Full Judgment Text
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REPORATABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.1309 OF 2018
Alok Kumar Verma …. Petitioner(s)
Versus
Union of India & Anr. …Respondent(s)
WITH
WRIT PETITION (CIVIL) NO.1315 OF 2018
[Common Cause Vs. Union of India & Ors.]
JUDGMENT
RANJAN GOGOI, CJI
1. That the Rule of law is the bedrock of democracy
would hardly require any reiteration. However firmly entrenched
the principle may be, it gets tested in a myriad of situations that
confronts the courts from time to time. The present is one such
occasion.
Signature Not Verified
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2. On 23 October, 2018, the Central Vigilance
Digitally signed by
VINOD LAKHINA
Date: 2019.01.08
13:19:42 IST
Reason:
Commission (hereinafter referred to as “CVC”) passed an order
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divesting Shri Alok Kumar Verma, Director, Central Bureau of
Investigation (hereinafter referred to as “CBI”) of the powers,
functions, duties, supervisory role, etc. vested in him as the
Director of the CBI. The exercise of said power by the aforesaid
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order dated 23 October, 2018, signed by the Central Vigilance
Commissioner and two other Vigilance Commissioners holding
office, is stated to be under Section 8(1)(a) and 8(1)(b) of the
Central Vigilance Commission Act, 2003 (hereinafter referred to
as “the CVC Act”) read with Section 4(1) of the Delhi Special
Police Establishment Act, 1946 (hereinafter referred to as “DSPE
Act”). The divestment of Shri Alok Kumar Verma, Director, CBI of
his functions, powers, duties and supervisory role, specifically, is
in respect of all cases already registered and/or required to be
registered and/or being inquired/enquired/investigated under
the Prevention of Corruption Act, 1988 (hereinafter referred to as
“PC Act”).
3. The aforesaid order is stated to be in the nature of an
interim measure till completion of an inquiry into the allegations
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contained in a complaint dated 24 August, 2018
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submitted/forwarded by the Cabinet Secretary by letter dated
st
31 August, 2018 to the CVC.
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4. The said order dated 23 October, 2018 of the CVC
was followed by an order of the Government of India, Ministry of
Personnel, Public Grievances and Pensions, Department of
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Personnel & Training of the same date i.e. 23 October, 2018
divesting Shri Alok Kumar Verma, Director, CBI of his functions,
powers, duties and supervisory role in any manner as the
Director, CBI with immediate effect and until further orders.
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5. There is yet another order of the same date i.e. 23
October, 2018 of the Government of India, Ministry of Personnel,
Public Grievances and Pensions, Department of Personnel &
Training by which one Shri M. Nageshwar Rao, IPS, Joint
Director, CBI has been asked to look after the duties and
functions of Director, CBI with immediate effect.
6. The legality and validity of the aforesaid three orders is
the subject matter of challenge in Writ Petition (Civil) No.1309 of
2018 filed by Shri Alok Kumar Verma as well as in Writ Petition
(Civil) No.1315 of 2018 filed by Common Cause which claims to
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be a registered society established/founded in the year 1980 by
one late Shri H.D. Shourie for the purposes of “ventilating the
common problems of the people and securing their resolution”.
7. In addition to interference with the aforesaid three
orders, in the writ petition filed by Common Cause, further
prayers have been made, inter alia , seeking removal of one Mr.
Rakesh Asthana, Special Director, CBI (respondent no.4 in Writ
Petition (Civil) No.1315 of 2018) from the CBI and for constituting
a Special Investigating Team (“SIT” for short) to go into the
charges of corruption against the officials of the CBI and also the
FIR lodged against Mr. Rakesh Asthana, Special Director, CBI,
details of which are mentioned in the writ petition filed by
Common Cause.
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8. The order of the CVC dated 23 October, 2018 is fairly
long and elaborate. What is essentially stated therein is that a
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complaint dated 24 August, 2018 was forwarded to the CVC by
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the Cabinet Secretary by letter dated 31 August, 2018 which,
prima facie , revealed charges of corruption against the Director,
CBI, Shri Alok Kumar Verma. The CVC considered it worthwhile
to take note of the contents thereof and had sought the
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explanation/comments of the Director, CBI along with the
relevant record(s). According to the CVC, instead of cooperating
in the matter, the Director, CBI had sought information as to the
identity of the person who had complained to the Cabinet
Secretary in that regard and had gone to the extent of bringing
specific allegations against the Special Director, CBI Shri Rakesh
Asthana. Details of several cases of corruption wherein the
Special Director, CBI was alleged to be involved were also
brought to the notice of the CVC by Shri Alok Kumar Verma.
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9. In the order of the CVC dated 23 October, 2018 it is
further recorded that Shri Rakesh Asthana, Special Director, CBI
had also made serious allegations against Shri Alok Kumar
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Verma, Director, CBI and that, in fact, on 15 October, 2018, the
CBI had registered RC 13A of 2018 of AC III, New Delhi under
Section 7 and 13(2) read with 13(1)(d) and Section 7A of the PC
Act as amended in 2018 against Shri Asthana. The said RC case
was stated to have been registered on the complaint of one Satish
Babu Sana who is an accused in a case investigated by Special
Director, CBI. At the same time, the CVC also took note of the
fact that Mr. Rakesh Asthana, Special Director, CBI had recorded
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information received from various sources that huge amounts of
bribe were given to the Director, CBI to avoid taking any action
against Satish Babu Sana.
10. It is in these circumstances, which may be in the least
be termed as unfortunate, that the CVC had thought it proper to
invoke its powers under Sections 8(1)(a), 8(1)(d) and 11 of the
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CVC Act to pass the impugned order dated 23 October, 2018
divesting the Director, CBI of his powers, functions, duties, etc.,
details of which have already been noted.
11. The two further orders of the Government of India,
Ministry of Personnel, Public Grievances and Pensions,
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Department of Personnel & Training of the same date i.e. 23
October, 2018 were consequential to the order passed by the
CVC, as stated above.
12. As already seen, it is the legality, validity and
correctness of the aforesaid orders and the action spelt out
therein that has been challenged before us in the two writ
petitions as well as in the Interlocutory Applications filed by
various applicants, details of which will be noted in due course.
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13. It is at the very threshold of the present discourse that
a brief history of the organization called the CBI may be recalled.
The police force in the country was initially governed
by the Police Act, 1861. Section 3 of the said Act had made the
following provision :
“3. Superintendence in the State
Government.
The superintendence of the police throughout a
general policedistrict shall vest in and shall be
exercised by the State Government to which such
district is subordinate; and except as authorized
under the provisions of this Act, no person,
officer, or Court shall be empowered by the State
Government to supersede, or control any police
functionary.”
14. The DSPE Act was enacted in the year 1946 to carve
out an exception to the Police Act, 1861. The same is evident
from Section 2(1) which is in the following terms:
“2. Constitution and powers of police
establishment.
(1) Notwithstanding anything in the Police
Act, 1861 (5 of 1861) the Central Government
may constitute a special police force to be called
the Delhi Special Police Establishment for the
investigation in any Union Territory of offences
notified under Section 3.
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15. Initially the administration of the Delhi Special
Police Establishment was governed by the provisions of
Section 4 of the DSPE Act which contemplated the
following:
“4. Superintendence and administration of
SPE
(1) The superintendence of the Delhi Special
Police Establishment shall vest in the Central
Government.
(2) The administration of the said police
establishment shall vest in an officer appointed
in this behalf by the Central Government who
shall exercise in respect of that police
establishment such of the powers exercisable by
an Inspector General of Police in respect of the
police force in a State, as the Central
Government may specify in this behalf.”
16. It is the Delhi Special Police Establishment brought
into existence by DSPE Act, 1946 which today is known as the
CBI. The origin of the organization has been succinctly traced by
this Court in Vineet Narain and others vs. Union of India and
1
and the relevant details are available in paragraphs 30
another
and 31 of the report of this Court in Vineet Narain (supra).
1 (1998) 1 SCC 226
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Shortly put and as already observed, investigation of anti
corruption cases; economic offences and ordinary crimes of
special importance have come to be vested in the CBI which
exercises its jurisdiction in the territory of all States and Union
Territories (with consent of the State Governments).
17. The organization i.e. CBI has grown over the years in
its role, power and importance and today has become the premier
investigative and prosecution agency of the country. The high
stature and the preeminent position that the institution has
acquired is largely on account of a strong perception of the
necessity of having such a premier agency. Such a perception
finds reflection in the conscious attempts of the Government of
the day to introduce reforms, from time to time, so as to enable
the institution to reach greater heights in terms of integrity,
independence and confidence. A close look at such attempts will
now be in order.
18. In (supra) such developments have
Vineet Narain
already been taken note of in detail. The recommendations of
the Committee headed by Shri N.N. Vohra constituted by
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Government Order No. S/7937/SS(ISP)/93 dated 9 July, 1993
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and those of the Independent Review Committee (IRC) constituted
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by Government Order No. 226/2/97AVDII dated 8 September,
1997 has had a major role to play in giving the CBI and the CVC
their present shape and form and the pivotal role and position
that these two bodies have come to occupy in the system of law
enforcement in the country. Incidentally, the CVC had been in
existence as an administrative body on being established by
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Resolution No.24/7/64AVD dated 11 February, 1964 issued by
the Central Government until conferment of statutory status by
the CVC Act, 2003 on the basis of recommendations of the IRC,
summary of which with regard to the CBI and CVC may now be
taken note of.
“SUMMARY OF RECOMMENDATIONS
I. CBI and CVC
1 . CVC to be conferred statutory status;
appointment of Central Vigilance Commissioner
to be made under the hand and seal of the
President (para 4.2)
2 . Constitution of a Committee for selection of
CVC (para 4.3)
3 . CVC to overview CBI’s functioning (para 5)
. CBI’s reporting to Government to be
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streamlined without diluting its functional
autonomy (para 3.3)
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5 . CVC to have a separate section in its Annual
Report on the CBI’s functioning after the
supervisory function is transferred to it (para 6)
6 . Constitution of a Selection Committee for
identifying a panel of names for selection of
Director CBI; final selection to be made by ACC
from such panel (para 8.2)
7 . Central Government to pursue with the State
Governments to set up credible mechanism for
selection of Police Chief (para 8.3)
8 . Director CBI to have a minimum tenure of 2
years (para 8.4)
9 . Transfer of incumbent Director CBI would
need endorsement of the Selection Committee
(para 8.5)
10 . Director CBI to ensure full freedom for
allocation of work within the Agency, including
constitution of investigation teams (para 8.6)
11 . Selection/extension of tenure of officers up to
the level of Joint Director (JD) to be decided by a
Board under Central Vigilance Commissioner; JD
and above would need the approval of ACC (para
8.7)
12 . Change in the existing Tenure Rules not
recommended (para 8.8)
. Proposals for improvement of infrastructure,
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methods of investigation, etc., to be decided
urgently (para 8.9.2)
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14 . No need for creation of a permanent core
group in the CBI (para 8.9.3)
. Severe disciplinary action against officers
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who deviate from prescribed investigation
procedures (para 9.1)
16 . Director CBI to be responsible for ensuring
timelimits for filing chargesheets in courts
(para 9.2)
17 . Document on CBI’s functioning to be
published within three months (para 9.4)
18 . Essential to protect officers at the decision
making levels from vexatious
enquiries/prosecutions (para 10.6)
19 . Secretaries to adhere strictly to prescribed
timeframes for grant of permission for
registration of PE/RC. CBI to be free to proceed if
decision not conveyed within the specified time
(para 10.9)
20 . Secretary of Administrative Ministry to
convey a decision regarding registration of
PE/RC within 2 months of receipt of request. If
not satisfied with decision, Director CBI free to
make fresh reference to the Committee headed by
Cabinet Secretary within a period of four weeks
and the latter to decide thereon within a period of
four weeks (para 10.10)
21 . Protection under the Single Directive not to
cover offences like bribery, when prima facie
established in a successful trap (para 10.12)
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22 . Cases of disproportionate assets of Central
Government and All India Services Officers to be
brought within the ambit of the Single Directive
(para 10.13)
23 . Timelimit of 3 months for sanction for
prosecution. Where consultation is required with
the Attorney General or the Solicitor General,
additional time of one month could be allowed
(paras 10.14 and 10.15)
. Government to undertake a review of the
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various types of offences notified for investigation
by the CBI to retain focus on anticorruption
activities which is its primary objective (para
11.1)
25 . Cases falling within the jurisdiction of the
State Police which do not have interState or
international ramifications should not be handed
over to CBI by States/courts (para 11.2)
26 . Government to establish Special Courts for
the trial of CBI cases (11.3)
27 . Severe action against officials found guilty of
highhandedness; prompt action against those
officials chastised by the courts (para 11.4)
28 . Director CBI to conduct regular appraisal of
personnel to weed out the corrupt and inefficient,
and maintain strict discipline within the
organization (para 11.5)”
19. In paragraph 58 of the report of this Court in Vineet
(supra) directions under Article 142 of the Constitution of
Narain
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India which were to hold the field till such time that the
necessary statutory enactments are brought into force, came to
be issued by this Court. Paragraph 58 of the report of this Court
in (supra) insofar as CVC and CBI are concerned
Vineet Narain
is in the following terms:
As a result of the aforesaid discussion, we
“58.
hereby direct as under:
I. CENTRAL BUREAU OF INVESTIGATION (CBI)
AND CENTRAL VIGILANCE COMMISSION (CVC)
1 . The Central Vigilance Commission (CVC) shall
be given statutory status.
2 . Selection for the post of Central Vigilance
Commissioner shall be made by a Committee
comprising the Prime Minister, Home Minister
and the Leader of the Opposition from a panel of
outstanding civil servants and others with
impeccable integrity, to be furnished by the
Cabinet Secretary. The appointment shall be
made by the President on the basis of the
recommendations made by the Committee. This
shall be done immediately.
3 . The CVC shall be responsible for the efficient
functioning of the CBI. While Government shall
remain answerable for the CBI’s functioning, to
introduce visible objectivity in the mechanism to
be established for overviewing the CBI’s working,
the CVC shall be entrusted with the
responsibility of superintendence over the CBI’s
functioning. The CBI shall report to the CVC
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about cases taken up by it for investigation;
progress of investigations; cases in which charge
sheets are filed and their progress. The CVC shall
review the progress of all cases moved by the CBI
for sanction of prosecution of public servants
which are pending with the competent
authorities, specially those in which sanction has
been delayed or refused.
4 . The Central Government shall take all
measures necessary to ensure that the CBI
functions effectively and efficiently and is viewed
as a nonpartisan agency.
. The CVC shall have a separate section in its
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Annual Report on the CBI’s functioning after the
supervisory function is transferred to it.
6 . Recommendations for appointment of the
Director, CBI shall be made by a Committee
headed by the Central Vigilance Commissioner
with the Home Secretary and Secretary
(Personnel) as members. The views of the
incumbent Director shall be considered by the
Committee for making the best choice. The
Committee shall draw up a panel of IPS officers
on the basis of their seniority, integrity,
experience in investigation and anticorruption
work. The final selection shall be made by the
Appointments Committee of the Cabinet (ACC)
from the panel recommended by the Selection
Committee. If none among the panel is found
suitable, the reasons thereof shall be recorded
and the Committee asked to draw up a fresh
panel.
7 . The Director, CBI shall have a minimum
tenure of two years, regardless of the date of his
superannuation. This would ensure that an
officer suitable in all respects is not ignored
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merely because he has less than two years to
superannuate from the date of his appointment.
8 . The transfer of an incumbent Director, CBI in
an extraordinary situation, including the need for
him to take up a more important assignment,
should have the approval of the Selection
Committee.
9 . The Director, CBI shall have full freedom for
allocation of work within the agency as also for
constituting teams for investigations. Any change
made by the Director, CBI in the Head of an
investigative team should be for cogent reasons
and for improvement in investigation, the
reasons being recorded.
10 . Selection/extension of tenure of officers up to
the level of Joint Director (JD) shall be decided
by a Board comprising the Central Vigilance
Commissioner, Home Secretary and Secretary
(Personnel) with the Director, CBI providing the
necessary inputs. The extension of tenure or
premature repatriation of officers up to the level
of Joint Director shall be with final approval of
this Board. Only cases pertaining to the
appointment or extension of tenure of officers of
the rank of Joint Director or above shall be
referred to the Appointments Committee of the
Cabinet (ACC) for decision.
11 . Proposals for improvement of infrastructure,
methods of investigation, etc. should be decided
urgently. In order to strengthen CBI’s inhouse
expertise, professionals from the Revenue,
Banking and Security sectors should be inducted
into the CBI.
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12 . The CBI Manual based on statutory
provisions of the CrPC provides essential
guidelines for the CBI’s functioning. It is
imperative that the CBI adheres scrupulously to
the provisions in the Manual in relation to its
investigative functions, like raids, seizure and
arrests. Any deviation from the established
procedure should be viewed seriously and severe
disciplinary action taken against the officials
concerned.
13 . The Director, CBI shall be responsible for
ensuring the filing of chargesheets in courts
within the stipulated timelimits, and the matter
should be kept under constant review by the
Director, CBI.
14 . A document on CBI’s functioning should be
published within three months to provide the
general public with a feedback on investigations
and information for redress of genuine grievances
in a manner which does not compromise with the
operational requirements of the CBI.
. Timelimit of three months for grant of
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sanction for prosecution must be strictly adhered
to. However, additional time of one month may
be allowed where consultation is required with
the Attorney General (AG) or any other law officer
in the AG’s office.
16 . The Director, CBI should conduct regular
appraisal of personnel to prevent corruption
and/or inefficiency in the agency.”
20. What followed thereafter is the enactment of the CVC
Act, 2003. The salient features of the CVC Act, so far as the
present exercise is concerned, are to be found in Section 4 of the
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CVC Act which mandates that the appointment of the Central
Vigilance Commissioner and the Vigilance Commissioners shall
be made by the President on the recommendation of a Committee
consisting of : (a) the Prime Minister; (b) the Minister of Home
Affairs and (c)the Leader of the Opposition in the House of the
People.
Section 6 of the CVC Act contemplates the removal of
Central Vigilance Commissioner and a Vigilance Commissioner
only by order of the President on the ground of proved
misbehaviour or incapacity as may be found by the Supreme
Court of India on a reference being made by the President to the
Court. However, under subsection (2) of Section 6 of the CVC
Act there is a power in the President of suspension from office
pending inquiry on the reference made to the Supreme Court.
Subsection (3) of Section 6 of the CVC Act also empowers the
President to remove from office the Central Vigilance
Commissioner or any Vigilance Commissioner in the following
cases:
“(a). is adjudged an insolvent; or
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(b). has been convicted of an offence which, in the
opinion of the Central Government, involves
moral turpitude; or
(c). engages during his term of office in any paid
employment outside the duties of his office; or
(d). is, in the opinion of the President, unfit to
continue in office by reason of infirmity of mind
or body; or
(e). has acquired such financial or other interest
as is likely to affect prejudicially his functions as
a Central Vigilance Commissioner or a Vigilance
Commissioner.”
21. Though the Director, CBI is to be appointed by the
Central Government on the recommendation of a similar High
Power Committee, no provision with regard to interim suspension
or removal is to be found in the DSPE Act, 1946, notwithstanding
the fact that the said Act i.e. DSPE Act was amended by the CVC
Act, 2003. The CVC Act, 2003 and the amendments made in the
DSPE Act, 1946 were clearly made to bring the provisions thereof
in proximity to the directions issued by this Court in
Vineet
Narain (supra) so far as the CVC and the CBI is concerned.
22. Section 8 of the CVC Act deals with functions and
powers of the CVC whereas Section 11 deals with the power of
the CVC with regard to inquiries. Both the powers vested by the
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aforesaid two provisions of the CVC Act i.e. Section 8 and Section
11 having been invoked in the present case to support and justify
the impugned actions it will be necessary to extract and notice
the said provisions in extenso:
“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 (49 of 1988), or an offence with which
a public servant specified in subsection (2) may,
under the Code of Criminal Procedure, 1973 (2 of
1974), 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 subsection
(1) of section 4 of the Delhi Special Police
Establishment Act, 1946 (25 of 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). inquire or cause an inquiry or investigation
to be made on a reference made by the Central
Government wherein it is alleged that a public
servant being an employee of the Central
Government or a corporation established by or
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under any Central Act, Government company,
society and any local authority owned or
controlled by that Government, has committed
an offence under the Prevention of Corruption
Act, 1988 (49 of 1988) or an offence with which a
public servant may, under the Code of Criminal
Procedure, 1973 (2 of 1974), be charged at the
same trial;
(d). inquire or cause an inquiry or investigation
to be made into any complaint against any
official belonging to such category of officials
specified in subsection (2) wherein it is alleged
that he has committed an offence under the
Prevention of Corruption Act, 1988 (49 of 1988)
and an offence with which a public servant
specified in subsection (2) may, under the Code
of Criminal Procedure, 1973 (2 of 1974), be
charged at the same trial;
(e). review the progress of investigations
conducted by the Delhi Special Police
Establishment into offences alleged to have been
committed under the Prevention of Corruption
Act, 1988 (49 of 1988) or the public servant may,
under the Code of Criminal Procedure, 1973 (2 of
1974), be charged at the same trial;
(f). review the progress of applications pending
with the competent authorities for sanction of
prosecution under the Prevention of Corruption
Act, 1988 (49 of 1988);
(g). tender advice to the Central Government,
corporations established by or under any Central
Act, Government companies, societies and local
authorities owned or controlled by the Central
Government on such matters as may be referred
to it by that Government, said Government
companies, societies and local authorities owned
or controlled by the Central Government or
otherwise;
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(h). exercise superintendence over the
vigilance administration of the various Ministries
of the Central Government or corporations
established by or under any Central Act,
Government companies, societies and local
authorities owned or controlled by that
Government:
Provided that nothing contained in this clause
shall be deemed to authorize the Commission to
exercise superintendence over the Vigilance
administration in a manner not consistent with
the directions relating to vigilance matters issued
by the Government and to confer power upon the
Commission to issue directions relating to any
policy matters;
2. The persons referred to in clause (d) of sub
section (1) are as follows:—
(a). members of AllIndia Services serving in
connection with the affairs of the Union and
Group ‘A’ officers of the Central Government;
(b). such level of officers of the corporations
established by or under any Central Act,
Government companies, societies and other local
authorities, owned or controlled by the Central
Government, as that Government may, by
notification in the Official Gazette, specify in this
behalf:
Provided that till such time a notification is
issued under this clause, all officers of the said
corporations, companies, societies and local
authorities shall be deemed to be the persons
referred to in clause (d) of subsection (1).
(c) on a reference made by the Lokpal under
proviso to subsection (1) of Section 20 of the
Lokpal and Lokayuktas Act, 2013 (1 of 2014), the
persons referred to in clause (d) of subsection (1)
shall also include—
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(i) members of Group B, Group C and Group
D services of the Central Government;
(ii) such level of officials or staff of the
corporations established by or under any Central
Act, Government companies, societies and other
local authorities, owned or controlled by the
Central Government, as that Government may,
by notification in the Official Gazette, specify in
this behalf:
Provided that till such time a notification is
issued under this clause, all officials or staff of
the said corporations, companies, societies and
local authorities shall be deemed to be the
persons referred in clause (d) of subsection (1).
xxx xxx xxx
“ 11. Power relating to inquiries.
The Commission shall, while conducting any
inquiry referred to in clauses (b) and (c) of sub
section (1) of section 8, have all the powers of a
civil court trying a suit under the Code of Civil
Procedure, 1908 (5 of 1908) and in particular, in
respect of the following matters, namely:
a. summoning and enforcing the attendance of
any person from any part of India and examining
him on oath;
b. requiring the discovery and production of
any document;
c. receiving evidence on affidavits;
d. requisitioning any public record or copy
thereof from any court or office;
e. issuing commissions for the examination of
witnesses or other documents; and
f. any other matter which may be prescribed.”
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23. The provisions of the DSPE Act as amended by Act
No.45 of 2003 (The Central Vigilance Act, 2003) and Act No.1 of
2014 (Lokpal and Lokayuktas Act, 2013) may also require a
specific notice. Sections 4, 4A and 4B introduced by the
aforesaid amendments, on which elaborate arguments have been
made by the contesting parties, provide as follows:
“
4. Superintendence and administration of
Special Police Establishment.— (1) The
superintendence of the Delhi Special Police
Establishment in so far as it relates to
investigation of offences alleged to have been
committed under the Prevention of Corruption
Act, 1988 (49 of 1988), shall vest in the
Commission.
(2) Save as otherwise provided in subsection (1),
the superintendence of the said police
establishment in all other matters shall vest in
the Central Government.
(3) The administration of the said police
establishment shall vest in an officer appointed
in this behalf by the Central Government
(hereinafter referred to as the Director) who shall
exercise in respect of that police establishment
such of the powers exercisable by an Inspector
General of Police in respect of the police force in
a State as the Central Government may specify
in this behalf.
4A. Committee for appointment of Director.—
(1) The Central Government shall appoint the
25
Director on the recommendation of the
Committee consisting of—
(a) the Prime Minister — Chairperson;
(b) the Leader of Opposition
recognised as such in the House
of the People or where there is no
such Leader of Opposition,
then the Leader of the single
largest Opposition Party in that
House — Member;
(c) the Chief Justice of India or
Judge Of the Supreme Court nominated
by him — Member;
(2) No appointment of a Director shall be invalid
merely by reason of any vacancy or absence of a
Member in the Committee.
(3) The Committee shall recommend a panel of
officers—
(a) on the basis of seniority, integrity and
experience in the investigation of anticorruption
cases; and
(b) chosen from amongst officers belonging to the
Indian Police Service constituted under the All
India Services Act, 1951 (61 of 1951), for being
considered for appointment as the Director.
4B. Terms and conditions of service of
Director.— (1) The Director shall,
notwithstanding anything to the contrary
contained in the rules relating to his conditions
of service, continue to hold office for a period of
not less than two years from the date on which
he assumes office.
26
(2) The Director shall not be transferred except
with the previous consent of the Committee
referred to in subsection (1) of section 4A.”
24. Shri F.S. Nariman and Shri Dushyant Dave, learned
Senior Counsels, who have argued the case for Shri Alok Kumar
Verma, Director, CBI and Common Cause have contended that
the history of the institutional framework surrounding the CBI
leading to the statutory enactments in question and the views
expressed in the judgment of this Court in
Vineet Narain
(supra), including the operative directions under Article 142 of
the Constitution, can leave no doubt that the judicial endeavour
should/must always be to preserve, maintain and further the
integrity, independence and majesty of the institution i.e. CBI.
This is the core intent behind the statutory enactments and the
amendments thereto, details of which have been noticed. The
Director of the CBI is the centre of power in an abundantly
powerful organization having jurisdiction to investigate and to
prosecute key offences and offenders having great ramifications
and consequences on public life. There can be no manner of
doubt that the Director who has been given a minimum assured
27
tenure of “ not less than two years ” must be insulated from all
external interference if the CBI has to live up to the role and
expectations of the legislature and enjoy public confidence to the
fullest measure. This is how the provisions of the cognate
legislations i.e. the CVC Act, 2003 and DPSE Act, 1946 (as
amended), must be interpreted, according to the learned
counsels. It is specifically urged that the embargo under Section
4B(2) of the DSPE Act which mentions that the Director shall not
be transferred except with the previous consent of the Committee
must be construed in the broadest perspective to include any
attempt to divest the Director, CBI of his powers, functions,
duties, etc. in any manner whatsoever and not necessarily
relatable to the transfer of the incumbent as is understood in
ordinary parlance. According to the learned counsels, unless
such a meaning is attributed to the provisions of Section 4B(2) of
the DSPE Act, the legislative intent would be rendered futile and
so would be the entire judicial exercise culminating in the
operative directions of this Court in Vineet Narain (supra).
25. So construed, according to the learned counsels, the
exercise of power in the present case is blatantly and patently
28
flawed. There can be no legal recognition of the action taken on
the strength of the impugned orders which have been notified
without seeking the previous consent of the Committee for
appointment of Director, CBI constituted under Section 4A(1), of
the DSPE Act, 1946.
26. The alternative argument made is that if the provisions
of Section 4B(2) of the DSPE Act are to be “narrowly” construed
by understanding the word “transfer” as is normally understood
in service jurisprudence, the ultimate validity of the impugned
exercise will have to be tested by the adequacy and sufficiency of
reasons to justify a premature curtailment of the tenure of the
Director, CBI. No such justification, according to the learned
counsels, exists. In this regard, it has been pointed out that the
allegations against the Director, CBI made by Special Director,
CBI Shri Rakesh Asthana and the purported inquiry into such
allegations by the CVC and the disinvestment of powers during
the interregnum i.e. pendency of the inquiry are wholly
unjustified actions prompted by collateral reasons. Interference,
in the larger public interest, by this Court in the exercise of
29
powers of judicial review under Article 32 of the Constitution of
India would therefore be called for.
27. The aforesaid argument has been countered by Shri
K.K. Venugopal, learned Attorney General appearing for the
Union of India who contends that the role of the Committee
under Section 4A(1) of the DSPE Act is limited to making
recommendations on the basis of which the Central Government
is to make the appointment. According to the learned Attorney,
once the recommendation is made by the Committee and the
appointment is made, the Committee becomes functus officio.
Reliance has been placed in this regard on Shankarsan Dash
2
vs. and vs.
Union of India Jai Singh Dalal and others State
3
of Haryana & another to contend that when the law does not
recognize in any incumbent, who may have been recommended, a
right to be appointed it cannot be contended that after the
appointment is made the Committee constituted to make
recommendations for appointment has to be consulted in all
cases of disinvestment of power, even beyond what is specifically
provided for by Section 4B(2) of the DSPE Act. Section 4B(2), it is
2 (1991) 3 SCC 47
3 1993 Supp. (2) SCC 600
30
pointed out provides/mandates the requirement of previous
consent only in cases of transfer of the Director which is also
what had been directed by this Court in paragraph 58(8) of the
report in (supra). The Learned Attorney has
Vineet Narain
further submitted that the present is not a case of transfer so as
to require the previous consent of the Committee under Section
4B(2) of the DSPE Act. Reliance has also been placed on the
provisions of Section 16 of the General Clauses Act, 1897 to
persuade the Court to recognise in the Central Government a
power to divest the Director, CBI of his powers, functions, duties,
etc. According to the learned Attorney the power to divest must
be acknowledged to be the logical corollary of the power of
appointment of the Director, CBI which is vested in the Central
Government.
28. On the other hand, Shri Tushar Mehta, learned
Solicitor General appearing for the CVC has argued that merely
on the appointment of a Member of the Indian Police Service as
the Director, CBI, the incumbent does not cease to be a public
servant/government servant. He continues to be, according to
the learned Solicitor General, a civil servant; a member of the
31
Indian Police Service amenable to all service conditions as
applicable and also to the disciplinary control of the Competent
Authority. The only exception in this regard, according to the
learned Additional Solicitor General, is provided by Section 4B(1)
of the DSPE Act which provides for a fixed tenure of the Director.
It is only the Rules/conditions of service so far as the retirement
is concerned that stands diluted/affected by the provisions of
Section 4B(1) of the DSPE Act and none other.
29. In brief, these are the broad submissions of the
contesting parties. It has been further supplemented by the
learned counsels for the petitioner that on a meaningful
interpretation of the provisions of the relevant statutes the Court
should take the view that what is provided therein is a complete
insulation of the incumbent holding the post of Director of the
CBI and no action affecting his continuance and functioning can
be taken except with the previous consent of the Committee
under Section 4A of the DSPE Act. It is only after the incumbent
ceases to hold the post of Director, upon transfer or otherwise,
made with the previous consent of the Committee, that the
32
disciplinary control over such incumbent as a civil servant can be
exercised by the Central Government.
30. The contentions advanced by the rival parties would
require the Court to consider two issues to determine the validity
of the impugned orders. The first is the competence of the CVC
and the Government of India to divest the Director, CBI of all his
powers, functions, duties, supervisory role, etc. without obtaining
the prior consent of the Committee constituted under Section
4A(1) of the DSPE Act to make recommendations for appointment
of the Director, CBI. Learned counsels for the petitioners are
emphatic in their contentions that obtaining such prior consent
is the inbuilt mandate under the Statute which flows from the
operative directions issued by this Court in paragraph 58 of
(supra). Therefore, according to the learned
Vineet Narain
counsels for the petitioners, the impugned orders passed without
obtaining prior consent of the Committee are nonest in law and
no other issue really need be gone into in the present case.
31. The above contention raises a pure question of law
answerable on application of known and established principles of
law including interpretation of the provisions of the CVC Act,
33
2003 and the DSPE Act, 1946 and further in the light of such
legislative intent that can be culled out in making the enactments
in question. Not only do we prefer to deal with the said question
in the first instance for the above stated reason but such an
exercise becomes obligatory in view of the jurisdictional questions
that are inbuilt therein. On the aforesaid basis the second
question raised can be relegated to a later stage of consideration,
which question, we may indicate is one relating to the
sufficiency/adequacy or even the relevance of the reasons that
had prompted the CVC and the Government of India to take the
impugned decisions, a question that may legitimately call for an
answer only in the event of our disagreeing with the contentions
advanced on behalf of the petitioner on the first issue namely
that the divestment of power and authority of the Director, CBI
can only be with the prior consent of the Committee.
32. There is no manner of doubt that the enactment of the
CVC Act, 2003 and the amendments made by the said
enactment, inter alia , in the DSPE Act (by Section 26 of the CVC
Act, 2003) are a sequel to the operative directions of this Court in
paragraph 58 of Vineet Narain (supra). The legislature in its
34
wisdom had not considered the necessity of tempering down the
directions of this Court in Vineet Narain (supra) in any manner
whatsoever. The mode and manner of appointment of Central
Vigilance Commissioner and Vigilance Commissioners as well as
that of the Director, CBI as spelt out by this Court in Vineet
(supra) has been scrupulously followed by Parliament. In
Narain
fact, at this stage, we may even take note of the fact that
Parliament on its own in amending Section 4A of the DSPE Act
by the Lokpal and Lokayuktas Act, 2013 (Act No.1 of 2014) has
gone a step further to give effect to the directions of this Court
made in (supra) inasmuch as the object for
Vineet Narain
change of the Committee for making recommendations for
appointment of the Director, CBI has been stated to be the
necessity “
to provide a High Power Selection Committee for
selection of Director of the Delhi Special Police
Establishment ”.
33. The Court, in its bid to understand the true legislative
intention behind the statutory enactments in question, cannot be
oblivious of the views expressed by this Court in
Vineet Narain
35
(supra) leading to the operative directions in para 58 that formed
the basis of the legislative exercise in question. The said views
must be understood to have been considered fully by Parliament
before engrafting the consequential directions contained in
paragraph 58 of (supra) in the form of statutory
Vineet Narain
enactments, details of which have been noticed earlier. In this
regard, paragraphs 3 and 48 of the report of this Court in
Vineet
Narain (supra) must hold a special field so as to deserve a recall
of the contents thereof which are in the following terms:
“3. This experience revealed to us the need
for the insulation of these agencies from any
extraneous influence to ensure the continuance
of the good work they have commenced. It is this
need which has impelled us to examine the
structure of these agencies and to consider the
necessary steps which would provide permanent
insulation to the agencies against extraneous
influences to enable them to discharge their
duties in the manner required for proper
implementation of the rule of law. Permanent
measures are necessary to avoid the need of every
matter being brought to the court for taking ad
hoc measures to achieve the desired results. This
is the occasion for us to deal with the structure,
constitution and the permanent measures
necessary for having a fair and impartial agency.
The faith and commitment to the rule of law
exhibited by all concerned in these proceedings is
the surest guarantee of the survival of democracy
36
of which rule of law is the bedrock. The basic
postulate of the concept of equality: “Be you ever
so high, the law is above you,” has governed all
steps taken by us in these proceedings.
xxx xxx xxx
48. In view of the common perception shared
by everyone including the Government of India
and the Independent Review Committee (IRC) of
the need for insulation of the CBI from
extraneous influence of any kind, it is imperative
that some action is urgently taken to prevent the
continuance of this situation with a view to
ensure proper implementation of the rule of law.
This is the need of equality guaranteed in the
Constitution. The right to equality in a situation
like this is that of the Indian polity and not
merely of a few individuals. The powers conferred
on this Court by the Constitution are ample to
remedy this defect and to ensure enforcement of
the concept of equality.”
34. These are the basic facts that cannot be overlooked
while gathering the intention of the legislature in making the
provisions contained in Section 4A and Section 4B of the DSPE
Act. An indepth consideration of the matter leaves us with no
doubt that the clear legislative intent in bringing the aforesaid
provisions to the statute book are for the purpose of ensuring
complete insulation of the office of the Director, CBI from all
kinds of extraneous influences, as may be, as well as for
37
upholding the integrity and independence of the institution of the
CBI as a whole.
35. There are certain other relevant facts that cannot be
ignored. The provisions of various State enactments (Police Act),
as for example Uttrakhand Police Act 2007, following the decision
of this Court in vs.
Prakash Singh And Others Union of India
4
And Others (2006) 8 SCC 1,while providing for a tenure of two
years to the Director General of Police of the State expressly
contemplates removal of the incumbent before expiry of the of the
tenure on certain specified grounds [Section 20 (4) & (5)].
Similarly, Section 6 of the CVC Act, which has been extracted
above, specifically contemplates certain interim measures against
the Central Vigilance Commissioner or a Vigilance Commissioner
pending consideration by the Supreme Court of the reference
made by the President to the Court for removal of any such
incumbent. Removal of any of the aforesaid incumbents holding
any of the aforesaid posts is also contemplated on certain
contingencies occurring as spelt out by subsection (3) of Section
6 of the CVC Act. No such provision has been engrafted so far as
4 (2006) 8 SCC 1
38
the office of the Director, CBI is concerned except what is
contained in Section 4B(2) of the DSPE Act, namely, that “
the
Director shall not be transferred except with the previous
consent of the Committee referred to in subsection (1) of
section 4A”. As already noticed, Section 4B including sub
section (2) thereof of the DSPE Act, as it exists on date, were
brought in by the same legislation i.e. CVC Act (Act No.45 of
2003).
36. If the legislative intent would have been to confer in
any authority of the State a power to take interim measures
against the Director, CBI thereby affecting his functioning,
surely, the legislation would have contained enabling provisions
to that effect and consequently would have been differently
worded and drafted. It is against this backdrop that the words
“ transferred except with the previous consent of the
Committee ” mentioned in Section 4B(2) of the DSPE Act has to
be understood. If the word “transferred” has to be understood in
its ordinary parlance and limited to a change from one post to
another, as the word would normally convey and on that basis
the requirement of “ previous consent of the Committee ” is
39
understood to be only in such cases, i.e. purely of transfer, such
an interpretation would be selfdefeating and would clearly
negate the legislative intent. In such an event it will be free for
the State Authority to effectively disengage the Director, CBI from
functioning by adopting various modes, known and unknown,
which may not amount to transfer but would still have the same
effect as a transfer from one post to another, namely, cessation of
exercise of powers and functions of the earlier post. This is
clearly not what the legislature could have intended. The long
history of evolution has shown that the institution of the CBI has
been perceived to be necessarily kept away from all kinds of
extraneous influences so that it can perform its role as the
premier investigating and prosecuting agency without any fear
and favour and in the best public interest. The head of the
institution, namely, the Director, naturally, therefore, has to be
the role model of independence and integrity which can only be
ensured by freedom from all kinds of control and interference
except to the extent that Parliament may have intended. Such
intendment, in our considered view, would require all Authorities
to keep away from intermingling or interfering in the functioning
of the Director. In a situation where such interference may at all
40
be called for, public interest must be writ large against the
backdrop of the necessity. The relevance and adequacy of the
reasons giving rise to such a compelling necessity can only be
tested by the opinion of the Committee constituted under Section
4A(1) of the DSPE Act in whom the power to make
recommendations for appointment of the Director has been
vested by Parliament. This alone can provide an adequate
safeguard to ensure the independence of the office keeping in
view the legislative intent, as found and held by us. In this
regard we feel fortified in saying that the status of the Committe
having undergone an upward movement by the amendment
brought in by the Lokpal and Lokayuktas Act, 2013 (Act No.1 of
2014) it cannot but be said that the legislative intent in shielding
and insulating the office of the Director from any kind of
extraneous influence has been foremost in the mind of
Parliament which intent found manifestation in the changes in
law brought about in the circumstances noted above.
37. There is yet another issue of significance that arises
from the weighty arguments advanced in the course of the long
debate that has taken place. This is with regard to the
application of Sections 14, 15 and 16 of the General Clauses Act,
41
1897 so as to confer a power in the Central Government to pass
the impugned orders including the order of appointment of an
acting Director of the CBI. The preceding discussions and our
views on the true and correct meaning of the provisions
contained in Sections 4A & 4B of the DSPE Act leaves us
convinced that the aforesaid provisions of the General Clauses
Act will have no application to the present case in view of the
clear and apparent intention to the contrary that unequivocally
flows from the aforesaid provisions of the DSPE Act.
38. So far as the correctness of the impugned decisions on
merit is concerned, not much argument have been made either
on the relevance or the sufficiency of the grounds shown and
disclosed for the impugned decisions. This is, perhaps, on the
understanding of the learned counsels that our attempts to keep
th
the report of the enquiry by the CVC ordered on 26 October and
th
12 November, 2018 in sealed cover was sufficiently indicative of
the mind of the Court that this aspect of the case should require
to be unfolded only if inevitable and that too in the event of a
negative decision on the jurisdictional question. The inherent
limitation in such an exercise of, if at all is to be undertaken, is
42
another inhibiting factor. Be that as it may such an exercise has
now become wholly unnecessary in view of the decision on the
jurisdictional issue.
39. Consequently, in the light of our views as expressed
rd
above we set aside the following orders dated 23 October, 2018:
(i) of the CVC divesting the powers, functions,
duties, supervisory role, etc. of Shri Alok Kumar
Verma as Director, CBI
(ii) of the Government of India, Ministry of Personnel,
Public Grievances and Pensions, Department of
Personnel & Training divesting Shri Alok Kumar
Verma, Director, CBI of his functions, powers,
duties and supervisory role with immediate effect
and until further orders.
(iii) of the Government of India, Ministry of Personnel,
Public Grievances and Pensions, Department of
Personnel & Training by which one Shri M.
Nageshwar Rao, IPS, Joint Director, CBI has been
asked to look after the duties and functions of
Director, CBI with immediate effect.
40. Our interference, as above, will now require the matter to be
considered by the Committee under Section 4A(1) of the DSPE
43
Act, 1946 which may be so done at the earliest and, in any case,
within a week from the date of this order. A meeting of the
Committee may be accordingly convened by the competent
authority.
41. As the issue of divestment of power and authority of
the Director, CBI is still open for consideration by the Committee
and our interference with the impugned orders has been on the
ground indicated above, we deem it proper to direct that the
petitioner Shri Alok Kumar Verma, Director, CBI, upon
reinstatement, will cease and desist from taking any major policy
decisions till the decision of the Committee permitting such
actions and decisions becomes available within the time frame
indicated. We further make it explicit that the role of the
Petitioner Shri Alok Kumar Verma as the Director, CBI during the
interregnum and in terms of this order will be confined only to
the exercise of the ongoing routine functions without any fresh
initiative, having no major policy or institutional implications.
42. Coming to the several IAs filed, we are of the view that
the orders of transfer etc. impugned/mentioned in the said IAs
44
rd
are a sequel of the three orders dated 23 October, 2018 which
were specifically impugned in the writ petitions. As we have
answered the writ petitions in the manner indicated above, we do
not consider it necessary to examine the correctness of the
further/consequential orders of transfer etc. and that too on the
basis of interlocutory applications filed in pending writ petitions
under Article 32 of the Constitution, which stand disposed of by
the present order. However, we leave the parties with the remedy
of challenging the said consequential orders in an appropriate
manner and before the appropriate forum, if so required and so
advised.
43. Both writ petitions and all the IAs are accordingly
disposed of.
…………………………………….,CJI
[ RANJAN GOGOI ]
…………………………………….,J
[ SANJAY KISHAN KAUL ]
…………………………………….,J
[ K.M. JOSEPH ]
NEW DELHI
JANUARY 08, 2019