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
-----------------------
57
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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