The Bombay high court on Wednesday rejected senior IPS officer Rashmi Shukla's petition seeking to quash the FIR registered by the Mumbai police in connection with the alleged phone tapping and leak of sensitive documents case, noting that prima facie a cognisable offence is made out.
A division bench of Justices Nitin Jamdar and Sarang Kotwal also rejected Shukla's prayer to transfer the case to the Central Bureau of Investigation.
Shukla, currently serving as additional director general of police, Central Reserve Police Force (south zone) and posted in Hyderabad, had headed the Maharashtra intelligence department when the alleged phone tapping took place last year.
The bench also noted that since Shukla has not yet been named as an accused in the FIR, the Maharashtra government shall give her a seven-day notice if it intends to take any coercive steps against her.
"Both the prayers -- quashing of the FIR and transfer the case to CBI are rejected. If the state government intends to take any coercive steps against the petitioner (Shukla) then it shall give seven days notice to the petitioner," the bench said.
While pronouncing judgment on the petition filed by Shukla, the HC held that the FIR prima facie discloses cognisable offences.
"Since the FIR discloses a cognisable offence, the police have a duty to investigate. No ground is made out to quash the FIR and to prevent any further investigation," the bench said.
"The prayer for transfer of the investigation to CBI on the ground that the CBI is investigating the postings of the police officers is without merit as both the investigations are different," it added.
The bench said the investigation in the present case was not about the contents of the report (submitted by Shukla on alleged corruption in police transfers and postings) but about the action of releasing an official document unauthorisedly.
"Once we find that the FIR discloses cognisable offence and merits investigation, then quashing the FIR against the petitioner would directly interfere with the investigation," the bench said.
The high court refused to accept Shukla's contention that since the CBI is investigating a case against Maharashtra's former home minister Anil Deshmukh, this case too should be transferred to the central investigating agency, observing that investigation in both the cases is different.
"The petitioner (Shukla) has not made any case that the investigation pursuant to this FIR lacks credibility or does not inspire confidence," the judgment said.
"It cannot be said the FIR does not disclose a cognisable offence. That being the position, the state police machinery is investigating as they are duty-bound to do. Thus this cannot be a ground for seeking transfer of investigation," it added.
As per the FIR, a pen drive containing the confidential information, shown by the Leader of the Opposition Devendra Fadnavis (on alleged corruption in police transfers and postings), was not obtained with the owner's permission, the high court said.
It added that investigation is still going on regarding how the pen drive containing various confidential material was fraudulently retained, unauthorisedly downloaded and copied.
The bench further held that the provisions of the Official Secrets Act were attracted in this case as from the contents of the FIR and annexures to Shukla's petition, it is clear that what was shown and referred to by Fadnavis is "confidential and top-secret information".
The bench added that the petitioner has not submitted any law to show that the Leader of Opposition is covered under the OSA.
Shukla in her petition had claimed that there was no evidence to show that she was the source or that she had delivered any document to the Leader of Opposition.
The state government claimed that the confidential information was copied into three pen drives from the computer of the state intelligence department, at the instance of Shukla.
Two of the pen drives have been recovered during the investigation, the government claimed, adding that the third pen drive was leaked to Devendra Fadnavis.
According to the police, this pen drive is now in the custody of the Union Ministry of Home Affairs and that an application has also been filed in a magistrate's court seeking that it be handed over.
In October this year, the Maharashtra government had told the HC that Shukla had not been named as an accused in the case but there is material against her to conduct the investigation.
In her petition, Shukla had alleged that she was being made a scapegoat and was being targeted by the Maharashtra government for submitting a report on alleged corruption in police transfers and postings.
The plea further said that the state intelligence department, which she was heading at the time, had taken the requisite permissions from the Additional Chief Secretary of the state government prior to the surveillance.
In her petition, Shukla had stated that she had exposed the alleged nexus between ministers and politicians and other gross corruption involved in assigning postings to police officers.
The FIR was registered at the BKC cyber police station in Mumbai in March this year against unidentified persons for allegedly tapping phones illegally and leaking certain confidential documents and information.
