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शिमला/बलदेव शर्मा
जब सीबीआई ने वीरभद्र के आवास और अन्य स्थानों पर छापामारी की थी तब वीरभद्र ने तुरन्त इस कारवाई के खिलाफ एतराज उठाते हुए इसे हिमाचल उच्च न्यायालय में चुनौती दे दी थी। हिमाचल उच्च न्यायालय ने वीरभद्र के एतराज का कड़ा संज्ञान लेेते हुए सीबीआई पर यह बंदिश लगा दी थी कि वह इस मामले में वीरभद्र सिंह और उनकी पत्नी प्रतिभा सिंह से पूछताछ, गिरफ्रतारी, चालान दायर करना यह सब अदालत की अनुमति के बिना नहीं करेगी। हिमाचल उच्च न्यायालय ने सीबीआई की कारवाई पर ग्यारह गंभीर सवाल खड़े किये थे। यदि यह सवाल अन्त तक खड़े रहते तो इस मामले में दर्ज हुई एफआईआर रद्द हो जाती। परन्तु दिल्ली उच्च न्यायालय में हुई बहस के दौरान सीबीआई के वकील पी एस पटवालिया ने जिस ढंग से इनका खण्डन किया है उसके कारण अदालत ने इन्हे अन्ततः खारिज कर दिया। सवाल और उनके प्रतिकार अदालत में इस प्रकार रहे हैं।

Q1.  Whether cause of action has arisen within the territorial jurisdiction of this Court qua FIR No. RCAC-1 2015 A-004 registered on 23.9.2015, more particularly, in view of Sr. No. 5read in conjunction with paras 4, 5 and 6 of the FIR?

Ans.  The issue is not whether cause of action had arisen within the territorial jurisdiction of the High Court of Himachal Pradesh. The issue is whether the cause of action had arisen within the territorial jurisdiction of the learned Special Judge, within whose jurisdiction the FIR/ RC has been registered. The cause of action may arise at one or more places. The RC could be registered within the jurisdiction of the Court at either of such places. Cause of action has certainly arisen within the jurisdiction of the learned Special Judge at Delhi.

Q 2. Whether there could be second preliminary inquiry after the closure of earlier preliminary inquiry purportedly as per para 9.26 of the Central Bureau of Investigation Manual?

Ans. The second primary inquiry in the present case is on a different aspect than the first primary inquiry as discussed hereinabove. There was no illegality in the opening of the second preliminary inquiry.

Q3. Whether registration of FIR No. RCAC-1 2015 A-004 dated 23.9.2015 violates the dicta of Hon’ble Supreme Court in Ms. Mayawati vs. Union of India and others, (2012)8 SCC 106?

Ans. The registration of the FIR/ RC in the present case does not violate the decision of the Supreme Court in Mayawati (supra).

Q4. Whether it was mandatory for the Central Bureau of Investigation to seek the consent of the State Government as per section 6 of the Delhi Special Police Establishment Act at the time of registration of FIR and its subsequent investigation and raiding the residential premises of the petitioners and non conforming to mandatory provisions of section 6 of the Delhi Special Police Establishment Act vitiates the investigation as well as raid in the official premises of the petitioners?

Ans. It was not mandatory for the CBI to seek the consent of the State Government of Himachal Pradesh under Section 6 of the DSPE Act at the time of registration of the FIR/ RC. Thus, the FIR/ RC cannot be quashed on the ground of there being no consent under Section 6 of the DSPE Act from the State Government of Himachal Pradesh. It was mandatory for the CBI to obtain the consent of the State of Himachal Pradesh under Section 6 prior to conduct of any part of investigation in the area of State of Himachal Pradesh. The issue whether such consent had been obtained generally, or specifically, as well as the issue as to what is the effect of the investigation conducted, if any, without obtaining the prior consent of the State Government of Himachal Pradesh, cannot be determined in the present proceedings and would fall for consideration, if and when a charge-sheet is filed before the learned Special Judge. The issue whether, investigation carried out de hors the consent of the State of Himachal Pradesh – even if it were to be accepted for the sake of arguments that such consent was not available, would have to be considered by the learned Special Judge in the light of the discussion and decisions taken note of hereinabove.

Q 5. Whether the raid of the residential premises of the sitting Chief Minister without conforming to section 6 of the Delhi Special Police Establishment Act would dilute the basic federal structure of the Constitution of India?

Ans. Since the case/ RC has been justifiably registered at Delhi by the CBI, if the investigation (including the raid on the premises of the sitting Chief Minister) has been conducted by the CBI in the area of State of Himachal Pradesh in accordance with law, the same would not dilute the basic structure of Constitution of India. The petitioners have not relied upon any provision of law and have not cited any decision of any Court to submit that sitting Chief Minister of a State enjoys any immunity against a criminal offence duly registered by the CBI within the jurisdiction of the competent Special Judge.

Q 6. Whether the FIR No. RCAC-1 2015 A-004 could be registered when the Income Tax Department and this Court is seized of the matter?

Ans. The FIR in question could be registered by the CBI, and merely because the Income Tax Department and the High Court is seized of the matter, is no ground to withhold the registration of the Regular Case. This is for the reason that the Income Tax Act is only concerned with the aspect of assessment of income-tax and is not concerned with the criminality involved in the manner in which the income is derived during the relevant assessment year(s). If the FIR/ RC discloses commission of a cognizable offence, the same cannot be quashed as it has been registered within the jurisdiction of the Court where the cause of action arose.

Q 7. Whether the Central Bureau of Investigation has complied with the mandatory provisions of Code of Criminal Provisions and the guidelines provided in Central Bureau of Investigation Manual while registering the FIR and also while undertaking the investigation?

Ans. No specific mandatory provision of this Code or the guideline provided in the CBI Manual has been referred to to submit that registration of the FIR/ RC and the undertaking of the investigation by the CBI is in breach thereof. In any event, these are issues which would fall for consideration before the learned Special Judge.

Q 8. What is the true import of Entry 2-A, 80 of the Union List vis-à-vis 2 of the State List and their inter-play?

Ans. The import of Entry 2A, 80 of the Union List vis-à-vis Entry 2 of the State List and their interplay has been elaborately discussed hereinabove and the same may be referred to.

Q 9. Whether the income reflected in paras 5 and 6 of the FIR can be treated as disproportionate assets in the hands of petitioner No. 1?

This question does not call for consideration in the present proceedings. The same constitutes the defence of the accused and may be raised before the learned Special Judge, in case the charge-sheet is filed in the RC/ FIR in question and charges are framed against the accused.

Q 10. Whether the registration of FIR against the petitioners is actuated with legal and factual mala fide and political vendetta?

Ans. There is no factual basis brought on record to claim that the registration of the FIR against the petitioners is actuated or legally or factually mala fide or that the registration of the FIR/ RC is a result of political vendetta.

11. Whether the permission of the Speaker of the H.P. Legislative Assembly was mandatory before registration of FIR?

Ans. There is no legal basis to claim that the permission of the Speaker of the Himachal Pradesh Legislative Assembly was mandatory before registration of the FIR/ RC in the present case which pertains to the tenure of petitioner No.1 while he was a Central Minister under the Union Government during the check period.

In the light of the aforesaid discussion, the writ petition is dismissed. All interim orders stand vacated.