RAJESHWAR SINGH vs. SUBRATA ROY SAHARA .

1 REPORTABLE IN THE SUPREME COURT OF INDIA

CONTEMPT PETITION (CIVIL) NO.224 OF 2011 IN CIVIL APPEAL NO.10660 OF 2010 Rajeshwar Singh …Petitioner Versus Subrata Roy Sahara & Ors. …Respondents J U D G M E N T JUDGMENT K.S. Radhakrishnan, J. 1. We may, at the outset, point out that, at this stage, we are only examining the maintainability of this contempt petition, on which arguments have been advanced by the learned senior counsels on either side. This contempt petition has been Page 1 2 preferred under Article 129, 142 of the Constitution of India, read with Section 12 of the Contempt of Courts Act, 1971 (for short ‘the Act’) and Rule 12 of the Rules to Regulate Proceedings for

2. Shri Ram Jethmalani, learned senior counsel appearing for the first respondent, submitted that this contempt petition is not maintainable since it has been filed without the consent of the Attorney General of India or other officer mentioned in Section 15 of the Act. Learned senior counsel submitted that neither the order of this Court dated 06.05.2011 nor the notice dated 23.05.2011 gives any indication of the nature of the criminal contempt to be defended by the respondent. Learned senior counsel further submitted that even the notice dated 23.05.2011 JUDGMENT does not comply with Rule 6 of the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975. Learned senior counsel also submitted that it does not mention whether it is a civil contempt or a criminal contempt. Learned senior counsel also submitted that there is nothing to show that the first respondent had any knowledge of this Court’s order dated Page 2 3 16.03.2011. Consequently, it cannot be said that there was any willful disobedience of that order. Further, such an allegation is not even raised in the notice. Reliance was placed on the

v. Ekka Tonga Mazdoor Union and others (1970) 3 SCC 98. Learned senior counsel submitted that the order, on which disobedience is alleged to have been committed, is not within the knowledge of the respondent and he is not expected or bound to know the same from the media or newspapers. Learned senior counsel also pointed out that the burden to prove the knowledge is not on the alleged contemnors, as held by this Court in Bharat Steel Tubes Limited v. IFCI Limited (2010) 14 SCC 77. 3. Shri Rajiv Dhawan, learned senior counsel appearing for the JUDGMENT second respondent, submitted that consent of the Attorney General is a pre-requisite to initiate contempt of court proceedings, which is not an empty formality. Learned senior counsel submitted that second respondent is not a party to any of the orders passed by this Court and he has not violated any order passed by this court. Further, it was also pointed out that even Page 3 4 the notice is silent in what manner the second respondent has violated the order passed by this Court. Learned senior counsel submitted that even the powers conferred on this Court to issue

exceptional circumstances. Learned senior counsel placed reliance on the Judgments of this Court in J.R. Parashar, Advocate and others v. Prashant Bhushan, Advocate and others (2001) 6 SCC 735 and Sahdeo alias Sahdeo Singh v. State of Uttar Pradesh and others (2010) 3 SCC 705. 4. Shri Vikas Singh, learned senior counsel appearing for the third respondent, also refuted all the allegations raised against the third respondent and submitted that he has nothing to do with the service tenure in the Enforcement Directorate or the cases JUDGMENT relating to 2G Scam. Learned senior counsel also submitted that the contempt petition itself is not maintainable. 5. Shir K.K. Venugopal, learned senior counsel appearing for the C.B.I., submitted that the contempt alleged is not merely a criminal contempt but also a civil contempt. Learned senior counsel referred to Section 2(b) of the Act and submitted that Page 4 5 there has been willful disobedience of the directions of this Court by the respondents jointly and severally. Learned senior counsel also referred to Section 2(c)(iii) of the Act and submitted that the

investigation conducted by the petitioner, which is being supervised and monitored by this Court. Learned senior counsel further submitted that this Court under Article 129 read with Article 142 of the Constitution has the power to see that the investigation which is being supervised/monitored by this Court is not interfered with by any person or from any quarters. Learned senior counsel also submitted that no sanction from the Attorney General is necessary when this Court suo motu initiates the contempt proceedings in exercise of the powers conferred under JUDGMENT Article 129 read with Article 142 of the Constitution, irrespective of the provisions of the Act and the Rules to Regulate proceedings for Contempt of the Supreme Court, 1975. Learned senior counsel placed considerable reliance on the Judgment of this Court in Amicus Curiae v. Prashant Bhushan and another (2010) 7 SCC 592. Page 5 6 6. We are, in this case, concerned with the question as to whether there has been any attempt on the part of the respondents to interfere with an investigation which is being

investigation it is the responsibility and duty of the court to see that the investigation is being carried out in the right direction and the Officers, who are entrusted with the task be not intimidated or pressured by any person, however high he may be. Considerable responsibility and duty is cast on the court when it monitors a criminal investigation. People have trust and confidence when court monitors a criminal investigation and the court has to live up to that trust and confidence and any interference from any quarters to scuttle that investigation, has to JUDGMENT be sternly dealt with. 7. Civil Appeal No.10660 of 2010, in which the present contempt petition has been preferred, was filed under Article 136 of the Constitution of India praying for a court monitored investigation by the Central Bureau of Investigation (CBI), what was described as 2G Spectrum Scam and also for a direction to Page 6 7 investigate the role played by A. Raja, the then Union Minister for DoT, senior officers of DoT, middlemen, businessmen and others. Before this Court, it was pointed out that the CBI had lodged a

years 2000-2008 certain officials of the DoT entered into a criminal conspiracy with certain private companies and misused their official position in the grant of Unified Access Licenses causing wrongful loss to the nation, which was estimated to be more than Rs.22,000 crores. CBI, following that, registered a case No.RC-DAI-2009-A-0045(2G Spectrum Case) on 21.10.2009 under Section 120B IPC, 13(1)(d) of the Prevention of Corruption Act, 1988 against a former Cabinet Minister and others. 8. The Central Vigilance Commission (CVC) also conducted an JUDGMENT inquiry under Section 8(d) of the Central Vigilance Commission Act, 2003 and noticed grave irregularities in the grant of licences. The CVC on 12.10.2009 had forwarded the inquiry report to the Director, CBI to investigate into the matter to establish the criminal conspiracy in the allocation of 2G Spectrum under UASL policy of DoT and to bring to book all wrongdoers. This Court Page 7 8 after taking into consideration of the report of the CVC as well as the findings recorded by the CAG agreed for a court monitored investigation and passed the following order:

9. This Court, with a view to ensure a comprehensive and co- ordinated investigation by the CBI and the Enforcement JUDGMENT Directorate, vide its order dated 16.12.2010 gave the following directions: (i) The CBI shall conduct thorough investigation into various issues high-lighted in the report of the Central Vigilance Commission, which was forwarded to the director, CBI vide letter dated 12.10.2009 and the report of the CAG, who have prima facie found serious irregularities in the grant of licences to 122 applicants, majority of whom are said to be ineligible, the blatant violation of the terms and conditions of licences Page 8 9

(ii) The CBI shall conduct the investigation without being influenced by any functionary, agency or instrumentality of the State and irrespective of the position, rank or status of the person to be investigated/probed. (iii) The CBI shall, if it has already not registered first information report in the context of the alleged irregularities committed in the grant of licences from 2001 to 2006-2007, now register a case and conduct thorough investigation with particular emphasis on the loss caused to the public exchequer and corresponding gain to the licensees/service providers and also on the issue of allowing use of dual/alternate technology by some service providers even before the decision was made public vide press release dated 19.10.2007. JUDGMENT (iv) The CBI shall also make investigation into the allegation of grant of huge loans by the public sector and other banks to some of the companies which have succeeded in obtaining licences in 2008 and find out whether the officers of the DoT were signatories to the loan agreement executed by the private companies and if so, why and with whose permission they did so. Page 9 10

(vi) Both the agencies, i.e. the CBI and the Directorate of Enforcement shall share information with each other and ensure that the investigation is not hampered in any manner whatsoever. (vii) The Director General, Income Tax (Investigation) shall, after completion of analysis of the transcripts of the recording made pursuant to the approval accorded by the Home Secretary, Government of India, hand over the same to CBI to facilitate further investigation into the FIR already registered or which may be registered hereinafter.” 10. CBI and the Enforcement Directorate then used to apprise this Court of the various stages of the investigation and seek JUDGMENT directions and this Court, on 10.02.2011, passed an order stating that since this Court is monitoring the investigation of 2G Spectrum Scam no court shall pass any order which may, in any manner, impede the investigation being carried out by the CBI and the Directorate of Enforcement. Learned Attorney General also informed this Court that he had received a communication on Page 10 11 16.03.2011 from the Delhi High Court of nominating Shri O.P. Saini, an officer of the Delhi Higher Judicial Service, as the Special Judge to take up the trial of cases relating to what has been

separate notifications would be issued by the Central Government in terms of Section 3(1) the PC Act, 1988 and Section 43(1) of the Prevention of Money Laundering Act, 2002 for establishment of the Special Court to exclusively try the offences relating to 2G Scam and other related offences. Following that, two notifications th were published in the Gazette of India Extra Ordinary, on the 28 March, 2011. 11. Noticing the above submissions a detailed order was passed by this Court on 16.03.2011, which inter alia reads as follows: JUDGMENT “While adjourning the case, we make it clear that no one including the newspapers shall interfere with the functioning of the C.B.I. team and the officers of the Enforcement Directorate who are investigating what has been described as 2G Scam and the Court will take serious cognizance of any endeavour made by any person or group of persons in this regard.” 12. Petitioner - the Assistant Director of Enforcement Directorate who is invested with the responsibility and duty of investigating Page 11 12 the 2G Spectrum case, submits that, during the course of investigation, he could come across various materials, having considerable bearing on the investigation relating to 2G Scam.

“Facts came to the notice of the Directorate of Enforcement that one M/s Sahara India Investment Corporation, a Sahara group company, now known as M/s Sahara Prime City Ltd., during the course of investigation it is revealed that the said company had invested Rs.14.00 Crores on 28.09.2007 on which date M/s S-Tel Ltd., had applied for 16 more licences. This investment has been purportedly made for purchase of shares of M/s S-Tel. Surprisingly, this investment has been sold back on 15.01.2009 for an amount of Rs.16.80 Crores. In view of these financial details being revealed during the course of investigation and considering the fact that this entire 2G Spectrum case, there has been several ways of transactions, which was deemed appropriate to investigate this aspect of the matter also and accordingly on 02.02.2011, a summon had been issued to the Managing Director of the said Company requiring his personal appearance on 17.02.2011. The Managing Director is Mr. Subrata Roy Sahara, who chose not to appear, but, to apply for an adjournment for four weeks. Taking into consideration said request a fresh summon was issued on 30.03.2011 requiring his appearance on 08.04.2011. He is respondent No.1, above named, and he chose not to appear even on 08.04.2011 and has, thus, shown non cooperative attitude.” JUDGMENT 13. The petitioner, with reference to Sahara India Commercial Corporation Limited, has stated as follows: Page 12 13

That in view of the said fact, it was deemed appropriate to summon the concerned officials of the said Co. M/s Sahara India Commercial Corporation Limited on 07.04.2011 and for the purpose the summon was issued on 30.03.2011.” 14. The petitioner, referring to the second Status Report covering the period from 27.11.2010 to 08.02.2011, has referred to the involvement of M/s Sahara India Investment Ltd., now known as M/s Sahara Prime City Ltd. and stated as follows: “The said status report also mentions other details about the acquisition of other two companies by a group in March, April, 2009 in respect of which letters for inquiry have been sent to Mauritius. It is deemed expedient not to disclose further details in this application on account of the fact that the Directorate of Enforcement is investigating into the money trail and if further details are disclosed in the application the same is likely to be prejudicial to the interest of investigation. However, the applicant undertakes to disclose such other facts including the status report in a sealed cover to this Hon’ble Court, if so directed. JUDGMENT Page 13 14

15. The petitioner, referring to the Sahara Group of Companies, stated as under: “It is further submitted that yet another reference dated 11.06.2010 as forwarded by the Head Quarter of the Office of the Directorate of Enforcement has been received from an Intelligence Unit of India, which interalia alleges that Sh. Subrata Roy, respondent No. 1 of M/S. Sahara Group of Companies alongwith others have deposited an amount of Rs.150 Crores which has been rotated through a maze of financial transactions between accounts of M/S. Sahara Corporation and M/S. Sahara India within the same branch/bank. On basis of said input, the Directorate of Enforcement had initiated discreet enquiries against M/s. Sahara Corporation and M/s. Sahara India for alleged violation of Foreign Exchange Management Act, 1999. This investigation is handled by the present applicant, who made several enquiries with number of banks by issuing directives on 23.07.2010 and 28.07.2010. This investigation involves over 100 banks and accounts and large financial JUDGMENT Page 14 15

That further investigation have revealed that M/s. Sahara India is operating more than 334 bank accounts and details thereof has been sought from all those banks which are yet to be scrutinized. This matter is also referred to the Income Tax Department on 29.09.2010 for further necessary action at their end. That during the course of enquiries a further information is received from a reliable sources that a company having registered office opposite Domestic Airport in Mumbai, which is a group company of Sahara Group, has given a loan a huge amounts in pounds to a company in Mauritius, which is purported to be a short term loan and investment in hospitality sector. This amount was transferred under an automatic route through a bank in Mumbai and this amount is transferred to a foreign country for acquisition of a property of a hotel company whose shares were pledged with the Bank and which money has been utilized to repay the outstanding of the bank. Summons are issued to the concerned bankers of the said companies for 09.05.2011 for appearance of these bankers for recording of their statements. This entire matter is also referred to by the applicant to the Reserve Bank of India on 22.03.2011 and 11.04.2011 and response to some queries are yet to be received and the investigation in the said matter is under progress. JUDGMENT Page 15 16

It is submitted that all these investigations undertaken by the petitioner applicant, before your lordship, has irked the Sahara Group and more particularly the respondents.” 16. Petitioner submits that he is being personally attacked by JUDGMENT the respondents through various means so that he will not make further headway in the investigation. The petitioner has explained in Paras 5 to 12 of the petition, the manner in which he is being intimidated, which read as follows: “5. That when investigations have been initiated in the 2G Spectrum case against them, the respondents have conspired to interfere with the original 2G Page 16 17 Spectrum case investigations so as to derail the same, the details whereof are stated hereinafter.

That by an interim order dated 21.05.2002, further proceedings have been stayed and on the said fact having come to my notice while I was Assistant Director Incharge of Lucknow Zone, I had filed application to get the interim order vacated. 6. It is submitted that on 02.05.2011 having come to know from reliable sources that some business house / liaison persons together with disgruntled government officials had initiated a campaign of making false anonymous and pseudonymous complaints to various agencies and started spreading rumours, the applicant deemed appropriate to send the latest immovable properties return. This was necessitated that in view of the fact that in April, 2011, a property which was purchased from Lucknow Development Authority by taking a loan, was disposed off and the proceeds of the disposal were received as refund being given by the Lucknow Development Authority, a government body. JUDGMENT That this was forwarded to the Additional Director thorough proper channel and it is reliably learnt that the same is in the process being sent even to the Director, Central Bureau of Investigation, on my request. Page 17 18

On 05.05.2011, a copy of the said letter has been delivered by hand at the office of the applicant and at 15.43, the same is received on FAX of the Dy. Director, Directorate of Enforcement, copies thereof are annexed herewith and marked as ANNEXURE-F (COLLY). 8. The response to the queries raised is being produced in a sealed cover together with documents supporting the same for perusal of this Hon’ble Court. The only purpose of producing it in a sealed cover is to see such future intimidation to torpedo the ongoing investigation does not take place. The applicant respectively declares before this Hon’ble Court that he is ready and willing to file an affidavit of these disclosures before this Hon’ble Court. JUDGMENT 9. The petitioner applicant respectfully submit that it is, thus, clear that only with a view to dissuade the petitioner, who is the Investigating Officer, to carry the investigation in the right direction against the Sahara Group, the respondents, and more particularly in the 2G Spectrum case, that the respondents have attempted to intimidate which is nothing sort of contempt of this Hon’ble Court since not only the investigation is monitored by this Hon’ble Court, but, this Hon’ble Court has given directions as contained in their lordship’s judgment dated 16.12.2010 and 16.03.2011, which are Page 18 19 being carried out by the applicant in the matter of investigation of 2G Spectrum case.

11. That this conduct is intended to impeach, embarrass and obstruct the applicant in the discharge of his duties and carrying out directions of this Hon’ble Court. It is respectfully submitted that it is expected out of the applicant that he is able to conduct the investigation free from any outside interference and the present letter dated 05.05.2011 intending to cause embarrassment to the applicant and detract him from the ongoing investigation is clearly an act of interference that would jeopardize the ongoing investigation and thus hamper the petitioner from carrying out the directions of this Hon’ble Court. JUDGMENT 12 That this communication is intended to influence the petitioner publically and, thus, target him with an intention that the petitioner may not carry on the ongoing 2G Spectrum investigation as well as other investigations against the Sahara Group.” Page 19 20 17. We are of the view that if the allegations raised against the contemnors are accepted, then we have to conclude prima facie that there has been an attempt by the respondents to interfere

monitored by this Court. The petitioner has stated that he has also filed a complaint of violation under the Foreign Exchange Management Act, 1999 (FEMA) to the extent of Rs.4600 Crores against five more companies including M/s S-Tel and he is in the process of filing five complaints involving an amount of Rs.1800 Crores under the FEMA, 1999 and is also in the process of issuing an order of attachment as contemplated under the Prevention of Money Laundering Act, 2002. 18. We may point out that the allegations raised by the JUDGMENT petitioner in the contempt petition are of very serious nature and, if proved, would amount to interference with the administration of justice, especially in a court monitored investigation. In a court monitored investigation, if the Officer who is entrusted with the task of carrying on that investigation is experiencing any threat or pressure from any quarters, he is duty bound to report the same Page 20 21 to the court monitoring the investigation. The Officer should have the freedom to carry on his duty entrusted, without any fear or pressure from any quarters. The petitioner has invoked Article

faces while carrying on a court monitored investigation. 19. Let us examine the extent of the power conferred on this Court under Article 129 of the Constitution, which reads as follows: “ Article 129 . S upreme Court to be a court of record – The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.” 20. We are of the view that the Courts, if they are to serve the JUDGMENT purpose of administering the justice, must have the power to secure obedience to the orders passed by it to prevent interference with its proceedings. Law is well settled that the powers of the Supreme Court in contempt matters are not confined merely to the provisions of the Contempt of Courts Act and the Rules framed thereunder. Law of Contempt, as is often said, is only one of the many ways in which the due process of Page 21 22 law is prevented from being perverted, hindered or thwarted to further the cause of justice. This Court has plenary power to punish any person for contempt of court and for that purpose it

considers appropriate to the facts of the case. This Court in Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat and others (1991) 4 SCC 406, examined at depth the scope of Article 129 of the Constitution and stated as follows: “The power of the Supreme Court and the High Court being the Courts of Record as embodied under Articles 129 and 215 respectively cannot be restricted and trammeled by any ordinary legislation including the provisions of the Contempt of Courts Act. Their inherent power is elastic, unfettered and not subjected to any limit. The power conferred upon the Supreme Court and the High Court, being Courts of Record under Articles 129 and 215 of the Constitution respectively is an inherent power and the jurisdiction vested is a special one not derived from any other statute but derived only from Articles 129 and 215 of the Constitution of India and therefore the constitutionally vested right cannot be either abridged by any legislation or abrogated or cut down. Nor can they be controlled or limited by any statute or by any provision of the Code of Criminal Procedure or any Rules. The caution that has to be observed in exercising this inherent power by summary procedure is that the power should be used sparingly, that the procedure to be followed should be fair and that the contemnor JUDGMENT Page 22 23

21. This Court, again, in I. Manilal Singh v. Dr. H. Borobabu Singh and another (1994) Suppl. (1) SCC 718 has delineated the plenary powers of this Court and stated that the power conferred on this Court under Article 129 is a constitutional power JUDGMENT which cannot be circumscribed or delineated either by the Contempt of Courts Act, 1971 or Rules or even the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975, framed in exercise of powers under Section 23 of the Contempt of Court Act, 1971, read with Article 145 of the Constitution of India. Page 23 24 22. We are of the view that, assuming, there has not been any proper compliance of the provisions of the Contempt of Courts Act, 1971, as contended by the learned senior counsels for the

powers conferred on this Court under Article 129 of the Constitution of India to examine, whether, there has been any attempt by anybody to interfere with an investigation, which is being monitored by this Court. The jurisdiction of the Supreme Court under Article 129 of the Constitution is independent of the Contempt of Courts Act and the powers conferred under Article 129 of the Constitution cannot be denuded, restricted or limited by the Contempt of Courts Act, 1971. 23. Article 142 of the Constitution also confers powers on this JUDGMENT Court to pass such orders as is necessary for doing complete justice in any cause or matter pending before it. The said Article 142 reads as under: “ Article 142. Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc. ( 1 ) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed Page 24 25 or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe

24. Article 142 is conceived to meet situations which cannot be effectively and appropriately tackled by existing provisions of law. In Delhi Development Authority v. Skipper Construction Co. (P) Ltd. and another (1996) 4 SCC 622, this Court has held that the very fact that the power is conferred only upon the Supreme Court, and on no one else, is itself an assurance that it will be JUDGMENT used with due restraint and circumspection; keeping in view the ultimate object of doing complete justice between parties and the Court’s power to do complete justice is not confined by any statutory provision. 25. We may indicate that the petitioner has inter alia invoked the jurisdiction and power conferred on this Court under the Page 25 26 above-mentioned constitutional provisions and hence the consent of the Attorney General is not necessary. Petitioner is only expected to bring to notice of this Court the problems he

and it is the duty and obligation of this Court to see, rather than the petitioner, that nobody puts any pressure or threat on an Officer entrusted with the duty to investigate a court monitored criminal investigation. Any interference, by anybody, to scuttle a court monitored investigation would amount to interfering with the administration of justice. Courts, if they are to serve the cause of justice, must have the power to secure obedience to its orders to prevent interference with the proceedings and to protect the reputation of the legal system, its components and its JUDGMENT personnel, who on its behest carry on a court monitored investigation. The court is duty bound to protect the dignity and authority of this Court, at any cost, or else, the entire administration of justice will crumble and law and order would be a casualty. Page 26 27 26. We are, therefore, of the view that the petition filed under the above mentioned provisions is perfectly maintainable and this Court has got a constitutional obligation to examine the truth of

derail the investigation which is being monitored by this Court. We, therefore, issue notice to the respondents to show cause why proceedings be not initiated against them for interfering with the court monitored criminal investigation. …………………………J. (G.S. Singhvi) …………………………J. JUDGMENT (K.S. Radhakrishnan) New Delhi, December 9, 2013. Page 27