TaxTMI 
TaxTMI 
2013 (12) TMI 1650
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....ention of Corruption Act, 1988 ("PC Act" for short) is being monitored by the Court. It is not necessary to set out the facts in detail, suffice, however, to say that the Central Bureau of Investigation (CBI) has registered preliminary enquiries (PEs) against unknown public servants, inter alia, of the offences under the PC Act relating to allocation of coal blocks for the period from 1993 to 2005 and 2006 to 2009. Few regular cases have also been registered. In pursuance of the orders passed by this Court, the inquiries and investigations into the allocation of coal blocks are being monitored by this Court and the CBI has been submitting reports about the status of the progress made in that regard. 2. On 08.05.2013, the Court noted that in the matter of investigation, CBI needed insulation from extraneous influences of the controlling executive. On that day, the Court wanted to know from the learned Attorney General, whether the Central Government was intending to put in place the appropriate law for the independence of the CBI and its functional autonomy and insulate it from extraneous influences so that CBI is viewed as a non-partisan investigating agency. The learned Attorne....
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....of its kind during the recent past. The primary question was: Whether it is within the domain of judicial review and it could be an effective instrument for activating the investigative process which is under the control of the executive? The focus was on the question, whether any judicial remedy is available in such a situation? However, as the case progressed, it required innovation of a procedure within the constitutional scheme of judicial review to permit intervention by the court to find a solution to the problem. This case has helped to develop a procedure within the discipline of law for the conduct of such a proceeding in similar situations. It has also generated awareness of the need of probity in public life and provided a mode of enforcement of accountability in public life. Even though the matter was brought to the court by certain individuals claiming to represent public interest, yet as the case progressed, in keeping with the requirement of public interest, the procedure devised was to appoint the petitioners' counsel as the amicus curiae and to make such orders from time to time as were consistent with public interest. Intervention in the proceedings by everyone el....
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....ter should be considered and disposed of by the Committee preferably within two months from the date of receipt of such a reference by Secretary (Personnel). (iv) In regard to any person who is or has been Cabinet Secretary, before SPE takes any step of the kind mentioned in (i) above the case should be submitted to the Prime Minister for orders.) which contained certain instructions to the CBI regarding modalities of initiating an inquiry or registering a case against certain categories of civil servants fell for consideration. 6. On behalf of the Union while defending the Single Directive 4.7(3), it was contended before this Court in Vineet Narain [Vineet Narain and Others v. Union of India and Anr; (1998) 1 SCC 226] that protection to officers at the decision-making level was essential to protect them and to relieve them of the anxiety from the likelihood of harassment for taking honest decisions. It was argued on behalf of the Union that the absence of any such protection to them could adversely affect the efficiency and efficacy of these institutions because of the tendency of such officers to avoid taking any decisions which could later lead to harassment by any malicio....
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....offences alleged to have been committed under the PC Act shall vest in the Central Vigilance Commission. Section 4A to 4C and Section 6A have been inserted. 14. Section 6A reads as under: "Section 6 A - Approval of Central Government to conduct inquiry or investigation.-(1) The Delhi Special Police Establishment shall not conduct any inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act,1988 except with the previous approval of the Central Government where such allegation relates to - (a) the employees of the Central Government of the level of Joint Secretary and above; and (b) such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government. (2) Notwithstanding anything contained in sub-section (1), no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any gratification other than legal remuneration referred to in clause (c) of the Explanation to section 7 of the ....
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....; (c) to (h) ........ (2) ........." 18. The constitutional validity of Section 6A is pending before the Constitution Bench of this Court. In Subramanian Swamy (Dr.) [Subramanian Swamy (Dr.) v. Director, CBI and Others; [(2005) 2 SCC 317]], a three- Judge Bench of this Court referred the matter to the larger bench to authoritatively adjudicate the validity of Section 6A. The challenge is based on the touchstone of Article 14 of the Constitution as it is the case of the petitioner therein that Section 6A is wholly arbitrary and unreasonable. The contention of the Union on the other hand is that arbitrariness and unreasonableness are not available as grounds to invalidate the legislation. Since the question of validity of Section 6A is pending before the Constitution Bench of this Court, we make it clear that this order does not touch upon this aspect at all. 19. We have heard Mr. Goolam E. Vahanvati, learned Attorney General, Mr. Amarendra Sharan, learned senior counsel for the CBI, Mr. Manohar Lal Sharma, petitioner-in-person, Mr. Prashant Bhushan, learned counsel in the writ petition filed by Common Cause and Mr. Gopal Sankaranarayanan, learned counsel for ....
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....igation or inquiry for the officers of level of Joint Secretary and above under the PC Act. These provisions operate in two different stages. 22. The learned Attorney General states that the Central Government accepts the position that CBI's investigation must be conducted in a non-partisan manner without any extraneous influences but a statutory provision cannot be nullified on a presumption that the power under Section 6A may be exercised improperly. If there is any instance where the power under Section 6A is abused or is utilized to shield an accused who should be prosecuted, this Court always has the power of judicial review to correct the same. 23. In response to the second query, learned Attorney General submits that Section 6A is in the nature of procedure established by law for the purposes of Article 21 and where consequences follow in criminal law for an accused, the Court is not at liberty to negate the same even in exercise of powers under Article 32 or Article 142. According to him, requirement of sanction under Section 6A is to be interpreted strictly and cannot be waived under any circumstances. That the Court monitors or directs an investigation does not affe....
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....be read down to mean that prior approval is not necessary in cases where investigation is monitored by the constitutional court. 28. The arguments of Mr. Prashant Bhushan, learned counsel for the Common Cause, Mr. Manohar Lal Sharma, one of the petitioners, who appears in person and Mr. Gopal Sankaranarayanan, learned counsel for the intervenor are in line with the arguments of Mr. Amarendra Sharan. They submit that Section 6A cannot be a bar to investigation in Court monitored cases. According to them, if Section 6 is not a restriction on the Court but only on the Central Government as has been held by this Court in Committee for Protection of Democratic Rights [State of West Bengal and Others v. Committee for Protection of Democratic Rights, West Bengal and Others; [(2010) 3 SCC 571]], that principle equally applies to Section 6A. They referred to the orders passed by this Court in 2G case and, particularly, reference was made to the order dated 03.09.2013 in Shahid Balwa (Writ Petition (Civil) No. 548 of 2012; Shahid Balwa v. Union of India and Ors.). 29. In the criminal justice system the investigation of an offence is the domain of the police. The power to investigate in....
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....ing steps: 1. Proceeding to the spot; 2. Ascertainment of the facts and circumstances of the case; 3. Discovery and arrest of the suspected offender; 4. Collection of evidence relating to the commission of the offence which may consist of the examination of: (a) various persons (including accused) and the reduction of statement into writing, if the officer thinks fit; (b) the search of places and seizure of things, considered necessary for the investigation and to be produced at the trial; 5. Formation of the opinion as to whether on the materials collected, there is a case to place the accused before a Magistrate for trial, if so, take the necessary steps for the same for filing necessary charge-sheet under Section 373, Cr.P.C. 34. Once jurisdiction is conferred on the CBI to investigate the offence by virtue of notification under Section 3 of the DSPE Act or the CBI takes up investigation in relation to the crime which is otherwise within the jurisdiction of the State police on the direction of the constitutional court, the exercise of the power of investigation by the CBI is regulated by the Code and the guideline....
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....ave been notified for investigation by DSPE. The FIRs under investigation with local Police or any other law enforcement authority may also be taken over for further investigation either on the request of the State Government concerned or the Central Government or on the direction of a Constitutional Court. ........" 37. Paragraph 10.6 of the Manual, inter alia, provides that if a case is required to be registered under the PC Act against an officer of the rank of Joint Secretary and above, prior permission of the Government should be taken before inquiry/investigation as required under Section 6A of the DSPE Act except in a case under Section 7 of the PC Act where registration is followed by immediate arrest of the accused. 38. A proper investigation into crime is one of the essentials of the criminal justice system and an integral facet of rule of law. The investigation by the police under the Code has to be fair, impartial and uninfluenced by external influences. Where investigation into crime is handled by the CBI under the DSPE Act, the same principles apply and CBI as an investigating agency is supposed to discharge its responsibility with competence, promptness, fairne....
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....the allocation of coal blocks, this Court in larger public interest decided to monitor the inquiries/investigations being conducted by CBI. 43. The monitoring of investigations/inquiries by the Court is intended to ensure that proper progress takes place without directing or channeling the mode or manner of investigation. The whole idea is to retain public confidence in the impartial inquiry/investigation into the alleged crime; that inquiry/investigation into every accusation is made on a reasonable basis irrespective of the position and status of that person and the inquiry/investigation is taken to the logical conclusion in accordance with law. 44. The monitoring by the Court aims to lend credence to the inquiry/investigation being conducted by the CBI as premier investigating agency and to eliminate any impression of bias, lack of fairness and objectivity therein. 45. However, the investigation/inquiry monitored by the court does not mean that the court supervises such investigation/inquiry. To supervise would mean to observe and direct the execution of a task whereas to monitor would only mean to maintain surveillance. The concern and interest of the court in such 'co....
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...., namely, whether the approval of the Central Government is necessary in respect of Court-monitored or Court-directed investigations. 48. There is no doubt that the objective behind the enactment of Section 6A is to give protection to certain officers (Joint Secretary and above) in the Central Government at the decision making level from the threat and ignominy of malicious and vexatious inquiries/investigations and the provision aims to ensure that those, who are in decision making positions, are not subjected to frivolous complaints and make available some screening mechanism for frivolous complaints but the question is: is the restrictive provision contained in Section 6A rendered nugatory or its objective is otherwise not achieved where the investigations into the crime under PC Act are monitored by the constitutional court? We do not think so. The constitutional courts are the sentinels of justice and have been vested with extraordinary powers of judicial review to ensure that the rights of citizens are duly protected Babubhai Jamnadas Patel v. State of Gujarat; [(2009) 9 SCC 610]. 49. The power under Article 142(1) of the Constitution which provides that Supreme Court i....
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....he importance of the public policy on which it is founded, operates to limit the powers of the apex Court under Article 142(1) is unsound and erroneous. In both Garg as well as Antulay cases the point was one of violation of constitutional provisions and constitutional rights. The observations as to the effect of inconsistency with statutory provisions were really unnecessary in those cases as the decisions in the ultimate analysis turned on the breach of constitutional rights. We agree with Shri Nariman that the power of the Court under Article 142 insofar as quashing of criminal proceedings are concerned is not exhausted by Section 320 or 321 or 482 CrPC or all of them put together. The power under Article 142 is at an entirely different level and of a different quality. Prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the constitutional powers under Article 142. Such prohibitions or limitations in the statutes might embody and reflect the scheme of a particular law, taking into account the nature and status of the authority or the court on which conferment of powers - limited in some appropriate way - ....
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....ferred on the Court by Article 142 being curative in nature cannot be construed as powers which authorise the Court to ignore the substantive rights of a litigant while dealing with a cause pending before it. This power cannot be used to "supplant" substantive law applicable to the case or cause under consideration of the Court. Article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly.......". The Court, however, went on to say that the constitutional powers cannot, in any way, be controlled by any statutory provisions but at the same time these powers are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in a statute dealing expressly with the subject. 52. The proper way for the Court, as stated in Union Carbide Union Carbide Corporation and Others vs. Union of India and Others; [(1991) 4 SCC 584], in exercise of the powers under Article 142 is to take note of the express prohibitions in any substantive statutory....
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....quiry/investigation by CBI acts as guardian and protector of the rights of the individual and, if necessary, can always prevent any improper act by the CBI against senior officers in the Central Government when brought before it. 56. When Court monitors the investigation, there is already departure inasmuch as the investigating agency informs the Court about the progress of the investigation. Once the constitutional court monitors the inquiry/investigation which is only done in extraordinary circumstances and in exceptional situation having regard to the larger public interest, the inquiry/investigation into the crime under the PC Act against public servants by the CBI must be allowed to have its course unhindered and uninfluenced and the procedure contemplated by Section 6A cannot be put at the level which impedes exercise of constitutional power by the Supreme Court under Articles 32, 136 and 142 of the Constitution. Any other view in this regard will be directly inconsistent with the power conferred on the highest constitutional court. 57. In the case of Committee for Protection of Democratic Rights8, the Constitution Bench of this Court has held that a direction by the Hi....
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.... of West Bengal and Others v. Committee for Protection of Democratic Rights, West Bengal and Others; [(2010) 3 SCC 571] cannot be extended to requirement of prior approval under Section 6A. He submitted that Committee for Protection of Democratic Rights State of West Bengal and Others v. Committee for Protection of Democratic Rights, West Bengal and Others; [(2010) 3 SCC 571] was concerned with Section 6 of the DSPE Act while the present case is concerned with Section 6A which is totally different provision. Learned Attorney General has argued that the need for consent of the State Government before investigation is carried out by the CBI in terms of Section 6 of the DSPE Act is a requirement that flows from the federal structure of the Constitution, because police and law and order are State subjects. On the other hand, he argues that the need for prior approval under Section 6A is in the nature of protection conferred on a particular cadre of persons, which is necessitated by the need of administration. Therefore, no parallel can be drawn between two provisions and the law laid down in respect of one provision cannot be extended to the other. 59. Learned Attorney General is ri....
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....the public servant. Indeed he is duty bound to grant sanction if the material collected lend credence to the offence complained of. There seems to be another reason for taking away the discretion of the investigating agency to prosecute or not to prosecute a public servant. When a public servant is prosecuted for an offence which challenges his honesty and integrity, the issue in such a case is not only between the prosecutor and the offender, but the State is also vitally concerned with it as it affects the morale of public servants and also the administrative interest of the State. The discretion to prosecute public servant is taken away from the prosecuting agency and is vested in the authority which is competent to remove the public servant. The authority competent to remove the public servant would be in a better position than the prosecuting agency to assess the material collected in a dispassionate and reasonable manner and determine whether sanction for prosecution of a public servant deserves to be granted or not." 61. In Vineet Narain [Vineet Narain and Others v. Union of India and Anr; (1998) 1 SCC 226], this Court distinguished the above observations in paragraphs 34....
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....his Court in K. Veeraswami [K. Veeraswami v. Union of India; (1991) 3 SCC 655] were held to be confined to the Judges of the High Courts and the Supreme Court who are constitutional functionaries and their position being distinct and different from the government officers. 63. The referral order in Subramanian Swamy (Dr.) Subramanian Swamy (Dr.) v. Director, CBI and Others; [(2005) 2 SCC 317], records the argument advanced on behalf of the Central Government that the view in Vineet Narain [Vineet Narain and Others v. Union of India and Anr; (1998) 1 SCC 226] with regard to the observations in K. Veeraswami [K. Veeraswami v. Union of India; (1991) 3 SCC 655] case was not correct but, in our view, recording the contention of the Central Government in the referral order and the pendency of constitutionality of Section 6A before the Constitution Bench do not mean that what has been said in Vineet Narain [Vineet Narain and Others v. Union of India and Anr; (1998) 1 SCC 226] about the observations in paragraph 28 of K. Veeraswami [K. Veeraswami v. Union of India; (1991) 3 SCC 655] stand obliterated. 64. The fact that the investigation is monitored by the constitutional court is its....
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....f Corruption Act, 1988 (49 of 1988)." 3. At the outset, one must appreciate that a constitutional court monitors an investigation by the State police or the Central Bureau of Investigation (for short the CBI) only and only in public interest. That is the leitmotif of a constitutional court monitored investigation. No constitutional court 'desires' to monitor an inquiry or an investigation (compendiously referred to hereafter as an investigation) nor does it encourage the monitoring of any investigation by a police authority, be it the State police or the CBI. Public interest is the sole consideration and a constitutional court monitors an investigation only when circumstances compel it to do so, such as (illustratively) a lack of enthusiasm by the investigating officer or agency (due to 'pressures' on it) in conducting a proper investigation, or a lack of enthusiasm by the concerned Government in assisting the investigating authority to arrive at the truth, or a lack of interest by the investigating authority or the concerned Government to take the investigation to its logical conclusion for whatever reason, or in extreme cases, to hinder the investigation. 4. Having made thi....
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....tion, it cannot be imposed as a condition precedent for initiation of the investigation once jurisdiction is conferred on the CBI to investigate the offence by virtue of the notification under Section 3 of the Act." [paragraph 43 of the Report]. (iii) "The law does not classify offenders differently for treatment thereunder, including investigation of offences and prosecution for offences, according to their status in life. Every person accused of committing the same offence is to be dealt with in the same manner in accordance with law, which is equal in its application to everyone." [paragraph 44 of the Report]. 7. Among other things, this Court also considered a Report given by an Independent Review Committee (IRC) constituted by the Government of India by an order dated 8th September 1997 and noted one of its observations in the preface to its Report, namely, "In the past several years, there has been progressive increase in allegations of corruption involving public servants. Understandably, cases of this nature have attracted heightened media and public attention. A general impression appears to have gained ground that the Central investigating agencies co....
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.... those people to be subjected to all these? Or, do we have some screening mechanism whereby serious complaints would be investigated and frivolous complaints would be thrown out? And this is how the single-point directive was born, and in 1988, they replaced the senior civil servants in the senior decision-making positions by saying "Joint Secretaries and above'. And, if you were to say that there is no protection to be given to you, when you take all the decisions, when you make all the discretions, and anybody can file a complaint, and an inspector or the CBI or the police can raid your house any moment, if this elementary protection is not to be given to the senior decisionmakers, you may well have a governance where instead of tendering honest advice to political executives, a very safe, non-committal advice is going to be given." 11. It is under these circumstances that Section 6A of the Act replaced the Single Directive. 12. In his written submissions, learned Attorney-General summed up the discussion by saying that Section 6A is intended "to provide a screening mechanism to filter out frivolous or motivated investigation that could be initiated against senior officers ....
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....hat prior to the passing of order dated 08.05.2013, a request had been made vide letter dated 06.03.2013 for approval under Section 6A in three of the RC's. The said approval was initially declined on 22.05.2013. However, after sending a detailed report, sanction was granted by the Government and received by the Respondent no.3 on 12.06.2013." 16. This request for previous approval was in sharp contrast to the submission earlier made by the CBI in Centre for Public Interest Litigation v. Union of India [WP (C) No.11550 of 2009 - order dated 4.4.2011 passed by the Delhi High Court] when it had submitted (with reference to Section 6A of the Act) that "as the investigation was directed by this Court, grant of approval/permission is not necessary and the CBI shall investigate into the allegations as per law." The change in stance over the years was highlighted before us by the petitioners who perceived this to be an instance of 'pressure' put on the CBI. Submissions 17. Learned Attorney-General submitted that though the requirement of previous approval under Section 6A of the Act may seem onerous to an investigating agency or a public interest litigant, its rigour has undergon....
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....nvestigation is withheld for collateral reasons. He submitted that, if necessary, some additional safeguards may also be incorporated by this Court, including that in the event a decision for granting previous approval is not taken within a specified period, a default clause of a deemed previous approval would automatically apply. 19. He justified giving protection to senior officers, who are decision makers, on the ground that the CBI will have only one side of the story before it embarks on an investigation. The senior Government functionary sought to be investigated would not even have a hearing before investigations commence. Reliance was placed on P. Sirajuddin v. The State of Madras, (1970) 1 SCC 595 to submit that if baseless allegations are made against senior Government officials, it would cause incalculable harm not only to the officer in particular but to the department that he belonged to, in general. The following passage was relied upon: "Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against hi....
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....k conclusion to the investigation will clear his name and image in society if he is innocent. This is certainly of considerable importance to a person who has been wrongly accused or framed for an offence; from the point of view of society, a quick closure to investigation is necessary so that those against whom there is evidence of the commission of a crime are tried at the earliest and punished if they are guilty. This, so far as society is concerned, is essential for maintaining the rule of law; and from the point of view of the investigator, an expeditious conclusion of investigations is necessary because greater the delay, greater the chances of evidence being destroyed, witnesses being compromised or the accused being able to manipulate circumstances to his or her advantage. 25. In this light, the interplay between Section 6A of the Act and a constitutional court monitored investigation should be such as to protect senior government officials from frivolous and vexatious complaints and at the same time prevent them from exercising influence or prolonging the grant of previous approval by the Central Government thereby effectively scuttling the investigation. 26. On the ....
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.... namely, for 'protecting' a senior government official. Therefore, it does not effectively prevent possible misuse of the law. 29. The entire issue may be looked at from another angle. Section 156 of the Criminal Procedure Code enables the local police to investigate a cognizable offence while Section 155 of the Criminal Procedure Code enables a police officer to investigate a non-cognizable offence after obtaining an appropriate order from the magistrate having power to try such case or commit the case for trial regardless of the status of the concerned officer. Therefore, the local police may investigate a senior Government officer without previous approval of the Central Government, but the CBI cannot do so. This is rather anomalous. 30. This anomaly has, in fact, occurred. In Centre for PIL v. Union of India, (2011) 4 SCC 1 investigations were conducted by the local police in respect of a senior government official, without any previous approval, and a challan filed in the court of the Special Judge dealing with offences under the Prevention of Corruption Act, 1988. It is difficult to understand the logic behind such a dichotomy unless it is assumed that frivolous and vex....
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....tentional. 34. Equality before law has been emphasized by this Court in Sirajuddin in the passage cited by the learned Attorney-General. This has also been emphasized in Swamy in the passage quoted above. In Vineet Narain, the issue of equality before law was adverted to in paragraph 44 of the Report. Keeping this salutary equality principle in mind, it is necessary that Section 6A be so interpreted that the requirement of a previous approval is not necessary when an investigation by the CBI is being monitored by a constitutional court. The protection afforded to a senior government officer can be adequately taken care of by a fair and impartial hearing in a constitutional court; the preventive mechanism for a fair investigation can be impartially taken care of by a constitutional court; expeditious and nonpartisan conclusion of an investigation can be and will undoubtedly be monitored by a constitutional court. More importantly, public interest will be taken care of if Section 6A of the Act is interpreted as not putting a fetter on the power of a constitutional court in a case of a continuing mandamus. 35. The learned Attorney-General is right in saying that official acts ar....
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....out, it would not venture to take over the functions of the Magistrate or pass any order which would interfere with his judicial functions." 38. The question therefore is, can a statutory fetter such as Section 6A of the Act bind the exercise of plenary power by this Court of issuing orders in the nature of a continuing mandamus under Article 32 of the Constitution? The answer is quite obviously in the negative. Any statutory emasculation, intended or unintended, of the powers exercisable under Article 32 of the Constitution is impermissible. 39. In the Constitution Bench decision in State of West Bengal v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571 the question that arose was whether the High Court could direct the CBI to investigate a cognizable offence, which is alleged to have taken place within the territorial jurisdiction of a State, without the consent of the State Government. Apart from the constitutional issue relating to the separation of powers, the other issue related to the statutory bar on investigations, without the consent of the State Government, imposed by Section 6 of the Act. This Section reads as follows: 6. Consent of State ....