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Tuesday, December 10, 2013

Contempt of court - 2 G spectrum scam - Respondents attempted to interfere with an investigation which is being monitored by Apex court - Maintainability - Apex court held that the contempt petition is maintainable = Rajeshwar Singh …Petitioner Versus Subrata Roy Sahara & Ors. …Respondents = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=41054

Contempt of court - 2 G spectrum scam -  Respondents attempted to interfere with an investigation which is being monitored by Apex court - Maintainability - Apex court held that the contempt petition is maintainable =
Whether the contempt petition is maintainable =
 This
contempt  petition  has  been  preferred  under  Article  129,  142  of  the
Constitution of India, read with Section 12 of the Contempt of  Courts  Act,
1971 (for short ‘the Act’) and Rule 12 of the Rules to Regulate  Proceedings
for Contempt of the Supreme Court, 1975.   

whether  there
has been any attempt on the part of the respondents  to  interfere  with  an
investigation which  is  being  monitored  by  this  Court.   
When  a  court
monitors a criminal investigation it is the responsibility and duty  of  the
court to see that the investigation  is  being  carried  out  in  the  right
direction and  the  Officers,  who  are  entrusted  with  the  task  be  not
intimidated  or  pressured  by  any  person,  however  high   he   may   be.
Considerable responsibility and duty is cast on the court when  it  monitors
a criminal investigation.  People  have  trust  and  confidence  when  court
monitors a criminal investigation and the court  has  to  live  up  to  that
trust and confidence and any interference from any quarters to scuttle  that
investigation, has to be sternly dealt with.

7.    Civil Appeal No.10660 of 2010, in which the present contempt  petition
has been preferred, was filed under  Article  136  of  the  Constitution  of
India praying for a court monitored investigation by the Central  Bureau  of
Investigation (CBI), what was described as 2G Spectrum Scam and also  for  a
direction to investigate  the  role  played  by  A.  Raja,  the  then  Union
Minister for  DoT,  senior  officers  of  DoT,  middlemen,  businessmen  and
others.  Before this Court, it was pointed out that the  CBI  had  lodged  a
first information report on 21.10.2009 alleging that during the years  2000-
2008 certain officials of the DoT entered into a  criminal  conspiracy  with
certain private companies and misused their official position in  the  grant
of Unified Access Licenses causing wrongful loss to the  nation,  which  was
estimated  to  be  more  than  Rs.22,000  crores.   CBI,   following   that,
registered a case  No.RC-DAI-2009-A-0045(2G  Spectrum  Case)  on  21.10.2009
under Section 120B IPC, 13(1)(d) of the Prevention of Corruption  Act,  1988
against a former Cabinet Minister and others.=
Shri Ram Jethmalani, learned senior counsel appearing  for  the  first
respondent, submitted that this contempt petition is not maintainable  since
it has been filed without the consent of the Attorney General  of  India  or
other officer mentioned in Section 15 of the Act.  
 Learned  senior  counsel
submitted that neither the order of this  Court  dated  06.05.2011  nor  the
notice dated 23.05.2011 gives any indication of the nature of  the  criminal
contempt to be defended by the respondent.  
Learned senior  counsel  further
submitted that even the notice dated 23.05.2011 does not comply with Rule  6
of the Rules to Regulate Proceedings for  Contempt  of  the  Supreme  Court,
1975.
Learned senior counsel  also  submitted
that  it  does  not  mention
whether it is a civil contempt  or  a  criminal  contempt.  
Learned  senior
counsel also submitted  that  there  is  nothing  to  show  that  the  first
respondent had  any  knowledge  of  this  Court’s  order  dated  16.03.2011.
Consequently, it cannot be said that there was any willful  disobedience  of
that order.  Further, such an allegation is not even raised in  the  notice.
Reliance was placed on the Judgment  of  this  Court  in
 Aligarh  Municipal
Board and others v. Ekka Tonga Mazdoor Union and others  (1970)  3  SCC  98.
Learned senior counsel submitted that the order, on  which  disobedience  is
alleged to  have  been  committed,  is  not  within  the  knowledge  of  the
respondent and he is not expected or bound to know the same from  the  media
or newspapers.   Learned senior counsel also pointed out that the burden  to
prove the knowledge is not on the alleged contemnors, as held by this  Court
in Bharat Steel Tubes Limited v. IFCI Limited (2010) 14 SCC 77.

3.    Shri Rajiv Dhawan, learned senior counsel  appearing  for  the  second
respondent, submitted that  consent  of  the  Attorney  General  is  a  pre-
requisite to initiate contempt of court proceedings, which is not  an  empty
formality.
Learned senior counsel submitted that second respondent  is  not
a party to any of the orders passed by this Court and he  has  not  violated
any order passed by this court.  Further, it was also pointed out that  even
the notice is silent in what manner the second respondent has  violated  the
order passed by this Court.
Learned senior counsel submitted that even  the
powers conferred on this Court to issue suo motu notice is also limited  and
could be  exercised  only  in  exceptional  circumstances.
 Learned  senior
counsel placed reliance on the Judgments of this  Court  in  J.R.  Parashar,
Advocate and others v. Prashant Bhushan, Advocate and others  (2001)  6  SCC
735 and Sahdeo alias Sahdeo Singh v.  State  of  Uttar  Pradesh  and  others
(2010) 3 SCC 705.

4.    Shri Vikas Singh, learned  senior  counsel  appearing  for  the  third
respondent, also refuted  all  the  allegations  raised  against  the  third
respondent and submitted that he has nothing to do with the  service  tenure
in the Enforcement Directorate or the cases relating to  2G  Scam.
 Learned
senior counsel also submitted that  the  contempt  petition  itself  is  not
maintainable.

5.    Shir K.K. Venugopal, learned senior counsel appearing for the  C.B.I.,
submitted that the contempt alleged is not merely a  criminal  contempt  but
also a civil contempt.
 Learned senior counsel referred to Section  2(b)  of
the Act and submitted that  there  has  been  willful  disobedience  of  the
directions of this Court by the respondents jointly and severally.
 Learned
senior counsel also referred to Section 2(c)(iii) of the Act  and  submitted
that the attempt of  the  respondents  is  to  interfere  and  obstruct  the
investigation conducted by the petitioner, which  is  being  supervised  and
monitored by this Court.
Learned  senior  counsel  further  submitted  that
this Court under Article 129 read with Article 142 of the  Constitution  has
the power to see that the investigation which is being  supervised/monitored
by this Court is not interfered with by any person  or  from  any  quarters.
Learned senior counsel also submitted that no  sanction  from  the  Attorney
General is necessary  when  this  Court  suo  motu  initiates  the  contempt
proceedings in exercise of the powers conferred under Article 129 read  with
Article 142 of the Constitution, irrespective of the provisions of  the  Act
and the Rules to Regulate proceedings for Contempt  of  the  Supreme  Court,
1975.  Learned senior counsel placed considerable reliance on  the  Judgment
of this Court in 
Amicus Curiae v. Prashant Bhushan and another (2010) 7  SCC 592. =

We are, therefore, of the view  that  the  petition  filed  under  the
above mentioned provisions is perfectly maintainable and this Court has  got
a constitutional obligation to examine the truth of the  allegations  as  to
whether the respondents are attempting to derail the investigation which  is
being  monitored  by  this  Court.   We,  therefore,  issue  notice  to  the
respondents to show cause why proceedings be not initiated against them  for
interfering with the court monitored criminal investigation.

                                 REPORTABLE



                        IN THE SUPREME COURT OF INDIA

                         CIVIL ORIGINAL JURISDICTION

                  CONTEMPT PETITION (CIVIL) NO.224 OF 2011

                                     IN

                        CIVIL APPEAL NO.10660 OF 2010


Rajeshwar Singh                                          …Petitioner

                                   Versus

Subrata Roy Sahara & Ors.                          …Respondents





      J U D G M E N T



K.S. Radhakrishnan, J.



1.    We may, at the outset, point out that, at  this  stage,  we  are  only
examining the maintainability of this contempt petition, on which  arguments
have been advanced by the learned senior  counsels  on  either  side.   This
contempt  petition  has  been  preferred  under  Article  129,  142  of  the
Constitution of India, read with Section 12 of the Contempt of  Courts  Act,
1971 (for short ‘the Act’) and Rule 12 of the Rules to Regulate  Proceedings
for Contempt of the Supreme Court, 1975.

2.    Shri Ram Jethmalani, learned senior counsel appearing  for  the  first
respondent, submitted that this contempt petition is not maintainable  since
it has been filed without the consent of the Attorney General  of  India  or
other officer mentioned in Section 15 of the Act.  
 Learned  senior  counsel
submitted that neither the order of this  Court  dated  06.05.2011  nor  the
notice dated 23.05.2011 gives any indication of the nature of  the  criminal
contempt to be defended by the respondent.  
Learned senior  counsel  further
submitted that even the notice dated 23.05.2011 does not comply with Rule  6
of the Rules to Regulate Proceedings for  Contempt  of  the  Supreme  Court,
1975.
Learned senior counsel  also  submitted
that  it  does  not  mention
whether it is a civil contempt  or  a  criminal  contempt.
Learned  senior
counsel also submitted  that  there  is  nothing  to  show  that  the  first
respondent had  any  knowledge  of  this  Court’s  order  dated  16.03.2011.
Consequently, it cannot be said that there was any willful  disobedience  of
that order.  Further, such an allegation is not even raised in  the  notice.
Reliance was placed on the Judgment  of  this  Court  in
 Aligarh  Municipal
Board and others v. Ekka Tonga Mazdoor Union and others  (1970)  3  SCC  98.
Learned senior counsel submitted that the order, on  which  disobedience  is
alleged to  have  been  committed,  is  not  within  the  knowledge  of  the
respondent and he is not expected or bound to know the same from  the  media
or newspapers.   Learned senior counsel also pointed out that the burden  to
prove the knowledge is not on the alleged contemnors, as held by this  Court
in Bharat Steel Tubes Limited v. IFCI Limited (2010) 14 SCC 77.

3.    Shri Rajiv Dhawan, learned senior counsel  appearing  for  the  second
respondent, submitted that  consent  of  the  Attorney  General  is  a  pre-
requisite to initiate contempt of court proceedings, which is not  an  empty
formality.
Learned senior counsel submitted that second respondent  is  not
a party to any of the orders passed by this Court and he  has  not  violated
any order passed by this court.  Further, it was also pointed out that  even
the notice is silent in what manner the second respondent has  violated  the
order passed by this Court.
Learned senior counsel submitted that even  the
powers conferred on this Court to issue suo motu notice is also limited  and
could be  exercised  only  in  exceptional  circumstances.
 Learned  senior
counsel placed reliance on the Judgments of this  Court  in  J.R.  Parashar,
Advocate and others v. Prashant Bhushan, Advocate and others  (2001)  6  SCC
735 and Sahdeo alias Sahdeo Singh v.  State  of  Uttar  Pradesh  and  others
(2010) 3 SCC 705.

4.    Shri Vikas Singh, learned  senior  counsel  appearing  for  the  third
respondent, also refuted  all  the  allegations  raised  against  the  third
respondent and submitted that he has nothing to do with the  service  tenure
in the Enforcement Directorate or the cases relating to  2G  Scam.
 Learned
senior counsel also submitted that  the  contempt  petition  itself  is  not
maintainable.

5.    Shir K.K. Venugopal, learned senior counsel appearing for the  C.B.I.,
submitted that the contempt alleged is not merely a  criminal  contempt  but
also a civil contempt.
 Learned senior counsel referred to Section  2(b)  of
the Act and submitted that  there  has  been  willful  disobedience  of  the
directions of this Court by the respondents jointly and severally.
 Learned
senior counsel also referred to Section 2(c)(iii) of the Act  and  submitted
that the attempt of  the  respondents  is  to  interfere  and  obstruct  the
investigation conducted by the petitioner, which  is  being  supervised  and
monitored by this Court.
Learned  senior  counsel  further  submitted  that
this Court under Article 129 read with Article 142 of the  Constitution  has
the power to see that the investigation which is being  supervised/monitored
by this Court is not interfered with by any person  or  from  any  quarters.
Learned senior counsel also submitted that no  sanction  from  the  Attorney
General is necessary  when  this  Court  suo  motu  initiates  the  contempt
proceedings in exercise of the powers conferred under Article 129 read  with
Article 142 of the Constitution, irrespective of the provisions of  the  Act
and the Rules to Regulate proceedings for Contempt  of  the  Supreme  Court,
1975.  Learned senior counsel placed considerable reliance on  the  Judgment
of this Court in 
Amicus Curiae v. Prashant Bhushan and another (2010) 7  SCC 592.

6.    We are, in this case, concerned with the question as to
whether  there
has been any attempt on the part of the respondents  to  interfere  with  an
investigation which  is  being  monitored  by  this  Court.   
When  a  court
monitors a criminal investigation it is the responsibility and duty  of  the
court to see that the investigation  is  being  carried  out  in  the  right
direction and  the  Officers,  who  are  entrusted  with  the  task  be  not
intimidated  or  pressured  by  any  person,  however  high   he   may   be.
Considerable responsibility and duty is cast on the court when  it  monitors
a criminal investigation.  People  have  trust  and  confidence  when  court
monitors a criminal investigation and the court  has  to  live  up  to  that
trust and confidence and any interference from any quarters to scuttle  that
investigation, has to be sternly dealt with.

7.    Civil Appeal No.10660 of 2010, in which the present contempt  petition
has been preferred, was filed under  Article  136  of  the  Constitution  of
India praying for a court monitored investigation by the Central  Bureau  of
Investigation (CBI), what was described as 2G Spectrum Scam and also  for  a
direction to investigate  the  role  played  by  A.  Raja,  the  then  Union
Minister for  DoT,  senior  officers  of  DoT,  middlemen,  businessmen  and
others.  Before this Court, it was pointed out that the  CBI  had  lodged  a
first information report on 21.10.2009 alleging that during the years  2000-
2008 certain officials of the DoT entered into a  criminal  conspiracy  with
certain private companies and misused their official position in  the  grant
of Unified Access Licenses causing wrongful loss to the  nation,  which  was
estimated  to  be  more  than  Rs.22,000  crores.   CBI,   following   that,
registered a case  No.RC-DAI-2009-A-0045(2G  Spectrum  Case)  on  21.10.2009
under Section 120B IPC, 13(1)(d) of the Prevention of Corruption  Act,  1988
against a former Cabinet Minister and others.

8.    The Central Vigilance  Commission  (CVC)  also  conducted  an  inquiry
under Section 8(d)  of  the  Central  Vigilance  Commission  Act,  2003  and
noticed  grave  irregularities  in  the  grant  of  licences.
The  CVC  on
12.10.2009 had  forwarded  the  inquiry  report  to  the  Director,  CBI  to
investigate into the matter to establish  the  criminal  conspiracy  in  the
allocation of 2G Spectrum under UASL policy of DoT and to bring to book  all
wrongdoers.
This Court after taking into consideration  of  the  report  of
the CVC as well as the findings recorded by  the  CAG  agreed  for  a  court
monitored investigation and passed the following order:
      “We are, prima facie, satisfied that the allegations contained in  the
      writ petition and the affidavits filed before this  Court,  which  are
      supported not only by the documents produced by  them,  but  also  the
      report of the Central Vigilance Commission, which was forwarded to the
      Director, CBI on 12.10.2009 and the findings recorded by  the  CAG  in
      the  Performance  Audit  Report,  need  a   thorough   and   impartial
      investigation.   However,  at  this  stage,  we  do  not  consider  it
      necessary to appoint a Special Team to investigate what the appellants
      have described as 2G Spectrum Scam because  the  Government  of  India
      has, keeping in view the law laid down in Vineet Narain’s case, agreed
      for a Court monitored investigation.”


9.    This Court, with a view to ensure  a  comprehensive  and  co-ordinated
investigation by the CBI and the Enforcement  Directorate,  vide  its  order
dated 16.12.2010 gave the following directions:
           i)    The CBI shall conduct thorough investigation into  various
              issues high-lighted in the report of  the  Central  Vigilance
              Commission, which was forwarded to  the  director,  CBI  vide
              letter dated 12.10.2009 and the report of the CAG,  who  have
              prima facie found serious  irregularities  in  the  grant  of
              licences to 122 applicants, majority of whom are said  to  be
              ineligible, the blatant violation of the terms and conditions
              of licences and huge loss to  the  public  exchequer  running
              into several thousand crores.  The CBI should also probe  how
              licences  were  granted  to  large   number   of   ineligible
              applicants and who was responsible for the same and  why  the
              TRAI and the DoT did not take action against those  licensees
              who sold their stake/equities for many  thousand  crores  and
              also against those who failed to fulfill rollout  obligations
              and comply with other conditions of licence.


          ii)     The CBI shall conduct  the  investigation  without  being
              influenced by any functionary, agency or  instrumentality  of
              the State and irrespective of the position, rank or status of
              the person to be investigated/probed.


         iii)    The CBI shall, if it  has  already  not  registered  first
              information  report   in   the   context   of   the   alleged
              irregularities committed in the grant of licences  from  2001
              to 2006-2007,  now  register  a  case  and  conduct  thorough
              investigation with particular emphasis on the loss caused  to
              the  public  exchequer  and   corresponding   gain   to   the
              licensees/service providers and also on the issue of allowing
              use of dual/alternate technology by  some  service  providers
              even before the decision was made public vide  press  release
              dated 19.10.2007.


          iv)    The CBI shall also make investigation into the  allegation
              of grant of huge loans by the public sector and  other  banks
              to some of the companies which have  succeeded  in  obtaining
              licences in 2008 and find out whether the officers of the DoT
              were signatories  to  the  loan  agreement  executed  by  the
              private companies and if so, why and  with  whose  permission
              they did so.





           v)    The Directorate of Enforcement/ concerned agencies of  the
              Income Tax  Department  shall  continue  their  investigation
              without any hindrance or interference by any one.


          vi)    Both the agencies, i.e. the CBI  and  the  Directorate  of
              Enforcement shall  share  information  with  each  other  and
              ensure that the investigation is not hampered in  any  manner
              whatsoever.


         vii)    The Director General, Income  Tax  (Investigation)  shall,
              after completion  of  analysis  of  the  transcripts  of  the
              recording made pursuant to the approval accorded by the  Home
              Secretary, Government of India, hand over the same to CBI  to
              facilitate  further  investigation  into  the   FIR   already
              registered or which may be registered hereinafter.”

10.   CBI and the Enforcement Directorate then used to  apprise  this  Court
of the various stages of the investigation  and  seek  directions  and  this
Court, on 10.02.2011, passed an order  stating  that  since  this  Court  is
monitoring the investigation of 2G Spectrum Scam no  court  shall  pass  any
order which may, in any manner, impede the investigation being  carried  out
by the CBI and the Directorate of  Enforcement.   Learned  Attorney  General
also informed this Court that he had received a communication on  16.03.2011
from the Delhi High Court of nominating Shri O.P. Saini, an officer  of  the
Delhi Higher Judicial Service, as the Special Judge to take up the trial  of
cases relating to what has been described as 2G Scam.  The  Court  was  also
informed that two separate notifications would  be  issued  by  the  Central
Government in terms of Section 3(1) the PC Act, 1988 and  Section  43(1)  of
the Prevention of Money  Laundering  Act,  2002  for  establishment  of  the
Special Court to exclusively try the offences relating to 2G Scam and  other
related offences.  Following that, two notifications were published  in  the
Gazette of India Extra Ordinary, on the 28th March, 2011.


11.   Noticing the above submissions a detailed order  was  passed  by  this
Court on 16.03.2011, which inter alia reads as follows:
      “While adjourning the case, we make it clear that no one including the
      newspapers shall interfere with the functioning of the C.B.I. team and
      the officers of the Enforcement Directorate who are investigating what
      has been described  as  2G  Scam  and  the  Court  will  take  serious
      cognizance of any endeavour made by any person or group of persons  in
      this regard.”


12.   Petitioner - the Assistant Director of Enforcement Directorate who  is
invested with the responsibility and duty of investigating the  2G  Spectrum
case, submits that, during  the  course  of  investigation,  he  could  come
across various materials, having considerable bearing on  the  investigation
relating to 2G Scam.    The  petitioner,  in  this  contempt  petition,  has
stated as follows:
      “Facts came to the notice of the Directorate of Enforcement  that  one
      M/s Sahara India Investment Corporation, a Sahara group  company,  now
      known  as  M/s  Sahara  Prime  City  Ltd.,  during   the   course   of
      investigation it is  revealed  that  the  said  company  had  invested
      Rs.14.00 Crores on 28.09.2007  on  which  date  M/s  S-Tel  Ltd.,  had
      applied for 16 more licences.  This investment  has  been  purportedly
      made  for  purchase  of  shares  of  M/s  S-Tel.   Surprisingly,  this
      investment has been sold back on 15.01.2009 for an amount of  Rs.16.80
      Crores.  In view of these financial details being revealed during  the
      course of investigation and considering the fact that this  entire  2G
      Spectrum case, there has been several ways of transactions, which  was
      deemed appropriate to investigate this aspect of the matter  also  and
      accordingly on 02.02.2011, a summon had been issued  to  the  Managing
      Director of the said Company  requiring  his  personal  appearance  on
      17.02.2011.  The Managing Director is  Mr.  Subrata  Roy  Sahara,  who
      chose not to appear, but, to apply for an adjournment for four  weeks.
      Taking into consideration said request a fresh summon  was  issued  on
      30.03.2011 requiring his appearance on 08.04.2011.  He  is  respondent
      No.1, above named, and he chose not to appear even on  08.04.2011  and
      has, thus, shown non cooperative attitude.”




13.   The petitioner, with reference to Sahara India Commercial  Corporation
Limited, has stated as follows:

      “That there is yet another Sahara Group company  by  the  name  Sahara
      India Commercial  Corporation  Limited  based  in  Mumbai,  which  has
      purportedly paid Rs.9.50 Crores on 06.07.2007  to  one  M/s  Sky  City
      Foundation Pvt. Ltd., as an advance.  This Sky City Foundation has  in
      turn invested the very same money with M/s S-Tel, just before the date
      of application of M/s S-Tel made to the DoT for issuance of  Universal
      Access Service (UAS) Licence on 09.07.2007.


           That in view of the said fact,  it  was  deemed  appropriate  to
      summon the concerned officials  of  the  said  Co.  M/s  Sahara  India
      Commercial Corporation Limited on 07.04.2011 and for the  purpose  the
      summon was issued on 30.03.2011.”


14.   The petitioner, referring to the second  Status  Report  covering  the
period from 27.11.2010 to 08.02.2011, has referred  to  the  involvement  of
M/s Sahara India Investment Ltd., now known as M/s Sahara  Prime  City  Ltd.
and stated as follows:
      “The  said  status  report  also  mentions  other  details  about  the
      acquisition of other two companies by a group in March, April, 2009 in
      respect of which letters for inquiry have been sent to Mauritius.   It
      is  deemed  expedient  not  to  disclose  further  details   in   this
      application on account of the fact that the Directorate of Enforcement
      is investigating into the money  trail  and  if  further  details  are
      disclosed in the application the same is likely to be  prejudicial  to
      the interest of investigation.  However, the applicant  undertakes  to
      disclose such other facts including the  status  report  in  a  sealed
      cover to this Hon’ble Court, if so directed.


            It is further respectfully submitted that in  the  third  Status
      Report,  covering  the  period  from  09.02.2011  to  17.03.2011  also
      mentions about a  person  being  issued  summon.   The  said  fact  is
      mentioned on page 20 in paragraph 20-D.  Details therein clearly  show
      that M/s S-Tel Pvt. Ltd. had arranged for certain funds  from  various
      groups to pay licence fee.  On Page 21 of the said Status  Report,  it
      is mentioned that further investigation in respect  of  the  companies
      named therein just above paragraph 20-E is in progress.  Similarly  in
      the fifth Status Report, filed on 26.04.2011, there is  a  mention  in
      paragraph 6-B regarding sale of holding of a company  and  funding  of
      M/s S-Tel by two groups mentioned therein.  The fact of  Sahara  India
      Commercial Corporation having sought adjournment is also mentioned  in
      the said Status Report.”


15.   The petitioner, referring to the Sahara Group of Companies, stated  as
under:
      “It is further submitted that yet another reference  dated  11.06.2010
      as forwarded by the Head Quarter of the Office of the  Directorate  of
      Enforcement has been received from  an  Intelligence  Unit  of  India,
      which interalia alleges that Sh. Subrata Roy, respondent No. 1 of M/S.
      Sahara Group of Companies alongwith others have deposited an amount of
      Rs.150 Crores which has been  rotated  through  a  maze  of  financial
      transactions between accounts of  M/S.  Sahara  Corporation  and  M/S.
      Sahara India within the same branch/bank.   On basis  of  said  input,
      the  Directorate  of  Enforcement  had  initiated  discreet  enquiries
      against M/s. Sahara Corporation and  M/s.  Sahara  India  for  alleged
      violation  of   Foreign   Exchange   Management   Act,   1999.    This
      investigation is handled by the present applicant,  who  made  several
      enquiries with number of banks by issuing directives on 23.07.2010 and
      28.07.2010.  This investigation involves over 100 banks  and  accounts
      and large financial transactions are being  investigated.   The  modus
      operandi that was adopted  is  resorting  to  cash  deposits  of  huge
      amounts on different dates in different accounts and at remote far off
      places of the country and  withdrawal  immediately  by  cheques  which
      would show that there is a clear attempt prima facie to legitimize the
      amounts.    Details from four banks have been received which show cash
      deposits of more than Rs.24 Crores, so far.


            That further investigation have revealed that M/s. Sahara  India
      is operating more than 334 bank accounts and details thereof has  been
      sought from all those banks which are yet  to  be  scrutinized.   This
      matter is also referred to the Income Tax Department on 29.09.2010 for
      further necessary action at their end.


            That during the course of enquiries  a  further  information  is
      received from a reliable sources  that  a  company  having  registered
      office opposite Domestic Airport in Mumbai, which is a  group  company
      of Sahara Group, has given a loan  a  huge  amounts  in  pounds  to  a
      company in Mauritius, which is purported to be a short term  loan  and
      investment in hospitality sector.  This amount was  transferred  under
      an automatic route through  a  bank  in  Mumbai  and  this  amount  is
      transferred to a foreign country for acquisition of a  property  of  a
      hotel company whose shares were pledged with the Bank and which  money
      has been utilized to repay the outstanding of the bank.   Summons  are
      issued to the concerned bankers of the said companies  for  09.05.2011
      for appearance of these bankers for  recording  of  their  statements.
      This entire matter is also referred to by the applicant to the Reserve
      Bank of India on  22.03.2011  and  11.04.2011  and  response  to  some
      queries are yet to be received  and  the  investigation  in  the  said
      matter is under progress.
            That there is  yet  another  investigation  which  is  popularly
      referred is as Madhu Koda Scam case in respect of which  the  Division
      Bench of High Court of Jharkhand has issued directions, directing  the
      Central Bureau of Investigation to conduct an investigation as regards
      the predicate offence and directed the Directorate of  Enforcement  to
      investigate  offence  under  Foreign  Exchange  Management   Act   and
      Prevention of Money Laundering Act, 2002.   These  investigations  are
      also  under  progress  and  are  conducted  by  the  applicant  as  an
      Investigating Officer.   In this investigation properties worth Rs.125
      Crores  have  already  been  attached  in  exercise  of  powers  under
      Prevention  of  Money  Laundering  Act  and  during  the   course   of
      investigation it is suspected that large amount  of  funds  which  are
      tainted money which are proceeds of crime have been invested in Sahara
      Group companies by those accused persons with a view to  project  them
      as untainted money. The investigation of this is also being carried.


            It is submitted that all these investigations undertaken by  the
      petitioner applicant, before your lordship, has irked the Sahara Group
      and more particularly the respondents.”


16.   Petitioner submits  that  he  is  being  personally  attacked  by  the
respondents through various means so that he will not make  further  headway
in the investigation.  The petitioner has explained in Paras 5 to 12 of  the
petition, the manner in  which  he  is  being  intimidated,  which  read  as
follows:
      “5.   That when investigations have been initiated in the 2G  Spectrum
      case against them, the respondents have conspired  to  interfere  with
      the original 2G Spectrum case investigations so as to derail the same,
      the details whereof are stated hereinafter.


           It may not be out of place to mention that M/s. Sahara Airlines,
      which is now taken over by Jet Airways and operated under  the  banner
      of Jetlite are also facing investigations for  violation  under  FERA,
      1973 and  an  opportunity  show  cause  notice  was  issued  prior  to
      launching  prosecution  which  has  been  made  subject  matter  of  a
      challenge before the High Court at Lucknow.


           That by an interim order dated 21.05.2002,  further  proceedings
      have been stayed and on the said fact having come to my notice while I
      was  Assistant  Director  Incharge  of  Lucknow  Zone,  I  had   filed
      application to get the interim order vacated.


      6.    It is submitted that on 02.05.2011  having  come  to  know  from
      reliable sources that some business house / liaison  persons  together
      with disgruntled government officials  had  initiated  a  campaign  of
      making  false  anonymous  and  pseudonymous   complaints  to   various
      agencies  and  started  spreading  rumours,   the   applicant   deemed
      appropriate to send the latest immovable properties return.  This  was
      necessitated that in view of the fact that in April, 2011, a  property
      which was purchased from Lucknow Development  Authority  by  taking  a
      loan, was disposed off and the proceeds of the disposal were  received
      as  refund  being  given  by  the  Lucknow  Development  Authority,  a
      government body.


            That this was forwarded  to  the  Additional  Director  thorough
      proper channel and it is reliably learnt  that  the  same  is  in  the
      process  being  sent  even  to  the  Director,   Central   Bureau   of
      Investigation, on my request.


      7.    It is submitted that on 05.05.2011, there has been an attempt to
      intimidate the applicant after hearing of the  2G  Spectrum  case  was
      concluded before this Hon’ble Court.  The  applicant  has  received  a
      letter purported to be sent by the respondent No.3, Shri Subodh  Jain,
      which contain wielded threat to start a campaign against the applicant
      with a view  to  intimidate  and,  thus,  interfered  in  the  ongoing
      investigations against the Sahara  Group companies in the 2G  Spectrum
      case.


            On 05.05.2011, a copy of the said letter has been  delivered  by
      hand at the office of the applicant and at 15.43, the same is received
      on FAX of the Dy. Director, Directorate of Enforcement, copies thereof
      are annexed herewith and marked as ANNEXURE-F (COLLY).


      8.    The response to the queries raised is being produced in a sealed
      cover together with documents supporting the same for perusal of  this
      Hon’ble Court.  The only purpose of producing it in a sealed cover  is
      to see such future intimidation to torpedo the  ongoing  investigation
      does not take place.   The applicant respectively declares before this
      Hon’ble Court that he is ready and willing to  file  an  affidavit  of
      these disclosures before this Hon’ble Court.


      9.    The petitioner applicant respectfully submit that it  is,  thus,
      clear that only with a view to dissuade the  petitioner,  who  is  the
      Investigating  Officer,  to  carry  the  investigation  in  the  right
      direction  against  the  Sahara  Group,  the  respondents,  and   more
      particularly in the  2G  Spectrum  case,  that  the  respondents  have
      attempted to intimidate which is nothing  sort  of  contempt  of  this
      Hon’ble Court since not only the investigation is  monitored  by  this
      Hon’ble Court,  but,  this  Hon’ble  Court  has  given  directions  as
      contained  in  their  lordship’s   judgment   dated   16.12.2010   and
      16.03.2011, which are being carried out by the applicant in the matter
      of investigation of 2G Spectrum case.


      10.    It  is  respectfully  submitted  that  this  attempt   by   the
      respondents to intimidate the  applicant,  who  is  the  Investigating
      Officer is clearly an attempt to interfere or an attempt  which  tends
      to interfere with or obstruct or tends to obstruct the  administration
      of justice and is thus a  criminal  contempt  within  the  meaning  of
      Section 2(c) of the Contempt of Court Act, 1971.     It  is  submitted
      that this is an attack on the investigating officer carrying  out  the
      directions of this Hon’ble Court in his way to obstruct the course  of
      justice  by  preventing  the  petitioner,  who  is  the  Investigating
      Officer, from carrying out the directions of this Hon’ble Court.


      11.   That this conduct is intended to impeach, embarrass and obstruct
      the applicant  in  the  discharge  of  his  duties  and  carrying  out
      directions of this Hon’ble Court.  It is respectfully  submitted  that
      it is expected out of the applicant that he is  able  to  conduct  the
      investigation free from  any  outside  interference  and  the  present
      letter dated  05.05.2011  intending  to  cause  embarrassment  to  the
      applicant and detract him from the ongoing investigation is clearly an
      act of interference that would jeopardize  the  ongoing  investigation
      and thus hamper the petitioner from carrying  out  the  directions  of
      this Hon’ble Court.


      12    That this communication is intended to influence the  petitioner
      publically and, thus, target him with an intention that the petitioner
      may not carry on the ongoing 2G  Spectrum  investigation  as  well  as
      other investigations against the Sahara Group.”




17.   We are of  the  view  that  if  the  allegations  raised  against  the
contemnors are accepted, then we have to conclude  prima  facie  that  there
has been an attempt by the respondents to interfere  with  an  investigation
undertaken by the petitioner which is being monitored by  this  Court.   The
petitioner has stated that he has also filed a complaint of violation  under
the Foreign Exchange Management Act, 1999 (FEMA) to the  extent  of  Rs.4600
Crores against five more companies including M/s S-Tel  and  he  is  in  the
process of filing five complaints involving  an  amount  of  Rs.1800  Crores
under the FEMA, 1999 and is also in the  process  of  issuing  an  order  of
attachment as contemplated under the Prevention  of  Money  Laundering  Act,
2002.


18.   We may point out that the allegations raised by the petitioner in  the
contempt petition are of very serious nature and, if  proved,  would  amount
to interference with the administration of justice, especially  in  a  court
monitored  investigation.   In  a  court  monitored  investigation,  if  the
Officer who is entrusted with the task of carrying on that investigation  is
experiencing any threat or pressure from any quarters, he is duty  bound  to
report the same to the court monitoring  the  investigation.    The  Officer
should have the freedom to carry on his duty entrusted, without any fear  or
pressure from any quarters.   The petitioner has  invoked  Article  129  and
Article 142 to apprise  this  Court  of  the  difficulties  he  faces  while
carrying on a court monitored investigation.


19.   Let us examine the extent of the power conferred on this  Court  under
Article 129 of the Constitution, which reads as follows:


      “Article 129.  Supreme Court to be a court of  record  –  The  Supreme
      Court shall be a court of record and shall have all the powers of such
      a court including the power to punish for contempt of itself.”


20.   We are of the view that the Courts, if they are to serve  the  purpose
of administering the justice, must have the power  to  secure  obedience  to
the orders passed by it to prevent interference with its  proceedings.   Law
is well settled that the powers of the Supreme  Court  in  contempt  matters
are not confined merely to the provisions of the Contempt of Courts Act  and
the Rules framed thereunder.  Law of Contempt, as is  often  said,  is  only
one of the many ways in which the due  process  of  law  is  prevented  from
being perverted, hindered or thwarted  to  further  the  cause  of  justice.
This Court has plenary power to punish any person for contempt of court  and
for that purpose it may require any person to be present  in  Court  in  the
manner it considers appropriate to the facts of the  case.   This  Court  in
Delhi Judicial Service Association, Tis Hazari  Court,  Delhi  v.  State  of
Gujarat and others (1991) 4 SCC 406, examined at depth the scope of  Article
129 of the Constitution and stated as follows:
           “The power of the Supreme Court and the  High  Court  being  the
      Courts of Record as embodied under Articles 129 and  215  respectively
      cannot  be  restricted  and  trammeled  by  any  ordinary  legislation
      including the provisions  of  the  Contempt  of  Courts  Act.    Their
      inherent power is elastic, unfettered and not subjected to any  limit.
      The power conferred upon the Supreme Court and the High  Court,  being
      Courts of Record under  Articles  129  and  215  of  the  Constitution
      respectively is an inherent power and the  jurisdiction  vested  is  a
      special one not derived from any other statute but derived  only  from
      Articles 129 and 215 of the Constitution of India  and  therefore  the
      constitutionally  vested  right  cannot  be  either  abridged  by  any
      legislation or abrogated or cut down.  Nor can they be  controlled  or
      limited by any statute or by any provision of  the  Code  of  Criminal
      Procedure or any Rules.   The caution  that  has  to  be  observed  in
      exercising this inherent power by summary procedure is that the  power
      should be used sparingly, that the procedure to be followed should  be
      fair and that the contemnor should be made aware of the charge against
      him and given a reasonable opportunity to defend himself….   Entry  77
      of List 1, Schedule 7 read with  Article  246  confers  power  on  the
      Parliament  to  enact  law   with   respect   to   the   Constitution,
      organization, jurisdiction and powers of the Supreme  Court  including
      the contempt of the Supreme Court.  The Parliament is  thus  competent
      to enact a law relating to the powers of Supreme Court with regard  to
      ‘contempt of itself’ such a law may prescribe procedure to be followed
      and it may also  prescribe  the  maximum  punishment  which  could  be
      awarded and it may provide for appeal and for other matters.  But  the
      Central Legislature  has  no  legislative  competence  to  abridge  or
      extinguish the jurisdiction or power conferred on  the  Supreme  Court
      under Article 129 of the Constitution.  ……….”




21.   This Court, again, in I. Manilal Singh v. Dr. H.  Borobabu  Singh  and
another (1994) Suppl. (1) SCC 718 has delineated the plenary powers of  this
Court and stated that the power conferred on this Court  under  Article  129
is a constitutional  power  which  cannot  be  circumscribed  or  delineated
either by the Contempt of Courts Act, 1971   or Rules or even the  Rules  to
Regulate Proceedings for Contempt of the  Supreme  Court,  1975,  framed  in
exercise of powers under Section 23 of the  Contempt  of  Court  Act,  1971,
read with Article 145 of the Constitution of India.

22.   We are of the view that, assuming,  there  has  not  been  any  proper
compliance of the provisions  of  the  Contempt  of  Courts  Act,  1971,  as
contended by the learned senior counsels for  the  respondents,  that  would
not deter or take away the constitutional powers  conferred  on  this  Court
under Article 129 of the Constitution of India to  examine,  whether,  there
has been any attempt by anybody to interfere with  an  investigation,  which
is being monitored by this Court.  The jurisdiction  of  the  Supreme  Court
under Article 129 of the Constitution is  independent  of  the  Contempt  of
Courts Act and the powers conferred under Article 129  of  the  Constitution
cannot be denuded, restricted or limited by  the  Contempt  of  Courts  Act,
1971.


23.   Article 142 of the Constitution also confers powers on this  Court  to
pass such orders as is necessary for doing complete justice in any cause  or
matter pending before it.  The said Article 142 reads as under:
      “Article 142.  Enforcement of decrees and orders of Supreme Court  and
      orders as to discovery, etc. ( 1 ) The Supreme Court in  the  exercise
      of its jurisdiction may pass such decree or  make  such  order  as  is
      necessary for doing complete justice in any cause  or  matter  pending
      before it, and any decree  so  passed  or  orders  so  made  shall  be
      enforceable throughout the territory of India in such manner as may be
      prescribed by or under any law made by Parliament and, until provision
      in that behalf is so made, in such manner  as  the  President  may  by
      order prescribe

      (2)  Subject to the provisions of any  law  made  in  this  behalf  by
      Parliament, the Supreme Court shall, as  respects  the  whole  of  the
      territory of India, have all and every power to make any order for the
      purpose of securing the attendance of any  person,  the  discovery  or
      production of any documents, or the investigation or punishment of any
      contempt of itself.”


24.    Article  142  is  conceived  to  meet  situations  which  cannot   be
effectively and appropriately tackled by existing  provisions  of  law.   In
Delhi Development Authority v. Skipper Construction Co.(P) Ltd. and  another
(1996) 4 SCC 622, this Court has held that the very fact that the  power  is
conferred only upon the Supreme Court, and on no  one  else,  is  itself  an
assurance that it will  be  used  with  due  restraint  and  circumspection;
keeping in view the  ultimate  object  of  doing  complete  justice  between
parties and the Court’s power to do complete justice is not confined by  any
statutory provision.

25.   We may indicate  that  the  petitioner  has  inter  alia  invoked  the
jurisdiction and power conferred on this  Court  under  the  above-mentioned
constitutional provisions and hence the consent of the Attorney  General  is
not necessary.  Petitioner is only expected  to  bring  to  notice  of  this
Court the problems he confronts with while carrying  on  a  court  monitored
investigation and it is the duty  and  obligation  of  this  Court  to  see,
rather than the petitioner, that nobody puts any pressure or  threat  on  an
Officer entrusted with the duty to investigate a  court  monitored  criminal
investigation.   Any interference, by anybody, to scuttle a court  monitored
investigation  would  amount  to  interfering  with  the  administration  of
justice.  Courts, if they are to serve the cause of justice, must  have  the
power to secure obedience to its orders to  prevent  interference  with  the
proceedings  and  to  protect  the  reputation  of  the  legal  system,  its
components and its personnel, who on its behest carry on a  court  monitored
investigation.   The  court  is  duty  bound  to  protect  the  dignity  and
authority of this Court, at any cost, or else, the entire administration  of
justice will crumble and law and order would be a casualty.

26.   We are, therefore, of the view  that  the  petition  filed  under  the
above mentioned provisions is perfectly maintainable and this Court has  got
a constitutional obligation to examine the truth of the  allegations  as  to
whether the respondents are attempting to derail the investigation which  is
being  monitored  by  this  Court.   We,  therefore,  issue  notice  to  the
respondents to show cause why proceedings be not initiated against them  for
interfering with the court monitored criminal investigation.



                                                                …………………………J.
                               (G.S. Singhvi)






                                                                …………………………J.
                                                        (K.S. Radhakrishnan)
New Delhi,
December 9, 2013.

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