Delhi High Court
Sh. Prakash P. Hinduja vs Union Of India (Uoi) Through Cbi on 10 June, 2002
Equivalent citations: 98(2002)DLT448, 2002(64)DRJ34
Author: R.S. Sodhi
Bench: R.S. Sodhi
JUDGMENT R.S. Sodhi, J.
1. This is a petition by the petitioner who is one of the accused in Criminal Case No. 39/99 pending in the court of the learned Special Judge, Patiala House, New Delhi. The prayers of the petitioner are three fold, namely, (a) that the order dated 18.4.2002 of the learned Special Judge on the application dated 15.4.2002 be set aside; (b) cognizance taken and process issued pursuant thereto be revoked and (c) charge-sheet filed the rejected.
2. Extensive arguments were addressed by learned counsel for both the sides. Both the sides relied upon and sought to interpret the judgment of the Supreme Court in Vineet Narain and Ors. v. Union of India and Anr., 1988 (1) SCC 226. The petitioner has called for strict compliance of paragraph 58 of this judgment laying special stress on sub-para 3. He contended that the Central Bureau of Investigation (for short 'CBI') after competing its investigation was bound to place the report before the Central Vigilance Commission (for short 'CVC') and having not done so. such charge-sheet cannot be acted upon by the court. On the other hand, learned counsel for the respondent contended that the responsibility entrusted to the CVC in para 58 sub para 3 of the judgment of superintendence over the CBI's functioning is not of the nature as is sought to be contended by the petitioner, but of a general nature equivalent to that as is with the Government/Ministers in Section 4 of the Delhi Police Special Establishment Act, 1946 (for short 'DPSE Act'). Before adverting to analyze the submissions of learned counsel, a brief background may be necessary. The Government of India in March, 1986 purchased from A.B. Bofors, a Swiss Company, 155 mm. guns at a price approximately rupees 1437 crores. In the following year, a report emerged that the deal was vitiated due to corruption and bribes passed on to responsible public servants including the late Prime Minister Shri Rajiv Gandhi. Wide publicity was given which necessitated setting up of a prestigious Joint Parliamentary Committee appointed by the Parliament. This Committee went into the allegations elaborately and submitted its report on 26.4.1988. It reported to the nation that (A) no corruption was involved in the deal; (b) that no money had been paid to any India agent; (c) that the guns were the best possible and the price paid was lowest. It appears that on change of Government an FIR was recorded on 22.1.1990 by the CBI. Massive/extensive investigation was conducted both in India and abroad resulting in a charge-sheet dated 22.10.1999 placed before the court. In this charge-sheet, the petitioner was not an accused. The CBI claimed that the charge-sheet was incomplete and further investigations were in progress. Merely a year later, a second supplementary charge-sheet dated 9.10.2000 was filed. This has been challenged by learned counsel for the petitioner contending dishonesty, malice, without material on record and in violation of law laid down by the Supreme Court in Vineet Narain's case. The accused persons appeared before the court of the learned Special Judge and prayed that cognizance be not taken on the grounds, inter alia, that the filing of supplementary charge-sheet violated the Supreme Court's directions. The learned Special Judge rejected the prayer on the ground that an accused had no right to be heard at that stage. After summons were served on the accused, he executed bail bonds as was required of him. The matter had thus reached a stage before the Learned Special Judge for supply of documents which are relevant and essential to the issue of framing of charge.
3. The petitioner herein filed an application dated 15.4.2002 drawing attention of the court to the judgment of the Supreme Court in Vineet Narain's case. It is the case of the petitioner that these directions were issued to prevent escape of the guilty and harassment of the innocent. The gravamen of the contention of the petitioner was that the Supreme Court had entrusted the responsibility of ensuring complete honesty of investigation and propriety of launching prosecution to two higher functionaries, Chief Vigilance Commissioner (CVC) and Director of Public Prosecutions (DPP). The relevant directions were as follows :
"I. 1. The Central Vigilance Commission (CVC) shall be given statutory status.
3. The CVC shall be responsible for the efficient functioning of the CBI. While Government shall remain answerable for the CBI's functioning, to introduce visible objectivity in the mechanism to be established for overviewing the CBI's working, the CVC shall be entrusted with the responsibility of superintendence over the CBI's functioning. The CBI shall report to the CVC about cases taken up by it for investigation; progress of investigations; cases in which charge-sheets are filed and their progress. The CVC shall review the progress of all cases which are pending with the competent authorities, specially those in which sanction has been delayed or refused."
IV. 4. Steps shall be taken immediately for the constitution of an able and impartial agency comprising persons of unimpeachable integrity to perform functions akin to those of the Director of Prosecutions in U.K. On the constitution of such a body, the task of supervising prosecutions launched by the CBI/Enforcement Directorate shall be entrusted to it.
5. Till the constitution of the aforesaid body, Special Counsel shall be appointed for the conduct of important trials on the recommendation of the Attorney General or any other law officer designated by him."
4. The complaint of the accused was that progress of the investigation had never been reported and in particular the CVC was not informed about the filing of the second charge-sheet and the basis on which it came to be filed.
5. The stand taken by the CBI before the trial court was that "Vineet Narain's judgment was delivered on 18.12.1997. Much before this judgment, a copy of the investigation report was sent to CVC on 14.7.1997 and further developments were brought to the notice of the CVC from time to time." Obviously, a copy of the investigative report sent to the CVC prior to the judgment could not have complied with the directions contained in the judgment. Before the High Court, the CBI filed an affidavit to the effect that "there was no need to further go back to the CVC or report on the supplementary charge-sheet since the first charge-sheet itself mentioned that further investigations were being carried out to unearth the commission paid by Bofors in respect of the deal and the persons to whom it was paid".
6. To sum up, the petitioner, strongly relying upon the directions of the Supreme Court, is aggrieved of the violation of the procedure established by law.
7. On behalf of the respondent, learned Solicitor General, Mr. Harish Salve, sought to interpret the judgment in Vineet Narain's case to mean that the same did not intent to provide additional safeguards in favor of individual accused persons and that the Supreme Court was dealing with the allegations of violation of the CBI to investigate freely and fairly the allegations of commission of offence against the persons of high office. In this context, the learned Solicitor General has referred to observations of the Supreme Court as under :
"3. This experience revealed to us the need for the insulation of these agencies from any extraneous influence to ensure the continuance of the good work they have commenced. It is this need which has impelled us to examine the structure of these agencies and to consider the necessary steps which would provide permanent insulation to the agencies against extraneous influences to enable them to discharge their duties in the manner required for proper implementation of the rule of law. Permanent measures are necessary to avoid the need of every matter being brought to the court for taking ad hoc measures to achieve the desired results. This is the occasion for us to deal with the structure, constitution and the permanent measures necessary for having a fair and impartial agency. The faith and commitment to the rule of law exhibited by all concerned in these proceedings is the surest guarantee of the survival of democracy of which rule of law is the bed-rock. The basic postulate of the concept of equality; "be you ever so high, the law is above you," has governed all steps taken by us in these proceedings.
5. The gist of all allegations in the writ petitions is that government agencies like the CBI and the Revenue authorities had failed to perform their duties and legal obligations inasmuch as they had failed to investigate matters arising out of the seizure of the "Jain Diaries".
8. The sum and substance of these orders is that the CBI and other governmental agencies had not carried out their public duty to investigate the offences disclosed that none stands above the law so that an alleged offence by him is not required to be investigated; that we would monitor the investigations, in the sense that we would do what we permissibly could to see that the investigations progressed while yet ensuring that we did not direct or channel those investigations or in any other manner prejudice the right of those who might be accused to a full and fair trial.
9. Even after this matter was brought to the court complaining of the inertia of CBI and the other agencies to investigate into the offences because of the alleged involvement of several persons holding high offices in the executive, for quite some time the disinclination of the agencies to proceed with the investigation was apparent...It was, therefore, decided to direct the CBI and other agencies to compete the investigation expeditiously, keeping the court informed from time to time of the progress of the investigation so that the court retained seisin of the matter till the investigation was competed and the charge-sheets were filed in the competent court for being dealt with thereafter in accordance with law.
15. Inertia was the common rule whenever the alleged offender was a powerful person. Thus, it became necessary to take measures to ensure permanency in the remedial effect to prevent reversion to inertia of the agencies in such matters.
16. Everyone against whom there is reasonable suspicion of committing a crime has to be treated equally and similarly under the law and probity in public life is of great significance. The constitution and working of the investigating agencies revealed the lacuna of its inability to perform whenever powerful persons were involved. For this reason, a close examination of the constitution of these agencies and their control assumes significance. No doubt, the overall control of the agencies and responsibility of their functioning has to be in the executive, but then a scheme giving the needed insulation from extraneous influences even of the controlling executive, is imperative. It is this exercise which became necessary in these proceedings for the future. This is the surviving scope of these writ petitions."
8. Learned counsel contended that in the aforesaid context, the court examined the existing state of the law, particularly in the backdrop of the single directive and reiterated that under the law the agency entrusted with the investigation of offences was independent and its functioning in individual cases could not be interfered with. The court reiterated its earlier judgments including the judgment in the Bihar Fodder Scam case which had in turn affirmed the decision of the Court of Appeal in R v. Metropolitan Police Commr, (1968) 1 All ER 763. The observation in the aforesaid English case, which has been followed in the Bihar Fodder case and reiterated in Vineet Narain's case is relevant and reads thus- :
"I have no hesitation, however, in holding that like every constable in the land, he should be, and is independent of the executive. He is not subject to the orders of the Secretary of State...I hold it to be the duty of the Commissioner of Police, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected and those honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought; but in all these things he is not the servant of anyone, save of the law itself. No minister of the Crown can tell him that he must, or must not, keep observation on this place or that he must, or must not prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone.''
9. Explaining that the power of superintendence conferred upon the executive as contained in Section 4 of the Act cannot be used for interfering with individual investigations, the court in paragraph 43 held thus :
"43. There is no similarity between a mere executive order requiring prior permission or sanction for investigation of the offence and the sanction needed under the statute for prosecution. The requirement of sanction for prosecution being provided in the very statute which enacts the offence, the sanction for prosecution is a prerequisite for the court to take cognizance of the offence. 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. The word "superintendence" in Section 4(1) of the Act in the context must be construed in a manner consistent with the other provisions of the act and the general statutory powers of investigation which govern investigation even by the CBI. The necessity of previous sanction for prosecution is provided in Section 6 of the Prevention of Corruption Act 1947 (Section 19 of the 1988 Act) without which no court can take cognizance of an offence punishable under Section 5 of the that Act. There is no such previous sanction for investigation provided for either in the Prevention of Corruption Act or the Delhi Special Police Establishment Act or in any other statutory provision. The above is the only manner in which Section 4(1) of the Act can be harmonised with Section 3 and the other statutory provisions."
10. While doing so, the court clearly explained away the observations made in J.A.C. Saldanha's case holding that :"
"Thus, in that case the power of superintendence was exercised for directing further investigation to compete an unsatisfactory investigation of a cognizable offence to promote the cause of justice and not to subvert it by preventing investigation."
11. The same principle was reiterated in paragraph 39 in the following words :
"Once the CBI is empowered to investigate an offence generally by its specification under Section 3, the process of investigation, including its initiation is to be governed by the statutory provisions which provide for the initiation and manner of investigation of the offence. This is not an area which can be included within the meaning of "superintendence" in Section 4(1)."
12. Paragraph 40 explained the concept of independence in the following terms :
"It is, therefore, the notification made by the Central Government under Section 3 which confers and determines the jurisdiction of the CBI to investigate an offence; and once that jurisdiction is attracted by virtue of the notification under Section 3, the actual investigation is to be governed by the statutory provisions under the General law applicable to such investigations. This appears to us the proper construction of Section 4(1) in the context, and it is in harmony with the scheme of the Act, and Section 3 in particular. The word "superintendence" in Section 4(1) cannot be construed in a wider sense to permit supervision of the actual investigation of an offence by the CBI contrary to the manner provided by the statutory provisions. The broad proposition urged on behalf of the Union of India that it can issue any directive to the CBI to curtail or inhibit its jurisdiction to investigate an offence specified in the notification issued under Section 3 by a directive under Section 4(1) of the Act cannot be accepted. The jurisdiction of the CBI to investigate an offence is to be determined with reference to the notification issued under Section 3 and not by any separate order not having that character."
13. The court summarised the power available to the Government (and to the Minister acting as the head of the Government) in the following terms:
"28. It is sufficient to say that the Minister's general power to review the working of the agency and to give broad policy directions regarding the functioning of the agencies and to appraise the quality of the work of the head of the agency and other officers as the executive head is in no way to be diluted. Similarly, the Minister's power to call for information generally regarding the cases being handled by the agencies is not to be taken away. However, all the powers of the Minister are subject to the condition that none of them would extend to permit the Minister to interfere with the course of investigation and prosecution in any individual case and in that respect the officers concerned are to be governed entirely by the mandate of law and the statutory duty cast upon them."
14. However, in order to impart a degree of independence to the CBI and yet maintain the power of superintendence (which is inevitably necessary in relation to any police force, the Court issued a mandamus based upon the suggestion which had already been made by the IRC (Report extracted at page 249 onwards). The direction issued by the Court in paragraph 3 of the directions (in paragraph 58) reads thus:
"3. The CVC shall be responsible for the efficient functioning, of the CBI. While Government shall remain answerable for the CBI's functioning, to introduce visible objectivity in the mechanism to be established for overviewing the CBI's working, the CVC shall be entrusted with the responsibility of superintendence over the CBI's functioning. The CBI shall report to the CVC about cases taken up by it for investigation; progress of investigations; cases in which charge sheets are filed and their progress. The CVC shall review the progress of all cases moved by the CBI for sanction of prosecution of public servants which are pending with the competent authorities, specially those in which sanction has been delayed or refused".
15. It is clear from a plain reading of the aforesaid direction that -
(a) The Government shall remain answerable for the CBI's functioning - this can only flow from the power of the Government under Section 4 of the DPSE Act' and
(b) In order to "introduce visible objectivity" in the mechanism to be established for overviewing the CBI's working, the CVC was entrusted with the responsibility of superintendence.
16. Thus, superintendence was understood as "a mechanism to be established for overviewing the CBI's working...".
17. It was submitted that an overview of the working of the police force does not include the power to issue specific individual directions in specific cases, which would hinder investigation or stifle prosecution, much less would render illegal (or in any manner even irregular) any steps taken in the course of investigation by the agency without prior concurrence of the overviewing authority. The concept of overviewing the working is necessarily a review of acts done and intended to be done in the future. In other words, there is complete autonomy and independence in working - this overviewing is presented to the supervising authority to make sure that the actions are in accordance with law. This, in law, does not cast any need upon the agency to secure any prior approvals before taking any action in the course of investigation including the filing of a chargesheet which is the terminal step (in whole or in part) of an investigation as far as the agency is concerned.
18. The ambit of superintendence is further clarified by the same direction in that it makes obligatory upon the CBI to:
a. Report to the CVC about the cases taken up by it for investigation (it is obvious that it does not require any prior concurrence before taking up a case for investigation - only that it has to report to the CVC about the cases it has taken up).
b. CBI has to report the progress of investigation (Here again, no prior permission for any of the steps in the investigation including interrogation, arrest, etc. is required - all that is required is the progress of investigation from time to time has to be reported to the CVC).
c. Cases in which "chargesheets are filed and their progress..." (Thus, a report has to be given to the CVC of the cases in which chargesheets are filed - there is no requirement to seek clearance before chargesheets are filed).
19. The only requirement in this case is of reporting - the role of the CVC on this would be to give its comments in its annual report as directed in paragraph 5 of the directions.
20. The only direct power of review granted to the CVC is in respect of "....progress of all cases moved by the CBI for sanction of prosecutions of public servants which are pending.....". In other words, the direct review by the CVC is only of pending applications for sanctions. The CVC is not cast with the role of reviewing as such the steps taken in the course of investigation and thereafter. On receipt of the report, the CVC would have a separate section in its annual report on the CBI's functioning. The specific direction as to the manner of functioning of CBI is contained in paragraph 12 of the directions which reads thus:
"12. The CBI Manual based on statutory provisions of the CrPC. provides essential guidelines for the CBI's functioning. It is imperative that the CBI adheres scrupulously to the provisions in the Manual in relation to its investigative functions, like raids, seizure and arrests. Any deviation from the established procedure should be viewed seriously and severe disciplinary action taken against the officials concerned"
21. There are no similar obligations for following any other procedural steps before exercising these powers. It bears emphasis that investigation is a continuous process commencing with registering the first information as to a crime and culminating with filing of the reports under Section 173. It takes within its sweep various steps. The duty to report of the steps taken in the course of investigation is not and cannot be equated with the duty to obtain prior approval or consent of any other authority to these steps. The reporting is to enable the authority to review the working of the agencies - it is very different from ensuring that each and every investigation is carried what would in the perception of that authority is carried what would in the perception of that authority be a reasonable and fair method. In other words, unlike a sanction (which is on a case by case basis, which focuses on the merits of each case) the review of the working of an agency is to take stock of the efficiency and independence of the agency - which was the primary major consideration which prevailed with the Court in issuing the direction in question. The directions in paragraph 3 were modification of the manner of exercise of the power of superintendence contained in Section 4 so as to imbue it with "visible objectivity" the mechanism of superintendence. It was not the creation of a new power, which did not exist in the statute earlier. It is clear by reading direction No. 3 with paragraph 28 that what was hitherto before the power of the Government and the responsibility of the CVC in the manner indicated in paragraph 3 of the directions. This division being made in accordance with the recommendations of the IRC, therefore the submission that there is need of approval of CVC at every stage, is misconceived. In fact, it is contrary to what was laid down by the Supreme Court in Vineet Narain's case which is in paragraph 43 quoted above.
22. As far as the prosecution agency is concerned, the job of the prosecution agency will be that of supervising prosecution. Paragraph 5 provided for a situation where the Attorney General could appoint special counsel for important cases. Where a special prosecutor has been appointed prior to the constitution of the Directorate of Prosecutions, there is no need to withdraw the case from the special prosecutor and hand it over to the Directorate of Prosecution. In any event, in the ultimate analysis, for entrustment of cases for prosecution, directions for conduct of cases - including important cases - have to be understood in the aforesaid sense and as long as the case is entrusted to a competent and independent public prosecutor there can be no grievance. It bears emphasis that the role of Director of Prosecutions is also of supervising prosecution launched by the CBI. It cannot impinge upon the validity of the charge-sheet already filed. Every public prosecutor has available to him power as under Section 321 of the Cr.P.C. to withdrawn prosecution in appropriate cases. No accused can seek recall of the process issued on a charge-sheet filed on the ground that the public prosecutor must after filing of the charge-sheet and prior to the issue of the process or even prior to the filing of the charge-sheet apply his mind whether the charge-sheet should at all be filed. That this position would continue to be the same after the creation of the office of the Director of Prosecution. In fact, the Supreme Court has held that a prosecutor cannot interfere with the functioning of the police - in particular it has held in that the Court can never direct the public prosecutor to seek the opinion of the police in presenting the charge-sheet. In a converse case, where the CBI filed a report stating that allegations against public servants were unfounded, the Supreme Court held that the special judge was clearly in error in directing the CBI to approach the sanctioning authority before approaching the Court for accepting the report under Section 173 for discharge of the Respondents. It is submitted that if the sanctioning authority is not a consultee of the investigating officer - a fortiori over-viewing the authority cannot be elevated to that level.
23. The contention of learned counsel for the Petitioner that the directions of the Supreme Court are on par with a constitutional law and would override the inconsistent statue is misconceived. As clarified by the Supreme Court in paragraph 52 of Vineet Narain's case - where there is a vacuum, the judiciary steps in, in exercise of its constitutional obligations to provide a solution till such time as the legislature acts. Paragraph 53 of the judgment also is clear that till such time as the legislature steps in, their directions are to be enforced. It is obvious that the Legislature cannot step in to displace a constitutional law. The directions were meant to fill up the interstices in the law. Section 4 of the DSPE Act confers the power of superintendence upon the Government. But it does not define as to how the power is to be exercised. The Supreme Court, therefore, by its direction has created a mechanism for exercise of that power. It bears repetition that the Court was only acting to "introduce visible objectivity in the mechanism to be established for over-viewing the CBI's working...".
24. The contention of the Petitioner that a breach of these directions would render the action of the CBI void since the directions are to be rigidly complied with, is equally misconceived. The direction is for the CVC to overview the CBI's working and the CBI to report to the CVC. Even a rigid compliance with these directions cannot go beyond the CVC overviewing CBI's working and the CBI reporting to the CVC. None of these, it is submitted, impinges upon the validity of any charge-sheet filed by the CBI or the process issued thereon. Learned counsel for the petitioner, however, contended that whether there was compliance with the relevant directions of the Supreme Court in Vineet Narain's case will have to be judged on the basis of the admitted facts that no development relevant to the Hindujas and the filing of the second charge-sheet implicating them were ever brought to the notice of the CVC. The CVC, therefore, did not and could not exercise any power of 'superintendence' in relation to the prosecution of the Hindujas. It was for the CVC to consider the implications of the letter of Embasy of India to the Swiss Federal Police dated 9.2.2000 and the accompanying note of the CBI particularly paragraph 8 thereof CVC's affidavit clearly admits that he has no role to play in the filing of the charge-sheet. Obviously this role has not been assigned to him by the resolution of the Government of India under which he is appointed and which defines his precise functions. The Resolution which is produced at page 38 of the paper book in paragraph 3 restricts these functions to inquire or cause an inquiry or investigation to be made on the reference made by the Central Government in respect of certain public servants but only in respect of offence under the Prevention of Corruption Act, 1988; secondly to causing an inquiry or investigation into a complaint against certain specified officers but that too for offences under the Prevention of Corruption Act, 1988; thirdly to review the progress of applications pending with competent authorities for sanction of prosecution under the Act; fourthly to tender advice to the Central Government and other public bodies on such matters as may be referred to him and lastly to exercise superintendence over the Vigilance administration of various Ministries or Corporations. It is clear from this Resolution that on and from 5th of April, 1999 the CVC had no function which can be characterised as power of 'superintendence' contemplated by the Vineet Narain judgment. The word "superintendence" is not used in the first four sub-paragraphs of paragraph 3 but is used only in the 5th sub-paragraph. This superintendence is not superintendence over the CBI but some other units functioning in some Ministries and Corporations. The submission, therefore, by the petitioner is that the superintendence over the CBI mandated by the Vineet Narain judgment has never been assigned to the CVC. If there was honest intention to comply with the Vineet Narain judgment, there is no reason why on the lapse of this Ordinance even a non-statutory CVC was not created with the powers, which the Vineet Narain judgment mandated for it. The CBI's affidavit in paragraph 5 clearly admits that the power of 'superintendence' over the CBI has not been conferred upon the CVC. Neither the CVC nor the CBI have asserted clearly that in addition to the functions prescribed in the Resolution, the CVC was performing additional functions and consider matters with the consciousness that he had all the powers which the Vineet Narain judgment contemplated - such assertion would be dishonest, if made, fortunately it has not been made. It was pointed out by learned counsel for the petitioner that the learned Solicitor General contrary to this admission in the Affidavit has argued that the power of superintendence which was directed to be conferred upon the CVC was only a power of limited width and amplitude which certainly did not involve any control of pending investigation. The petitioner submitted that this contention is plaintly wrong. When direction No. 3 of the relevant directions clearly states that the responsibility of superintendence over the CBI functioning shall be entrusted to the CVC and the affidavit of the CBI clearly says that this power has never been conferred upon the CBI, it is futile for the learned Solicitor General to make such submission. The scope of what superintendence means has been clearly defined in the context of Police Act of 1861 by the Saldanha's case. The Saldanha judgment explains superintendence as follows:
"Word 'superintendence' connotes the act of superintending, care and over-sight for the purpose of direction and with authority to direct. It implies administrative control enabling the authority, enjoying such power to give directions to the subordinate to discharge its administrative duties and functions in the manner indicated in the order. It is only when a subordinate authority subject to superintendence is discharging duties and functions of a quasi-judicial character under a statute that the inhibition of abdication of such power can be invoked. But where the subordinate subject to such power of functions, obligations and duties, the power of superintendence would comprehend the authority to give directions, guidance and instructions to perform the duty in a certain manner, to refrain from performing one or the other duty, to direct some one else to perform the duty and no inhibition or limitation can be read in this power unless the section conferring such power prescribes one. Thus the general power of superintendence as conferred by Section 3 of Police Act, 1861 would comprehend the power to exercise effective control over the actions, performance and discharge of duties by the members of the police force throughout the general district.
Superintendence would comprehend the power to direct further investigation if the circumstances so warrant and there is nothing in the Code providing to the contrary so as to limit or fetter this power. Sub-section (8) of Section 173 is not the source of power of the State Government to direct further investigation. Section 173(8) enables an officer in charge of a police station to carry on further investigation even after a report under Section 173(2) is submitted to Court. But if State Government has otherwise power to direct further investigation it is neither curtailed, limited nor denied by Section 173(8), more so, when the State Government directs and officer superior in rank to an officer in charge of a police station to further investigate the case. Such a situation would be covered by the Combined reading of Section 173(8) with Section 36 of the Code. Such power is claimed as flowing from the power of superintendence over police to direct a police officer to do or not to do a certain thing because at the stage of investigation the power is enjoyed as executive power untrammeled by the judiciary".
25. It is clear that under the Government Resolution the CVC has no functions at all in respect of Prevention of Corruption Act, 1947, every clause of the Resolution mentions the Prevention of Corruption Act 1988.
26. The Vineet Narain 's judgment did not curtail the width and amplitude of superintendence. This judgment only said that the wide power of superintendence does not allow the Executive to prevent performance of its mandatory duties by the police under the Code of Criminal Procedure. This is precisely what the impugned single directive purported to do. The Government prevented the CBI from recording an FIR against certain high officials. This would be both contrary to the mandate of Section 154 of the Code of Criminal Procedure as well as Article 14 of the Constitution.
27. In para 41 of the judgment the Hon'ble Supreme Court said that its view does not conflict with the decision in Saldanha. However vide the power of superintendence, it cannot be exercised for a mala fide purpose because that would be a fraud on power. It was the contention of the learned Solicitor General that the Supreme Court has only directed that those powers should be conferred upon CVC as were left outstanding in a Minister Representing the Government under Section 4 of the DPSE Act.
28. It was submitted that on this concession alone that has to be vested in the CVC are the powers of the Minister which were expressly claimed for the Minister by the Attorney General in paragraph 27 of the judgment and expressly recognized as existing in paragraph 28. These four powers plus the power of the final disciplinary authority are as wide as the whole of 'superintendence' as explained in the Saldanha's case. These two paragraph recognise that the Minister has some powers of the CBI, whereas the CBI's affidavit admits that the CVC has not been conferred any power over the CBI.
29. It is quite clear from Vineet Narain's judgment that the Court was concerned with insulating the CBI against the interference by important persons. This obviously means important persons operating on both sides of the fence - those who want to save the guilty as well as those who want to harass the innocent by frivolous and vexatious prosecution.
30. Learned counsel for the petitioner further submitted that the power of superintendence includes the power to grant sanction or withhold the sanction. Superintendence is wider than sanction because it operates at every stage and not merely the final stage when the prosecution is about to be launched. Learned counsel for the petitioner submitted that in paragraph 43 of the Vineet Narain judgment the Supreme Court was not distinguishing between superintendence and sanction but was only stating that an executive order requiring prior permission or sanction for investigation of the offence on the one hand and sanction for prosecution required by Statute are two dissimilar concepts.
31. The Saldanha's case clearly establishes that the power of 'superintendence' includes the power to direct that certain things should be done or not done. The power of superintendence includes the power to direct that no charge-sheet should be filed where for example the evidence is flimsy or the launching of the prosecution is otherwise inexpedient for certain legitimate reasons pointed out by the Privy Council in Morarka's case, AIR 1948 P.C. 82 (Paras 9 and 12).
32. The contention of learned counsel for the petitioner is that consent or approval of the superintending authority must be taken when any charge sheet is filed. In the alternative the contention is that at any rate the matter must be placed before him so that he can effectively exercise his power of superintendence. His failure expressly to consent to a charge-sheet being filed may even be treated as consent to the prosecution to be filed but the power of superintendence must be real and not illusory. As submitted above it is now admitted in the Affidavits of the Respondents that the Hinduja charge-sheet and the developments leading to it were not brought to the attention of the CVC.
33. The Vineet Narain judgment mandated the immediate creation of the office of Director of Public Prosecution. When the Petitioners raised the objection on the 15th of April, 2002 neither he nor his advisers knew that a Director of Public Prosecution had been appointed on 18-1-2002. This came to their notice only when this fact was disclosed in the CBI reply. Learned counsel for the petitioner submitted that even on this score Vineet Narain directives have been willfully and contemptuously ignored and violated.
34. It was pointed out from the Blackstone Commentary that a Director of Public Prosecution in England had a power to grant consent and/or not to grant consent for initiation of prosecution under the Prevention of Corruption Act and he has also the power to discontinue pending prosecutions. It was submitted that the charge-sheets are illegal and void and every action taken in pursuance thereof is liable to be quashed and set aside for the following reasons:-
(i) The Vineet Narain judgment lays down imported procedure and calls for its strict and rigid compliance. These directions have the force of law and this law is of higher normative value than an ordinary legislation.
(ii) Every Statute passed by any Legislature, which is a conflict with Article 32 or Article 142 of the Constitution must be held to be void. So the directives are part of the Constitution and a Chapter of Constitutional Law. Anything done in violation of such Constitutional injunctions must result in those steps being declared void.
(iii) The contention of the learned Solicitor General is that the Supreme Court has not said that violation of its directives will invalidate any step taken in violation thereof. With respect, it need not be so stated because this Law is understood very clearly. If the procedure prescribed by law is not followed the steps taken are a nullity. Many laws do not prescribe in express terms the consequences of the breach of procedure laid down by such Statues. COFEPOSA and the National Security Act and the earlier MISA are illustrations of such law. Nevertheless whenever the procedure had not been validly followed the detention orders were quashed and set aside. In this connection learned counsel relied upon the famous Prabhu Dayal's judgment ."
35. Learned counsel for the petitioner further submitted that where superintendence by the CVC has been completely frustrated the same result ought to follow as in cases where the required statuary sanction is not forthcoming. It was conceded by the learned Solicitor General that in such cases the prosecution is without jurisdiction and void. It was so held in the Morarka case cited above and also in AIR 1939 Federal Court 43. The Court passed the order quashing the proceedings for want of jurisdiction. The Petitioner pointed out that the Trial Court in this case has not recorded any finding that the Vineet Narain directives had been complied with. On reading a Trial Court's order it is more than obvious that there was a breach but he was persuaded to hold as under:-
"It may however, be pointed out that it is not generally in the province of the Courts and particularly the Trial Court to see in what manner and to what extent the CBI is reporting the progress of investigations. That falls within the province of CVC".
36. No attempt has been made now to support this part of the order of the Trial Court. It is more than clear that the directives are binding upon the judiciary. The Judicial authorities are expressly mentioned in Article 144 of the Constitution.
37. Learned counsel for the petitioner also submitted that though he and his brothers have been implicated only in the supplementary charge-sheet, even the earlier charge-sheet against the deceased Prime Minister, the defense Secretary Sh S.K. Bhatnagar, (since deceased) and Win Chadha (since deceased), Octavio Quattrocchi, Martin Ardbo, (both of who have not yet been extradited) and A.B. Bofors should also be quashed. Even they are entitled to the benefit of the Supreme Court judgment as the two charge-sheets have been clubbed by the order of the Trial Court.
38. The petitioner concedes that the relief prayed for by the Petitioner in this petition do not when granted amount to a discharge or acquittal. The prosecution can still file fresh charge-sheets after following the procedure prescribed by the Vineet Narain's judgment.
39. In fairness learned counsel for the petitioner submits that attention of the authorities should be drawn to the expediency of launching fresh prosecution in view of the following facts:
(a) A long delay;
(b) The findings of the Joint Parliamentary Committee;
(c) The death of the main accused;
(d) The C.B.I.'s admissions in their correspondence with the Swiss authorities.
(e) The Swiss Federal Police's representation to the Swiss Judge, on the basis of which further materials were supplied.
(f) That employment of agents and payment of Commission in defense deals has recently been sanctioned by the Cabinet; and
(g) That earning Commission is neither illegal nor morally wrong.
40. Having elaborately set out the case made by both the parties it has to be seen whether the Supreme Court was merely dealing with inaction in prosecuting the high and mighty or was it laying down law for posterity to ensure that this elite investigative agency (CBI) functions so as to advance the basic postulates of the concept of equality. In other words, be you ever so high, the law is above you and that all proceedings are to advance the rule of law. This concept must, to my mind, necessarily be to strike a balance, namely, that the rule of law being the basic foundation of a civilized society must administer justice even-handedly. The CBI must not drag its feet or file half-baked charge sheets when high and mighty are involved especially when in power, also it should not file frivolous cases against the innocent at the behest of those in power. I cannot be unmindful of the fact that the CBI has been under a cloud. It has been accused of being a political shield or a whip of the Government of the day. Vineet Narain 's case, has laid down law to ensure that CBI functions under the supervision of the CVC to ensure its independence of investigation in the advancement of the rule of law.
41. Taking the case of the learned Solicitor General and the quotations from the judgment, it is clear, to my mind, that when the Supreme Court says "permanent measures are necessary to avoid the need of every matter being brought to court for taking adhoc measures to achieve the desired results, spells out the need to deal with the structure, constitutional and permanent measure necessary for having fair and impartial trial" means not only to go on with cases against the mighty but also to avoid vendetta against opponents. The Supreme Court has noticed that the CBI and other Governmental agencies having not carried their public duty to investigate the offences disclosed, therefore, it took upon itself to monitor the investigation in the sense that "we would do what we permissibly could to see the investigations progressed while yet ensuring that we did not direct or channel those investigations or in any other manner prejudice the right of those who might be accused to a full and fair trial." This also is evident that the Supreme Court, while in that case monitored investigation, with the object to secure to the CBI independence on investigation without prejudicing a full and fair trial. It directed that everyone be treated equally and similarly under the law for probity in public life is of great significance. The Constitution and working of the investigating agencies revealed lacuna in its inability to perform whenever powerful persons are involved. For this reason, a closer examination of constitution of these agencies and their control assumed significance according to the Supreme Court. In other words, the Supreme Court being mindful of the lacuna in the working of the investigating agencies, enunciated a procedure which would ensure the independence of the investigating agency to perform its statutory duty without fear or favor harmonising the existing procedural safeguards by adding superintendence of the CVC. By this, the Supreme Court introduced a fair, just and equitable procedure in addition to what existed without there being any interference in the investigation of external forces to either not prosecute deserving cases or to prosecute frivolous cases. It is for this reason that the CBI was directed to report to the CVC. Although in the facts before the Supreme Court it was the inaction of the CBI to investigate which was highlighted. Yet it did not underscore the importance to accord protection against the high and mighty using CBI to settle score. To argue that in the event of a frivolous case filed, the court would discharge the accused, is neither here nor there. The object of the directions appear to ensure that frivolous cases are not filed and those that are filed are not half-baked. Investigation ends with preparing of the challan and, therefore, it is wrong to argue that reporting to the CVC would hamper investigation. The CVC is not required to interfere in the investigation but it is certainly required to review the results of the investigation before the same are placed before the court.
42. I am impressed with the submission made by Shri Jethmalani on behalf of the petitioner to the effect that directions in paragraph 58 of the judgment in Vineet Narain 's case are given by the Supreme Court under powers conferred in Article 32 read with Article 142 of the Constitution which have the effect of law by virtue of Article 141 and is mandate to all the authorities to act in aid of the orders made by it as provided under Article 144 of the Constitution. The directions issued are for strict compliance and must operate till such time as they are replaced suitable legislation. Since so far this has not happened, the directions given in paragraph 58 are law. There is no ambiguity in the language used which, in no uncertain terms, requires the CVC to be responsible for effective functioning of the CBI. The CVC is entrusted with the responsibility of superintendence over the CBI's functioning. The CBI shall report to the CVC about all cases taken up by it for investigation; progress of the investigation; cases in which charge-sheets are filed and their progress. The CVC cannot abdicate its functions nor the CBI violate the mandate. It was bound to place the final results of its investigation along with all material collected before the CVC for the purposes of review and it was for the CVC to ensure that a half-baked incomplete charge-sheet was not filed shielding the high and the mighty nor was a frivolous charge-sheet filed to achieve any oblique motive of the high and the mighty. The purity of investigation and the fairness of trial are the hall mark of the rule of law. This can admit of no compromise. In the present case, the CBI on its own showing has not placed before the CVC the results of its investigation and has bye-passed it by filing a charge-sheet before the learned Special Judge while the CVC has abdicated its functions which it was obliged to perform under the directives of the Supreme Court even if the resolution restricted its powers. The learned Special Judge in view of the mandate of the Supreme Court ought not to have entertained the charge-sheet filed in violation of the directives.
43. In this view of the matter, I allow Crl.M.(M) 1354 of 2002, quash the cognizance taken by the learned Special Judge and all consequential proceedings. The prosecution would be free to file a fresh charge-sheet, if so advised, after following the procedure laid down by the Supreme Court in the case of Vineets Narain and Ors. v. Union of India and Anr., 1988 (1) SCC 226. It would also be open to the prosecution/Government to consider the feasibility of carrying on with this case in view of the circumstances and in accordance with law.
It is prayed by learned counsel for the petitioner that the petitioner was admitted to bail, but virtue of this judgment the order admitting him to bail may also be deemed to be set aside and the petitioner's liberty would be in peril. He, therefore, prays that the bail granted to the petitioner should not be disturbed. Learned counsel for the CBI has no objection to this prayer made by learned counsel for the petitioner.
In this view of the matter, the bail granted to the petitioner and the conditions imposed by the Supreme Court shall remain intact.