shell companies for investing the commission received in respect of the award of every contract. The income tax authorities are also in the process of examining documents pertaining to the associates of the ninth respondent including one Rajinder Manocha from whose Audi vehicle an amount of Rs 10 crores was recovered. The ninth respondent is stated to have been involved in allotting to himself and to the members of his family and his associates, plots of land of a high value. The ninth respondent, it has been stated, has wielded power and enjoyed close proximity with politicians of all hues in the present and previous governments in the State of Uttar Pradesh. The ninth respondent was involved in high value infrastructure projects including Ganga water supply, sewage pipelines, drainage, hospitals, parks and metro. Between 2002 and 2014, he is stated to have headed the engineering, water, health and horticulture and other wings and to have executed projects worth nearly Rs 4200 crores. The ninth respondent and his syndicate are alleged to have grabbed over 320 plots during the course of four years of a value of Rs 750 crores. These plots were stated to have been sold to business and construction firms. In the present case, it has been stated that the activities of the ninth respondent during the course of the previous regime in the State have continued under the present government and the ninth respondent continues to enjoy close proximity to the corridors of power. In a supplementary affidavit which has been filed in these proceedings on 20 January 2015, the petitioner has specifically made allegations in regard to the close proximity of the ninth respondent with politicians in the State and their close relatives who are stated to be business associates. The names of the companies through which his unlawful activities are stated to have taken place have been set out. On this basis, it has been submitted that the manner in which the State Government closed the earlier proceedings through its investigative arm is indicative of the fact that there is no serious effort to investigate the allegations against the ninth respondent. After facts came to light following the raid by the income tax authorities, all that the State Government has done – it is submitted – is to constitute a Commission of Inquiry. No FIR was registered and no effort has been made by the State to investigate into the allegations against the ninth respondent. The State Government has, in the submission of the petitioner, acknowledged the volume and complexity of the case in its official notifications as well as in its counter affidavits filed in these proceedings. In this background, having also regard to the nature and complexity of the case, it has been submitted that a reference to the CBI for carrying out the investigation is necessary to ensure that the administration of criminal law is not derailed by the proximity of the ninth respondent to the corridors of power.
The petition has been resisted by the Advocate General appearing on behalf of the State, counsel appearing on behalf of NOIDA as well as by learned counsel appearing on behalf of the ninth respondent. The Advocate General has submitted that:
(i) The jurisdiction of the Court under Article 226 of the Constitution to refer a case for investigation by CBI must be exercised sparingly and with circumspection having due regard to the parameters set out in the judgments of the Supreme Court;
(ii) The State Government has set up a Commission of Inquiry under the Commissions of Inquiry Act, 1952 headed by a former Judge of this Court and it would be appropriate to await the report of the Commission before initiating any action;
(iii) By a supplementary notification of 11 July 2015, the Economic Offences Wing has been directed to cooperate with and act in coordination with the Commission of Inquiry; and
(iv) The State Government addressed a communication to the Union Government stating that further action on the request to furnish material and documents to CBI would be taken subject to the report of the Commission of Inquiry and the orders that may be passed by this Court in the pending PIL. The allegations against the ninth respondent are based on what was reported in the news media and there is no reasonable basis for making a reference to the CBI.
Counsel appearing on behalf of the ninth respondent submitted that:
(i) The writ petition which is based on newspaper reports ought not to be entertained since it is not a bona fide recourse to the jurisdiction under Article 226 of the Constitution;
(ii) The case of the petitioner is based on (a) undue promotions granted to the ninth respondent allegedly as a result of bureaucratic favour; (b) the allegation that the ninth respondent has amassed wealth by exploiting his office. In his counter affidavit, the ninth respondent has explained that the promotions which were granted to him were on the recommendations of duly constituted Departmental Promotion Committees and all the allegations have been denied;
(iii) The Union Government had no jurisdiction to entrust the investigation to the CBI since under the judgment of the Supreme Court, the investigation is to be conducted by the SIT;
(iv) In order to enable the SIT to investigate a case, the condition precedent is that there must be stashing of money abroad in an unaccounted form which is absent in the present case; and
(v) Under Section 6 of the Delhi Special Police Establishment Act, it is not open to the Union Government to direct the State to hand over the papers to CBI without the consent of the State Government.
Counsel appearing on behalf of NOIDA has supported these submissions and urged that NOIDA has cooperated with the income tax authorities upon receipt of the letter dated 8 December 2014 by making available necessary documents and material pertaining to the ninth respondent and the dealings in property by his alleged associates and companies. The submissions which have been made by the other learned counsel were adopted.
These submissions fall for consideration.
In Ram Jethmalani (supra), the Supreme Court constituted an SIT headed by two former Judges of the Supreme Court to investigate into and initiate proceedings including prosecutions in relation to all matters regarding unaccounted moneys held in foreign banks by Indians or other entities operating in India. Paragraph 57 of the judgment and order of the Supreme Court reads as follows:
“In light of the above we herewith order:
(i) That the High-Level Committee constituted by the Union of India, comprising of (i) Secretary, Department of Revenue; (ii) Deputy Governor, Reserve Bank of India; (iii) Director (IB); (iv) Director, Enforcement; (v) Director, CBI; (vi) Chairman, CBDT; (vii) DG, Narcotics Control Bureau; (vii) DG, Revenue Intelligence; (viii) Director, Financial Intelligence Unit; and (ix) JS (FT & TR-I), CBDT be forthwith appointed with immediate effect as a Special Investigation Team;
(ii) That the Special Investigation Team, so constituted, also include Director, Research and Analysis Wing;
(iii) That the above Special Investigation Team, so constituted, be headed by and include the following former eminent judges of this Court:
(a) Hon’ble Mr Justice B P Jeevan Reddy as Chairman; and
(b) Hon’ble Mr Justice M B Shah as Vice-Chairman; and that the Special Investigation Team function under their guidance and direction;
(iv) That the Special Investigation Team, so constituted, shall be charged with the responsibilities and duties of investigation, initiation of proceedings, and prosecution, whether in the context of appropriate criminal or civil proceedings of:
(a) all issues relating to the matters concerning and arising from unaccounted for monies of Hassan Ali Khan and the Tapurias;
(b) all other investigations already commenced and are pending, or awaiting to be initiated, with respect to any other known instances of the stashing of unaccounted for monies in foreign bank accounts by Indians or other entities operating in India; and
(c) all other matters with respect to unaccounted for monies being stashed in foreign banks by Indians or other entities operating in India that may arise in the course of such investigations and proceedings.
It is clarified here that within the ambit of responsibilities described above, also lie the responsibilities to ensure that the matters are also investigated, proceedings initiated and prosecutions conducted with regard to criminality and/or unlawfulness of activities that may have been the source for such monies, as well as the criminal and/or unlawful means that are used to take such unaccounted for monies out of and/or bring such monies back into the country, and use of such monies in India or abroad. The Special Investigation Team shall also be charged with the responsibility of preparing a comprehensive action plan, including the creation of necessary institutional structures that can enable and strengthen the country’s battle against generation of unaccounted for monies, and their stashing away in foreign banks or in various forms domestically;
(v) That the Special Investigation Team so constituted report and be responsible to this Court, and that it shall be charged with the duty to keep this Court informed of all major developments by the filing of periodic status reports, and following of any special orders that this Court may issue from time to time;
(vi) That all organs, agencies, departments and agents of the State, whether at the level of the Union of India, or the State Government, including but not limited to all statutorily formed individual bodies, and other constitutional bodies, extend all the cooperation necessary for the Special Investigation Team so constituted and functioning;
(vii) That the Union of India, and where needed even the State Governments, are directed to facilitate the conduct of the investigations, in their fullest measure, by the Special Investigation Team so constituted and functioning, by extending all the necessary financial, material, legal, diplomatic and intelligence resources, whether such investigations or portions of such investigations occur inside the country or abroad;
(viii)That the Special Investigation Team also be empowered to further investigate even where charge-sheets have been previously filed; and that the Special Investigation Team may register further cases, and conduct appropriate investigations and initiate proceedings, for the purpose of bringing back unaccounted for monies unlawfully kept in bank accounts abroad.”
The SIT, inter alia, consists of the Director CBI, Director Enforcement, Director General, Revenue Intelligence and the Director, Financial Intelligence Unit. The judgment of the Supreme Court mandates that all organs, agencies, departments and agents of the State, whether in the Union Government or in the State Governments, shall extend all cooperation necessary to the SIT. Both the Union and the State Governments were directed to facilitate the conduct of the investigations in their fullest measure by extending necessary financial, material, legal and intelligence resources, whether the investigation takes place in India or overseas. The SIT has been duly empowered to investigate even those cases where charge sheets were filed and to register further cases, conduct appropriate investigations and initiate proceedings for bringing back unaccounted money unlawfully kept in bank accounts abroad.
The income tax raids in respect of the ninth respondent and his alleged associates took place on 27 and 28 November 2014. The public interest petition was filed in this Court on 10 December 2014. On 24 February 2014, the Union Government in the Department of Revenue of the Ministry of Finance called upon the Chief Secretary of the State Government to make available all relevant material and documents that would be necessary for the CBI to carry out an investigation. The letter specifically drew attention to the investigation which was to be conducted in respect of the instances of fraud/corruption and other malpractices alleged against the ninth respondent as Engineer-in-Chief of NOIDA, Greater NOIDA and Yamuna Expressway Authority leading to the amassing of large amounts of unaccounted money. The letter of 24 February 2015 was addressed by the Union Government on the instructions of the SIT on black money which had directed the Director of CBI to take up the investigation in respect of the ninth respondent. The Union Government in addressing the communication was discharging its solemn obligation in terms of the judgment and order of the Supreme Court which required all governmental authorities both at the Central and the State level to cooperate with the SIT. Once instructions have been issued by the SIT in pursuance of which the Director CBI, who is a member of the SIT, is to take up the investigation, the State Government had no option but to comply with the direction. Under Article 142 of the Constitution, the Supreme Court in the exercise of its jurisdiction is empowered to pass such decree or to make such orders as are necessary for doing complete justice in any cause or matter pending before it. Article 144 requires all authorities, civil and judicial in the territory of India to act in aid of the Supreme Court. Under Article 256 of the Constitution, the executive power of every State has to be exercised to ensure compliance with the laws made by Parliament and the executive power of the Union extends to giving such directions as may appear to the Government of India to be necessary for that purpose. The Union Government is enforcing an order of the Supreme Court which casts an obligation both on the Union Government and upon all State Governments to extend their fullest cooperation to secure compliance with the directions of the SIT. The State Government cannot stultify the investigation.
Faced with a request from the Union Government in the Ministry of Finance, the State Government responded on 6 April 2015. The State Government has evidently elected not to comply with the letter of request made by the Union Government. The matter, in our view, does not rest on a dispute over the powers of the Centre and those of the State. Plainly, that is not the issue here since the only issue is of compliance with the terms of a judgment of the Supreme Court. The State Government sought to justify its stand by adverting to two circumstances, the first being the constitution of a Commission of Inquiry presided over by a former Judge of this Court on 10 February 2015 and the second the pendency of these proceedings. The pendency of these proceedings invoking the jurisdiction in public interest could provide absolutely no basis for declining to comply with the request which was made in terms of the judgment of the Supreme Court. Nor was it open to the State Government to sit in judgment over a request which was made by the SIT in terms whereof the Director CBI was to take over investigation into the allegations of corruption and the amassing of unaccounted money by the ninth respondent. The setting up of a Commission of Inquiry can be no answer for non-compliance with the mandate of the order of the Supreme Court. The pendency of a public interest petition, similarly, could not stand in the way. Admittedly, no interim order was passed by this Court preventing the State Government from discharging its obligations as, indeed, there could have been none, once the Supreme Court had laid down the law on the subject. Hence, we find merit in the submission which was urged on behalf of the petitioner that both the grounds which have weighed with the State Government in addressing its communication on 6 April 2015 are specious and without any legal basis.
Independent of our conclusion on the first aspect above, the next aspect of the matter is whether the circumstances of the present case require an investigation by the CBI. As we approach this aspect of the matter, we must, at the outset, be conscious of the law on the subject which has been laid down in several judgments of the Supreme Court. Section 3 of the Delhi Special Police Establishment Act, 1946 provides that the Central Government may, by a notification in the official gazette, specify the offences or class of offences which are to be investigated by the Delhi Special Police Establishment. Under Section 5, the Central Government is empowered by order to extend to any area in a State, not being a Union Territory, the powers and jurisdiction of the Delhi Special Police Establishment for the investigation of any offences or classes of offences specified in a notification under Section 3. Section 6, however, provides that nothing contained in Section 5 would be deemed to enable any member of the establishment of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a State without the consent of the government of that State.
A Constitution Bench of the Supreme Court in State of West Bengal Vs Committee for Protection of Democratic Rights, West Bengal10, has held that the power of the High Court under Article 226 is not curtailed or diluted by Section 6:
“(vii) When the Special Police Act itself provides that subject to the consent by the State, CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State Police, the court can also exercise its constitutional power of judicial review and direct CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the constitutional courts. Therefore, exercise of power of judicial review by the High Court, in our opinion, would not amount to infringement of either the doctrine of separation of power or the federal structure.”
At the same time, the Supreme Court has emphasised that the plenitude of the power requires that it should be exercised with caution and circumspection. The circumstances in which the power could be exercised have been held to be exceptional situations where (i) it becomes necessary to provide credibility and instill confidence in investigation; (ii) where an incident may have national and international ramifications or (iii) where an order may be necessary for doing complete justice in enforcing the fundamental rights. The purpose of these restrictions is to ensure that the CBI is not flooded with a large number of cases which, with limited resources, it may find difficult to handle. The observations of the Supreme Court are as follows:
“Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these Constitutional powers. The very plenitude of the power under the said Articles requires great caution in its exercise. In so far as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.”
In Secretary, Minor Irrigation & Rural Engineering Services, U P Vs Sahngoo Ram Arya11, the Supreme Court observed as follows:
“…Therefore, it is clear that a decision to direct an inquiry by CBI against a person can only be done if the High Court after considering the material on record comes to a conclusion that such material does disclose a prima facie case calling for an investigation by CBI or any other similar agency, and the same cannot be done as a matter of routine or merely because a party makes some such allegations.”
These principles have been reiterated in a more recent decision of the Supreme Court in Mohd Haroon Vs Union of India12. In that case, the Supreme Court held that a case for the transfer of investigation to CBI or to an SIT in regard to the riots which took place at Muzaffarnagar was not warranted since the State itself had constituted a Special Investigation Cell. 566 cases were being investigated by the Special Investigation Cell and the Supreme Court was apprised of the fact that 48 registered cases were found to be false. The State apprised the Supreme Court of the measures which were taken. Having due regard to the steps which were taken by the State, facts and figures and statistics supported by material coupled with the principles laid down, the Supreme Court held that there was no need to constitute a SIT or to entrust the investigation to CBI at that juncture.
In the present case, an important aspect of the matter which merits emphasis is that initially on 13 June 2012, an FIR was lodged in Case Crime No 371 of 2012 under Sections 409, 420, 466, 467, 469, 471 and 120-B of the Penal Code and under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 against the ninth respondent and one Ramendra, the then Project Engineer and two construction companies. The allegation in the FIR related to the disbursement of an amount of Rs 954 crores of various departments of Noida in respect of which agreement bonds were executed within a span of eight days. There were various other allegations in regard to the carrying out of work even before the finalization of tenders resulting in a loss to NOIDA. The investigation was transferred by the State Government to the CBCID at the behest of a partner of a construction company which was one of the co-accused on 3 November 2012, following the receipt of a request on 22 October 2012. The Investigating Officer submitted a final closure report on 3 January 2014. The informant R P Singh, who is an Assistant Engineer in NOIDA informed the Court that he had no objection to the acceptance of the closure report and on 27 November 2014 the matter was closed. Incidentally, the income tax raid took place on the same day. The matter has been under investigation by various authorities including the income tax department, the Directorate of Enforcement and the SIT. The allegations against the ninth respondent are not just allegations of personal corruption or of personal aggrandizement. The essence of the allegation is that the ninth respondent has been able to use his personal proximity in the corridors of power with successive governments in State by indulging in corruption, amassing wealth for conferring favours on himself, the members of his family and business associates. The ninth respondent has, it is alleged, been able to shield himself due to his proximity with the corridors of power both in the previous government and the present government in the State of Uttar Pradesh. At this stage, we desist from making a specific mention of the names of political personalities but it would suffice to note that there are serious allegations that the business associates of the ninth respondent and the members of his family are related to persons in the political establishment. The State Government has constituted a Commission of Inquiry on 10 February 2015 following the institution of the PIL on 10 December 2014. The terms of reference of the Commission of Inquiry constituted by the State are (i) whether the promotions which were granted to the ninth respondent at various levels were in accordance with the procedures and criteria prescribed; (ii) whether in the grant of contracts for development to various firms and individuals by the ninth respondent as Chief Engineer, the prescribed procedure and criteria had been observed; (iii) inquiry into the allegations of corruption and misconduct on the part of the ninth respondent; and (iv) apart from the above, any other matter which may be required to be investigated by the Commission either on the directions of the High Court or on reference being made by an authority of the Central Government.
There are several reasons why the submission of the State, that based on the constitution of a Commission of Inquiry further action be deferred or held in abeyance, cannot be accepted. Firstly, the terms of reference of the Commission of Inquiry are evidently confined to the ninth respondent and ninth respondent alone. The Commission of Inquiry would have no jurisdiction to enquire into wider allegations of the misuse of power or to investigate into the interrelationship of the ninth respondent with other persons in respect of whom there is no reference to the Commission. Secondly, the report of the Commission may or may not be accepted or acted upon by the State Government. A non-binding report of a Commission of Inquiry is no substitute for a proper, fair and objective investigation into alleged criminal offences. The State Government would be under no compulsion of law to accept the report of a Commission of Inquiry. Prosecution for criminal offences cannot be made to depend upon an unbridled exercise of discretion of the executive. Thirdly, by a supplementary notification issued by the State Government on 11 July 2015, the State Government has taken due note of the complexity and scale of the matter by providing that the Economic Offences Wing shall work in coordination with the Chairperson of the Commission of Inquiry. Significantly, even after the State Government had knowledge of the sequence of events commencing from the income tax raids which took place on 27 and 28 November 2014, no serious effort has been made to entrust the investigation to the investigative arm of the State. Even the investigative arm of the State has been subordinated to the Commission of Inquiry. This Court must take note of the effort to protract and stall a credible criminal investigation even after the receipt of the letter of the Union Government on 24 February 2015 drawing attention to serious allegations of corruption and amassing of unaccounted wealth by the ninth respondent. The Court has been informed on affidavit that even the departmental enquiries initiated against the ninth respondent have been deferred and held in abeyance following the constitution of a Commission of Inquiry. Fourthly, the corruption alleged is on a gigantic scale. A complex web of shell companies has been adopted to evade law and to launder the allegedly ill gotten gains. There is a serious case to be probed on whether as alleged the activities of the ninth respondent have benefactors in high places in the State who have been associated through their close relatives and associates with the business dealings of the ninth respondent and his family. In our view, having due regard to the admittedly complex nature of the case, the wide ramifications involving corruption by persons in public offices and the gravity of the allegations required to be probed, a fit and proper case has been made out for investigation by the CBI.
We have carefully considered the submission that the petition which is based on newspaper reports should not be entertained by the Court. This is not a case where the Court has acted on the basis of newspaper reports. In exercising its jurisdiction under Article 226 of the Constitution, this Court is conscious of the judicious restraints on its power particularly to hand over an investigation to CBI. The material which has come before the Court, including the request which was made by the Union Government in the Ministry of Finance in terms of a request made by the SIT constituted by the Supreme Court, would indicate the gravity and seriousness of the matter and the need to ensure that the investigation is promptly initiated and carried out by an independent agency. The faith in the administration of criminal justice will be shattered if a fair and objective investigation by the CBI is allowed to be thwarted by the kind of ruses adopted in this case.
Before we conclude, we may advert to a subsidiary aspect of the matter which has been raised in the counter affidavit filed by the ninth respondent. The ninth respondent has drawn the attention of the Court to a public interest petition in Jagdish Narain Shukla Vs State through Principal Secretary Home, Government of U P13 which was disposed of by this Court. The petition as this Court observed in its order raised certain service related issues in respect of the ninth respondent (who was impleaded as the fifth respondent to the earlier proceedings). The principal grievance related to the reinstatement of the ninth respondent and the posting issued to him after the institution of a departmental enquiry and an order of suspension. The Division Bench relied upon the decisions of the Supreme Court in Hari Bansh Lal Vs Sahodar Prasad Mahto14 and in Ashok Kumar Pandey Vs State of West Bengal15 to hold that a public interest petition seeking to raise service related matters is not maintainable. Following these judgments, the writ petition was dismissed on the ground that a PIL in respect of a service matter could not be entertained. The earlier judgment was, therefore, on a clearly different issue. The issue as to whether an investigation by the CBI is warranted, was neither raised nor decided in the earlier decision.
For these reasons, we allow the petition and direct that the Central Bureau of Investigation shall conduct an investigation into all allegations of corruption and amassing of uncounted money by the ninth respondent and in regard to all transactions, persons and entities connected thereto.
The petition is accordingly stand disposed of. There shall be no order as to costs.
(Dr D Y Chandrachud, CJ)
(S N Shukla, J)
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