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IN THE SUPREME COURT OF INDIA     CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.10660 OF 2010

   CENTER FOR PIL & OTHERS                        .......APPELLANTS

VERSUS

UNION OF INDIA & OTHERS                        ......RESPONDENTS  

O   R   D   E   R

1. By this order we are disposing of the prayer made by the  

appellants for appointment of a group of independent persons to  

assist the Court in monitoring the investigation being carried  

out  by  the  Central  Bureau  of  Investigation  (CBI),  the  

Enforcement Directorate and the Income Tax Department in '2G  

case'.

2.The writ petition filed by the appellants before the Delhi  

High Court for ordering an investigation by the CBI or a Special  

Investigation Team into what was termed as '2G Spectrum Scam'  

for unearthing the role of respondent no. 5 Shri A. Raja, the  

then Union Minister, Department of Telecommunications, senior  

officers of the department, middlemen, businessmen and others  

was  dismissed  by  the  Delhi  High  Court  vide  order  dated  

25.5.2010.

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3. The appellants challenged the order of the Delhi High  

Court  in  SLP(C)  No.  24873/2010.  By  a  detailed  order  dated  

16.12.2010, this Court granted leave and issued the following  

directions:

“(i) CBI shall conduct thorough investigation into  various  issues  highlighted  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 and huge loss to  the public exchequer running into several thousand  crores.  CBI  should  also  probe  how  licences  were  granted to large number of ineligible applicants  and who was responsible for the same and why TRAI  and DoT did not take action against those licensees  who sold their stakes/equities for many thousand  crores and also against those who failed to fulfil  rollout  obligations  and  comply  with  other  conditions of licence.

(ii) 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) 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.

(iv)  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  DoT  were

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signatories to the loan agreement executed by the  private companies and if so, why and with whose  permission they did so.

(v)  The  Directorate  of  Enforcement/agencies  concerned  of  the  Income  Tax  Department  shall  continue their investigation without any hindrance  or interference by anyone.

(vi) Both the agencies i.e. 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.”

4. In furtherance of the directions given by the Court, the  

CBI, the Directorate of Enforcement and the Income Tax Department  

have, from time to time, submitted reports showing the progress  

made  in  the  investigation  of  2G  case.  After  considering  the  

objections raised on behalf of the Union of India, this Court by  

order dated 11.4.2001 decided the issue relating to appointment  

of the Special Public Prosecutor.  

5. During the hearing of the case Shri Prashant Bhushan,  

learned counsel for the appellants repeatedly made a request for  

appointment of a group of independent persons to assist the Court  

in  monitoring  the  investigation,  which  request  was  strongly  

opposed by Shri K.K. Venugopal.

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6. Shri Prashant Bhushan, submitted that keeping in view the  

nature of the case in which political and executive functionaries  

of the State have connived with the businessmen for causing loss  

to  the  public  exchequer  to  the  tune  of  many  thousand  crore  

rupees, some of whom have already been chargesheeted before the  

Special Judge, CBI, this Court should appoint independent persons  

for assistance in monitoring the further progress of the case.  

Learned counsel submitted that the first chargesheet filed by the  

CBI is accompanied by documents running into 80,000 pages and  

large number of reports have been submitted before this Court by  

the  CBI,  the  Enforcement  Directorate  and  the  Income  Tax  

Department which require detailed study of different facets of  

the crime allegedly committed by large number of persons and,  

therefore, if a group of independent persons is appointed, the  

monitoring  by  the  Court  will  become  more  convenient  and  

effective.  

7. Shri K.K. Venugopal, learned senior counsel appearing for  

the CBI argued that the Court should not entertain the prayer  

made on behalf of the petitioner and appoint any outsider for  

assisting it because for the last more than one year the CBI and  

other agencies have very effectively investigated the case and  

filed two chargesheets. Learned senior counsel submitted that the  

Court has also expressed satisfaction with the mode and pace of  

investigation so far carried out by the CBI and the Enforcement  

Directorate and, therefore, there is no warrant for appointment

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of any other person who may act as a super-CBI. Shri Venugopal  

emphasized  that  the  Court  monitoring  the  investigation  cannot  

issue direction regarding the manner in which such investigation  

should  be  carried  out  because  that  would  tantamount  to  

interference with the functioning of the CBI which is a statutory  

body  established  under  the  Delhi  Special  Police  Establishment  

Act, 1946 (for short, 'the 1946 Act'). Learned senior counsel  

then submitted that even though under Section 8(1) of the Central  

Vigilance Commission Act, 2003 (for short, 'the 2003 Act') the  

Central Vigilance Commission has been clothed with the power to  

exercise  superintendence  over  the  functioning  of  the  Delhi  

Special  Police  Establishment,  it  cannot  interfere  with  the  

investigation or direct the manner in which the investigation  

should be conducted. Learned senior counsel also submitted that  

the  monitoring  before  this  Court  has  already  come  to  an  end  

insofar as the chargesheets filed before the Special Court are  

concerned and in the midst of further investigation there is no  

justification for appointment of a group of persons to monitor  

the investigation in the name of assisting the Court.

8. We have considered the respective submissions. In  Vineet  

Narain's  case  (1998)  1  SCC  226,  this  Court  entertained  the  

petition filed under Article 32 of the Constitution and ordered  

investigation by the CBI into what came to be known as 'Hawala  

Case'. After considering the reports submitted from time to time,  

the three-Judge Bench examined different facets of the need of an

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independent  agency  to  investigate  the  cases  of  corruption  by  

public servants and issued several directions concerning the CBI,  

the Central Vigilance Commission, the Enforcement Directorate,  

etc., including the following:

"58.  As  a  result  of  the  aforesaid  discussion,  we  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 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 non- partisan agency.

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

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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 anti-corruption 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.”

9. After  taking  note  of  the  directions  given  in  Vineet  

Narain's case, the Government introduced the Central Vigilance  

Commission Bill, 2003, which was finally enacted as the Central  

Vigilance Commission Act, 2003. The preamble and Sections 3(1),  

3(2), 3(3), 8(1)(a), 8(1)(b) and 8(1)(e) of that Act read as  

under:

“Preamble: 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.

3. (1) There shall be constituted a body to be known  as the Central Vigilance Commission to exercise the  powers conferred upon, and to perform the functions  assigned  to  it  under  this  Act  and  the  Central  Vigilance  Commission  constituted  under  sub-section  (1) of section 3 of the Central Vigilance Commission  Ordinance,  1999  (Ord.  4  of  1999)  which  ceased  to  operate, and continued under the Government of India  in the Ministry of Personnel, Public Grievances and  Pensions  (Department  of  Personnel  and  Training)  Resolution  No.  371/20/99-AVD  III,  dated  the  4th  April,  1999  as  amended  vide  Resolution  of  even  number, dated the 13th August, 2002 shall be deemed  to be the Commission constituted under this Act.  

(2) The Commission shall consist of— (a) a Central Vigilance Commissioner — Chairperson; (b)  not  more  than  two  Vigilance  Commissioners  —

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Members.

(3)  The  Central  Vigilance  Commissioner  and  the  Vigilance  Commissioners  shall  be  appointed  from  amongst persons—

(a) who have been or are in an All-India Service or  in any civil service of the Union or in a civil post  under the Union having knowledge and experience in  the matters relating to vigilance, policy making and  administration including police administration; or

(b) who have held office or are holding office in a  corporation established by or under any Central Act  or a Government company owned or controlled by the  Central Government and persons who have expertise and  experience  in  finance  including  insurance  and  banking, law, vigilance and investigations:

Provided  that,  from  amongst  the  Central  Vigilance  Commissioner  and  the  Vigilance  Commissioners,  not  more than two persons shall belong to the category of  persons referred to either in clause (a) or clause  (b).

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 insofar 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 sub-section (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 sub-section (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

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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 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;

(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;”

10. A combined reading of the directions given by this  

Court in Vineet Narain's case (supra) and Sections 8(1)(a), 8(1)

(b) and 8(1)(e) of the 2003 Act makes it clear that the Central  

Vigilance Commission is required to exercise superintendence over  

the  functioning  of  the  Delhi  Special  Police  Establishment  in  

matters  relating  to  the  investigation  of  offences  allegedly  

committed  under  the  Prevention  of  Corruption  Act  and/or  an  

offence with which a public servant specified in sub-section (2)  

of Section 8 of the 2003 Act is charged at the same trial and  

give directions to the Delhi Special Police Establishment for the  

purpose of discharging the responsibility entrusted to it under  

Section 4(1) of the 1946 Act. However, in view of proviso to  

Section 8(1)(b) of the 2003 Act the Central Vigilance Commission  

cannot,  while  exercising  the  power  of  superintendence  under  

clause (a) or giving directions under clause (b), direct Delhi  

Special Police Establishment to investigate or dispose of any

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case  in  a  particular  manner.  In  other  words,  the  power  of  

superintendence  cannot  be  used  by  the  Central  Vigilance  

Commission  for  interfering  with  the  manner  and  method  of  

investigation  or  consideration  of  any  case  by  the  CBI  in  a  

particular manner.

11. Although, initially the CBI may not have taken up  

the matter relating to investigation of 2G case with requisite  

seriousness, after 16.12.2010 it has satisfactorily conducted the  

investigation. Therefore, there is no justification to appoint a  

group  of  persons  to  directly  or  indirectly  scrutinise  or  

supervise the further investigation being conducted by the CBI  

and other agencies. However, keeping in view the nature of the  

case and involvement of large number of influential persons, we  

feel that it will be appropriate to require the Central Vigilance  

Commissioner  and  the  Senior  Vigilance  Commissioner  appointed  

under Section 3(2) of the 2003 Act to render assistance to the  

Court in effectively monitoring the further investigation of the  

case. This course will be perfectly in tune with the mandate of  

Section 8(1) of the 2003 Act.  

12. We, therefore, issue the following directions:

(i)In future copies of the report(s) of the investigation  

conducted by the CBI and other agencies shall be made  

available to the Central Vigilance Commissioner in sealed  

envelopes.

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(ii)Within  next  one  week  the  Central  Vigilance  

Commissioner and the Senior Vigilance Commissioner shall  

examine  the  report(s)  and  send  their  observations  /  

suggestions to this Court in sealed envelopes which shall  

be considered along with the report(s) of the CBI and  

other investigating agencies.

13. The aforesaid direction shall not in any manner be  

construed as a reflection on the integrity of the investigation  

so far done by the team of CBI and other investigating agency or  

which may be done in future or their competence to effectively  

perform the job in relation to 2G case.

               ............................J.          ( G.S.SINGHVI )  

                                                   ............................J.  

      ( ASOK KUMAR GANGULY ) NEW DELHI; FEBRUARY 02, 2012.