Mayawati Vs Union of India & Ors.

06 July 2012
Supreme Court
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MAYAWATI Vs UNION OF INDIA & ORS.

Bench: P. SATHASIVAM,DIPAK MISRA
Case number: Writ Petition (crl.) 135 of 2008

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO. 135 OF 2008

Ms. Mayawati .... Petitioner (s)

Versus

Union of India & Ors. .... Respondent(s)

J U D G M E N T

P.Sathasivam,J.

1) The only question raised in this writ petition, filed under

Article 32 of the Constitution of India, is as to whether FIR No.

R.C. 0062003A0019 dated 05.10.2003 lodged under Section

13(2) read with Section 13 (1) (e) of the Prevention of

Corruption Act, 1988 (hereinafter referred to as “the PC Act”)

against the petitioner herein to investigate into the matter of

alleged disproportionate assets is beyond the scope of the

directions passed by this Court in the order dated 18.09.2003

in I.A. No. 376 of 2003 in W.P. (C) No. 13381 of 1984 titled

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M.C. Mehta vs. Union of India and Others, (2003) 8 SCC

696?

2) The case of the petitioner as stated in the writ petition,

is summarized hereunder:

(a) On the date of filing of this writ petition before this Court,

the petitioner was the Chief Minister of U.P. Earlier also, the

petitioner had been the Chief Minister of U.P. for three times.

The petitioner had also served as a Member of Parliament

many a time both as a Member of Lok Sabha and Rajya Sabha

and had also served as a Member of Legislative Assembly and

Legislative Council of the State of U.P. The petitioner is a law

graduate and had been a teacher from 1977 to 1984. At

present, the petitioner is the President of a National Political

Party called as “Bahujan Samaj Party (BSP)”, which is one of

the six National Parties recognized by the Election Commission

of India.

(b) This Court, by order dated 16.07.2003 in I.A. No. 387 of

2003 in Writ Petition (C) No. 13381 of 1984 titled M.C. Mehta

vs. Union of India & Ors. directed the CBI to conduct an

inquiry on the basis of an I.A. filed in the aforesaid writ

petition alleging various irregularities committed by the

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officers/persons in the Taj Heritage Corridor Project and to

submit a Preliminary Report.

issued certain directions to the CBI to interrogate and verify

the assets of the persons concerned with regard to outflow of

Rs. 17 crores which was alleged to have been released without

proper sanction for the said Project. When the case was taken

up for hearing on 11.09.2003, a report was submitted by the

CBI and it was directed to be kept in a sealed cover in the

Registry.

(d) This Court, in its further order dated 18.09.2003, on the

basis of the report dated 11.09.2003, granted further time to

the CBI for verification of the assets of the officers/persons

involved. The CBI-Respondent No. 2 herein submitted a report

on 18.09.2003 before this Court which formed the basis of

order dated 18.09.2003 wherein the CBI was directed to

conduct an inquiry with respect to the execution of the Taj

Heritage Corridor Project under Taj Trapezium Zone (TTZ) Area

at Agra.

(e) Pursuant to the orders of this Court, an FIR was lodged

on 05.10.2003 being RC No. 0062003A0018/2003 under

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Section 120-B read with Sections 420, 467, 468 and 471 IPC

and under Section 13(2) read with Section 13(1)(d) of the PC

Act against several persons including the petitioner herein. In

the said FIR, certain details and several developments which

took place with regard to the aforesaid Project have been given.

As per the allegations contained in the report dated

11.09.2003, several irregularities were allegedly being found in

the aforesaid Project. Pursuant to the same, investigation has

been completed and the report was forwarded to obtain the

sanction from the competent authority, namely, the Governor

for prosecuting the Chief Minster of the State. The Governor,

by order dated 03.06.2007, declined to accord sanction to

prosecute the petitioner.

(f) According to the petitioner, in the aforesaid FIR, it was

stated that this Court also directed the CBI to conduct an

inquiry pertaining to the assets of the officers/individuals

concerned in the aforesaid Project as mentioned in the

judgment passed by this Court in the aforesaid case in order to

ascertain whether any mis-appropriation of funds have been

done with regard to outflow of Rs. 17 crores released for the

construction of said Project. A perusal of the order dated

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18.09.2003 would reveal that whatever directions were issued

by this Court were only in respect of Rs. 17 crores alleged to

have been released without proper sanction and there is not

even a whisper about making an investigation into any other

assets of the persons involved in general. In other words, the

scope of the order of this Court was limited to the extent of

money released in the said Project and not otherwise. This is

clear from the order of this Court dated 18.09.2003 wherein it

had specifically observed about lodging of FIR only with regard

to Taj Heritage Corridor Project case. That order nowhere

mentioned about lodging of second FIR in regard to the

disproportionate assets of the petitioner.

(g) It is the further case of the petitioner that contrary to the

orders of this Court, with mala fide intentions, the CBI

registered another FIR being R.C. No. 19 of 2003 on the same

date i.e. 05.10.2003 only against the petitioner alleging therein

that in pursuance of the orders dated 21.08.2003, 11.09.2003

and 18.09.2003 passed by this Court, they conducted an

inquiry with regard to the acquiring of disproportionate

movable and immovable assets by the petitioner and her close

relatives and on the basis of this inquiry lodged the said FIR,

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whereas there was no direction or observation by this Court to

inquire into the assets of the petitioner not related to the said

Project case.

(h) The said FIR has been lodged by Shri K.N. Tewari,

Superintendent of Police, CBI/ACP, Lucknow, however, in the

column of complaint at page No. 2 of the FIR, the name of the

complainant/informant has been mentioned as Shri Inder Pal,

Assistant Registrar, PIL Branch, Supreme Court of India, New

Delhi even though no such order or direction issued by him for

registration of the case. It is further pointed out that Shri

Inder Pal has not signed any such FIR as

complainant/informant. Pursuant to the impugned FIR - R.C.

No. 19 of 2003 the CBI conducted raids, search and seizure

operations at all the premises of the petitioner and her

relatives and seized all the bank accounts.

(i) The petitioner has made several representations to the

CBI officials, the State Minister of Personnel and the Hon’ble

Prime Minister who heads the Personnel Department drawing

their attention that the Supreme Court had not given any such

direction or authority to the CBI to lodge an FIR in respect to

the alleged disproportionate assets and investigate the entire

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assets of the petitioner from the year 1995 which have no

relation with the case of Taj Heritage Corridor Project which

came into being only in August, 2003. In spite of several

reminders and further representations, till date no

communication has been received from the CBI. The absence

of any reply by any of the authorities including the CBI shows

that there was no direction or authority to the CBI in the order

dated 18.09.2003 to lodge an FIR or to investigate into the

assets of the petitioner which are not related to the said

Project. Hence, it was incumbent upon the CBI to comply with

the provisions of Section 6 of the Delhi Special Police

Establishment Act, 1946 (in short ‘DSPE Act’) which makes it

obligatory to obtain the consent of the Government of the

concerned State to confer jurisdiction on the CBI to investigate

in any case arising within the jurisdiction of a State. In the

present case, FIR was lodged and investigation was conducted

without obtaining consent of the State Government which is in

flagrant violation of Section 6 of the DSPE Act. In the absence

of the consent of the State Government, the whole exercise of

the CBI about lodging of FIR and investigating into the assets

of the petitioner not related to Taj Heritage Corridor Project is

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without jurisdiction and, therefore, the same is non est and

void ab initio.

(j) It is further pointed out that this Court in its order dated

25.10.2004, after perusing the investigation reports filed by

the CBI, held that no link was found between the irregularities

alleged to have been found in respect to the assets matter and

the Taj Heritage Corridor Project which was the subject-matter

of the reference before the Special Bench.

(k) The fact that this Court had stopped monitoring the

assets case was again reiterated in the order dated 07.08.2006

passed by this Court.

(l) On 27.11.2006, this Court finally decided the issue in

respect to the FIR being R.C. No. 18 relating to the Taj Heritage

Corridor matter reported in M.C. Mehta (Taj Corridor Scam)

vs. Union of India & Ors., (2007) 1 SCC 110. In the said

judgment, this Court observed that it should not embark upon

an enquiry in regard to the allegations of criminal misconduct

in order to form an opinion one way or the other so as to prima

facie determine guilt of a person or otherwise. When the

matter came up before the Governor of U.P. to grant or refuse

sanction for prosecution, he sought legal opinion from the

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Additional Solicitor General of India and based on his opinion

and on appreciation of entire materials, the Governor has

concluded that the petitioner was not even remotely connected

with the sanction of the said Project or the payment released

for the same. After the above order of the Governor, the

directions given by this Court in the order dated 18.09.2003

were fully complied with including in respect to consider

violations of the provisions of the PC Act. After this, there was

no justification or authority with the CBI to continue with the

investigation in other personal assets of the petitioner.

(m) On 05.06.2007, the CBI moved an application before the

Special Judge, Anti Corruption Bureau, (CBI), Lucknow

informing that the Governor had refused to grant sanction. On

perusal of all the materials including the order of the Governor

declining to grant sanction, the Special Judge held that in the

absence of sanction to prosecute the petitioner, the Court has

no jurisdiction to take cognizance.

(n) The order of the Governor was also challenged before this

Court in Writ Petition (Civil) No. 434 of 2007. However, this

Court, by order dated 06.08.2007, dismissed the same as

withdrawn. Even thereafter, the petitioner has made several

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representations to the Director, CBI to drop the investigation

on the basis of the aforesaid FIR. However, the CBI is bent

upon harassing the petitioner. Hence, she approached this

Court by filing the present writ petition.

Stand of the CBI-Respondent No.2:

3) Pursuant to the notice issued on 15.05.2008, the CBI-

Respondent No.2 herein has filed its counter affidavit wherein

it was stated that in the order dated 18.09.2003 of this Court,

there was a clear direction to register an FIR for investigating

into disproportionate assets of the petitioner on the ground

that in the said order it was mentioned that “apart from what

has been stated in the reports with regard to the assets, the

learned ASG Mr. Altaf Ahmad has submitted that further

inquiry/investigation is necessary by the CBI”. It is further

stated that the validity of the aforesaid FIRs was not disturbed

by the Allahabad High Court by its order dated 22.10.2003 on

the ground that the FIR in question was filed as per the

directions of this Court. It is further stated by the CBI that the

FIR No. RC 19 dated 05.10.2003 under Section 13(2) read with

Section 13(1)(e) of the PC Act reveal the details of huge amount

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of disproportionate assets possessed by the petitioner and her

family members beyond their known sources of income.

Further case of the petitioner:

4) A rejoinder affidavit, supplementary affidavit and

supplementary counter affidavits have also been filed wherein

subsequent developments which took place during the

pendency of the writ petition, especially, passing of various

orders by the Income Tax Authorities, Income Tax Appellate

Tribunal and the Delhi High Court in favour of the petitioner

for different assessment years have been mentioned holding

that all income shown in her accounts in the form of gift or

otherwise are genuine and legal, covering from 1995 to 2004 of

which period the assessments were reopened, investigated and

reassessed.

Case of the intervenor:

5) During the pendency of this writ petition, which was filed

in 2008, one Mr. Kamlesh Verma has filed I.A. No. 8 of 2010

claiming that he is a social worker and petitioner in Writ

Petition No. 2019 of 2009 (M/B) concerning FIR being RC No.

18 dated 05.10.2003 for intervention in the above matter and

to assist the Court. By pointing out that it was he who

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challenged the order of the Governor declining to grant

sanction in respect of FIR No. 18 and filed Writ Petition No.

2019 of 2009 which is pending in the Allahabad High Court,

Lucknow Bench, sought to intervene to put-forth certain

factual details. In the said application, the intervener has also

highlighted various earlier orders of this Court. The said I.A.

was resisted by the petitioner by pointing out that in the

present writ petition the petitioner seeks quashing of the

second FIR i.e. R.C. No. 19 only on the ground that there was

no such direction in the order dated 18.09.2003 passed by this

Court. The intervention application is therefore, misconceived.

It is also pointed out that the intervener has filed his writ

petition in Lucknow in 2009 and his intervention application

was filed on 08.09.2010 whereas the petitioner had filed writ

petition in May, 2008 and this Court had issued notice on

15.05.2008. It is also pointed out that the intervener was not

associated with the Project matter before this Court at any

stage when orders were passed on several dates commencing

from 2003 ending with 2009.

6) In the light of the above pleadings of the parties, we heard

Mr. Harish Salve, learned senior counsel for the petitioner, Mr.

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Mohan Parasaran, learned Additional Solicitor General for the

Union of India and CBI and Ms. Kamini Jaiswal, learned

counsel for the intervener.

7) The relief(s) sought for in the writ petition are reproduced

hereunder:-

“I. Issue a Writ, Order or direction in the nature of certiorari quashing the FIR No. R.C. 0062003A0019/2003 dated 05.10.2003 lodged by Superintendent of Police, CBI/ACB, Lucknow and investigation proceedings being made in pursuance thereof.

II. Issue a Writ, Order or direction in the nature of Mandamus restraining the respondent no.2 and 3 from proceeding further in pursuance to the said FIR and direct them to close and drop the said proceedings;

III. Issue a writ, order or direction in the nature of mandamus directing the release of all seized bank accounts of the petitioner which have been seized by CBI in pursuance to the impugned FIR.

IV. Issue an appropriate writ, order or direction declaring that this Hon’ble court under Article 32/136/142 of the Constitution of India or the High Court under Article 226 of the Constitution of India can not direct the Central Bureau of Investigation (CBI), an establishment created under the Delhi Special Police Establishment Act, 1946 to investigate a cognizable offence which is alleged to have taken place in a State without the consent of the State Government under Section 6 of the Delhi Special Police Establishment Act, 1946.

V. Issue any other Writ, order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the present case.”

8) It is clear from the narration of facts as well as the

relief(s) sought for in the writ petition that the petitioner is

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aggrieved of second FIR being No. R.C. 0062003A0019 dated

05.10.2003. It is also clear that the petitioner has assailed the

said FIR on the ground that there was no direction by this

Court in its order dated 18.09.2003 which could have

empowered the CBI to lodge two FIRs, namely, (i) FIR No. R.C.

0062003A0018 dated 05.10.2003 under Section 120-B read

with Sections 420, 467, 468, and 471 IPC and Section 13(2)

read with Section 13(1)(d) of the P.C. Act against the petitioner

as well as 10 other accused persons in respect of Taj Corridor

matter and (ii) FIR No. R.C. 0062003A0019 dated 05.10.2003

under Section 13(2) read with Section 13(1)(e) of the P.C. Act

against the petitioner only. It is the specific stand of the

CBI that in the order dated 18.09.2003 passed by this Court in

I.A. No. 376 of 2003 in Writ Petition No. 13381 of 1984 - M.C.

Mehta vs. Union of India and Others, (2003) 8 SCC 696,

there was a clear direction to register an FIR for investigating

into disproportionate assets of the petitioner on the ground

that in the said order, it is mentioned that “apart from what

has been stated in the reports with regard to the assets, the

learned ASG Mr. Altaf Ahmed has submitted that further

inquiry/investigation is necessary by the CBI”. It is also their

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stand that the validity of the aforesaid FIRs was not disturbed

by the Allahabad High Court by its order dated 22.10.2003 on

the ground that the FIR in question was filed as per the

directions of this Court. It is further stated that the second

FIR being No. R.C. 0062003A0019 dated 05.10.2003 revealed

the details of huge amount of disproportionate assets

possessed by the petitioner and her family members beyond

their known sources of income.

9) As against the abovesaid stand of the CBI, the petitioner,

in the form of rejoinder and supplementary affidavits, has

pointed out that all income shown in her accounts in the form

of gift or otherwise are genuine and legal covering from 1995 to

2004. It is further pointed out that all orders passed by the

Income Tax Authorities have been brought on record and all of

them attained finality and no further appeal is pending against

them and all the assessments were reopened investigated and

re-assessed.

10) The petitioner has also filed a consolidated compilation of

orders passed by this Court commencing from 16.07.2003

ending with 27.04.2009. Mr. Harish Salve, learned senior

counsel for the petitioner and Mr. Mohan Parasaran, learned

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ASG took us through all those orders. Among those orders, we

are very much concerned about the order dated 18.09.2003.

Before going into the various directions issued in the said

order, it is also relevant to refer the earlier orders dated

16.07.2003, 21.08.2003 and 11.09.2003. It is clear from

those orders that this Court by order dated 30.12.1996 in M.C.

Mehta (Taj Trapezium Matter) vs. Union of India and

Others, (1997) 2 SCC 353 issued a number of directions to

protect the national and world heritage monument, namely,

the Taj. Thereafter, a number of interim applications were

filed by the persons concerned who were required to shift their

business or manufacturing activities. This Court has also

appointed a Monitoring Committee to report whether those

directions issued by this Court are complied with or not.

11) In the order dated 16.07.2003 – M.C. Mehta vs. Union of

India and Others, (2003) 8 SCC 706, this Court, in order to

find out who cleared the project, i.e., construction of the

‘Heritage Corridor’ at Agra and for what purpose it was cleared

without obtaining necessary sanction from the Department

concerned and whether there was any illegality or irregularity

committed by the officers/persons, came to the conclusion that

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inquiry by CBI is necessary. Accordingly, in para 16 of the

said order, this Court directed the Director of CBI to see that

inquiry with regard to any illegality/irregularity committed by

the officers/persons be conducted at the earliest and directed

to submit a report to this Court. This Court also directed the

CBI to submit Preliminary report within four weeks and final

report within two months from 16.07.2003.

12) In the next order dated 21.08.2003, M.C Mehta vs.

Union of India, (2003) 8 SCC 711, this Court, after going

through the Preliminary Confidential Report submitted by the

CBI, directed the higher officer of CBI to interrogate four, five

or six more persons who are involved in the decision-making of

granting contract for construction of the Taj Heritage Corridor.

In the same order, this Court observed that it would be open to

the CBI officer to interrogate and verify their assets because it

was alleged that Rs. 17 crores were released without proper

sanction.

13) The next order is dated 18.09.2003 - M.C. Mehta vs.

Union of India and Others, 2003 (8) SCC 696. In this order,

this Court referred to the earlier directions and orders, more

particularly, the direction to CBI to interrogate the persons

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involved and verify their assets in view of the fact that it was

alleged that an amount of Rs. 17 crores was released without

proper sanction. After going through the report of the CBI

submitted on 11.09.2003, further time was given to the CBI for

verification of the assets of the persons/officers involved. In

the course of hearing, the CBI has pointed out that income tax

returns of various persons including the petitioner were

collected from different income tax authorities. In the course

of the said proceedings, apart from various reports with regard

to the assets, the learned ASG - Mr. Altaf Ahmed submitted

that further inquiry/investigation is necessary by the CBI.

Based on his request, this Court issued the following

directions:

“13. Considering the aforesaid report and the serious irregularities/illegalities committed in carrying out the so- called Taj Heritage Corridor Project, we direct:

(a) the Central Government to hold immediate departmental inquiry against Shri K.C. Mishra, former Secretary, Environment, Union of India;

(b) the State of Uttar Pradesh to hold departmental inquiry against Shri R.K. Sharma, former Principal Environment Secretary, Shri P.L. Punia, former Principal Secretary to Chief Minister, Shri D.S. Bagga, Chief Secretary and Shri V.K. Gupta, former Secretary, Environment;

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(c) NPCC or the competent authority including the Central Government to hold inquiry against Shri S.C. Bali, Managing Director of NPCC;

(d) the State Government as well as the officers concerned of the Central Government are directed to see that departmental inquiry is completed within four months from today. The State of U.P. and the Central Government would appoint respective inquiry officers for holding inquiry, within a period of seven days from today;

(e) it would be open to the State Government if called for to pass order for suspension of the delinquent officers in accordance with the rules;

(f) for the officers and the persons involved in the matter, CBI is directed to lodge an FIR and make further investigation in accordance with law;

(g) CBI shall take appropriate steps for holding investigation against the Chief Minister Ms Mayawati and Naseemuddin Siddiqui, former Minister for Environment, U.P. and other officers involved;

(h) the Income Tax Department is also directed to cooperate in further investigation which is required to be carried out by CBI;

(i) CBI would take into consideration all the relevant Acts i.e. IPC/Prevention of Corruption Act and the Water (Prevention and Control of Pollution) Act, 1974 etc.;

(j) CBI to submit a self-contained note to the Chief Secretary to the Government of Uttar Pradesh as well as to the Cabinet Secretary, Union Government and to the Ministry concerned dealing with NPCC.”

14) A perusal of the orders prior to the order dated

18.09.2003 and several directions in the order dated

18.09.2003 clearly show that this Court was concerned with

illegality/irregularity committed by the officers/persons in

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carrying out the Taj Heritage Corridor Project. The main

allegation relates to an amount of Rs. 17 crores which was

released by the State Government without proper sanction. It

is also clear that in order to find out who cleared the project

and for what purpose it was cleared without obtaining

necessary sanction from the Department concerned and

whether there was any illegality/irregularity committed by the

officers/persons, this Court thought an inquiry by CBI was

considered necessary. In such a situation, the CBI was

directed to interrogate and verify their assets. As rightly

pointed out by Mr. Harish Salve, there was no occasion for this

Court to consider the alleged disproportionate assets of the

petitioner separately that too from 1995 to 2003 when

admittedly Rs. 17 crores were released in September, 2002.

15) A thorough scrutiny of all the orders including the

specific directions dated 18.09.2003 clearly show that the

same was confined only in respect to the case relating to Taj

Corridor Project which was the subject-matter of reference

before the Special Bench. It is relevant to point out para 13(f)

of the order dated 18.09.2003 which makes it clear that the

CBI could have lodged only one FIR No. R.C. 0062003A0018

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dated 05.10.2003. In other words, inasmuch as there being no

consideration of alleged disproportionate assets at any stage of

the proceedings while dealing with the Taj Corridor matter,

there could not have been and in fact there was no such

direction to lodge another FIR being No. R.C. 0062003A0019

dated 05.10.2003 exclusively against the petitioner under the

P.C. Act.

16) In this regard, learned senior counsel for the petitioner

pressed into service a Constitution Bench decision rendered in

the case of State of West Bengal & Ors. vs. Committee for

Protection of Democratic Rights, West Bengal & Ors.,

(2010) 3 SCC 571. After considering various constitutional

provisions relating to the State and the Union as well as

Section 6 of the DSPE Act, the Bench has concluded thus:

“69. In the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly.

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70. 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. Insofar 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.

71. In Minor Irrigation & Rural Engg. Services, U.P. v. Sahngoo Ram Arya this Court had said that an order directing an enquiry by CBI should be passed only when 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. We respectfully concur with these observations.”

17) As rightly pointed out that in the absence of any direction

by this Court to lodge an FIR into the matter of alleged

disproportionate assets against the petitioner, the Investigating

Officer could not take resort to Section 157 of the Code of

Criminal Procedure, 1973 (in short ‘the Code’) wherein the

Officer-in-charge of a Police Station is empowered under

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Section 156 of the Code to investigate on information received

or otherwise. Section 6 of the DSPE Act prohibits the CBI from

exercising its powers and jurisdiction without the consent of

the Government of the State. It is pointed out on the side of

the petitioner that, in the present case, no such consent was

obtained by the CBI and submitted that the second FIR against

the petitioner is contrary to Section 157 of the Code and

Section 6 of the DSPE Act. It is not in dispute that the consent

was declined by the Governor of the State and in such

circumstance also the second FIR No. R.C. 0062003A0019

dated 05.10.2003 is not sustainable.

18) Mr. Mohan Parasaran, learned ASG as well as Ms.

Kamini Jaiswal, learned counsel for the intervener after taking

us through the order dated 18.09.2003 and other orders

submitted that the CBI was well within its power to pursue the

second FIR No. R.C. 0062003A0019 dated 05.10.2003. Among

various directions, Mr. Mohan Parasaran, learned ASG very

much pressed into service the direction in para 13(g) of the

order dated 18.09.2003. The said direction reads as under:-

“(g) CBI shall take appropriate steps for holding investigation against the Chief Minister Ms Mayawati and Naseemuddin Siddiqui, former Minister for Environment, U.P. and other officers involved;”

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According to Mr. Mohan Parasaran, liberty was granted by this

Court to proceed against the petitioner. He also relied on para

9 of the order dated 25.10.2004 – M.C. Mehta vs. Union of

India and Others, (2007) 1 SCC 137, which reads as under:-

“Re: FIR RC 0062003A0019

9. The further investigation report filed by CBI in this connection while indicating large-scale irregularities does not in fact show any link between such irregularities and the Taj Corridor matter which is the subject-matter of reference before the Special Bench. CBI therefore is at liberty to proceed with and take action on the basis of their investigation in respect of this FIR. In the event any link is disclosed in the course of such investigation between facts as found and the Taj Corridor Project, CBI will bring the same to the notice of this Court. In any event, CBI will be entitled to take action on the basis of the investigation as it may think fit.”

In addition to the above, he also pressed into service para 4 of

the order dated 19.07.2004 – M.C. Mehta vs. Union of India

and Others, (2007) 1 SCC 136. The said order reads as

under: -

“4. CBI is permitted further eight weeks’ time to complete the investigation in respect of FIR No. RC 0062003A0018. As far as FIR No. RC 0062003A0019 is concerned, three months’ time is granted.”

In view of the argument of Mr. Mohan Parasaran as well as Ms.

Kamini Jaiswal relying on the above directions, we have gone

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through all those orders meticulously. According to us, the

entire issue revolves around the order dated 18.09.2003

passed by this Court as the FIR was filed immediately

thereafter on 05.10.2003. The said FIR as well as the counter

affidavit filed by the CBI states that the FIR has been filed as

per the directions contained in the order dated 18.09.2003. A

perusal of the same shows that the Assistant Registrar of this

Court has been described as the Complainant. On going

through all the orders, we are of the view that the said

objection of the petitioner cannot be rejected. A perusal of the

series of orders passed in W.P. No. 13381 of 1984 - M.C.

Mehta vs. Union of India and Others clearly show that the

order dated 18.09.2003 is preceded by other orders issued

from time to time only in connection with Taj Heritage Corridor

Project. While considering the directions issued in the order

dated 18.09.2003, it is incumbent to refer the orders dated

16.07.2003, 21.08.2003 and 11.09.2003. We have already

noted that those previous three orders passed by this Court

state that the CBI was directed to interrogate the persons

involved and also to verify their assets because it was alleged

that the amount of Rs. 17 crores was released without proper

Page 26

sanction. It is relevant to mention that in the order dated

25.10.2003 (which we have already quoted in the earlier paras)

this Court mentioned that it was not monitoring

disproportionate assets case since no link could be found

between the Taj Corridor matter and the assets of the

petitioner. (para 9 of the order dated 25.10.2004) It is also

relevant to refer the next order dated 07.08.2006 wherein the

same was once again reiterated. It is true that in the order

dated 25.10.2004, liberty was granted to the CBI that in the

event any link is disclosed in the course of such investigation

between the Taj Corridor Project and the assets, CBI is free to

bring it to the notice of this Court. The fact remains that the

investigation report filed by the CBI before this Court which

was considered on 25.10.2004 shows that large-scale

irregularities does not show any link between such

irregularities and the Taj Corridor matter. The said

finding/conclusion by this Court was based on the

investigation report of the CBI. In view of the same, we are

satisfied that CBI cannot be permitted to take the view that

two cases, namely, Taj Corridor and Disproportionate Assets

case are same and the investigation was done in both the

Page 27

cases as per the directions of this Court. After reading the

entire orders dated 18.09.2003 and 25.10.2004, the stand of

the CBI is to be rejected as unacceptable.

19) It is also brought to our notice that merely because

various orders of this Court including the order dated

18.09.2003 has been communicated to various authorities in

terms of the provisions of the rules of this Court, the CBI is not

justified in putting the Assistant Registrar of this Court as

informant/complainant. Further as rightly pointed out by Mr.

Salve, the complainant/Assistant Registrar would not and

cannot be a witness in the case to corroborate the statements

made in the FIR No. R.C. 0062003A0019 dated 05.10.2003.

As rightly pointed out, proceeding further, as if the said

Assistant Registrar of this Court made a complaint cannot be

sustained.

20) We have already pointed out after reading various orders

of this Court which show that Taj Corridor was the subject

matter of reference before the Special Bench. Various

directions issued in the order dated 18.09.2003 have to be

read in the light of the previous orders dated 16.07.2003,

21.08.2003 and 11.09.2003 as well as subsequent orders

Page 28

dated 25.10.2004 and 07.08.2006 wherein this Court has

clarified that it was not monitoring the disproportionate assets

case. We are satisfied that reading of all the orders of this

Court clearly show the direction to lodge FIR was issued only

with respect to Taj Corridor matter, more particularly,

irregularities therein. In fact, the direction was confined to

find out as to who cleared the project of Taj Corridor and for

what purpose it was cleared and whether there was any

illegality or irregularity committed by officers and other

persons concerned in the State. We have already noted all

those orders which clearly state that the CBI is free to

interrogate and verify the assets of the officers/persons

relating to release of Rs. 17 crores in connection with Taj

Corridor matter.

21) As discussed above and after reading all the orders of this

Court which are available in the ‘compilation’, we are satisfied

that this Court being the ultimate custodian of the

fundamental rights did not issue any direction to the CBI to

conduct a roving inquiry against the assets of the petitioner

commencing from 1995 to 2003 even though the Taj Heritage

Corridor Project was conceived only in July, 2002 and an

Page 29

amount of Rs. 17 crores was released in August/September,

2002. The method adopted by the CBI is unwarranted and

without jurisdiction. We are also satisfied that the CBI has

proceeded without proper understanding of various orders

dated 16.07.2003, 21.08.2003, 18.09.2003, 25.10.2003 and

07.08.2003 passed by this Court. We are also satisfied that

there was no such direction relating to second FIR, namely,

FIR No. R.C. 0062003A0019 dated 05.10.2003. We have

already referred to the Constitution Bench decision of this

Court in Committee for Protection of Democratic Rights,

West Bengal (supra) wherein this Court observed that only

when this Court after considering material on record comes to

a conclusion that such material does disclose a prima facie

case calling for investigation by the CBI for the alleged offence,

an order directing inquiry by the CBI could be passed and that

too after giving opportunity of hearing to the affected person.

We are satisfied that there was no such finding or satisfaction

recorded by this Court in the matter of disproportionate assets

of the petitioner on the basis of the status report dated

11.09.2003 and, in fact, the petitioner was not a party before

this Court in the case in question. From the perusal of those

Page 30

orders, we are also satisfied that there could not have been any

material before this Court about the disproportionate assets

case of the petitioner beyond the Taj Corridor Project case and

there was no such question or issue about disproportionate

assets of the petitioner. In view of the same, giving any

direction to lodge FIR relating to disproportionate assets case

did not arise.

22) We finally conclude that anything beyond the Taj Corridor

matter was not the subject-matter of reference before the Taj

Corridor Bench. Since the order dated 18.09.2003 does not

contain any specific direction regarding lodging of FIR in the

matter of disproportionate assets case against the petitioner,

CBI is not justified in proceeding with the FIR No. R.C.

0062003A0019 dated 05.10.2003. In view of the above

discussion, we are satisfied that the CBI exceeded its

jurisdiction in lodging FIR No. R.C. 0062003A0019 dated

05.10.2003 in the absence of any direction from this Court in

the order dated 18.09.2003 or in any subsequent orders.

23) Regarding the intervention application - I.A. No. 8 of 2010

filed by Shri Kamlesh Verma, though an objection was raised

about his right to intervene in the matter, it is not in dispute

Page 31

that against the rejection of the sanction to proceed against the

petitioner by the State, he had preferred a Writ Petition (C) No.

2019 of 2009 in the Allahabad High Court which is still

pending. It is pointed out that intervener was not associated

with the Taj Corridor matter before this Court at any stage

when the orders dated 16.07.2003, 21.08.2003, 11.09.2003,

18.09.2003, 19.07.2004, 25.10.2004, 07.08.2006,

27.11.2006, 06.08.2007, 10.10.2007 and 27.04.2007 were

passed. It is true that the intervener has no legal right to

intervene in the matter of this kind where CBI has been

prosecuting the case vigorously against the petitioner.

Inasmuch as the intervener has challenged the order of the

Governor of U.P. declining to grant sanction to prosecute the

petitioner and the said matter is pending in the Lucknow

Bench of the Allahabad High Court, in order to assist the

Court, we heard his counsel Ms. Kamini Jaiswal. It is true

that this Court has held that when investigating agency like

CBI and Union of India are contesting the matter effectively,

the third party was not permitted to canvass correctness of the

judgment by way of PIL (Union of India & Anr. vs. W.N.

Chadha, 1993 (Supp) 4 SCC 260) and Janata Dal vs. H.S.

Page 32

Chowdhary & Ors., (1991) 3 SCC 756. While accepting the

above principles reiterated in those decisions, in view of the

peculiar facts that the intervener - Kamlesh Verma is pursuing

his writ petition against the petitioner in the High Court, we

heard his counsel to assist the Court. In view of the above

special circumstance, we allow I.A. No. 8 of 2010 and the same

cannot be cited as a precedent for other cases.

24) In the light of the above discussion, we hold that in the

absence of any specific direction from this Court in the order

dated 18.09.2003 or any subsequent orders, the CBI has

exceeded its jurisdiction in lodging FIR No. R.C.

0062003A0019 dated 05.10.2003. The impugned FIR is

without jurisdiction and any investigation pursuant thereto is

illegal and liable to be quashed, accordingly quashed. The writ

petition is allowed.

………….…………………………J. (P. SATHASIVAM)

………….…………………………J. (DIPAK MISRA)

NEW DELHI; JULY 6, 2012.