Sticking to the argument that the apex court had no power to order a Cental Bureau of Investigation inquiry into the "disproportionate" assets row, Akhilesh Yadav, son of UP Chief Minister Mulayam Singh Yadav, on Thursday said his family was willing to face a judicial probe.
In the inconclusive marathon hearing spread over four hours on the review petition filed against the apex court's March 1 judgment, senior counsel Harish Salve arguing for Akhilesh suggested that the alternative judicial probe could be headed by a retired high court judge.
The counsel, while repeatedly harping on the arguments that courts have no power to order a CBI probe, suggested that a "via media solution" could be worked out by ordering a judicial inquiry into the "disproportionate" assets.
"Let him be a retired judge even from Delhi or any other state, we have no objection to it," the counsel said while opposing the CBI probe on various grounds.
The counsel submitted that a preliminary probe by the CBI as directed by the apex court would be vitiated as it was "unconstitutional" and against the "spirit of the federal structure."
He argued that the family was willing to submit itself before a judicial inquiry as such a probe would give it an opportunity to vindicate their honour.
The argument was that in the case of the judicial inquiry the principles of natural justice would be observed as the family would get an opportunity to put forth their defence.
Salve argued in the case of a CBI probe, it would be one-sided as the agency would be acting under the diktats of the Central goverment.
Quoting the Constitution, the counsel argued that police of one state or a Union Territory cannot be empowered or directed to conduct a probe into the affairs of another state without the latter's consent.
Such power of directing an inquiry is neither vested with Parliament nor the courts, he argued.
Pointing out that the CBI was set up under the Delhi Special Police Establishment Act, Salve said the agency as prescribed under the enactment cannot take up investigations without the prior consent of a state.
He raised a hypothetical argument as to whether the police machinery of Gujarat can take up investigations into criminal offences that occur in Maharashtra.
If the answer is no, then the same principle would apply in the case of the CBI too, he claimed.
The counsel also argued that a CBI inquiry could be ordered only if there was prima facie evidence of the commission of a crime, but in this case the apex court had ordered the probe without examining the issue.
At this stage, the Bench of Justices C K Thakker and Altamas Kabir said it had ordered inquiry on the basis of prima facie material made available before it.
Given the voluminious material submitted before it, the apex court said it felt that the matter needed to be investigated indepth by an investigating agency.
"Prima facie we felt in our mind that the issue needed to be inquired into, which prompted us to order the probe, without making it open (fact of prima facie)," Justice Kabir observed. The arguments would resume again on April 4.
