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Tuesday, December 17, 2013

Section 6A of the Delhi Special Police Establishment Act,1946 - the Prevention of Corruption Act, 1988 - No approval from the central government is necessary when the case was monitored by the constitutional court itself = Manohar Lal Sharma …….Petitioner Versus The Principal Secretary and Ors. ……Respondents = published in judis.nic.in/supremecourt/filename=41094

 Section 6A of the Delhi Special  Police  Establishment  Act,1946 - the Prevention of Corruption Act, 1988 - No approval from the central government is necessary when the case was monitored by the constitutional court itself =
whether  the  approval  of  the  Central  Government  is
necessary under Section 6A of the Delhi Special  Police  Establishment  Act,1946 (“DSPE Act” for short) in  a  matter  where  the  inquiry/investigation into the crime under the Prevention of Corruption Act, 1988  (“PC  Act”  for short) is being monitored by the Court. =            
 The  fact  that  the  investigation   is   monitored   by   the
constitutional court is itself an assurance  that  investigation/inquiry  by
the CBI is not actuated with ulterior motive to harass  any  public  servant
and  the  investigating  agency  performs  its  duties  and  discharges  its
responsibility  of  fair  and  impartial   investigation   uninfluenced   by
extraneous considerations.
65.         In light of the above discussion, our answer to the question  is
in the negative and we hold that the approval of the Central  Government  is
not  necessary  under  Section  6A  of  the  DSPE  Act  in  a  matter  where
inquiry/investigation into the crime under the PC Act is being monitored  by
this Court.  This position holds good in cases which  are  directed  by  the
Court to be registered and the  inquiry/investigation  thereon  is  actually
being monitored by this Court.                                          

      REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                    CRIMINAL/CIVIL ORIGINAL  JURISDICTION
                  WRIT PETITION  (CRIMINAL)  NO.120 OF 2012

Manohar Lal Sharma                               …….Petitioner

                   Versus

The Principal Secretary and Ors.                 ……Respondents

                                    WITH

                   WRIT PETITION  (CIVIL)  NO.463 OF 2012

                                    WITH

                    WRIT PETITION (CIVIL) NO.429 OF 2012

                                    WITH

                    WRIT PETITION (CIVIL) NO.498 OF 2012

                                    WITH

                    WRIT PETITION (CIVIL) NO.515 OF 2012

                                     AND

                   WRIT PETITION  (CIVIL)  NO.283 OF 2013


                                    ORDER

R.M. LODHA, J.


            The question for the purposes  of  this  order  really  resolves
itself into  this:
whether  the  approval  of  the  Central  Government  is
necessary under Section 6A of the Delhi Special  Police  Establishment  Act,1946 (“DSPE Act” for short) in  a  matter  where  the  inquiry/investigation into the crime under the Prevention 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  Attorney
General sought time to seek instructions and report to the Court by  way  of
an  affidavit  on  behalf  of  the  Central  Government.   The  matter  was,
accordingly, fixed for July 10, 2013.
3.          In pursuance of the order dated  08.05.2013,  an  affidavit  was
filed by the Central Government.  In that affidavit  various  actions  which
were  taken in compliance of the directions of this Court in Vineet  Narain1
  were indicated.  In the affidavit, it was also  stated  that  a  Group  of
Ministers (GoM) has been constituted to consider the aspects  noted  in  the
order of 08.05.2013.   The GoM had proposed certain amendments in  the  law;
the proposals of GOM have also been approved by the Cabinet.
4.          On  10.07.2013,  the  Court  observed  that  the  amendments  as
proposed in the DSPE Act were likely to take  some  time  and,  accordingly,
put  to  the  learned  Attorney  General  two  queries,  
first,  as  to  why
clarification should  not  be  made  that  the  approval  from  the  Central
Government under Section 6-A of the  DSPE  Act   for  investigation  of  the
offences alleged to have been committed under  the PC Act is  not  necessary
as it is the stand of the Government  that  the  power  of  supervision  for
investigation has already been shifted from the Government  to  the  Central
Vigilance Commission (CVC) and, 
second, why  the approval of the  Government
was  necessary  in  respect   of   “Court-monitored”   or   “Court-directed”
investigations.
5.          In Vineet Narain[1], this Court was approached under Article  32
of the Constitution allegedly as  there  was  inertia  by  the  CBI  in  the
investigations into Jain  Diaries  case  where  the  accusations  made  were
against high dignitaries.  The background that necessitated  the  monitoring
of the investigation by this Court is indicated in  the  first  paragraph[2]
of the judgment. The Single Directive  4.7(3)[3]   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  Narain1   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 malicious and vexatious  inquiries/investigations.

7.          The Court noted  the  report  of  Independent  Review  Committee
(IRC) and few decisions of this Court, particularly,  K.  Veeraswami[4]  and
J.A.C  Saldanha[5]  and   struck   down   the   Single   Directive   4.7(3).
Pertinently, the Court noted that the view it had taken was not in  conflict
with J.A.C. Saldanha5.  K. Veeraswami4  was held distinguishable.
8.          The DSPE Act was brought into force in 1946.   Under  this  Act,
the  superintendence  of  the  Special  Police   Establishment   (SPE)   was
transferred to the Home Department and its functions were enlarged to  cover
all departments of the Central Government.   The  jurisdiction  of  the  SPE
extended to all the Union  Territories.   Its  jurisdiction  could  also  be
extended to the States with their  consent.   The  CBI  was  established  on
01.04.1963 vide  Government  Resolution  issued  by  the  Ministry  of  Home
Affairs, Government of India.
9.          Section 3  of  that  Act  empowers  the  Central  Government  to
specify by notification in the official gazette the offences or  classes  of
offences  which  are  to  be  investigated  by  the  Delhi  Special   Police
Establishment (DSPE).
10.         Section 4 relates to superintendence and administration of  SPE.

11.         Section 5 deals with extension of  powers  and  jurisdiction  of
SPE to other areas.  The Central Government has been empowered to extend  to
any area (including railway areas), in a State not being a  Union  Territory
the powers and jurisdiction of members of the DSPE for the investigation  of
any offences or classes  of  offences  specified  in  a  notification  under
Section 3.
12.         Section 6 provides that Section 5 shall not be deemed to  enable
any member of the DSPE to exercise powers and jurisdiction in any area in  a
State, not being a Union Territory or railway area, without the  consent  of
the Government of that State.
13.         In pursuance of the judgment of this Court  in  Vineet  Narain1,
DSPE Act came to be amended with  effect  from  11.09.2003.
Section  4  was
amended. Sub-section (1) of Section 4 now provides that the  superintendence
of  the  Delhi  Special  Police  Establishment  insofar  as  it  relates  to
investigation of 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 Prevention of  Corruption  Act,
      1988.”

15.         Section  6A,  thus,  provides  for  obtaining  approval  of  the
Central  Government  to  conduct  inquiry   or   investigation   where   the
allegations for commission of an offence under the  PC  Act  relate  to  the
employees of the Central Government of the level of the Joint Secretary  and
above.
16.         The  amendments  in  the  DSPE  Act  were  made  effective  from
11.09.2003.  On the same date the Central  Vigilance  Commission  Act,  2003
(for  short,  ‘CVC  Act’)  was  enacted.  The  CVC  Act  provides  for   the
constitution of  a  Central  Vigilance  Commission  (CVC)  to  inquire  into
offences alleged to  have  been  committed  under  the  PC  Act  by  certain
categories of public servants as is reflected from the Preamble.[6]
17.         Section 8 of the CVC Act deals with the functions and powers  of
the CVC. To the extent, it is relevant, Section 8 reads as under:
      “8. Functions and powers  of  Central  Vigilance  Commission.
(1)  The
      functions and powers of the Commission shall be to--
           (a) exercise superintendence over the functioning of  the  Delhi
      Special  Police  Establishment  in  so  far  as  it  relates  to   the
      investigation of offences alleged to have  been  committed  under  the
      Prevention of Corruption Act, 1988 or an offence with which  a  public
      servant specified in sub-section (2) may, under the Code  of  Criminal
      Procedure, 1973, be charged at the same trial;
           (b) give directions to the Delhi  Special  Police  Establishment
      for the purpose of discharging  the  responsibility  entrusted  to  it
      under sub-section  (1)  of  section 4 of  the  Delhi  Special   Police
      Establishment Act, 1946:
      Provided that while exercising the  powers  of  superintendence  under
      clause   (a)   or   giving   directions   under   this   clause,   the
      Commission shall not exercise powers in such a manner so as to require
      the Delhi Special Police Establishment to investigate  or  dispose  of
      any case in a particular manner;
      (c) to (h) ……..
      (2)   ………”


18.         The constitutional validity of Section 6A is pending before  the
Constitution Bench of this Court. In Subramanian Swamy  (Dr.)[7],  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 the intervenor.
20.         Mr. Goolam E. Vahanvati, learned Attorney General says ‘Yes’  to
the question which we have indicated in the beginning of the  order  because
he says that the whole idea behind Section 6A  is  to  provide  a  screening
mechanism to filter out frivolous or motivated investigation that  could  be
initiated against senior officers and to protect them  from  harassment  and
to enable them to take decisions without fear.  He  heavily  relies  on  the
decision of this Court in K. Veeraswami4 and  submits  that  the  Court  has
recognised the need for protecting  high-ranking  officials  from  vexatious
litigation. Learned Attorney General fairly submits  that  the  observations
made  by  this  Court  in  paragraph  28  in  K.   Veeraswami4   have   been
distinguished in Vineet Narain1 but he  submits  that  the  observations  in
Vineet Narain1 have been doubted in the referral order in Subramanian  Swamy
(Dr.)7 .
21.         Learned Attorney General argues that it will not be  appropriate
to issue clarification in the terms proposed in the order  dated  10.07.2013
in  respect of first query  for  the  reasons:
(i)  requirement   of  prior
sanction does not flow from the power of superintendence;
(ii)  there  is  a
presumption of constitutionality in favour of a statutory  provision,  which
cannot be nullified/amended/modified by an interim order;
(iii) a  statutory
provision cannot be struck down without a specific challenge being  levelled
thereto; and
(iv) the Court has the power of judicial review  to  set  right
improper exercise of power conferred  under  Section  6-A.
Elaborating  the
above,  learned  Attorney  General  submits  that   while   the   power   of
superintendence operates during the stage of  investigation,  the  power  to
grant sanction comes into play at the  pre-investigation  stage.  Therefore,
the two powers operate in different spheres and one cannot be said  to  flow
from the other.
Section 8(1) of the  CVC  Act,  which  vests  the  power  of
superintendence of investigation of cases under PC Act is  not  in  conflict
with Section 6A of the DSPE  Act,  which  requires  prior  approval  of  the
Government to initiate any investigation 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 affect the basis of  protection  available
under  law  and  the  CBI  cannot  be  asked  to  proceed  with  inquiry  or
investigation de hors the statutory mandate of Section 6A.
24.         Learned Attorney General, thus, submits that  Section  6A  which
has a definite objective must be allowed to operate even in the cases  where
the investigation into the crimes under PC Act is  being  monitored  by  the
Court.
25.         Mr. Amarendra Sharan, learned senior counsel  who  assisted  the
Court on behalf of CBI with equal emphasis at his command says ‘No’ to  that
question. He states that the objective behind enactment  of  Section  6A  to
give protection to officers at the decision-making  level  from  the  threat
and  ignominy  of  malicious   and   vexatious   inquiry/investigation   and
likelihood of harassment for taking honest decisions is fully achieved  when
a case is monitored by the constitutional court. The  constitutional  courts
are repository of the faith of the  people  as  well  as  protector  of  the
rights of the individual and, therefore, no prior approval  of  the  Central
Government  under  Section  6A  in  the  cases  in  which  investigation  is
monitored by the constitutional court is necessary.
26.         Learned senior counsel for the CBI submits that this  Court  has
consistently held with reference to Section 6 of the DSPE  Act  and  Section
19 of the PC Act that  requirement  of  sanction  for  prosecution  was  not
mandatory when the same is done pursuant to the direction of  the  Court  or
where cases are monitored by the Court. On  the  same  analogy,  he  submits
that it can be safely concluded that the approval under Section  6A  of  the
DSPE Act is not necessary in the cases where investigation is  monitored  by
the constitutional court. He  argues  that  requirement  of  approval  under
Section 6A, if held to be necessary even in Court-monitored cases, it  would
amount to restricting power of monitoring by a constitutional  court  up  to
officers below the ranks of Joint Secretary only which would mean  that  the
constitutional court has no power to monitor  investigation  of  an  offence
involving  officers  of  the  Joint  Secretary  and  above   without   prior
permission of  the  Central  Government.  Such  an  interpretation  will  be
directly contrary to the power (as  well  as  constitutional  duty)  of  the
constitutional court to monitor an investigation in larger public interest.
27.         Mr. Amarendra Sharan, learned senior  counsel  has  argued  that
Section 6A must 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[8],  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[9].
29.         In the criminal justice system the investigation of  an  offence
is the domain of the police. The power to investigate  into  the  cognizable
offences by the police officer is ordinarily not impinged  by  any  fetters.
However, such power has  to  be  exercised  consistent  with  the  statutory
provisions  and  for  legitimate  purpose.  The  Courts  ordinarily  do  not
interfere in the matters of investigation by police, particularly, when  the
facts and circumstances do not indicate that the  investigating  officer  is
not functioning bona fide. In very exceptional  cases,  however,  where  the
Court finds that the police officer has exercised his  investigatory  powers
in breach of the statutory provision putting  the  personal  liberty  and/or
the property of the citizen in jeopardy by illegal and improper use  of  the
power or there is abuse of  the  investigatory  power  and  process  by  the
police officer or the investigation by the police is found to  be  not  bona
fide  or  the  investigation  is  tainted  with  animosity,  the  Court  may
intervene to protect the personal and/or property rights of the citizens.
30.         Lord Denning[10] has described the role of the police thus:
           “In safeguarding our  freedoms,  the  police  play  vital  role.
           Society for its defence needs a well-led, well-trained and well-
           disciplined force or police whom it can  trust,  and  enough  of
           them to be able to prevent crime before it  happens,  or  if  it
           does happen, to detect it and bring the accused to justice.
           The police, of course, must act properly.  They  must  obey  the
           rules of right conduct. They  must  not  extort  confessions  by
           threats or promises. They must not search a man’s house  without
           authority. They must  not  use  more  force  than  the  occasion
           warrants……….”

31.         One of the responsibilities  of  the  police  is  protection  of
life, liberty and property of citizens. The  investigation  of  offences  is
one of  the  important  duties  the  police  has  to  perform.  The  aim  of
investigation is ultimately to search for truth and bring  the  offender  to
the book.
32.         Section 2(h) of the  Code  of  Criminal  Procedure  (for  short,
“Code”) defines investigation to include all the proceedings under the  Code
for collection of evidence conducted by a police officer or  by  any  person
(other than a Magistrate) who is authorised by Magistrate in this behalf.
33.          In  H.N.   Rishbud[11],   this   Court   explained   that   the
investigation generally consists of the following 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 guidelines are provided in the CBI  (Crime)
Manual. Paragraph 9.1 of the Manual says that when, a complaint is  received
or information is available which may, after verification,  as  enjoined  in
the Manual, indicate serious misconduct on the part of a public servant  but
is not adequate  to  justify  registration  of  a  regular  case  under  the
provisions of Section 154 of the Code, a preliminary  enquiry  (PE)  may  be
registered after obtaining approval of  the  competent  authority.  It  also
says that where High Courts and Supreme Court entrust  matters  to  CBI  for
inquiry and submission of report, a PE may  be  registered  after  obtaining
orders from the head office.  When  the  complaint  and  source  information
reveal commission of a prime facie cognizable offence, a regular case is  to
be registered as enjoined by law. PE may be converted into  RC  as  soon  as
sufficient material becomes available to show that  prima  facie  there  has
been commission of a  cognizable  offence.  When  information  available  is
adequate to indicate  commission  of  cognizable  offence  or  its  discreet
verification leads to similar conclusion, a regular case may  be  registered
instead of a PE.
35.         Paragraph  9.10  of  the  Manual  states  that  PE  relating  to
allegations of bribery and corruption should be limited to the  scrutiny  of
records and interrogation of bare minimum persons which may be necessary  to
judge whether there is any substance in  the  allegations  which  are  being
enquired into and whether the case is worth pursuing further or not.
36.         Paragraph 10.1 of the Manual deals with registration  and  first
information report. To the extent it is relevant, it reads as under:
      “10.1  On  receipt  of  a  complaint   or  after  verification  of  an
      information or on completion of a Preliminary Enquiry taken up by  CBI
      if it is revealed that prima  facie  a  cognizable  offence  has  been
      committed and the matter is fit for investigation to be undertaken  by
      Central Bureau of Investigation, a First Information Report should  be
      recorded under Section 154 Criminal Procedure Code  and  investigation
      taken up.  While considering registration of  an  FIR,  it  should  be
      ensured that at least the main  offence/s  have  been  notified  under
      Section  3  of  the  Delhi  Special  Police  Establishment  Act.   The
      registration of First Information Report  may  also  be  done  on  the
      direction of Constitutional Courts, in which case it is not  necessary
      for the offence to have 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,  fairness  and  uninfluenced  and   unhindered   by
external influences.
39.         The abuse of public office for private gain has grown  in  scope
and scale and hit the nation badly.  Corruption reduces  revenue;  it  slows
down economic activity and holds back  economic  growth.  The  biggest  loss
that may occur to the nation due to corruption is loss of confidence in  the
democracy and weakening of rule of law.
40.         In recent times, there has been concern over the need to  ensure
that the corridors of power remain untainted by corruption or  nepotism  and
that there is optimum utilization of resources and funds for their  intended
purposes.[12]
41.         In 350 B.C.E., Aristotle suggested in  the  “Politics”  that  to
protect the treasury from being defrauded, let all money  be  issued  openly
in front of the whole city, and let copies of the accounts be  deposited  in
various wards. What Aristotle said centuries back  may  not  be  practicable
today but for successful working of  the  democracy  it  is  essential  that
public  revenues  are not defrauded and public servants do  not  indulge  in
bribery and corruption and if they do, the  allegations  of  corruption  are
inquired into fairly, properly and promptly and those  who  are  guilty  are
brought to book.
42.         In this group of matters, it is alleged  that  coal  blocks  for
the subject period have been  allocated  for  extraneous  considerations  by
unknown public servants in connivance with businessmen,  industrialists  and
middlemen.  The  allocation  of  coal  blocks  is  alleged  to  suffer  from
favouritism, nepotism and pick  and  choose.  The  Comptroller  and  Auditor
General (CAG) in its Performance Audit on  allocation  of  coal  blocks  and
augmentation of coal production has estimated loss to the  public  exchequer
to the tune of about Rs.1.86  lac  crore  as  on  31.03.2011  for  Open-cast
mines/Open-cast reserves of Mixed mines while pointing out inadequacies  and
shortcoming in  the  allocation.   Our  reference  to  the  CAG  report,  we
clarify, does not  mean  that  we  have  expressed  any  opinion  about  its
correctness or otherwise.  Be that as it may, having regard to  the  serious
allegations of lack of objectivity  and  transparency  and  the  PEs  having
already registered by the CBI to  inquire/investigate  into  allegations  of
corruption against  unknown  public  servants  in  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 ‘court directed’ or ‘court monitored’ cases is that  there  is
no undue delay in the investigation, and the investigation is  conducted  in
a free and fair manner with no external interference.  In  such  a  process,
the people acquainted with facts and circumstances of the  case  would  also
have a sense of security and they would  cooperate  with  the  investigation
given that the superior courts are seized of the matter.  We  find  that  in
some cases, the expression ‘court monitored’ has been  interchangeably  used
with  ‘court  supervised  investigation’.  Once  the  court  supervises   an
investigation, there is hardly anything left in the trial. Under  the  Code,
the investigating officer is only to form an  opinion  and  it  is  for  the
court to ultimately try  the  case  based  on  the  opinion  formed  by  the
investigating officer and see whether any offence has been made  out.  If  a
superior  court  supervises  the  investigation  and  thus  facilitates  the
formulation of such opinion in the form of a report under Section 173(2)  of
the Code, it will be difficult if not impossible for the trial court to  not
be influenced or  bound  by  such  opinion.  Then  trial  becomes  a  farce.
Therefore, supervision of investigation by any court is a  contradiction  in
terms. The Code does not envisage such a procedure, and  it  cannot  either.
In the rare and compelling circumstances referred  to  above,  the  superior
courts may monitor an investigation to ensure that the investigating  agency
conducts the investigation in a free, fair  and  time-bound  manner  without
any external interference.

46.         The  Court  is  of  the  view  that  a  fair,  proper  and  full
investigation by the CBI into every accusation by  the  CBI  in  respect  of
allocation of coal blocks shall help in retaining public confidence  in  the
conduct  of  inquiry/investigation.  Moreover,  the  Court-monitoring  in  a
matter of huge magnitude such as this shall help in moving the machinery  of
inquiry/investigation at appropriate pace and  its  conclusion  with  utmost
expedition without fear or favour.
47.         As regards the first query put to the learned  Attorney  General
on 10.07.2013, we are of the view that the said query takes within its  fold
one of the facets of the constitutionality of Section 6A and since  that  is
under consideration by the Constitution Bench  of  this  Court,  we  do  not
think it is necessary to deal with that query. Accordingly,  this  order  is
confined to the second query, 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[13].
49.         The  power  under  Article  142(1)  of  the  Constitution  which
provides that Supreme Court in exercise of its jurisdiction  may  pass  such
decree or make such order as is necessary for doing complete justice in  any
“cause” or “matter” has been explained in large  number  of  cases.  It  has
been consistently held that such power is  plenary  in  nature.   The  legal
position articulated in Prem  Chand  Garg[14]  and  A.R.  Antulay[15],  with
regard to the powers conferred on this Court under Article 142(1)  has  been
explained in Delhi Judicial Service Association[16].   It  is  exposited  by
the three Judge Bench in Delhi Judicial  Service  Association16  that  power
under Article 142(1) to do  “complete  justice”  is  entirely  of  different
level and of a different quality.  Any prohibition or restriction  contained
in ordinary laws cannot act as a limitation on the constitutional  power  of
this Court.  Once this Court is in seisin of a cause or  matter  before  it,
it has power to issue any order or direction to  do  “complete  justice”  in
the matter.  This legal position finds support from other decisions of  this
Court in Poosu[17], Ganga Bishan[18] and  Navnit R. Kamani[19].
50.          The  majority  view  of  the  Constitution   Bench   in   Union
Carbide[20], with regard to power of this Court under  Article  142  of  the
Constitution holds the same  view  as  expressed  by  this  Court  in  Delhi
Judicial Service Association16.  The majority view  in  Union  Carbide20  in
paragraph 83[21] of the Report  has  reiterated  that  the  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 – is contemplated. The powers under  Article
142 are not subject to any express statutory prohibitions.
51.         In Supreme Court Bar Association[22], this  Court  stated,  “It,
however, needs to be remembered that the powers conferred 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 Carbide20 ,  in
exercise of the powers under Article 142 is to  take  note  of  the  express
prohibitions  in  any  substantive  statutory  provision   based   on   some
fundamental principles of public policy and regulate  the  exercise  of  its
power and discretion accordingly.  Where  the  Court  finds  that  statutory
limitations are so fundamental that any departure therefrom may result in  a
consequence directly contrary to the purpose for  which  the  plenary  power
under Article 142(1) is meant, obviously, the Court will exercise its  power
appropriately having regard to the statutory limitations.
53.         The Supreme Court  has  been  conferred  very  wide  powers  for
proper and effective administration  of  justice.  The  Court  has  inherent
power and jurisdiction for dealing with any exceptional situation in  larger
public interest which builds confidence in the rule of law  and  strengthens
democracy. The Supreme Court as the sentinel  on  the  qui  vive,  has  been
invested with the powers which are  elastic  and  flexible  and  in  certain
areas the rigidity in exercise of such powers is considered inappropriate.

54.         In the event of any senior officer (Joint  Secretary  or  above)
or the Central Government in an ongoing  inquiry/investigation  by  the  CBI
being monitored by the Court has reason to believe that such officer may  be
unnecessarily harassed by the  CBI,  then  the  Central  Government  or  the
senior officer (Joint Secretary or above) can  always  apply  to  the  Court
which is monitoring the inquiry/investigation for protection of his  rights.
 Such legal course being available to the category of  officers  covered  by
Section 6A, we hardly find any  merit  in  the  submission  of  the  learned
Attorney General that requirement of approval under  Section  6A  cannot  be
waived even in Court-monitored investigations and inquiries.
55.         The argument of the learned Attorney General 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 overlooks the vital aspect that  Court  monitoring
of the inquiry/investigation conducted by the CBI is itself  a  very  strong
check   on   the   CBI   from   misusing   or   abusing   its    power    of
inquiry/investigation.  The filtration mechanism which Section  6A  provides
to ensure that the senior officers at the  decision  making  level  are  not
subjected to frivolous inquiry is achieved as the constitutional court  that
monitors the inquiry/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  High
Court,  in  exercise  of  its  jurisdiction  under  Article   226   of   the
Constitution, to CBI to investigate a cognizable  offence  alleged  to  have
been committed within the territory of  the State  without  the  consent  of
the  State  will  neither  impinge  upon  the  federal  structure   of   the
Constitution nor violate the doctrine of separation of power  and  shall  be
valid in law. In this regard, it is relevant to  refer  to  the  conclusions
recorded by the Constitution Bench in clauses vi and vii,  paragraph  68  of
the Report which read as under:
      “68. (i) to (v)   ………
      (vi) If in terms of Entry 2 of List II of the Seventh Schedule on  the
      one hand and Entry 2-A and Entry  80  of  List  I  on  the  other,  an
      investigation by another agency is permissible  subject  to  grant  of
      consent by the State concerned, there is no reason as to  why,  in  an
      exceptional situation, the Court would be  precluded  from  exercising
      the same power  which  the  Union  could  exercise  in  terms  of  the
      provisions of the statute. In our opinion, exercise of such  power  by
      the constitutional courts would not violate the doctrine of separation
      of powers. In fact, if in such a situation the Court  fails  to  grant
      relief, it would be failing in its constitutional duty.
       (vii) When the Special Police Act itself provides that subject to the
      consent by the State, CBI can take up investigation in relation to the
      crime which was otherwise within the jurisdiction of the State police,
      the Court can also  exercise  its  constitutional  power  of  judicial
      review and  direct  CBI  to  take  up  the  investigation  within  the
      jurisdiction of the State. The power of the High Court  under  Article
      226 of the Constitution cannot be taken away, curtailed or diluted  by
      Section 6 of the Special Police Act. Irrespective of there  being  any
      statutory provision acting as a  restriction  on  the  powers  of  the
      Courts, the restriction imposed by Section 6 of the Special Police Act
      on the powers of the Union, cannot  be  read  as  restriction  on  the
      powers of the constitutional courts. Therefore, exercise of  power  of
      judicial review by the High Court, in our opinion, would not amount to
      infringement of either the doctrine of  separation  of  power  or  the
      federal structure.”

58.         Learned Attorney General with reference to  the  above  judgment
submitted that the principle of law laid down in the case of  Committee  for
Protection of Democratic Rights8 cannot be extended to requirement of  prior
approval under Section 6A. He submitted that  Committee  for  Protection  of
Democratic Rights8 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  right  that  the  two  provisions,
namely, Section 6 and Section 6A are different provisions and  they  operate
in different fields, but the principle  of  law  laid  down  in  respect  of
Section 6, in our view, can be extended while considering  applicability  of
Section 6A to the Court-monitored investigations. If Section 6  necessitates
the prior sanction of the State Government before investigation  is  carried
out by the CBI in terms of that provision and  the  principle  of  law  laid
down by the Constitution Bench of this  Court  is  that  the  constitutional
courts are empowered to direct the investigation of a case  by  CBI  and  in
such cases no prior sanction of the  State  Government  is  necessary  under
Section 6 of the DSPE Act, there is no reason  why  such  principle  is  not
extended in holding that the approval  of  the  Central  Government  is  not
necessary  under  Section  6A  of  the  DSPE  Act  in  a  matter  where  the
inquiry/investigation into the crime under the PC Act is being monitored  by
the Court. It is the duty  of  this  Court  that  anti-corruption  laws  are
interpreted and worked out in such a fashion that helps in minimizing  abuse
of public office for private gain.
60.         Learned Attorney General heavily relied  upon  the  observations
made in paragraph  28  by  the  Constitution  Bench  of  this  Court  in  K.
Veeraswami4.  He, particularly, referred to the following observations  with
emphasis on the highlighted portion:
      “28.  . . . . . .  Section  6  is  primarily  concerned  to  see  that
      prosecution for the specified offences shall not commence without  the
      sanction of a competent authority. That does not mean that the Act was
      intended to condone the offence of bribery and  corruption  by  public
      servant. Nor it was meant to afford protection to public servant  from
      criminal prosecution for such offences. It  is  only  to  protect  the
      honest public servants from frivolous and vexatious  prosecution.  The
      competent authority has to examine independently and  impartially  the
      material on record to form his own opinion whether the offence alleged
      is frivolous or vexatious. The competent authority may refuse sanction
      for prosecution if the offence alleged has no material to  support  or
      it is frivolous or intended to  harass  the  honest  officer.  But  he
      cannot refuse to grant sanction if the material collected has made out
      the commission of the offence  alleged  against  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  Narain1,  this  Court   distinguished   the   above
observations in paragraphs 34 and 35 of the report which read as under:

      “34. The other decision of this Court is in K. Veeraswami. That was  a
      decision in which the majority held that the Prevention of  Corruption
      Act applies even to the Judges of  the  High  Court  and  the  Supreme
      Court. After taking that view,  it  was  said  by  the  majority  (per
      Shetty, J.) that in order to protect the independence of judiciary, it
      was essential that no criminal case shall be registered under  Section
      154 CrPC against a Judge of the High Court or  of  the  Supreme  Court
      unless the Chief Justice of India is consulted and he assents to  such
      an action being taken. The learned  Attorney  General  contended  that
      this decision is an authority for the proposition that in case of high
      officials, the requirement of prior permission/sanction from a  higher
      officer or Head of the Department is permissible and necessary to save
      the officer  concerned  from  harassment  caused  by  a  malicious  or
      vexatious prosecution. We are unable to accept this submission.
      35. The position of Judges of High Courts and the Supreme  Court,  who
      are constitutional functionaries, is distinct, and the independence of
      judiciary, keeping it free from any  extraneous  influence,  including
      that  from  executive,  is  the  rationale  of  the  decision  in   K.
      Veeraswami. In strict terms the Prevention  of  Corruption  Act,  1946
      could not be applied to the  superior  Judges  and,  therefore,  while
      bringing those Judges within the purview of the  Act  yet  maintaining
      the  independence  of  judiciary,  this  guideline  was  issued  as  a
      direction by the Court. The feature of independence of  judiciary  has
      no application to the officers covered by the  Single  Directive.  The
      need for independence of judiciary from the executive  influence  does
      not arise in the case of officers belonging to the executive. We  have
      no doubt that the decision in K. Veeraswami has no application to  the
      wide proposition advanced by the learned Attorney General  to  support
      the Single Directive. For the same reason, reliance on  that  decision
      by the IRC to uphold the Single Directive is misplaced.”


62.         In Vineet Narain1, this Court clarified that the decision in  K.
Veeraswami4 has no  application  to  the  officers  covered  by  the  single
directive. In other words,  the  observations  made  by  this  Court  in  K.
Veeraswami4 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.)7  ,  records  the
argument advanced on behalf of the  Central  Government  that  the  view  in
Vineet Narain1 with regard to the observations in K. Veeraswami4   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  Narain1  about  the  observations  in  paragraph  28  of  K.
Veeraswami4 stand obliterated.
64.          The  fact  that  the  investigation   is   monitored   by   the
constitutional court is itself an assurance  that  investigation/inquiry  by
the CBI is not actuated with ulterior motive to harass  any  public  servant
and  the  investigating  agency  performs  its  duties  and  discharges  its
responsibility  of  fair  and  impartial   investigation   uninfluenced   by
extraneous considerations.
65.         In light of the above discussion, our answer to the question  is
in the negative and we hold that the approval of the Central  Government  is
not  necessary  under  Section  6A  of  the  DSPE  Act  in  a  matter  where
inquiry/investigation into the crime under the PC Act is being monitored  by
this Court.  This position holds good in cases which  are  directed  by  the
Court to be registered and the  inquiry/investigation  thereon  is  actually
being monitored by this Court.

                                             …………………………J.
                                             (R.M. Lodha)


                                             …………………………J.
                                             (Kurian Joseph)
New Delhi;
December 17, 2013.























                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                    CRIMINAL/CIVIL ORIGINAL JURISDICTION
                  WRIT PETITION (CRIMINAL) NO. 120 OF 2012

Manohar Lal Sharma                                         ….Petitioner
                                  Versus
The Principal Secretary & Ors.
...Respondents
                                    WITH
                    WRIT PETITION (CIVIL) NO.463 OF 2012
                                    WITH
                    WRIT PETITION (CIVIL) NO.429 OF 2012
                                    WITH
                    WRIT PETITION (CIVIL) NO.498 OF 2012
                                    WITH
                    WRIT PETITION (CIVIL) NO.515 OF 2012
                                    WITH
                    WRIT PETITION (CIVIL) NO.283 OF 2013
                                  O R D E R
Madan B. Lokur, J.
1.    The  question  for  consideration  relates  to  the  applicability  of
Section 6A of the Delhi Special Police Establishment Act, 1946  (hereinafter
referred to as the Act) to  an  inquiry  or  investigation  monitored  by  a
constitutional court. In my opinion, this section has no  application  to  a
constitutional court monitored inquiry or investigation. While I agree  with
the same conclusion arrived at by Brother  Justice  Lodha,  my  reasons  are
quite different.
2.    Section 6A of the Act reads as under:
           “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 (49  of  1988)  except  with  the  previous
           approval of the Central Government where such allegation relates
           to –


           1. the employees of the Central Government of the level of Joint
              Secretary and above; and

           2. 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 case 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
           Prevention of 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 this position clear, the  present  concern  is  only  with
respect to an investigation conducted by the  CBI  into  the  allocation  of
coal blocks, the monitoring of that investigation  by  this  Court  and  the
impact of Section 6A of the Act on the investigation.
Background - The Single Directive
5.    Section 6A of the Act was brought on  the  statute  book  with  effect
from 11th September 2003. Prior thereto, the sum and  substance  of  Section
6A of the Act was in  the  form  of  a  ‘Single  Directive’  issued  by  the
executive Government. The Single Directive protected, inter  alia,  a  class
of officers from being investigated by the CBI or in the  registering  of  a
case  against  that  class  of  officers.   This  was  through  a  provision
requiring prior sanction of the  Secretary  of  the  concerned  Ministry  or
Department before the CBI undertakes an investigation against an officer  of
the rank of a Joint Secretary or above.  The Single Directive made it  clear
that “Without such sanction, no  inquiry  shall  be  initiated  by  the  SPE
(Special  Police  Establishment).”  The  relevant  extract  of  the   Single
Directive has been quoted by Brother Justice Lodha and it is  not  necessary
to repeat it.
6.    The Single Directive was the subject of challenge in Vineet Narain  v.
Union of India, (1998) 1 SCC 226. This Court struck it down, inter alia,  on
three grounds that are best expressed in the words of this Court:
      (i) “The learned Attorney General contended that this decision[23]  is
      an authority for the proposition that in case of high  officials,  the
      requirement of prior permission/sanction from a higher officer or Head
      of the Department is permissible and necessary  to  save  the  officer
      concerned  from  harassment  caused  by  a  malicious   or   vexatious
      prosecution. We are unable to accept this submission.


      “…….The feature of independence of judiciary has no application to the
      officers covered by the Single Directive. The need for independence of
      judiciary from the executive influence does not arise in the  case  of
      officers belonging to  the  executive.  We  have  no  doubt  that  the
      decision in K. Veeraswami has no application to the  wide  proposition
      advanced by  the  learned  Attorney  General  to  support  the  Single
      Directive.” [paragraph 34 and 35 of the Report].


      (ii) “In the absence of any statutory requirement of prior  permission
      or sanction for investigation, 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 concerned  are  subject  to  extraneous
      pressures and have been indulging in dilatory tactics in not  bringing
      the guilty to book. The decisions of higher courts to directly monitor
      investigations in certain cases have added to the aforesaid belief.”


8.    Unfortunately, rather than make a  serious  attempt  to  consider  the
Report or the views of this Court, the Single Directive was  given  a  fresh
lease of life, and a statutory one at that, by enacting Section  6A  in  the
Delhi Special Police Establishment Act, 1946.
9.    The justification for the enactment was the recommendations  contained
in the Report of the Joint Committee of both Houses of Parliament set up  to
examine the provisions of the Central Vigilance Commission  Bill,  1999.  In
its  Report  presented  to  Parliament  on  22nd  November  2000  the  Joint
Committee had this to say:
      “41. The Committee note that many witnesses who  appeared  before  the
      Committee had expressed the need to protect the bona fide  actions  at
      the decision making level.  At present there is no  provision  in  the
      Bill for seeking prior approval of the Commission or the head  of  the
      Department etc. for  registering  a  case  against  a  person  of  the
      decision making level.  As such, no protection  is  available  to  the
      persons at the decision making level.  In this regard,  the  Committee
      note that earlier, the prior approval of the Government  was  required
      in the form of a ‘Single Directive’ which was set aside by the Supreme
      Court.  The Committee feel that such a protection should  be  restored
      in the same format which was there earlier and desire that  the  power
      of giving prior approval for taking action against a senior officer of
      the decision making level should be vested with the Central Government
      by making appropriate provision in the Act.  The Committee, therefore,
      recommend that Clause 27 of the Bill be accordingly amended so  as  to
      insert a new section 6A to the DSPE Act, 1946, to this effect.”


10.   Furthermore, in the debate in Parliament relating  to  the  Bill,  the
Union Law Minister stated that the rationale  behind  the  Single  Directive
was “that those who are in senior decision-making positions, those who  have
to exercise discretion, those who have to take  vital  decisions,  could  be
the targets of frivolous complaints.” Justifying Section 6A of the Act,  the
Hon’ble Minister went on to say:
      “Do we allow those complaints against them to go on and  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  decision-
      makers, 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 to protect them  from  harassment  and  to
enable them to take decisions without fear.”
Cause for the present discussion
13.   Why has the applicability of  Section  6A  of  the  Act  come  up  for
discussion? Prior to the present case,  there  was  a  general  outcry  that
allocations of coal blocks for  mining  and  exploitation  were  arbitrarily
made in various parts of the country to  private  players  which  in  effect
amounted to distribution of largesse by  the  Central  Government  to  these
private players. The financial implications of the  allocations  came  under
the scrutiny of the Comptroller and Auditor General  of  India  (C&AG)  and,
based on the Report submitted by the C&AG and tabled in Parliament  on  16th
August 2012, some believed that the allocations  were  not  made  with  bona
fide  motives  and  that  the  whole  gamut  of  allocations  ought  to   be
impartially  investigated  by  the  CBI.  Although   the   CBI   had   begun
investigations on the basis of directions issued by  the  Central  Vigilance
Commission, it was perceived that the CBI was ‘going slow’ or  not  actively
investigating the allegations perhaps with a view to protect  some  powerful
vested interest. It  is  under  these  circumstances  that  public  interest
litigation was initiated in this Court. Given the  importance  of  the  case
and the issues involved, this Court decided, in the larger public  interest,
to monitor the investigations being conducted by the CBI.
14.   While the matter of allocations is being considered on merits, one  of
the issues that has arisen is with regard to the interpretation  of  Section
6A of the Act since it was apprehended by the petitioners that despite  this
Court monitoring the investigations,  the  Central  Government  could  stall
them by declining to give previous approval to  the  CBI  to  carry  out  an
inquiry or conduct an investigation into the allegations since  officers  of
the level of Joint Secretary and above would be involved.
15.   The issue got precipitated when it was brought to our  notice  through
an application filed by the CBI that previous  approval  sought  by  it  (to
examine a particular officer) was granted by  the  Central  Government  only
after some clarifications were given and that too after  a  lapse  of  three
months.[24] This is what  was  said  by  the  CBI  in  paragraph  8  of  its
application:
      “8. It is relevant to mention that 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[25] 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
undergone substantial slackening and that this ought to meet the  requisites
of a non-partisan investigation by  the  CBI.  Reference  was  made  to  the
recommendations given in March 2011 by a Group  of  Ministers  which  dealt,
inter alia, with the “relevance/need for Section 6A  of  the  Delhi  Special
Police Establishment Act, 1946”. The recommendations were  accepted  by  the
Central Government and Office  Memorandum  No.  372/19/2011-AVD-II  (Part-I)
dated 26th September, 2011 was issued.  The relevant extract of  the  Office
Memorandum reads as follows:-
           “The undersigned is directed to  state  that  the  provision  of
      section 6A of the DSPE Act,  1946  provides  for  safeguarding  senior
      public  officials  against  undue  and  vexatious  harassment  by  the
      investigating agency.  It had been observed that  the  requests  being
      made by the investigating agency under said provision were  not  being
      accorded due priority and the examination of such proposals  at  times
      lacked objectivity.  The matter was under consideration of  the  Group
      of Ministers constituted to consider measures that can be taken by the
      Government to tackle Corruption.

           The Government has accepted the following recommendation of  the
      Group of Ministers, as reflected in para 25 of the First Report of the
      Group of Ministers:-

        1.  The competent authority shall decide the  matter  within  three
           months  of  receipt  of  request   accompanied   with   relevant
           documents.


        2. The competent authority  will  give  a  Speaking  Order,  giving
           reasons for its decision.


        (c) In the event a decision is  taken  to  refuse  permission,  the
        reasons thereof shall be put up to the next  higher  authority  for
        information within one week of taking the decision.

        (d) Since section 6A specifically covers officers  of  the  Central
        Government, above  the  rank  of  Joint  Secretary,  the  competent
        authority in these cases will be the  Minister  in  charge  in  the
        Government of India.  In such cases, intimation of refusal to grant
        permission along with reasons thereof, will have to be  put  up  to
        the Prime Minister.

           The above decision of the Government is brought to the notice of
      all Ministries/Departments for due adherence and strict compliance.”

18.    Learned  Attorney-General  also  submitted  that   apart   from   the
safeguards introduced by the Office Memorandum,  the  constitutional  courts
always  have  the  power  of  judicial  review  if  previous  approval   for
investigation 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 him, there must be some  suitable  preliminary  enquiry
      into the allegations by a responsible officer. The lodging of  such  a
      report against a person, specially one who like the appellant occupied
      the  top  position  in  a  department,  even  if  baseless,  would  do
      incalculable harm not only to the officer in  particular  but  to  the
      department he belonged to, in general.”


20.   It was also submitted that the fact that  an  investigation  is  being
monitored by a constitutional court will ensure that the Central  Government
does not withhold granting previous approval for collateral reasons. It  was
submitted that there is a  presumption  that  official  acts  are  performed
lawfully and it is only to protect a decision maker  from  undue  harassment
that Section 6A has been introduced in the Act. Protection of honest  public
servants from frivolous and  vexatious  complaints  was  emphasized  by  the
learned Attorney-General.
21.   The learned Attorney-General made a concession to the effect  that  in
the event of the CBI conducting an enquiry, as opposed to  an  investigation
into the conduct of a senior government officer,  no  previous  approval  of
the Central Government is required since an enquiry does not have  the  same
adverse connotation that an investigation has.
Discussion
22.   Some of the safeguards suggested by the learned Attorney-General  find
a mention in Vineet Narain. However, these were  not  specifically  accepted
or rejected while considering the validity  of  the  Single  Directive  only
because this Court held that the Single Directive had  been  issued  without
any   legislative   sanction   and   it   amounted   to   interdicting   the
investigations.
23.   No doubt the rigour of Section 6A of the Act has already been  diluted
by the issuance of the Office Memorandum dated 26th September 2011. But  the
question is this: Is there a need for a further dilution of  Section  6A  of
the Act in respect of a constitutional court monitored investigation? Is  it
necessary for  the  CBI  to  take  the  previous  approval  of  the  Central
Government for investigating a senior  official  even  in  a  constitutional
court monitored investigation?
24.   What is  an  investigation  has  already  been  discussed  by  Brother
Justice Lodha and I endorse his views on this. However, what is crucial  for
an investigation is that it should conclude expeditiously from the point  of
view of all concerned: from the point  of  view  of  the  accused,  a  quick
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 protective side, it was  submitted  by  the  learned  Attorney-
General that when the CBI requests for the grant of  previous  approval,  it
presents only one side of the story and it is necessary to give  the  senior
government official an opportunity of  explaining  his  side  of  the  story
before  approval  is  granted  by  the   Central   Government   to   conduct
investigations by the CBI.  Assuming a senior government  officer  is  being
unfairly investigated  by  the  CBI  in  a  constitutional  court  monitored
investigation without the previous approval of the  Central  Government,  is
it difficult for him  or  her  to  approach  the  constitutional  court  and
present his side of the story and contend that  he  or  she  should  not  be
investigated for an alleged offence?  It  is  only  the  substitution  of  a
forum, from a Minister to a constitutional court, which  will  consider  the
officer’s request and  a  fair  hearing  given  by  a  constitutional  court
certainly cannot be said to be detrimental to his or her  interest.  On  the
contrary, the protection given by a constitutional court will be more real.
27.   On the preventive side, one must not  forget  that  senior  government
officials wield at least some influence. This Court has  also  cautioned  in
Samaj Parivartan Samudaya v. State of Karnataka, (2012) 7 SCC 407  that  our
criminal jurisprudence contemplates that “an investigation should  be  fair,
in accordance with law and should not be tainted. But,  at  the  same  time,
the court has to take precaution that interested or influential persons  are
not able to misdirect or hijack the investigation so as to throttle  a  fair
investigation resulting in the offenders escaping  the  punitive  course  of
law.” Effectively, therefore, Section 6A of  the  Act  calls  for  an  equal
treatment before law for all, and that is precisely  what  a  constitutional
court monitored investigation seeks to achieve – preventing  misuse  of  the
law.
28.   The Office Memorandum relied on by the  learned  Attorney-General  can
hardly be termed as efficacious in any manner. Firstly, it  cannot  be  used
to interpret a provision of law such as Section 6A of  the  Act.  I  am  not
inclined to give any importance to the Office Memorandum  for  understanding
or appreciating Section 6A of the Act. Secondly, the Office  Memorandum  can
always be withdrawn, modified or  amended  on  the  whim  of  the  executive
Government, on the same rationale as given for enacting Section  6A  of  the
Act, 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
vexatious complaints are made only when the CBI is the investigating  agency
and that it is only the CBI that is capable of harassing  or  victimizing  a
senior Government official while the local police of  the  State  Government
does not entertain frivolous and vexatious complaints and is not capable  of
harassing or victimizing a senior government official.  No  such  assumption
can be made.
31.   With regard to the time factor for taking a decision, as  proposed  by
the learned Attorney-General it is worth referring to Dr. Subramanian  Swamy
v. Dr. Manmohan  Singh,  (2012)  3  SCC  64  wherein  this  Court  noted  in
paragraph 17 of the Report as follows:-
      “During the course of hearing,  the  learned  Attorney  General  filed
      written  submissions.   After  the  hearing  concluded,  the   learned
      Attorney General filed supplementary written submissions along with  a
      compilation of 126 cases in which  the  sanction  for  prosecution  is
      awaited for periods ranging for more than one year to a few months.”


32.   Referring to this situation, this Court observed in  paragraph  70  of
the Report as follows:-
      “Therefore, in more than one-third cases of request for prosecution in
      corruption cases against public  servants,  sanctions  have  not  been
      accorded. The aforesaid scenario raises very important  constitutional
      issues as well as some questions relating to  interpretation  of  such
      sanctioning provision and also the role that an independent  judiciary
      has to play in maintaining the Rule of Law and common man’s  faith  in
      the justice-delivering system. Both  the  Rule  of  Law  and  equality
      before law are cardinal questions in our constitutional laws  as  also
      in international law and in this context the role of the judiciary  is
      very vital.”


33.   It is true that in  Swamy  this  Court  was  referring  to  delays  in
sanctions for prosecution but it is not unlikely  that  a  similar  scenario
may play itself out in  respect  of  the  grant  of  previous  approval  for
investigation notwithstanding time lines being laid  down  as  mentioned  in
the Office Memorandum.  This is because if the time lines  are  not  adhered
to, it is unlikely that the CBI, in the absence of any realistic  functional
autonomy, will be able to press the Central Government beyond  a  point  for
expeditious  approval  for  investigating  an  offence  against   a   senior
government  official.   Investigations  can  be  paralyzed  by   unwarranted
delays, both intentional and unintentional.
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
non-partisan 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
are presumed  to  have  been  done  in  accordance  with  law.   While  this
certainly applies to senior government officers, it equally applies  to  the
CBI  which,  it  is  presumed,  will  ‘officially’  act  against  a   senior
government officer in a constitutional court  monitored  investigation  only
if it is confident that there is enough material before  it  to  conduct  an
investigation.  It is not possible to assume that in a constitutional  court
monitored investigation the  CBI  will,  in  a  trigger-happy  manner,  ride
roughshod and target  senior  government  officers  only  because  they  are
empowered to do so. The submission  of  the  learned  Attorney-General  must
equally apply to the CBI and an  official  act  of  the  CBI  must  also  be
presumed to have been done in accordance with law.
36.   Interestingly, as  noted  in  Subramaniam  Swamy  v.  Director  (CBI),
(2005) 2 SCC 317 no previous approval for investigation was required by  the
CBI from the date of decision in Vineet Narain  (18th  December  1997)  till
the insertion of Section 6-A of the Act  with  effect  from  12th  September
2003 except for a brief period of two months from 25th August 1998  to  27th
October 1998. Absolutely no material was placed before us  to  suggest  that
during the period when the Single Directive was not in  operation,  nor  was
Section 6A of the Act on the statute book, the  CBI  investigated  frivolous
and vexatious complaints against senior government officers or harassed  any
of them in any way. The fear that decision makers in the Government will  be
wary of taking a bona fide  decision  that  may  inadvertently  stir  up  an
avoidable controversy does not appear to be based on any material.
37.   Finally, a constitutional court  monitored  investigation  is  nothing
but the adoption of a procedure of a ‘continuing mandamus’ which traces  its
origin, like public interest litigation, to Article 32 of  the  Constitution
and is  our  contribution  to  jurisprudence.  This  has  been  sufficiently
discussed in Vineet Narain and there is no present necessity of any  further
discussions on this. In M.C. Mehta v. Union of India, (2008) 1 SCC 407  this
Court referred, in the context of ongoing investigations, to  a  ‘continuous
mandamus’ and observed that:
      “The jurisdiction of the Court to issue a writ of continuous  mandamus
      is only to see that proper investigation  is  carried  out.  Once  the
      Court satisfies itself that a proper investigation  has  been  carried
      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  Government   to   exercise   of   powers   and
      jurisdiction.—Nothing contained in Section 5 shall be deemed to enable
      any member of the  Delhi  Special  Police  Establishment  to  exercise
      powers and jurisdiction in any area in a  State,  not  being  a  Union
      Territory or railway area, without the consent of  the  Government  of
      that State.”


40.   The Constitution Bench discussed the issue  of  separation  of  powers
and later dealt with the statutory bar in the context  of  judicial  review.
The Constitution Bench referred (in paragraph  51  of  the  Report)  to  the
speech of Dr. Ambedkar  in  the  Constituent  Assembly,  with  reference  to
Article 32 of the Constitution, wherein he said.
      “If I was asked to name any particular article in this Constitution as
      the most important - an article without which this Constitution  would
      be a nullity - I could not refer to any other article except this one.
      It is the very soul of the Constitution and the very heart of it and I
      am glad that the House has realised its importance.”


Thereafter, explaining the importance of clause (2) of Article  32  and  the
expression “in the nature of” used therein, the Constitution Bench held,  in
paragraph 53 of the Report that the power conferred is “in the widest  terms
and is not confined to issuing the high prerogative writs specified  in  the
said clause but includes within its ambit the power to issue any  directions
or orders  or  writs  which  may  be  appropriate  for  enforcement  of  the
fundamental rights. Therefore, even when the conditions for issue of any  of
these writs are not fulfilled, this Court would not be constrained  to  fold
its hands in despair and plead its inability to help  the  citizen  who  has
come before it for judicial redress (per P.N. Bhagwati, J. in Bandhua  Mukti
Morcha v. Union of India[26]).”
41.   Concluding the discussion, the Constitution Bench held  (in  paragraph
68(vii) of the Report) that the power of judicial review  exercisable  by  a
constitutional court cannot be restricted by a statutory provision.  It  was
held as follows:
      (vii) When the Special Police Act itself provides that subject to  the
      consent by the State, CBI can take up investigation in relation to the
      crime which was otherwise within the jurisdiction of the State police,
      the Court can also  exercise  its  constitutional  power  of  judicial
      review and  direct  CBI  to  take  up  the  investigation  within  the
      jurisdiction of the State. The power of the High Court  under  Article
      226 of the Constitution cannot be taken away, curtailed or diluted  by
      Section 6 of the Special Police Act. Irrespective of there  being  any
      statutory provision acting as a  restriction  on  the  powers  of  the
      Courts, the restriction imposed by Section 6 of the Special Police Act
      on the powers of the Union, cannot  be  read  as  restriction  on  the
      powers of the constitutional courts. Therefore, exercise of  power  of
      judicial review by the High Court, in our opinion, would not amount to
      infringement of either the doctrine of  separation  of  power  or  the
      federal structure.”


42.   The law laid down by the Constitution Bench  vis-à-vis  a  High  Court
exercising judicial review under Article  226  of  the  Constitution  and  a
statutory restriction under Section 6 of the Act, would apply (perhaps  with
greater vigour) mutatis mutandis to the exercise of judicial review by  this
Court under Article 32 of the Constitution with  reference  to  a  statutory
restriction imposed by Section 6A of the Act. That being so, Section  6A  of
the Act must be meaningfully and realistically read, only as  an  injunction
to the executive  and  not  as  an  injunction  to  a  constitutional  court
monitoring an investigation under Article  32  of  the  Constitution  in  an
exercise of judicial review and of issuing a continuing mandamus.
43.   The need  for  a  separate  opinion  has  arisen  since  I  have  some
reservations on the interpretation of the decisions of this  Court  referred
to by  Brother  Justice  Lodha  with  regard  to  the  plenitude  of  powers
exercisable by this Court under  Article  142  of  the  Constitution.  Those
reservations are not at all material for the present  since  the  conclusion
arrived at is the same – the route being different.  While  Brother  Justice
Lodha has relied  on  Article  142  of  the  Constitution  to  arrive  at  a
conclusion  that  Section  6A  of  the  Act  has   no   application   to   a
constitutional court  monitored  investigation,  I  have  reached  the  same
conclusion by relying, inter alia, on Article 32  of  the  Constitution  and
the discussion on judicial review  found  in  Committee  for  Protection  of
Democratic Rights.

                                              ..……………………..J.
New Delhi;                      (Madan B. Lokur)
December 17, 2013





































-----------------------
[1]    Vineet Narain and Others v. Union of India and Anr; (1998) 1 SCC 226

[2]    These writ petitions under Article 32 of the  Constitution  of  India
 brought in public interest, to begin with,  did  not  appear  to  have  the
 potential of escalating to the dimensions they reached or to give  rise  to
 several issues of considerable significance to the implementation  of  rule
 of law, which they have, during their progress. They began as  yet  another
 complaint of inertia by  the  Central  Bureau  of  Investigation  (CBI)  in
 matters where the accusation made was against high dignitaries. It was  not
 the only matter 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 else was  shut
 out but permission was granted to all,  who  so  desired,  to  render  such
 assistance as they could, and to provide the  relevant  material  available
 with them to the amicus curiae for being placed before the  court  for  its
 consideration. In short, the proceedings in  this  matter  have  had  great
 educative value and it does appear that it has helped in  future  decision-
 making and functioning of the public authorities.

[3]    4.7(3)(i) In regard to any person who is  or  has  been  a  decision-
  making level officer (Joint  Secretary  or  equivalent  or  above  in  the
  Central Government or such officers as are or have been on deputation to a
  Public Sector Undertaking; officers of the Reserve Bank of  India  of  the
  level equivalent to Joint Secretary or above in  the  Central  Government,
  Executive Directors and above of the SEBI and Chairman & Managing Director
  and Executive Directors and such of the bank officers who  are  one  level
  below the Board of Nationalised Banks), there should be prior sanction  of
  the Secretary of the Ministry/Department concerned before SPE takes up any
  enquiry (PE or RC), including ordering search in respect of them.  Without
  such sanction, no enquiry shall be initiated by the SPE.

         (ii)        All    cases    referred    to    the    Administrative
  Ministries/Departments by CBI for obtaining necessary  prior  sanction  as
  aforesaid, except those pertaining to any officer of the rank of Secretary
  or Principal Secretary, should be disposed of by them preferably within  a
  period of two months of the receipt of such a reference.   In  respect  of
  the  officers  of  the  rank  of  Secretary  or  Principal  Secretary   to
  Government, such references should be made by the  Director,  CBI  to  the
  Cabinet Secretary for consideration  of  a  Committee  consisting  of  the
  Cabinet Secretary as its Chairman and the Law Secretary and the  Secretary
  (Personnel) as its members.  The Committee  should  dispose  of  all  such
  references preferably within two months from the date of receipt of such a
  reference by the Cabinet Secretary.

      (iii) When there is any difference of opinion  between  the  Director,
  CBI and the Secretary of the Administrative Ministry/Department in respect
  of an officer up to the rank of Additional Secretary  or  equivalent,  the
  matter shall be referred by CBI to  Secretary  (Personnel)  for  placement
  before the Committee referred to in clause  (ii)  above.   Such  a  matter
  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.
[4]    K. Veeraswami v. Union of India; (1991) 3 SCC 655
[5]    State of Bihar v. J.A.C Saldanha; (1980) 1 SCC 554
[6]    An Act to  provide  for  the  constitution  of  a  Central  Vigilance
 Commission to inquire or cause inquiries  to  be  conducted  into  offences
 alleged to have been committed under the Prevention of Corruption Act, 1988
 by certain  categories  of  public  servants  of  the  Central  Government,
 corporations established by or under any Central Act, Government companies,
 societies  and  local  authorities  owned  or  controlled  by  the  Central
 Government and for matters connected therewith or incidental thereto.
[7]     Subramanian Swamy (Dr.) v. Director, CBI and Others; [(2005) 2 SCC
317]
[8]    State of West Bengal and Others v. Committee for Protection of
Democratic Rights, West Bengal and
         Others; [(2010) 3 SCC 571]
[9]    Writ Petition (Civil) No. 548 of 2012; Shahid Balwa v. Union of
India and Ors.
[10]    The Due Process of law; First Indian Reprint 1993, pg. 102
[11]    H.N. Rishbud v. State of Delhi; AIR 1955 SC 196
[12]   Hon’ble Shri Pranab Mukherjee, President, Republic of India, in his
speech at the inauguration of All
          India Lokayktas Conference, 2012
[13]    Babubhai Jamnadas Patel v. State of Gujarat; [(2009) 9 SCC 610]
[14]    Prem Chand Garg v. Excise Commissioner, U.P. and Others; [1963 Supp
(1) SCR 885]
[15]     A.R. Antulay v. R.S. Nayak and Another; [(1988) 2 SCC 602]
[16]    Delhi Judicial Service Association, Tis Hazari Court, Delhi v.
State of Gujarat and others;
           [(1991) 4 SCC 406]
[17]    State of U.P. v. Poosu and Another;  [(1976) 3 SCC 1]
[18]    Ganga Bishan v. Jai Narain; [(1986) 1 SCC 75]
[19]    Navnit R. Kamani v. R.R. Kamani; [(1988) 4 SCC 387]
[20]    Union Carbide Corporation and Others vs. Union of India and Others;
[(1991) 4 SCC 584]
[21]   83.It is necessary to set  at  rest  certain  misconceptions  in  the
    arguments touching the scope of the powers of this Court  under  Article
    142(1) of the Constitution. These issues are matters of  serious  public
    importance. The  proposition  that  a  provision  in  any  ordinary  law
    irrespective of the 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 — is contemplated.  The limitations  may
    not necessarily reflect or be based on any fundamental considerations of
    public policy. Sri Sorabjee, learned Attorney General, referring to Garg
    case, said that limitation on the powers under Article 142 arising  from
    “inconsistency with express statutory  provisions  of  substantive  law”
    must really mean and be understood as some express prohibition contained
    in any substantive statutory law. He suggested that  if  the  expression
    ‘prohibition’ is read in place of ‘provision’ that would perhaps  convey
    the appropriate idea. But we think that such prohibition should also  be
    shown to be based on some underlying fundamental and general  issues  of
    public policy and not merely incidental to a particular statutory scheme
    or pattern. It will again be wholly incorrect to say that  powers  under
    Article 142 are subject to such  express  statutory  prohibitions.  That
    would  convey  the   idea   that   statutory   provisions   override   a
    constitutional provision.  Perhaps, the proper  way  of  expressing  the
    idea is that in exercising powers under Article 142 and in assessing the
    needs of “complete justice” of a cause or matter, the  apex  Court  will
    take note of the  express  prohibitions  in  any  substantive  statutory
    provision based on some fundamental  principles  of  public  policy  and
    regulate the exercise of  its  power  and  discretion  accordingly.  The
    proposition does not relate to the powers of  the  Court  under  Article
    142, but only to what is or is not ‘complete  justice’  of  a  cause  or
    matter and in the ultimate analysis of the propriety of the exercise  of
    the power. No question of lack of jurisdiction or of nullity can arise.

[22]    Supreme Court Bar Association v. Union of India and Another;
[(1998) 4 SCC 409]
[23]   K. Veeraswami v. Union of India, (1991) 3 SCC 655

[24]   I.A. No.14091 of 2013 in Writ Petition (Crl) No.120 of 2012 filed on
8th July 2013
[25]   WP (C) No.11550 of 2009 – order dated 4.4.2011 passed by the Delhi
High Court
[26]   (1984) 3 SCC 161

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