HIGH COURT OF MADHYA PRADESH : AT JABALPUR. Writ Petition No. 623 OF 2017 (PIL) PETITIONER : Kanhaiya Shailesh & Others. Vs.

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1 1 HIGH COURT OF MADHYA PRADESH : AT JABALPUR Writ Petition No. 623 OF 2017 (PIL) PETITIONER : Kanhaiya Shailesh & Others Vs. RESPONDENTS: Present : State of Madhya Pradesh and others Hon'ble Shri Justice Rajendra Menon, Acting Chief Justice; and, Hon'ble Shri Justice H.P. Singh Shri Sourabh Sharma, learned counsel for the petitioners. Shri Ravish Agrawal, learned Advocate General with Shri Swapnil Ganguli, G.A. for the respondents/state Whether approved for reporting: Yes / No. (O R D E R) 19/01/2017 Petitioners who claim to be public spirited persons have filed this writ petition pro bono and the relief claimed by the petitioners in Para-11 reads as under:- i. That, this Hon'ble Court may kindly be pleased to direct CBI Investigating Agency to look into the matter regarding issues of 500 crore rupees Havala Racket in accordance with law and further be pleased to direct to CBI will file the status report in every two months at before this Hon'ble Court.; ii. That, this Hon'ble High Court may be pleased to restrained the respondent No.1 for executing the transfer order dated 09/01/17 in relation to respondent No.4 unless the permission by this Court and also may be directed respondent No.3 to make enquiry/investigation' iii. Any other relief flowing from the facts and circumstances of

2 2 the case may please be awarded alongwith the costs of the proceedings to meet the larger interest of justice. 2. As far as Para No.11(i) is concerned, it pertains to handing over an investigation to the Central Bureau of Investigation and the grievance of the petitioners is that the Crime is not being investigated properly by the Police Authorities and to stall the investigation respondent No.4 has been transferred. 3. Heard learned counsel for the petitioner and the learned Advocate General, present on advance notice, at length. 4. For the purpose of transferring the investigation of criminal case from the police authorities to any specialized agencies like the Central Bureau of Investigation, the principles to be followed have been laid down in detail by the Hon'ble Supreme Court in the cases of State of West Bengal & Others Vs. Committee for Protection of Democratic Rights, West Bengal & Others, 2010 (3) SCC 571, Dharampal Vs. State of Haryana & Others, 2016 (4) SCC 160, Sujatha Sujatasahu Vs. State of Kerala & others, 2016 (7) SCC 597 and Pooja Pal Vs. Union of India & Others, 2016 (3) SCC 135. The principle laid down in the aforesaid cases contemplating the ingredients and grounds necessary for investigation and enquiry of a matter by the Central Bureau of Investigation should be made out on a bare reading of the material available on record. It has been held by the Supreme Court that merely on

3 3 the asking of a person a case cannot be transferred to the Central Bureau of Investigation. In the judgment rendered by the Supreme Court recently in the case of Puja Pal (supra) from para 50 onwards the law has been crystallized by the Supreme Court and it has been held that while exercising extra ordinary jurisdiction a Constitutional Court under Article 32 & 226 of the Constitution of India in the matter of issuing of direction to the Central Bureau of Investigation to conduct investigation must exercise jurisdiction with caution as has been underlined in the case of Committee for Protection of Democratic Rights, West Bengal (surpa). Even though, no inflexible guideline has been laid in this regard. It has been held by the Supreme Court that the powers should be exercised in exceptional situation, where it is necessary to provide credibility and install confidence into the investigation or where there are national or international reunification and for the purpose of doing complete justice, transfer of the case is necessary. The Supreme Court has cautioned that exercising its jurisdiction under Article 226 of the Constitution of India, the High Court should exercise its power sparingly, cautiously and only in exceptional circumstances where the situation so warrants. If that be the principle governing, consideration of prayer No.1 made by the petitioners in this writ petition, we are required to analyze the averments made by the petitioner and see as to whether the ingredients necessary and the principles laid down by the Supreme Court are available in the present

4 4 case. 5. Petitioners say in the writ petition that a Rs.500 crores Havala racket was being investigated by the respondent No.4, who was Superintendent of Police and all of a sudden to stall the investigation he has been transferred and, therefore, this Public Interest Litigation has been filed. Even though, words like public interest and various other adjectives are used to highlight the concern of the petitioners, but surprisingly even the crime number on which the case has been registered, the Police Station which registered the case, the particulars of the accused persons and the provisions of law under which the case has been registered, are not indicated in the body of the petition. Surprisingly, even the copy of the FIR or FIR's which is being investigated by the so called Police Officer is not available on record. When these queries were made by this Court and when this Court wanted the petitioners to inform this Court as to what is the nature of offence committed, what is the allegation in the FIR for which the investigation is required to be transferred, learned counsel invited our attention on an amendment application said to have been filed yesterday and points out that the details are contained in M.Cr.C.No.20/17 decided by a Single Bench of this Court on 16/01/2017 and produced before us a copy of the order passed in the said case. The order has been perused by us, the same pertains to grant of anticipatory bail under Section 438 of the Cr.P.C to one Shri Santosh Kumar Garg, in connection with

5 5 Crime No.1367/16 registered by the Police Station Kotwali for offence under Section 294, 506, 420 of the IPC. 6. On perusal of this order passed in M.Cr.C.No.1367/16, we do not find anything in the order, which would help the petitioners. The petitioners have filed this writ petition in public interest and the prayer made by them primarily is to transfer a case which is being investigated by the local police to the Central Bureau of Investigation, they should have at least indicated the crime number, filed a copy of the FIR or FIR's, the nature of offence committed or even the particulars of the offence under the IPC or any other statutory in law governing the so called alleged Havala transaction or Havala racket is not indicated in the body of the writ petition. It is not even known as to whether any offence regarding illegal transaction of money, money laundering or Havala is registered or is being investigated by the police authorities at Katni. On the contrary the reliance placed on Crime No.136/16 goes to show that it is simple offence under Section 294, 506 read with Section 420 of the IPC and there is nothing in this case which warrants transfer to the Central Bureau of Investigation. 7. That being so it is a case where petitioners have filed this writ petition without conducting any research, without bringing to the notice of this Court the basic ingredients for transfer of the case to this Court, nor do they point out to this Court what is the nature of offence which is being investigated, what is the default or illegality in the investigation, challan

6 6 or what case they want to be transferred to the Central Bureau of Investigation. It is a case where we find that the petitions have been filed only to create a commotion, gain, public attention and somehow to become popular in the area where they are residing. It is a case where we prima facie find that the petitioners have misused the process of law. That being so, we are constrained to hold that this petition has been filed not in public interest but with melafied intention on extraneous consideration. It has come to our notice that after filing of writ petition a detailed press statement was issued with regard to this case and even before issuance of notice by this Court it was tried to be pointed out that such and such racket has occurred in the District in question and a PIL has been filed even before cognizance was taken by this Court. The case is being listed today for the first time for admission before this Court. We find that litigants and counsels are indulging in giving publicity to writ petition filed by them by releasing press statement with regard to the allegations made against citizens, individuals and persons with authority in the petition and the same is highlighted in the press statement issued and even before notices are issued or cognizance is taken on the petition, press statements are made with regard to the allegations made in the writ petition. We do not appreciate such acts on the part of the counsel and the litigants and we request to the Bar Council of Madhya Pradesh to take note of such happenings and take remedial steps to prevent the advocates from

7 7 indulging in such acts by releasing to the press, the copies of writ petitions even before cognizance of the same is taken by the High Court or other Courts within the State. 8. If we go through the petition, we find that in the subject matter in brief it is said that the matter pertains to Rs.500/- crore scam of Havala racket. An offence for a Rs.500/- crore scam was being investigated by respondent No.4. It says that he has been transferred and his transfer amounts to frequent transfer. Except for contending that the transfer of respondent No.4 is not in the public interest, not a single legal infirmity in the investigation being conducted or the particulars which warrants transfer of investigation are available. On the contrary it is indicated in the writ petition that the rights available under Article 21 of the Constitution of India for protection of right, is being violated by transferring the Superintendent of Police. We find that in the writ petition not a single ground is raised, which can be termed as a tenable legal ground based on which the relief claimed for, can be granted. That apart, certain documents have been filed in the writ petition and nothing is indicated in the writ petition as to why and in what manner they are relevant for decision of the writ petition. From where and in what manner the petitioners obtained these documents and how they go to show that the investigation requires to be transferred to the Central Bureau of Investigation. Its a case where if the facts and circumstances are analized in the backdrop of the law laid

8 8 down by the Supreme Court in the case of M/s Holicow Pictures Pvt. Ltd. Vs. Prem Chandra Mishra & Others, 2008 AIR SCW 343, the petition should be classified as a frivolous petition and dismissed with cost. 9. In the case of M/s Holicow Pictures Pvt. Ltd. (supra) the Hon'ble Supreme Court has dealt with the issue in the following manner :- Public Interest Litigation which has now come to occupy an important field in the administration of law should not be "publicity interest litigation" or "private interest litigation" or "politics interest litigation" or the latest trend paise income litigation. Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. The Court must be careful to see that a body of persons or member of public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique considerations. The Court must not allow its process to be abused for oblique considerations by masked phantoms who monitor at times from behind. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives, and try to bargain for a good deal as well to enrich themselves. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busy bodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs. A time has come to weed out the petitions, which though titled as public interest litigations are in essence something else. The Courts are flooded with large number of so called public interest litigations where even a minuscule percentage can legitimately be called as public interest litigations. Though the parameters of public interest litigation have been indicated by Supreme Court in large number of cases, yet unmindful of the real intentions and objectives, Courts are entertaining such petitions and wasting valuable judicial time which, could be otherwise utilized for disposal of genuine cases. It is also noticed that petitions are based on newspaper reports without any attempt to verify their authenticity. As observed by the Supreme Court in several cases newspaper reports do not constitute evidence. A petition based on unconfirmed news reports, without verifying their authenticity should not normally be entertained. Such petitions do not provide any basis for

9 9 verifying the correctness of statements made and information given in the petition. It would be desirable for the Courts to filter out the frivolous petitions and dismiss them with costs so that the message goes in the right direction that petitions filed with oblique motive do not have the approval of the Courts. 10. Taking note of the totality of the circumstances, we find that this petition has been filed without any basis. It is only based on the press statements and certain publications made in the News Papers. Not a single document is available on record based on which the prayer for transfer of the case from police authorities to Central Bureau of Investigation can be accepted and, therefore, as the ingredients necessary and laid down by the Supreme Court in the cases referred to hereinabove are not made out, we are not inclined to interfere into the matter. 11. During course of hearing of the matter the State Government represented by learned Advocate General has brought on record an affidavit filed by the Additional Superintendent of Police, Officer-incharge of the case and the learned Advocate General invited our attention on Annexure R/2 dated 13/01/17, whereby the Government of Madhya Pradesh has already referred the matter for further investigation to the Enforcement Directorate and request in this regard has been made to the Secretary Revenue, Department of Revenue, Govt. of India for transfer of the investigation to the Enforcement Directorate for suitable action. 12. As far as second prayer made by the petitioners is concerned, it pertains to the transfer of the respondent No.4. We are informed by the

10 10 learned Advocate General that respondent No.4 is an Officer in the cadre of Indian Police Service and the jurisdiction to deal with his transfer vests exclusively with the Central Administrative Tribunal constituted under the Central Administrative Tribunals Act and, therefore, the question of transfer of respondent No.4 should not be gone into in this petition. Apart from the aforesaid, if respondent No.4 has any grievance with regard to his transfer, it is his individual grievance and at the instance of petitioner, a busy body, we are not inclined to go into the question of transfer of the respondent No.4. That apart, we are also informed today by the learned Advocate General that respondent No.4 has acted upon the transfer and has already joined and commenced his duties on the transferred post. 13. Taking note of all these circumstances we find that this petition has been filed malafidely without any just cause or reason and has been filed in a manner which cannot be approved of by this Court. 14. It is a petition filed not in public interest, but in private interest by the petitioners, may be for the purpose of gaining popularity or for any other vested interest or extraneous consideration and taking note of the aforesaid we dismiss this petition with a cost of Rs.50,000/-, which shall be deposited with the Secretary, Madhya Pradesh State Legal Services Authority and shall be utilized for the purpose of providing legal aid. C.c. as per rules. (Rajendra Menon ) (H.P. Singh) ACTING CHIEF JUSTICE JUDGE As/