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TMI Blog2002 (6) TMI 609X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 Pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lier 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 aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ublic 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nual 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould 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 2000CriLJ2453 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stricts 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 so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 1974CriLJ286 . 35. Learned counsel for the petitioner further submitted that where superintendence by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir 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 innocen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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