Contempt of court - 2 G spectrum scam - Respondents attempted to interfere with an investigation which is being monitored by Apex court - Maintainability - Apex court held that the contempt petition is maintainable =
Whether the contempt petition is maintainable =
This
contempt petition has been preferred under Article 129, 142 of the
Constitution of India, read with Section 12 of the Contempt of Courts Act,
1971 (for short ‘the Act’) and Rule 12 of the Rules to Regulate Proceedings
for Contempt of the Supreme Court, 1975.
whether there
has been any attempt on the part of the respondents to interfere with an
investigation which is being monitored by this Court.
When a court
monitors a criminal investigation it is the responsibility and duty of the
court to see that the investigation is being carried out in the right
direction and the Officers, who are entrusted with the task be not
intimidated or pressured by any person, however high he may be.
Considerable responsibility and duty is cast on the court when it monitors
a criminal investigation. People have trust and confidence when court
monitors a criminal investigation and the court has to live up to that
trust and confidence and any interference from any quarters to scuttle that
investigation, has to be sternly dealt with.
7. Civil Appeal No.10660 of 2010, in which the present contempt petition
has been preferred, was filed under Article 136 of the Constitution of
India praying for a court monitored investigation by the Central Bureau of
Investigation (CBI), what was described as 2G Spectrum Scam and also for a
direction to investigate the role played by A. Raja, the then Union
Minister for DoT, senior officers of DoT, middlemen, businessmen and
others. Before this Court, it was pointed out that the CBI had lodged a
first information report on 21.10.2009 alleging that during the years 2000-
2008 certain officials of the DoT entered into a criminal conspiracy with
certain private companies and misused their official position in the grant
of Unified Access Licenses causing wrongful loss to the nation, which was
estimated to be more than Rs.22,000 crores. CBI, following that,
registered a case No.RC-DAI-2009-A-0045(2G Spectrum Case) on 21.10.2009
under Section 120B IPC, 13(1)(d) of the Prevention of Corruption Act, 1988
against a former Cabinet Minister and others.=
Shri Ram Jethmalani, learned senior counsel appearing for the first
respondent, submitted that this contempt petition is not maintainable since
it has been filed without the consent of the Attorney General of India or
other officer mentioned in Section 15 of the Act.
Learned senior counsel
submitted that neither the order of this Court dated 06.05.2011 nor the
notice dated 23.05.2011 gives any indication of the nature of the criminal
contempt to be defended by the respondent.
Learned senior counsel further
submitted that even the notice dated 23.05.2011 does not comply with Rule 6
of the Rules to Regulate Proceedings for Contempt of the Supreme Court,
1975.
Learned senior counsel also submitted
that it does not mention
whether it is a civil contempt or a criminal contempt.
Learned senior
counsel also submitted that there is nothing to show that the first
respondent had any knowledge of this Court’s order dated 16.03.2011.
Consequently, it cannot be said that there was any willful disobedience of
that order. Further, such an allegation is not even raised in the notice.
Reliance was placed on the Judgment of this Court in
Aligarh Municipal
Board and others v. Ekka Tonga Mazdoor Union and others (1970) 3 SCC 98.
Learned senior counsel submitted that the order, on which disobedience is
alleged to have been committed, is not within the knowledge of the
respondent and he is not expected or bound to know the same from the media
or newspapers. Learned senior counsel also pointed out that the burden to
prove the knowledge is not on the alleged contemnors, as held by this Court
in Bharat Steel Tubes Limited v. IFCI Limited (2010) 14 SCC 77.
3. Shri Rajiv Dhawan, learned senior counsel appearing for the second
respondent, submitted that consent of the Attorney General is a pre-
requisite to initiate contempt of court proceedings, which is not an empty
formality.
Learned senior counsel submitted that second respondent is not
a party to any of the orders passed by this Court and he has not violated
any order passed by this court. Further, it was also pointed out that even
the notice is silent in what manner the second respondent has violated the
order passed by this Court.
Learned senior counsel submitted that even the
powers conferred on this Court to issue suo motu notice is also limited and
could be exercised only in exceptional circumstances.
Learned senior
counsel placed reliance on the Judgments of this Court in J.R. Parashar,
Advocate and others v. Prashant Bhushan, Advocate and others (2001) 6 SCC
735 and Sahdeo alias Sahdeo Singh v. State of Uttar Pradesh and others
(2010) 3 SCC 705.
4. Shri Vikas Singh, learned senior counsel appearing for the third
respondent, also refuted all the allegations raised against the third
respondent and submitted that he has nothing to do with the service tenure
in the Enforcement Directorate or the cases relating to 2G Scam.
Learned
senior counsel also submitted that the contempt petition itself is not
maintainable.
5. Shir K.K. Venugopal, learned senior counsel appearing for the C.B.I.,
submitted that the contempt alleged is not merely a criminal contempt but
also a civil contempt.
Learned senior counsel referred to Section 2(b) of
the Act and submitted that there has been willful disobedience of the
directions of this Court by the respondents jointly and severally.
Learned
senior counsel also referred to Section 2(c)(iii) of the Act and submitted
that the attempt of the respondents is to interfere and obstruct the
investigation conducted by the petitioner, which is being supervised and
monitored by this Court.
Learned senior counsel further submitted that
this Court under Article 129 read with Article 142 of the Constitution has
the power to see that the investigation which is being supervised/monitored
by this Court is not interfered with by any person or from any quarters.
Learned senior counsel also submitted that no sanction from the Attorney
General is necessary when this Court suo motu initiates the contempt
proceedings in exercise of the powers conferred under Article 129 read with
Article 142 of the Constitution, irrespective of the provisions of the Act
and the Rules to Regulate proceedings for Contempt of the Supreme Court,
1975. Learned senior counsel placed considerable reliance on the Judgment
of this Court in
Amicus Curiae v. Prashant Bhushan and another (2010) 7 SCC 592. =
We are, therefore, of the view that the petition filed under the
above mentioned provisions is perfectly maintainable and this Court has got
a constitutional obligation to examine the truth of the allegations as to
whether the respondents are attempting to derail the investigation which is
being monitored by this Court. We, therefore, issue notice to the
respondents to show cause why proceedings be not initiated against them for
interfering with the court monitored criminal investigation.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
CONTEMPT PETITION (CIVIL) NO.224 OF 2011
IN
CIVIL APPEAL NO.10660 OF 2010
Rajeshwar Singh …Petitioner
Versus
Subrata Roy Sahara & Ors. …Respondents
J U D G M E N T
K.S. Radhakrishnan, J.
1. We may, at the outset, point out that, at this stage, we are only
examining the maintainability of this contempt petition, on which arguments
have been advanced by the learned senior counsels on either side. This
contempt petition has been preferred under Article 129, 142 of the
Constitution of India, read with Section 12 of the Contempt of Courts Act,
1971 (for short ‘the Act’) and Rule 12 of the Rules to Regulate Proceedings
for Contempt of the Supreme Court, 1975.
2. Shri Ram Jethmalani, learned senior counsel appearing for the first
respondent, submitted that this contempt petition is not maintainable since
it has been filed without the consent of the Attorney General of India or
other officer mentioned in Section 15 of the Act.
Learned senior counsel
submitted that neither the order of this Court dated 06.05.2011 nor the
notice dated 23.05.2011 gives any indication of the nature of the criminal
contempt to be defended by the respondent.
Learned senior counsel further
submitted that even the notice dated 23.05.2011 does not comply with Rule 6
of the Rules to Regulate Proceedings for Contempt of the Supreme Court,
1975.
Learned senior counsel also submitted
that it does not mention
whether it is a civil contempt or a criminal contempt.
Learned senior
counsel also submitted that there is nothing to show that the first
respondent had any knowledge of this Court’s order dated 16.03.2011.
Consequently, it cannot be said that there was any willful disobedience of
that order. Further, such an allegation is not even raised in the notice.
Reliance was placed on the Judgment of this Court in
Aligarh Municipal
Board and others v. Ekka Tonga Mazdoor Union and others (1970) 3 SCC 98.
Learned senior counsel submitted that the order, on which disobedience is
alleged to have been committed, is not within the knowledge of the
respondent and he is not expected or bound to know the same from the media
or newspapers. Learned senior counsel also pointed out that the burden to
prove the knowledge is not on the alleged contemnors, as held by this Court
in Bharat Steel Tubes Limited v. IFCI Limited (2010) 14 SCC 77.
3. Shri Rajiv Dhawan, learned senior counsel appearing for the second
respondent, submitted that consent of the Attorney General is a pre-
requisite to initiate contempt of court proceedings, which is not an empty
formality.
Learned senior counsel submitted that second respondent is not
a party to any of the orders passed by this Court and he has not violated
any order passed by this court. Further, it was also pointed out that even
the notice is silent in what manner the second respondent has violated the
order passed by this Court.
Learned senior counsel submitted that even the
powers conferred on this Court to issue suo motu notice is also limited and
could be exercised only in exceptional circumstances.
Learned senior
counsel placed reliance on the Judgments of this Court in J.R. Parashar,
Advocate and others v. Prashant Bhushan, Advocate and others (2001) 6 SCC
735 and Sahdeo alias Sahdeo Singh v. State of Uttar Pradesh and others
(2010) 3 SCC 705.
4. Shri Vikas Singh, learned senior counsel appearing for the third
respondent, also refuted all the allegations raised against the third
respondent and submitted that he has nothing to do with the service tenure
in the Enforcement Directorate or the cases relating to 2G Scam.
Learned
senior counsel also submitted that the contempt petition itself is not
maintainable.
5. Shir K.K. Venugopal, learned senior counsel appearing for the C.B.I.,
submitted that the contempt alleged is not merely a criminal contempt but
also a civil contempt.
Learned senior counsel referred to Section 2(b) of
the Act and submitted that there has been willful disobedience of the
directions of this Court by the respondents jointly and severally.
Learned
senior counsel also referred to Section 2(c)(iii) of the Act and submitted
that the attempt of the respondents is to interfere and obstruct the
investigation conducted by the petitioner, which is being supervised and
monitored by this Court.
Learned senior counsel further submitted that
this Court under Article 129 read with Article 142 of the Constitution has
the power to see that the investigation which is being supervised/monitored
by this Court is not interfered with by any person or from any quarters.
Learned senior counsel also submitted that no sanction from the Attorney
General is necessary when this Court suo motu initiates the contempt
proceedings in exercise of the powers conferred under Article 129 read with
Article 142 of the Constitution, irrespective of the provisions of the Act
and the Rules to Regulate proceedings for Contempt of the Supreme Court,
1975. Learned senior counsel placed considerable reliance on the Judgment
of this Court in
Amicus Curiae v. Prashant Bhushan and another (2010) 7 SCC 592.
6. We are, in this case, concerned with the question as to
whether there
has been any attempt on the part of the respondents to interfere with an
investigation which is being monitored by this Court.
When a court
monitors a criminal investigation it is the responsibility and duty of the
court to see that the investigation is being carried out in the right
direction and the Officers, who are entrusted with the task be not
intimidated or pressured by any person, however high he may be.
Considerable responsibility and duty is cast on the court when it monitors
a criminal investigation. People have trust and confidence when court
monitors a criminal investigation and the court has to live up to that
trust and confidence and any interference from any quarters to scuttle that
investigation, has to be sternly dealt with.
7. Civil Appeal No.10660 of 2010, in which the present contempt petition
has been preferred, was filed under Article 136 of the Constitution of
India praying for a court monitored investigation by the Central Bureau of
Investigation (CBI), what was described as 2G Spectrum Scam and also for a
direction to investigate the role played by A. Raja, the then Union
Minister for DoT, senior officers of DoT, middlemen, businessmen and
others. Before this Court, it was pointed out that the CBI had lodged a
first information report on 21.10.2009 alleging that during the years 2000-
2008 certain officials of the DoT entered into a criminal conspiracy with
certain private companies and misused their official position in the grant
of Unified Access Licenses causing wrongful loss to the nation, which was
estimated to be more than Rs.22,000 crores. CBI, following that,
registered a case No.RC-DAI-2009-A-0045(2G Spectrum Case) on 21.10.2009
under Section 120B IPC, 13(1)(d) of the Prevention of Corruption Act, 1988
against a former Cabinet Minister and others.
8. The Central Vigilance Commission (CVC) also conducted an inquiry
under Section 8(d) of the Central Vigilance Commission Act, 2003 and
noticed grave irregularities in the grant of licences.
The CVC on
12.10.2009 had forwarded the inquiry report to the Director, CBI to
investigate into the matter to establish the criminal conspiracy in the
allocation of 2G Spectrum under UASL policy of DoT and to bring to book all
wrongdoers.
This Court after taking into consideration of the report of
the CVC as well as the findings recorded by the CAG agreed for a court
monitored investigation and passed the following order:
“We are, prima facie, satisfied that the allegations contained in the
writ petition and the affidavits filed before this Court, which are
supported not only by the documents produced by them, but also the
report of the Central Vigilance Commission, which was forwarded to the
Director, CBI on 12.10.2009 and the findings recorded by the CAG in
the Performance Audit Report, need a thorough and impartial
investigation. However, at this stage, we do not consider it
necessary to appoint a Special Team to investigate what the appellants
have described as 2G Spectrum Scam because the Government of India
has, keeping in view the law laid down in Vineet Narain’s case, agreed
for a Court monitored investigation.”
9. This Court, with a view to ensure a comprehensive and co-ordinated
investigation by the CBI and the Enforcement Directorate, vide its order
dated 16.12.2010 gave the following directions:
i) The CBI shall conduct thorough investigation into various
issues high-lighted in the report of the Central Vigilance
Commission, which was forwarded to the director, CBI vide
letter dated 12.10.2009 and the report of the CAG, who have
prima facie found serious irregularities in the grant of
licences to 122 applicants, majority of whom are said to be
ineligible, the blatant violation of the terms and conditions
of licences and huge loss to the public exchequer running
into several thousand crores. The CBI should also probe how
licences were granted to large number of ineligible
applicants and who was responsible for the same and why the
TRAI and the DoT did not take action against those licensees
who sold their stake/equities for many thousand crores and
also against those who failed to fulfill rollout obligations
and comply with other conditions of licence.
ii) The CBI shall conduct the investigation without being
influenced by any functionary, agency or instrumentality of
the State and irrespective of the position, rank or status of
the person to be investigated/probed.
iii) The CBI shall, if it has already not registered first
information report in the context of the alleged
irregularities committed in the grant of licences from 2001
to 2006-2007, now register a case and conduct thorough
investigation with particular emphasis on the loss caused to
the public exchequer and corresponding gain to the
licensees/service providers and also on the issue of allowing
use of dual/alternate technology by some service providers
even before the decision was made public vide press release
dated 19.10.2007.
iv) The CBI shall also make investigation into the allegation
of grant of huge loans by the public sector and other banks
to some of the companies which have succeeded in obtaining
licences in 2008 and find out whether the officers of the DoT
were signatories to the loan agreement executed by the
private companies and if so, why and with whose permission
they did so.
v) The Directorate of Enforcement/ concerned agencies of the
Income Tax Department shall continue their investigation
without any hindrance or interference by any one.
vi) Both the agencies, i.e. the CBI and the Directorate of
Enforcement shall share information with each other and
ensure that the investigation is not hampered in any manner
whatsoever.
vii) The Director General, Income Tax (Investigation) shall,
after completion of analysis of the transcripts of the
recording made pursuant to the approval accorded by the Home
Secretary, Government of India, hand over the same to CBI to
facilitate further investigation into the FIR already
registered or which may be registered hereinafter.”
10. CBI and the Enforcement Directorate then used to apprise this Court
of the various stages of the investigation and seek directions and this
Court, on 10.02.2011, passed an order stating that since this Court is
monitoring the investigation of 2G Spectrum Scam no court shall pass any
order which may, in any manner, impede the investigation being carried out
by the CBI and the Directorate of Enforcement. Learned Attorney General
also informed this Court that he had received a communication on 16.03.2011
from the Delhi High Court of nominating Shri O.P. Saini, an officer of the
Delhi Higher Judicial Service, as the Special Judge to take up the trial of
cases relating to what has been described as 2G Scam. The Court was also
informed that two separate notifications would be issued by the Central
Government in terms of Section 3(1) the PC Act, 1988 and Section 43(1) of
the Prevention of Money Laundering Act, 2002 for establishment of the
Special Court to exclusively try the offences relating to 2G Scam and other
related offences. Following that, two notifications were published in the
Gazette of India Extra Ordinary, on the 28th March, 2011.
11. Noticing the above submissions a detailed order was passed by this
Court on 16.03.2011, which inter alia reads as follows:
“While adjourning the case, we make it clear that no one including the
newspapers shall interfere with the functioning of the C.B.I. team and
the officers of the Enforcement Directorate who are investigating what
has been described as 2G Scam and the Court will take serious
cognizance of any endeavour made by any person or group of persons in
this regard.”
12. Petitioner - the Assistant Director of Enforcement Directorate who is
invested with the responsibility and duty of investigating the 2G Spectrum
case, submits that, during the course of investigation, he could come
across various materials, having considerable bearing on the investigation
relating to 2G Scam. The petitioner, in this contempt petition, has
stated as follows:
“Facts came to the notice of the Directorate of Enforcement that one
M/s Sahara India Investment Corporation, a Sahara group company, now
known as M/s Sahara Prime City Ltd., during the course of
investigation it is revealed that the said company had invested
Rs.14.00 Crores on 28.09.2007 on which date M/s S-Tel Ltd., had
applied for 16 more licences. This investment has been purportedly
made for purchase of shares of M/s S-Tel. Surprisingly, this
investment has been sold back on 15.01.2009 for an amount of Rs.16.80
Crores. In view of these financial details being revealed during the
course of investigation and considering the fact that this entire 2G
Spectrum case, there has been several ways of transactions, which was
deemed appropriate to investigate this aspect of the matter also and
accordingly on 02.02.2011, a summon had been issued to the Managing
Director of the said Company requiring his personal appearance on
17.02.2011. The Managing Director is Mr. Subrata Roy Sahara, who
chose not to appear, but, to apply for an adjournment for four weeks.
Taking into consideration said request a fresh summon was issued on
30.03.2011 requiring his appearance on 08.04.2011. He is respondent
No.1, above named, and he chose not to appear even on 08.04.2011 and
has, thus, shown non cooperative attitude.”
13. The petitioner, with reference to Sahara India Commercial Corporation
Limited, has stated as follows:
“That there is yet another Sahara Group company by the name Sahara
India Commercial Corporation Limited based in Mumbai, which has
purportedly paid Rs.9.50 Crores on 06.07.2007 to one M/s Sky City
Foundation Pvt. Ltd., as an advance. This Sky City Foundation has in
turn invested the very same money with M/s S-Tel, just before the date
of application of M/s S-Tel made to the DoT for issuance of Universal
Access Service (UAS) Licence on 09.07.2007.
That in view of the said fact, it was deemed appropriate to
summon the concerned officials of the said Co. M/s Sahara India
Commercial Corporation Limited on 07.04.2011 and for the purpose the
summon was issued on 30.03.2011.”
14. The petitioner, referring to the second Status Report covering the
period from 27.11.2010 to 08.02.2011, has referred to the involvement of
M/s Sahara India Investment Ltd., now known as M/s Sahara Prime City Ltd.
and stated as follows:
“The said status report also mentions other details about the
acquisition of other two companies by a group in March, April, 2009 in
respect of which letters for inquiry have been sent to Mauritius. It
is deemed expedient not to disclose further details in this
application on account of the fact that the Directorate of Enforcement
is investigating into the money trail and if further details are
disclosed in the application the same is likely to be prejudicial to
the interest of investigation. However, the applicant undertakes to
disclose such other facts including the status report in a sealed
cover to this Hon’ble Court, if so directed.
It is further respectfully submitted that in the third Status
Report, covering the period from 09.02.2011 to 17.03.2011 also
mentions about a person being issued summon. The said fact is
mentioned on page 20 in paragraph 20-D. Details therein clearly show
that M/s S-Tel Pvt. Ltd. had arranged for certain funds from various
groups to pay licence fee. On Page 21 of the said Status Report, it
is mentioned that further investigation in respect of the companies
named therein just above paragraph 20-E is in progress. Similarly in
the fifth Status Report, filed on 26.04.2011, there is a mention in
paragraph 6-B regarding sale of holding of a company and funding of
M/s S-Tel by two groups mentioned therein. The fact of Sahara India
Commercial Corporation having sought adjournment is also mentioned in
the said Status Report.”
15. The petitioner, referring to the Sahara Group of Companies, stated as
under:
“It is further submitted that yet another reference dated 11.06.2010
as forwarded by the Head Quarter of the Office of the Directorate of
Enforcement has been received from an Intelligence Unit of India,
which interalia alleges that Sh. Subrata Roy, respondent No. 1 of M/S.
Sahara Group of Companies alongwith others have deposited an amount of
Rs.150 Crores which has been rotated through a maze of financial
transactions between accounts of M/S. Sahara Corporation and M/S.
Sahara India within the same branch/bank. On basis of said input,
the Directorate of Enforcement had initiated discreet enquiries
against M/s. Sahara Corporation and M/s. Sahara India for alleged
violation of Foreign Exchange Management Act, 1999. This
investigation is handled by the present applicant, who made several
enquiries with number of banks by issuing directives on 23.07.2010 and
28.07.2010. This investigation involves over 100 banks and accounts
and large financial transactions are being investigated. The modus
operandi that was adopted is resorting to cash deposits of huge
amounts on different dates in different accounts and at remote far off
places of the country and withdrawal immediately by cheques which
would show that there is a clear attempt prima facie to legitimize the
amounts. Details from four banks have been received which show cash
deposits of more than Rs.24 Crores, so far.
That further investigation have revealed that M/s. Sahara India
is operating more than 334 bank accounts and details thereof has been
sought from all those banks which are yet to be scrutinized. This
matter is also referred to the Income Tax Department on 29.09.2010 for
further necessary action at their end.
That during the course of enquiries a further information is
received from a reliable sources that a company having registered
office opposite Domestic Airport in Mumbai, which is a group company
of Sahara Group, has given a loan a huge amounts in pounds to a
company in Mauritius, which is purported to be a short term loan and
investment in hospitality sector. This amount was transferred under
an automatic route through a bank in Mumbai and this amount is
transferred to a foreign country for acquisition of a property of a
hotel company whose shares were pledged with the Bank and which money
has been utilized to repay the outstanding of the bank. Summons are
issued to the concerned bankers of the said companies for 09.05.2011
for appearance of these bankers for recording of their statements.
This entire matter is also referred to by the applicant to the Reserve
Bank of India on 22.03.2011 and 11.04.2011 and response to some
queries are yet to be received and the investigation in the said
matter is under progress.
That there is yet another investigation which is popularly
referred is as Madhu Koda Scam case in respect of which the Division
Bench of High Court of Jharkhand has issued directions, directing the
Central Bureau of Investigation to conduct an investigation as regards
the predicate offence and directed the Directorate of Enforcement to
investigate offence under Foreign Exchange Management Act and
Prevention of Money Laundering Act, 2002. These investigations are
also under progress and are conducted by the applicant as an
Investigating Officer. In this investigation properties worth Rs.125
Crores have already been attached in exercise of powers under
Prevention of Money Laundering Act and during the course of
investigation it is suspected that large amount of funds which are
tainted money which are proceeds of crime have been invested in Sahara
Group companies by those accused persons with a view to project them
as untainted money. The investigation of this is also being carried.
It is submitted that all these investigations undertaken by the
petitioner applicant, before your lordship, has irked the Sahara Group
and more particularly the respondents.”
16. Petitioner submits that he is being personally attacked by the
respondents through various means so that he will not make further headway
in the investigation. The petitioner has explained in Paras 5 to 12 of the
petition, the manner in which he is being intimidated, which read as
follows:
“5. That when investigations have been initiated in the 2G Spectrum
case against them, the respondents have conspired to interfere with
the original 2G Spectrum case investigations so as to derail the same,
the details whereof are stated hereinafter.
It may not be out of place to mention that M/s. Sahara Airlines,
which is now taken over by Jet Airways and operated under the banner
of Jetlite are also facing investigations for violation under FERA,
1973 and an opportunity show cause notice was issued prior to
launching prosecution which has been made subject matter of a
challenge before the High Court at Lucknow.
That by an interim order dated 21.05.2002, further proceedings
have been stayed and on the said fact having come to my notice while I
was Assistant Director Incharge of Lucknow Zone, I had filed
application to get the interim order vacated.
6. It is submitted that on 02.05.2011 having come to know from
reliable sources that some business house / liaison persons together
with disgruntled government officials had initiated a campaign of
making false anonymous and pseudonymous complaints to various
agencies and started spreading rumours, the applicant deemed
appropriate to send the latest immovable properties return. This was
necessitated that in view of the fact that in April, 2011, a property
which was purchased from Lucknow Development Authority by taking a
loan, was disposed off and the proceeds of the disposal were received
as refund being given by the Lucknow Development Authority, a
government body.
That this was forwarded to the Additional Director thorough
proper channel and it is reliably learnt that the same is in the
process being sent even to the Director, Central Bureau of
Investigation, on my request.
7. It is submitted that on 05.05.2011, there has been an attempt to
intimidate the applicant after hearing of the 2G Spectrum case was
concluded before this Hon’ble Court. The applicant has received a
letter purported to be sent by the respondent No.3, Shri Subodh Jain,
which contain wielded threat to start a campaign against the applicant
with a view to intimidate and, thus, interfered in the ongoing
investigations against the Sahara Group companies in the 2G Spectrum
case.
On 05.05.2011, a copy of the said letter has been delivered by
hand at the office of the applicant and at 15.43, the same is received
on FAX of the Dy. Director, Directorate of Enforcement, copies thereof
are annexed herewith and marked as ANNEXURE-F (COLLY).
8. The response to the queries raised is being produced in a sealed
cover together with documents supporting the same for perusal of this
Hon’ble Court. The only purpose of producing it in a sealed cover is
to see such future intimidation to torpedo the ongoing investigation
does not take place. The applicant respectively declares before this
Hon’ble Court that he is ready and willing to file an affidavit of
these disclosures before this Hon’ble Court.
9. The petitioner applicant respectfully submit that it is, thus,
clear that only with a view to dissuade the petitioner, who is the
Investigating Officer, to carry the investigation in the right
direction against the Sahara Group, the respondents, and more
particularly in the 2G Spectrum case, that the respondents have
attempted to intimidate which is nothing sort of contempt of this
Hon’ble Court since not only the investigation is monitored by this
Hon’ble Court, but, this Hon’ble Court has given directions as
contained in their lordship’s judgment dated 16.12.2010 and
16.03.2011, which are being carried out by the applicant in the matter
of investigation of 2G Spectrum case.
10. It is respectfully submitted that this attempt by the
respondents to intimidate the applicant, who is the Investigating
Officer is clearly an attempt to interfere or an attempt which tends
to interfere with or obstruct or tends to obstruct the administration
of justice and is thus a criminal contempt within the meaning of
Section 2(c) of the Contempt of Court Act, 1971. It is submitted
that this is an attack on the investigating officer carrying out the
directions of this Hon’ble Court in his way to obstruct the course of
justice by preventing the petitioner, who is the Investigating
Officer, from carrying out the directions of this Hon’ble Court.
11. That this conduct is intended to impeach, embarrass and obstruct
the applicant in the discharge of his duties and carrying out
directions of this Hon’ble Court. It is respectfully submitted that
it is expected out of the applicant that he is able to conduct the
investigation free from any outside interference and the present
letter dated 05.05.2011 intending to cause embarrassment to the
applicant and detract him from the ongoing investigation is clearly an
act of interference that would jeopardize the ongoing investigation
and thus hamper the petitioner from carrying out the directions of
this Hon’ble Court.
12 That this communication is intended to influence the petitioner
publically and, thus, target him with an intention that the petitioner
may not carry on the ongoing 2G Spectrum investigation as well as
other investigations against the Sahara Group.”
17. We are of the view that if the allegations raised against the
contemnors are accepted, then we have to conclude prima facie that there
has been an attempt by the respondents to interfere with an investigation
undertaken by the petitioner which is being monitored by this Court. The
petitioner has stated that he has also filed a complaint of violation under
the Foreign Exchange Management Act, 1999 (FEMA) to the extent of Rs.4600
Crores against five more companies including M/s S-Tel and he is in the
process of filing five complaints involving an amount of Rs.1800 Crores
under the FEMA, 1999 and is also in the process of issuing an order of
attachment as contemplated under the Prevention of Money Laundering Act,
2002.
18. We may point out that the allegations raised by the petitioner in the
contempt petition are of very serious nature and, if proved, would amount
to interference with the administration of justice, especially in a court
monitored investigation. In a court monitored investigation, if the
Officer who is entrusted with the task of carrying on that investigation is
experiencing any threat or pressure from any quarters, he is duty bound to
report the same to the court monitoring the investigation. The Officer
should have the freedom to carry on his duty entrusted, without any fear or
pressure from any quarters. The petitioner has invoked Article 129 and
Article 142 to apprise this Court of the difficulties he faces while
carrying on a court monitored investigation.
19. Let us examine the extent of the power conferred on this Court under
Article 129 of the Constitution, which reads as follows:
“Article 129. Supreme Court to be a court of record – The Supreme
Court shall be a court of record and shall have all the powers of such
a court including the power to punish for contempt of itself.”
20. We are of the view that the Courts, if they are to serve the purpose
of administering the justice, must have the power to secure obedience to
the orders passed by it to prevent interference with its proceedings. Law
is well settled that the powers of the Supreme Court in contempt matters
are not confined merely to the provisions of the Contempt of Courts Act and
the Rules framed thereunder. Law of Contempt, as is often said, is only
one of the many ways in which the due process of law is prevented from
being perverted, hindered or thwarted to further the cause of justice.
This Court has plenary power to punish any person for contempt of court and
for that purpose it may require any person to be present in Court in the
manner it considers appropriate to the facts of the case. This Court in
Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of
Gujarat and others (1991) 4 SCC 406, examined at depth the scope of Article
129 of the Constitution and stated as follows:
“The power of the Supreme Court and the High Court being the
Courts of Record as embodied under Articles 129 and 215 respectively
cannot be restricted and trammeled by any ordinary legislation
including the provisions of the Contempt of Courts Act. Their
inherent power is elastic, unfettered and not subjected to any limit.
The power conferred upon the Supreme Court and the High Court, being
Courts of Record under Articles 129 and 215 of the Constitution
respectively is an inherent power and the jurisdiction vested is a
special one not derived from any other statute but derived only from
Articles 129 and 215 of the Constitution of India and therefore the
constitutionally vested right cannot be either abridged by any
legislation or abrogated or cut down. Nor can they be controlled or
limited by any statute or by any provision of the Code of Criminal
Procedure or any Rules. The caution that has to be observed in
exercising this inherent power by summary procedure is that the power
should be used sparingly, that the procedure to be followed should be
fair and that the contemnor should be made aware of the charge against
him and given a reasonable opportunity to defend himself…. Entry 77
of List 1, Schedule 7 read with Article 246 confers power on the
Parliament to enact law with respect to the Constitution,
organization, jurisdiction and powers of the Supreme Court including
the contempt of the Supreme Court. The Parliament is thus competent
to enact a law relating to the powers of Supreme Court with regard to
‘contempt of itself’ such a law may prescribe procedure to be followed
and it may also prescribe the maximum punishment which could be
awarded and it may provide for appeal and for other matters. But the
Central Legislature has no legislative competence to abridge or
extinguish the jurisdiction or power conferred on the Supreme Court
under Article 129 of the Constitution. ……….”
21. This Court, again, in I. Manilal Singh v. Dr. H. Borobabu Singh and
another (1994) Suppl. (1) SCC 718 has delineated the plenary powers of this
Court and stated that the power conferred on this Court under Article 129
is a constitutional power which cannot be circumscribed or delineated
either by the Contempt of Courts Act, 1971 or Rules or even the Rules to
Regulate Proceedings for Contempt of the Supreme Court, 1975, framed in
exercise of powers under Section 23 of the Contempt of Court Act, 1971,
read with Article 145 of the Constitution of India.
22. We are of the view that, assuming, there has not been any proper
compliance of the provisions of the Contempt of Courts Act, 1971, as
contended by the learned senior counsels for the respondents, that would
not deter or take away the constitutional powers conferred on this Court
under Article 129 of the Constitution of India to examine, whether, there
has been any attempt by anybody to interfere with an investigation, which
is being monitored by this Court. The jurisdiction of the Supreme Court
under Article 129 of the Constitution is independent of the Contempt of
Courts Act and the powers conferred under Article 129 of the Constitution
cannot be denuded, restricted or limited by the Contempt of Courts Act,
1971.
23. Article 142 of the Constitution also confers powers on this Court to
pass such orders as is necessary for doing complete justice in any cause or
matter pending before it. The said Article 142 reads as under:
“Article 142. Enforcement of decrees and orders of Supreme Court and
orders as to discovery, etc. ( 1 ) The Supreme Court in the exercise
of its jurisdiction may pass such decree or make such order as is
necessary for doing complete justice in any cause or matter pending
before it, and any decree so passed or orders so made shall be
enforceable throughout the territory of India in such manner as may be
prescribed by or under any law made by Parliament and, until provision
in that behalf is so made, in such manner as the President may by
order prescribe
(2) Subject to the provisions of any law made in this behalf by
Parliament, the Supreme Court shall, as respects the whole of the
territory of India, have all and every power to make any order for the
purpose of securing the attendance of any person, the discovery or
production of any documents, or the investigation or punishment of any
contempt of itself.”
24. Article 142 is conceived to meet situations which cannot be
effectively and appropriately tackled by existing provisions of law. In
Delhi Development Authority v. Skipper Construction Co.(P) Ltd. and another
(1996) 4 SCC 622, this Court has held that the very fact that the power is
conferred only upon the Supreme Court, and on no one else, is itself an
assurance that it will be used with due restraint and circumspection;
keeping in view the ultimate object of doing complete justice between
parties and the Court’s power to do complete justice is not confined by any
statutory provision.
25. We may indicate that the petitioner has inter alia invoked the
jurisdiction and power conferred on this Court under the above-mentioned
constitutional provisions and hence the consent of the Attorney General is
not necessary. Petitioner is only expected to bring to notice of this
Court the problems he confronts with while carrying on a court monitored
investigation and it is the duty and obligation of this Court to see,
rather than the petitioner, that nobody puts any pressure or threat on an
Officer entrusted with the duty to investigate a court monitored criminal
investigation. Any interference, by anybody, to scuttle a court monitored
investigation would amount to interfering with the administration of
justice. Courts, if they are to serve the cause of justice, must have the
power to secure obedience to its orders to prevent interference with the
proceedings and to protect the reputation of the legal system, its
components and its personnel, who on its behest carry on a court monitored
investigation. The court is duty bound to protect the dignity and
authority of this Court, at any cost, or else, the entire administration of
justice will crumble and law and order would be a casualty.
26. We are, therefore, of the view that the petition filed under the
above mentioned provisions is perfectly maintainable and this Court has got
a constitutional obligation to examine the truth of the allegations as to
whether the respondents are attempting to derail the investigation which is
being monitored by this Court. We, therefore, issue notice to the
respondents to show cause why proceedings be not initiated against them for
interfering with the court monitored criminal investigation.
…………………………J.
(G.S. Singhvi)
…………………………J.
(K.S. Radhakrishnan)
New Delhi,
December 9, 2013.
Whether the contempt petition is maintainable =
This
contempt petition has been preferred under Article 129, 142 of the
Constitution of India, read with Section 12 of the Contempt of Courts Act,
1971 (for short ‘the Act’) and Rule 12 of the Rules to Regulate Proceedings
for Contempt of the Supreme Court, 1975.
whether there
has been any attempt on the part of the respondents to interfere with an
investigation which is being monitored by this Court.
When a court
monitors a criminal investigation it is the responsibility and duty of the
court to see that the investigation is being carried out in the right
direction and the Officers, who are entrusted with the task be not
intimidated or pressured by any person, however high he may be.
Considerable responsibility and duty is cast on the court when it monitors
a criminal investigation. People have trust and confidence when court
monitors a criminal investigation and the court has to live up to that
trust and confidence and any interference from any quarters to scuttle that
investigation, has to be sternly dealt with.
7. Civil Appeal No.10660 of 2010, in which the present contempt petition
has been preferred, was filed under Article 136 of the Constitution of
India praying for a court monitored investigation by the Central Bureau of
Investigation (CBI), what was described as 2G Spectrum Scam and also for a
direction to investigate the role played by A. Raja, the then Union
Minister for DoT, senior officers of DoT, middlemen, businessmen and
others. Before this Court, it was pointed out that the CBI had lodged a
first information report on 21.10.2009 alleging that during the years 2000-
2008 certain officials of the DoT entered into a criminal conspiracy with
certain private companies and misused their official position in the grant
of Unified Access Licenses causing wrongful loss to the nation, which was
estimated to be more than Rs.22,000 crores. CBI, following that,
registered a case No.RC-DAI-2009-A-0045(2G Spectrum Case) on 21.10.2009
under Section 120B IPC, 13(1)(d) of the Prevention of Corruption Act, 1988
against a former Cabinet Minister and others.=
Shri Ram Jethmalani, learned senior counsel appearing for the first
respondent, submitted that this contempt petition is not maintainable since
it has been filed without the consent of the Attorney General of India or
other officer mentioned in Section 15 of the Act.
Learned senior counsel
submitted that neither the order of this Court dated 06.05.2011 nor the
notice dated 23.05.2011 gives any indication of the nature of the criminal
contempt to be defended by the respondent.
Learned senior counsel further
submitted that even the notice dated 23.05.2011 does not comply with Rule 6
of the Rules to Regulate Proceedings for Contempt of the Supreme Court,
1975.
Learned senior counsel also submitted
that it does not mention
whether it is a civil contempt or a criminal contempt.
Learned senior
counsel also submitted that there is nothing to show that the first
respondent had any knowledge of this Court’s order dated 16.03.2011.
Consequently, it cannot be said that there was any willful disobedience of
that order. Further, such an allegation is not even raised in the notice.
Reliance was placed on the Judgment of this Court in
Aligarh Municipal
Board and others v. Ekka Tonga Mazdoor Union and others (1970) 3 SCC 98.
Learned senior counsel submitted that the order, on which disobedience is
alleged to have been committed, is not within the knowledge of the
respondent and he is not expected or bound to know the same from the media
or newspapers. Learned senior counsel also pointed out that the burden to
prove the knowledge is not on the alleged contemnors, as held by this Court
in Bharat Steel Tubes Limited v. IFCI Limited (2010) 14 SCC 77.
3. Shri Rajiv Dhawan, learned senior counsel appearing for the second
respondent, submitted that consent of the Attorney General is a pre-
requisite to initiate contempt of court proceedings, which is not an empty
formality.
Learned senior counsel submitted that second respondent is not
a party to any of the orders passed by this Court and he has not violated
any order passed by this court. Further, it was also pointed out that even
the notice is silent in what manner the second respondent has violated the
order passed by this Court.
Learned senior counsel submitted that even the
powers conferred on this Court to issue suo motu notice is also limited and
could be exercised only in exceptional circumstances.
Learned senior
counsel placed reliance on the Judgments of this Court in J.R. Parashar,
Advocate and others v. Prashant Bhushan, Advocate and others (2001) 6 SCC
735 and Sahdeo alias Sahdeo Singh v. State of Uttar Pradesh and others
(2010) 3 SCC 705.
4. Shri Vikas Singh, learned senior counsel appearing for the third
respondent, also refuted all the allegations raised against the third
respondent and submitted that he has nothing to do with the service tenure
in the Enforcement Directorate or the cases relating to 2G Scam.
Learned
senior counsel also submitted that the contempt petition itself is not
maintainable.
5. Shir K.K. Venugopal, learned senior counsel appearing for the C.B.I.,
submitted that the contempt alleged is not merely a criminal contempt but
also a civil contempt.
Learned senior counsel referred to Section 2(b) of
the Act and submitted that there has been willful disobedience of the
directions of this Court by the respondents jointly and severally.
Learned
senior counsel also referred to Section 2(c)(iii) of the Act and submitted
that the attempt of the respondents is to interfere and obstruct the
investigation conducted by the petitioner, which is being supervised and
monitored by this Court.
Learned senior counsel further submitted that
this Court under Article 129 read with Article 142 of the Constitution has
the power to see that the investigation which is being supervised/monitored
by this Court is not interfered with by any person or from any quarters.
Learned senior counsel also submitted that no sanction from the Attorney
General is necessary when this Court suo motu initiates the contempt
proceedings in exercise of the powers conferred under Article 129 read with
Article 142 of the Constitution, irrespective of the provisions of the Act
and the Rules to Regulate proceedings for Contempt of the Supreme Court,
1975. Learned senior counsel placed considerable reliance on the Judgment
of this Court in
Amicus Curiae v. Prashant Bhushan and another (2010) 7 SCC 592. =
We are, therefore, of the view that the petition filed under the
above mentioned provisions is perfectly maintainable and this Court has got
a constitutional obligation to examine the truth of the allegations as to
whether the respondents are attempting to derail the investigation which is
being monitored by this Court. We, therefore, issue notice to the
respondents to show cause why proceedings be not initiated against them for
interfering with the court monitored criminal investigation.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
CONTEMPT PETITION (CIVIL) NO.224 OF 2011
IN
CIVIL APPEAL NO.10660 OF 2010
Rajeshwar Singh …Petitioner
Versus
Subrata Roy Sahara & Ors. …Respondents
J U D G M E N T
K.S. Radhakrishnan, J.
1. We may, at the outset, point out that, at this stage, we are only
examining the maintainability of this contempt petition, on which arguments
have been advanced by the learned senior counsels on either side. This
contempt petition has been preferred under Article 129, 142 of the
Constitution of India, read with Section 12 of the Contempt of Courts Act,
1971 (for short ‘the Act’) and Rule 12 of the Rules to Regulate Proceedings
for Contempt of the Supreme Court, 1975.
2. Shri Ram Jethmalani, learned senior counsel appearing for the first
respondent, submitted that this contempt petition is not maintainable since
it has been filed without the consent of the Attorney General of India or
other officer mentioned in Section 15 of the Act.
Learned senior counsel
submitted that neither the order of this Court dated 06.05.2011 nor the
notice dated 23.05.2011 gives any indication of the nature of the criminal
contempt to be defended by the respondent.
Learned senior counsel further
submitted that even the notice dated 23.05.2011 does not comply with Rule 6
of the Rules to Regulate Proceedings for Contempt of the Supreme Court,
1975.
Learned senior counsel also submitted
that it does not mention
whether it is a civil contempt or a criminal contempt.
Learned senior
counsel also submitted that there is nothing to show that the first
respondent had any knowledge of this Court’s order dated 16.03.2011.
Consequently, it cannot be said that there was any willful disobedience of
that order. Further, such an allegation is not even raised in the notice.
Reliance was placed on the Judgment of this Court in
Aligarh Municipal
Board and others v. Ekka Tonga Mazdoor Union and others (1970) 3 SCC 98.
Learned senior counsel submitted that the order, on which disobedience is
alleged to have been committed, is not within the knowledge of the
respondent and he is not expected or bound to know the same from the media
or newspapers. Learned senior counsel also pointed out that the burden to
prove the knowledge is not on the alleged contemnors, as held by this Court
in Bharat Steel Tubes Limited v. IFCI Limited (2010) 14 SCC 77.
3. Shri Rajiv Dhawan, learned senior counsel appearing for the second
respondent, submitted that consent of the Attorney General is a pre-
requisite to initiate contempt of court proceedings, which is not an empty
formality.
Learned senior counsel submitted that second respondent is not
a party to any of the orders passed by this Court and he has not violated
any order passed by this court. Further, it was also pointed out that even
the notice is silent in what manner the second respondent has violated the
order passed by this Court.
Learned senior counsel submitted that even the
powers conferred on this Court to issue suo motu notice is also limited and
could be exercised only in exceptional circumstances.
Learned senior
counsel placed reliance on the Judgments of this Court in J.R. Parashar,
Advocate and others v. Prashant Bhushan, Advocate and others (2001) 6 SCC
735 and Sahdeo alias Sahdeo Singh v. State of Uttar Pradesh and others
(2010) 3 SCC 705.
4. Shri Vikas Singh, learned senior counsel appearing for the third
respondent, also refuted all the allegations raised against the third
respondent and submitted that he has nothing to do with the service tenure
in the Enforcement Directorate or the cases relating to 2G Scam.
Learned
senior counsel also submitted that the contempt petition itself is not
maintainable.
5. Shir K.K. Venugopal, learned senior counsel appearing for the C.B.I.,
submitted that the contempt alleged is not merely a criminal contempt but
also a civil contempt.
Learned senior counsel referred to Section 2(b) of
the Act and submitted that there has been willful disobedience of the
directions of this Court by the respondents jointly and severally.
Learned
senior counsel also referred to Section 2(c)(iii) of the Act and submitted
that the attempt of the respondents is to interfere and obstruct the
investigation conducted by the petitioner, which is being supervised and
monitored by this Court.
Learned senior counsel further submitted that
this Court under Article 129 read with Article 142 of the Constitution has
the power to see that the investigation which is being supervised/monitored
by this Court is not interfered with by any person or from any quarters.
Learned senior counsel also submitted that no sanction from the Attorney
General is necessary when this Court suo motu initiates the contempt
proceedings in exercise of the powers conferred under Article 129 read with
Article 142 of the Constitution, irrespective of the provisions of the Act
and the Rules to Regulate proceedings for Contempt of the Supreme Court,
1975. Learned senior counsel placed considerable reliance on the Judgment
of this Court in
Amicus Curiae v. Prashant Bhushan and another (2010) 7 SCC 592.
6. We are, in this case, concerned with the question as to
whether there
has been any attempt on the part of the respondents to interfere with an
investigation which is being monitored by this Court.
When a court
monitors a criminal investigation it is the responsibility and duty of the
court to see that the investigation is being carried out in the right
direction and the Officers, who are entrusted with the task be not
intimidated or pressured by any person, however high he may be.
Considerable responsibility and duty is cast on the court when it monitors
a criminal investigation. People have trust and confidence when court
monitors a criminal investigation and the court has to live up to that
trust and confidence and any interference from any quarters to scuttle that
investigation, has to be sternly dealt with.
7. Civil Appeal No.10660 of 2010, in which the present contempt petition
has been preferred, was filed under Article 136 of the Constitution of
India praying for a court monitored investigation by the Central Bureau of
Investigation (CBI), what was described as 2G Spectrum Scam and also for a
direction to investigate the role played by A. Raja, the then Union
Minister for DoT, senior officers of DoT, middlemen, businessmen and
others. Before this Court, it was pointed out that the CBI had lodged a
first information report on 21.10.2009 alleging that during the years 2000-
2008 certain officials of the DoT entered into a criminal conspiracy with
certain private companies and misused their official position in the grant
of Unified Access Licenses causing wrongful loss to the nation, which was
estimated to be more than Rs.22,000 crores. CBI, following that,
registered a case No.RC-DAI-2009-A-0045(2G Spectrum Case) on 21.10.2009
under Section 120B IPC, 13(1)(d) of the Prevention of Corruption Act, 1988
against a former Cabinet Minister and others.
8. The Central Vigilance Commission (CVC) also conducted an inquiry
under Section 8(d) of the Central Vigilance Commission Act, 2003 and
noticed grave irregularities in the grant of licences.
The CVC on
12.10.2009 had forwarded the inquiry report to the Director, CBI to
investigate into the matter to establish the criminal conspiracy in the
allocation of 2G Spectrum under UASL policy of DoT and to bring to book all
wrongdoers.
This Court after taking into consideration of the report of
the CVC as well as the findings recorded by the CAG agreed for a court
monitored investigation and passed the following order:
“We are, prima facie, satisfied that the allegations contained in the
writ petition and the affidavits filed before this Court, which are
supported not only by the documents produced by them, but also the
report of the Central Vigilance Commission, which was forwarded to the
Director, CBI on 12.10.2009 and the findings recorded by the CAG in
the Performance Audit Report, need a thorough and impartial
investigation. However, at this stage, we do not consider it
necessary to appoint a Special Team to investigate what the appellants
have described as 2G Spectrum Scam because the Government of India
has, keeping in view the law laid down in Vineet Narain’s case, agreed
for a Court monitored investigation.”
9. This Court, with a view to ensure a comprehensive and co-ordinated
investigation by the CBI and the Enforcement Directorate, vide its order
dated 16.12.2010 gave the following directions:
i) The CBI shall conduct thorough investigation into various
issues high-lighted in the report of the Central Vigilance
Commission, which was forwarded to the director, CBI vide
letter dated 12.10.2009 and the report of the CAG, who have
prima facie found serious irregularities in the grant of
licences to 122 applicants, majority of whom are said to be
ineligible, the blatant violation of the terms and conditions
of licences and huge loss to the public exchequer running
into several thousand crores. The CBI should also probe how
licences were granted to large number of ineligible
applicants and who was responsible for the same and why the
TRAI and the DoT did not take action against those licensees
who sold their stake/equities for many thousand crores and
also against those who failed to fulfill rollout obligations
and comply with other conditions of licence.
ii) The CBI shall conduct the investigation without being
influenced by any functionary, agency or instrumentality of
the State and irrespective of the position, rank or status of
the person to be investigated/probed.
iii) The CBI shall, if it has already not registered first
information report in the context of the alleged
irregularities committed in the grant of licences from 2001
to 2006-2007, now register a case and conduct thorough
investigation with particular emphasis on the loss caused to
the public exchequer and corresponding gain to the
licensees/service providers and also on the issue of allowing
use of dual/alternate technology by some service providers
even before the decision was made public vide press release
dated 19.10.2007.
iv) The CBI shall also make investigation into the allegation
of grant of huge loans by the public sector and other banks
to some of the companies which have succeeded in obtaining
licences in 2008 and find out whether the officers of the DoT
were signatories to the loan agreement executed by the
private companies and if so, why and with whose permission
they did so.
v) The Directorate of Enforcement/ concerned agencies of the
Income Tax Department shall continue their investigation
without any hindrance or interference by any one.
vi) Both the agencies, i.e. the CBI and the Directorate of
Enforcement shall share information with each other and
ensure that the investigation is not hampered in any manner
whatsoever.
vii) The Director General, Income Tax (Investigation) shall,
after completion of analysis of the transcripts of the
recording made pursuant to the approval accorded by the Home
Secretary, Government of India, hand over the same to CBI to
facilitate further investigation into the FIR already
registered or which may be registered hereinafter.”
10. CBI and the Enforcement Directorate then used to apprise this Court
of the various stages of the investigation and seek directions and this
Court, on 10.02.2011, passed an order stating that since this Court is
monitoring the investigation of 2G Spectrum Scam no court shall pass any
order which may, in any manner, impede the investigation being carried out
by the CBI and the Directorate of Enforcement. Learned Attorney General
also informed this Court that he had received a communication on 16.03.2011
from the Delhi High Court of nominating Shri O.P. Saini, an officer of the
Delhi Higher Judicial Service, as the Special Judge to take up the trial of
cases relating to what has been described as 2G Scam. The Court was also
informed that two separate notifications would be issued by the Central
Government in terms of Section 3(1) the PC Act, 1988 and Section 43(1) of
the Prevention of Money Laundering Act, 2002 for establishment of the
Special Court to exclusively try the offences relating to 2G Scam and other
related offences. Following that, two notifications were published in the
Gazette of India Extra Ordinary, on the 28th March, 2011.
11. Noticing the above submissions a detailed order was passed by this
Court on 16.03.2011, which inter alia reads as follows:
“While adjourning the case, we make it clear that no one including the
newspapers shall interfere with the functioning of the C.B.I. team and
the officers of the Enforcement Directorate who are investigating what
has been described as 2G Scam and the Court will take serious
cognizance of any endeavour made by any person or group of persons in
this regard.”
12. Petitioner - the Assistant Director of Enforcement Directorate who is
invested with the responsibility and duty of investigating the 2G Spectrum
case, submits that, during the course of investigation, he could come
across various materials, having considerable bearing on the investigation
relating to 2G Scam. The petitioner, in this contempt petition, has
stated as follows:
“Facts came to the notice of the Directorate of Enforcement that one
M/s Sahara India Investment Corporation, a Sahara group company, now
known as M/s Sahara Prime City Ltd., during the course of
investigation it is revealed that the said company had invested
Rs.14.00 Crores on 28.09.2007 on which date M/s S-Tel Ltd., had
applied for 16 more licences. This investment has been purportedly
made for purchase of shares of M/s S-Tel. Surprisingly, this
investment has been sold back on 15.01.2009 for an amount of Rs.16.80
Crores. In view of these financial details being revealed during the
course of investigation and considering the fact that this entire 2G
Spectrum case, there has been several ways of transactions, which was
deemed appropriate to investigate this aspect of the matter also and
accordingly on 02.02.2011, a summon had been issued to the Managing
Director of the said Company requiring his personal appearance on
17.02.2011. The Managing Director is Mr. Subrata Roy Sahara, who
chose not to appear, but, to apply for an adjournment for four weeks.
Taking into consideration said request a fresh summon was issued on
30.03.2011 requiring his appearance on 08.04.2011. He is respondent
No.1, above named, and he chose not to appear even on 08.04.2011 and
has, thus, shown non cooperative attitude.”
13. The petitioner, with reference to Sahara India Commercial Corporation
Limited, has stated as follows:
“That there is yet another Sahara Group company by the name Sahara
India Commercial Corporation Limited based in Mumbai, which has
purportedly paid Rs.9.50 Crores on 06.07.2007 to one M/s Sky City
Foundation Pvt. Ltd., as an advance. This Sky City Foundation has in
turn invested the very same money with M/s S-Tel, just before the date
of application of M/s S-Tel made to the DoT for issuance of Universal
Access Service (UAS) Licence on 09.07.2007.
That in view of the said fact, it was deemed appropriate to
summon the concerned officials of the said Co. M/s Sahara India
Commercial Corporation Limited on 07.04.2011 and for the purpose the
summon was issued on 30.03.2011.”
14. The petitioner, referring to the second Status Report covering the
period from 27.11.2010 to 08.02.2011, has referred to the involvement of
M/s Sahara India Investment Ltd., now known as M/s Sahara Prime City Ltd.
and stated as follows:
“The said status report also mentions other details about the
acquisition of other two companies by a group in March, April, 2009 in
respect of which letters for inquiry have been sent to Mauritius. It
is deemed expedient not to disclose further details in this
application on account of the fact that the Directorate of Enforcement
is investigating into the money trail and if further details are
disclosed in the application the same is likely to be prejudicial to
the interest of investigation. However, the applicant undertakes to
disclose such other facts including the status report in a sealed
cover to this Hon’ble Court, if so directed.
It is further respectfully submitted that in the third Status
Report, covering the period from 09.02.2011 to 17.03.2011 also
mentions about a person being issued summon. The said fact is
mentioned on page 20 in paragraph 20-D. Details therein clearly show
that M/s S-Tel Pvt. Ltd. had arranged for certain funds from various
groups to pay licence fee. On Page 21 of the said Status Report, it
is mentioned that further investigation in respect of the companies
named therein just above paragraph 20-E is in progress. Similarly in
the fifth Status Report, filed on 26.04.2011, there is a mention in
paragraph 6-B regarding sale of holding of a company and funding of
M/s S-Tel by two groups mentioned therein. The fact of Sahara India
Commercial Corporation having sought adjournment is also mentioned in
the said Status Report.”
15. The petitioner, referring to the Sahara Group of Companies, stated as
under:
“It is further submitted that yet another reference dated 11.06.2010
as forwarded by the Head Quarter of the Office of the Directorate of
Enforcement has been received from an Intelligence Unit of India,
which interalia alleges that Sh. Subrata Roy, respondent No. 1 of M/S.
Sahara Group of Companies alongwith others have deposited an amount of
Rs.150 Crores which has been rotated through a maze of financial
transactions between accounts of M/S. Sahara Corporation and M/S.
Sahara India within the same branch/bank. On basis of said input,
the Directorate of Enforcement had initiated discreet enquiries
against M/s. Sahara Corporation and M/s. Sahara India for alleged
violation of Foreign Exchange Management Act, 1999. This
investigation is handled by the present applicant, who made several
enquiries with number of banks by issuing directives on 23.07.2010 and
28.07.2010. This investigation involves over 100 banks and accounts
and large financial transactions are being investigated. The modus
operandi that was adopted is resorting to cash deposits of huge
amounts on different dates in different accounts and at remote far off
places of the country and withdrawal immediately by cheques which
would show that there is a clear attempt prima facie to legitimize the
amounts. Details from four banks have been received which show cash
deposits of more than Rs.24 Crores, so far.
That further investigation have revealed that M/s. Sahara India
is operating more than 334 bank accounts and details thereof has been
sought from all those banks which are yet to be scrutinized. This
matter is also referred to the Income Tax Department on 29.09.2010 for
further necessary action at their end.
That during the course of enquiries a further information is
received from a reliable sources that a company having registered
office opposite Domestic Airport in Mumbai, which is a group company
of Sahara Group, has given a loan a huge amounts in pounds to a
company in Mauritius, which is purported to be a short term loan and
investment in hospitality sector. This amount was transferred under
an automatic route through a bank in Mumbai and this amount is
transferred to a foreign country for acquisition of a property of a
hotel company whose shares were pledged with the Bank and which money
has been utilized to repay the outstanding of the bank. Summons are
issued to the concerned bankers of the said companies for 09.05.2011
for appearance of these bankers for recording of their statements.
This entire matter is also referred to by the applicant to the Reserve
Bank of India on 22.03.2011 and 11.04.2011 and response to some
queries are yet to be received and the investigation in the said
matter is under progress.
That there is yet another investigation which is popularly
referred is as Madhu Koda Scam case in respect of which the Division
Bench of High Court of Jharkhand has issued directions, directing the
Central Bureau of Investigation to conduct an investigation as regards
the predicate offence and directed the Directorate of Enforcement to
investigate offence under Foreign Exchange Management Act and
Prevention of Money Laundering Act, 2002. These investigations are
also under progress and are conducted by the applicant as an
Investigating Officer. In this investigation properties worth Rs.125
Crores have already been attached in exercise of powers under
Prevention of Money Laundering Act and during the course of
investigation it is suspected that large amount of funds which are
tainted money which are proceeds of crime have been invested in Sahara
Group companies by those accused persons with a view to project them
as untainted money. The investigation of this is also being carried.
It is submitted that all these investigations undertaken by the
petitioner applicant, before your lordship, has irked the Sahara Group
and more particularly the respondents.”
16. Petitioner submits that he is being personally attacked by the
respondents through various means so that he will not make further headway
in the investigation. The petitioner has explained in Paras 5 to 12 of the
petition, the manner in which he is being intimidated, which read as
follows:
“5. That when investigations have been initiated in the 2G Spectrum
case against them, the respondents have conspired to interfere with
the original 2G Spectrum case investigations so as to derail the same,
the details whereof are stated hereinafter.
It may not be out of place to mention that M/s. Sahara Airlines,
which is now taken over by Jet Airways and operated under the banner
of Jetlite are also facing investigations for violation under FERA,
1973 and an opportunity show cause notice was issued prior to
launching prosecution which has been made subject matter of a
challenge before the High Court at Lucknow.
That by an interim order dated 21.05.2002, further proceedings
have been stayed and on the said fact having come to my notice while I
was Assistant Director Incharge of Lucknow Zone, I had filed
application to get the interim order vacated.
6. It is submitted that on 02.05.2011 having come to know from
reliable sources that some business house / liaison persons together
with disgruntled government officials had initiated a campaign of
making false anonymous and pseudonymous complaints to various
agencies and started spreading rumours, the applicant deemed
appropriate to send the latest immovable properties return. This was
necessitated that in view of the fact that in April, 2011, a property
which was purchased from Lucknow Development Authority by taking a
loan, was disposed off and the proceeds of the disposal were received
as refund being given by the Lucknow Development Authority, a
government body.
That this was forwarded to the Additional Director thorough
proper channel and it is reliably learnt that the same is in the
process being sent even to the Director, Central Bureau of
Investigation, on my request.
7. It is submitted that on 05.05.2011, there has been an attempt to
intimidate the applicant after hearing of the 2G Spectrum case was
concluded before this Hon’ble Court. The applicant has received a
letter purported to be sent by the respondent No.3, Shri Subodh Jain,
which contain wielded threat to start a campaign against the applicant
with a view to intimidate and, thus, interfered in the ongoing
investigations against the Sahara Group companies in the 2G Spectrum
case.
On 05.05.2011, a copy of the said letter has been delivered by
hand at the office of the applicant and at 15.43, the same is received
on FAX of the Dy. Director, Directorate of Enforcement, copies thereof
are annexed herewith and marked as ANNEXURE-F (COLLY).
8. The response to the queries raised is being produced in a sealed
cover together with documents supporting the same for perusal of this
Hon’ble Court. The only purpose of producing it in a sealed cover is
to see such future intimidation to torpedo the ongoing investigation
does not take place. The applicant respectively declares before this
Hon’ble Court that he is ready and willing to file an affidavit of
these disclosures before this Hon’ble Court.
9. The petitioner applicant respectfully submit that it is, thus,
clear that only with a view to dissuade the petitioner, who is the
Investigating Officer, to carry the investigation in the right
direction against the Sahara Group, the respondents, and more
particularly in the 2G Spectrum case, that the respondents have
attempted to intimidate which is nothing sort of contempt of this
Hon’ble Court since not only the investigation is monitored by this
Hon’ble Court, but, this Hon’ble Court has given directions as
contained in their lordship’s judgment dated 16.12.2010 and
16.03.2011, which are being carried out by the applicant in the matter
of investigation of 2G Spectrum case.
10. It is respectfully submitted that this attempt by the
respondents to intimidate the applicant, who is the Investigating
Officer is clearly an attempt to interfere or an attempt which tends
to interfere with or obstruct or tends to obstruct the administration
of justice and is thus a criminal contempt within the meaning of
Section 2(c) of the Contempt of Court Act, 1971. It is submitted
that this is an attack on the investigating officer carrying out the
directions of this Hon’ble Court in his way to obstruct the course of
justice by preventing the petitioner, who is the Investigating
Officer, from carrying out the directions of this Hon’ble Court.
11. That this conduct is intended to impeach, embarrass and obstruct
the applicant in the discharge of his duties and carrying out
directions of this Hon’ble Court. It is respectfully submitted that
it is expected out of the applicant that he is able to conduct the
investigation free from any outside interference and the present
letter dated 05.05.2011 intending to cause embarrassment to the
applicant and detract him from the ongoing investigation is clearly an
act of interference that would jeopardize the ongoing investigation
and thus hamper the petitioner from carrying out the directions of
this Hon’ble Court.
12 That this communication is intended to influence the petitioner
publically and, thus, target him with an intention that the petitioner
may not carry on the ongoing 2G Spectrum investigation as well as
other investigations against the Sahara Group.”
17. We are of the view that if the allegations raised against the
contemnors are accepted, then we have to conclude prima facie that there
has been an attempt by the respondents to interfere with an investigation
undertaken by the petitioner which is being monitored by this Court. The
petitioner has stated that he has also filed a complaint of violation under
the Foreign Exchange Management Act, 1999 (FEMA) to the extent of Rs.4600
Crores against five more companies including M/s S-Tel and he is in the
process of filing five complaints involving an amount of Rs.1800 Crores
under the FEMA, 1999 and is also in the process of issuing an order of
attachment as contemplated under the Prevention of Money Laundering Act,
2002.
18. We may point out that the allegations raised by the petitioner in the
contempt petition are of very serious nature and, if proved, would amount
to interference with the administration of justice, especially in a court
monitored investigation. In a court monitored investigation, if the
Officer who is entrusted with the task of carrying on that investigation is
experiencing any threat or pressure from any quarters, he is duty bound to
report the same to the court monitoring the investigation. The Officer
should have the freedom to carry on his duty entrusted, without any fear or
pressure from any quarters. The petitioner has invoked Article 129 and
Article 142 to apprise this Court of the difficulties he faces while
carrying on a court monitored investigation.
19. Let us examine the extent of the power conferred on this Court under
Article 129 of the Constitution, which reads as follows:
“Article 129. Supreme Court to be a court of record – The Supreme
Court shall be a court of record and shall have all the powers of such
a court including the power to punish for contempt of itself.”
20. We are of the view that the Courts, if they are to serve the purpose
of administering the justice, must have the power to secure obedience to
the orders passed by it to prevent interference with its proceedings. Law
is well settled that the powers of the Supreme Court in contempt matters
are not confined merely to the provisions of the Contempt of Courts Act and
the Rules framed thereunder. Law of Contempt, as is often said, is only
one of the many ways in which the due process of law is prevented from
being perverted, hindered or thwarted to further the cause of justice.
This Court has plenary power to punish any person for contempt of court and
for that purpose it may require any person to be present in Court in the
manner it considers appropriate to the facts of the case. This Court in
Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of
Gujarat and others (1991) 4 SCC 406, examined at depth the scope of Article
129 of the Constitution and stated as follows:
“The power of the Supreme Court and the High Court being the
Courts of Record as embodied under Articles 129 and 215 respectively
cannot be restricted and trammeled by any ordinary legislation
including the provisions of the Contempt of Courts Act. Their
inherent power is elastic, unfettered and not subjected to any limit.
The power conferred upon the Supreme Court and the High Court, being
Courts of Record under Articles 129 and 215 of the Constitution
respectively is an inherent power and the jurisdiction vested is a
special one not derived from any other statute but derived only from
Articles 129 and 215 of the Constitution of India and therefore the
constitutionally vested right cannot be either abridged by any
legislation or abrogated or cut down. Nor can they be controlled or
limited by any statute or by any provision of the Code of Criminal
Procedure or any Rules. The caution that has to be observed in
exercising this inherent power by summary procedure is that the power
should be used sparingly, that the procedure to be followed should be
fair and that the contemnor should be made aware of the charge against
him and given a reasonable opportunity to defend himself…. Entry 77
of List 1, Schedule 7 read with Article 246 confers power on the
Parliament to enact law with respect to the Constitution,
organization, jurisdiction and powers of the Supreme Court including
the contempt of the Supreme Court. The Parliament is thus competent
to enact a law relating to the powers of Supreme Court with regard to
‘contempt of itself’ such a law may prescribe procedure to be followed
and it may also prescribe the maximum punishment which could be
awarded and it may provide for appeal and for other matters. But the
Central Legislature has no legislative competence to abridge or
extinguish the jurisdiction or power conferred on the Supreme Court
under Article 129 of the Constitution. ……….”
21. This Court, again, in I. Manilal Singh v. Dr. H. Borobabu Singh and
another (1994) Suppl. (1) SCC 718 has delineated the plenary powers of this
Court and stated that the power conferred on this Court under Article 129
is a constitutional power which cannot be circumscribed or delineated
either by the Contempt of Courts Act, 1971 or Rules or even the Rules to
Regulate Proceedings for Contempt of the Supreme Court, 1975, framed in
exercise of powers under Section 23 of the Contempt of Court Act, 1971,
read with Article 145 of the Constitution of India.
22. We are of the view that, assuming, there has not been any proper
compliance of the provisions of the Contempt of Courts Act, 1971, as
contended by the learned senior counsels for the respondents, that would
not deter or take away the constitutional powers conferred on this Court
under Article 129 of the Constitution of India to examine, whether, there
has been any attempt by anybody to interfere with an investigation, which
is being monitored by this Court. The jurisdiction of the Supreme Court
under Article 129 of the Constitution is independent of the Contempt of
Courts Act and the powers conferred under Article 129 of the Constitution
cannot be denuded, restricted or limited by the Contempt of Courts Act,
1971.
23. Article 142 of the Constitution also confers powers on this Court to
pass such orders as is necessary for doing complete justice in any cause or
matter pending before it. The said Article 142 reads as under:
“Article 142. Enforcement of decrees and orders of Supreme Court and
orders as to discovery, etc. ( 1 ) The Supreme Court in the exercise
of its jurisdiction may pass such decree or make such order as is
necessary for doing complete justice in any cause or matter pending
before it, and any decree so passed or orders so made shall be
enforceable throughout the territory of India in such manner as may be
prescribed by or under any law made by Parliament and, until provision
in that behalf is so made, in such manner as the President may by
order prescribe
(2) Subject to the provisions of any law made in this behalf by
Parliament, the Supreme Court shall, as respects the whole of the
territory of India, have all and every power to make any order for the
purpose of securing the attendance of any person, the discovery or
production of any documents, or the investigation or punishment of any
contempt of itself.”
24. Article 142 is conceived to meet situations which cannot be
effectively and appropriately tackled by existing provisions of law. In
Delhi Development Authority v. Skipper Construction Co.(P) Ltd. and another
(1996) 4 SCC 622, this Court has held that the very fact that the power is
conferred only upon the Supreme Court, and on no one else, is itself an
assurance that it will be used with due restraint and circumspection;
keeping in view the ultimate object of doing complete justice between
parties and the Court’s power to do complete justice is not confined by any
statutory provision.
25. We may indicate that the petitioner has inter alia invoked the
jurisdiction and power conferred on this Court under the above-mentioned
constitutional provisions and hence the consent of the Attorney General is
not necessary. Petitioner is only expected to bring to notice of this
Court the problems he confronts with while carrying on a court monitored
investigation and it is the duty and obligation of this Court to see,
rather than the petitioner, that nobody puts any pressure or threat on an
Officer entrusted with the duty to investigate a court monitored criminal
investigation. Any interference, by anybody, to scuttle a court monitored
investigation would amount to interfering with the administration of
justice. Courts, if they are to serve the cause of justice, must have the
power to secure obedience to its orders to prevent interference with the
proceedings and to protect the reputation of the legal system, its
components and its personnel, who on its behest carry on a court monitored
investigation. The court is duty bound to protect the dignity and
authority of this Court, at any cost, or else, the entire administration of
justice will crumble and law and order would be a casualty.
26. We are, therefore, of the view that the petition filed under the
above mentioned provisions is perfectly maintainable and this Court has got
a constitutional obligation to examine the truth of the allegations as to
whether the respondents are attempting to derail the investigation which is
being monitored by this Court. We, therefore, issue notice to the
respondents to show cause why proceedings be not initiated against them for
interfering with the court monitored criminal investigation.
…………………………J.
(G.S. Singhvi)
…………………………J.
(K.S. Radhakrishnan)
New Delhi,
December 9, 2013.
