Office memorandum can not be used to interpret a statute

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Memorandum can always be withdrawn, modified or amended on the whim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.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.

R.M. LODHA, J.1
Citation; 2014 (1) crimes 16 SC

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 Narain1, 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
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

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. Veeraswami4 and
J.A.C Saldanha5 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.
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

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
7
Page 7
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,
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.
8
Page 8
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
7
senior counsel for the CBI,
Subramanian Swamy (Dr.) v. Director, CBI and Others; [(2005) 2 SCC 317]
9
Page 9
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
12
Page 12
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.
13
Page 13
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 Balwa9.
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
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.
14
Page 14
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 Denning10 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
10
The Due Process of law; First Indian Reprint 1993, pg. 102
15
Page 15
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. Rishbud11, 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
11
H.N. Rishbud v. State of Delhi; AIR 1955 SC 196
16
Page 16
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
17
Page 17
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
18
Page 18
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
12
Hon’ble Shri Pranab Mukherjee, President, Republic of India, in his speech at the inauguration of All
India Lokayktas Conference, 2012
19
Page 19
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
20
Page 20
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
21
Page 21
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
22
Page 22
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
23
Page 23
vested with extraordinary powers of judicial review to ensure that the rights
of citizens are duly protected13.
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 Garg14 and A.R. Antulay15, with regard
to the powers conferred on this Court under Article 142(1) has been
explained in Delhi Judicial Service Association16. 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 Poosu17, Ganga
Bishan18 and Navnit R. Kamani19.
13
14
15
16
17
18
19
Babubhai Jamnadas Patel v. State of Gujarat; [(2009) 9 SCC 610]
Prem Chand Garg v. Excise Commissioner, U.P. and Others; [1963 Supp (1) SCR 885]
A.R. Antulay v. R.S. Nayak and Another; [(1988) 2 SCC 602]
Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat and others;
[(1991) 4 SCC 406]
State of U.P. v. Poosu and Another; [(1976) 3 SCC 1]
Ganga Bishan v. Jai Narain; [(1986) 1 SCC 75]
Navnit R. Kamani v. R.R. Kamani; [(1988) 4 SCC 387]
24
Page 24
50.
The majority view of the Constitution Bench in Union
Carbide20, 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 8321 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
20
21
Union Carbide Corporation and Others vs. Union of India and Others; [(1991) 4 SCC 584]
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.
25
Page 25
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 Association22, 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
22
Supreme Court Bar Association v. Union of India and Another; [(1998) 4 SCC 409]
26
Page 26
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.
27
Page 27
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
28
Page 28
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 Rights 8,
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
29
Page 29
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 Rights 8 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
30
Page 30
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
31
Page 31
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
32
Page 32
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
33
Page 33
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.
34
Page 34
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.
35
Page 35
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
ORDER
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.
36
Page 36
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
37
Page 37
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
38
Page 38
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 decision23 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].
23
K. Veeraswami v. Union of India, (1991) 3 SCC 655
39
Page 39
(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,
40
Page 40
1999. In its Report presented to Parliament on 22 nd 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
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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
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submitted by the C&AG and tabled in Parliament on 16 th 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
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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 India25 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
24
25
I.A. No.14091 of 2013 in Writ Petition (Crl) No.120 of 2012 filed on 8th July 2013
WP (C) No.11550 of 2009 – order dated 4.4.2011 passed by the Delhi High Court
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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
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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
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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.
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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
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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 12 th 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
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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
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Page 56
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
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Page 57
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 India26).”
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
26
(1984) 3 SCC 161
58
Page 58
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
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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.
New Delhi;
December 17, 2013
............................J.
(Madan B. Lokur)
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