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REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL/CIVIL ORIGINAL  JURISDICTION

WRIT PETITION  (CRIMINAL)  NO.120 OF 2012

Manohar Lal Sharma          …….Petitioner

   Versus  

The Principal Secretary and Ors.          ……Respondents

WITH

WRIT PETITION  (CIVIL)  NO.463 OF 2012

WITH

WRIT PETITION (CIVIL) NO.429 OF 2012

WITH

WRIT PETITION (CIVIL) NO.498 OF 2012

WITH

WRIT PETITION (CIVIL) NO.515 OF 2012

AND

WRIT PETITION  (CIVIL)  NO.283 OF 2013

ORDER

R.M. LODHA, J.  

The  question  for  the  purposes  of  this  order  really  resolves  

itself  into  this:  whether  the  approval  of  the  Central  Government  is  

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necessary under Section 6A of the Delhi Special Police Establishment Act,  

1946 (“DSPE Act” for short) in a matter where the inquiry/investigation into  

the crime under the Prevention of Corruption Act, 1988 (“PC Act” for short)  

is being monitored by the Court.  It is not necessary to set out the facts in  

detail,  suffice,  however,  to say that  the Central  Bureau of  Investigation  

(CBI) has registered preliminary enquiries (PEs) against unknown public  

servants, inter alia, of the offences under the PC Act relating to allocation  

of coal blocks for the period from 1993 to 2005 and 2006 to 2009. Few  

regular  cases  have  also  been  registered.  In  pursuance  of  the  orders  

passed by this Court, the inquiries and investigations into the allocation of  

coal  blocks  are  being  monitored  by  this  Court  and  the  CBI  has  been  

submitting reports about the status of the progress made in that regard.  

2. On  08.05.2013,  the  Court  noted  that  in  the  matter  of  

investigation,  CBI  needed  insulation  from  extraneous  influences  of  the  

controlling  executive.  On that  day,  the  Court  wanted  to  know from the  

learned Attorney General, whether the Central Government was intending  

to put in place the appropriate law for the independence of the CBI and its  

functional autonomy and insulate it from extraneous influences so that CBI  

is viewed as a non-partisan investigating agency.  The learned Attorney  

General sought time to seek instructions and report to the Court by way of  

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an  affidavit  on  behalf  of  the  Central  Government.   The  matter  was,  

accordingly, fixed for July 10, 2013.   

3. In pursuance of the order dated 08.05.2013, an affidavit was  

filed by the Central Government.   In that affidavit  various actions which  

were  taken in compliance of the directions of this Court in Vineet Narain1   

were indicated.  In the affidavit, it was also stated that a Group of Ministers  

(GoM) has been constituted to consider the aspects noted in the order of  

08.05.2013.   The GoM had proposed certain amendments in the law; the  

proposals of GOM have also been approved by the Cabinet.   

4. On 10.07.2013, the Court observed that the amendments as  

proposed in the DSPE Act were likely to take some time and, accordingly,  

put  to  the  learned  Attorney  General  two  queries,  first,  as  to  why  

clarification  should  not  be  made  that  the  approval  from  the  Central  

Government under Section 6-A of the DSPE Act  for investigation of the  

offences  alleged  to  have  been  committed  under   the  PC  Act  is  not  

necessary  as  it  is  the  stand  of  the  Government  that  the  power  of  

supervision  for  investigation  has  already  been  shifted  from  the  

Government to the Central Vigilance Commission (CVC) and, second, why  

the  approval  of  the  Government  was  necessary  in  respect  of  “Court-

monitored” or “Court-directed” investigations.   

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5. In Vineet Narain1, this Court was approached under Article 32  

of  the  Constitution  allegedly  as  there  was  inertia  by  the  CBI  in  the  

investigations into Jain Diaries case where the accusations made were  

against high dignitaries.  The background that necessitated the monitoring  

of the investigation by this Court is indicated in the first paragraph2 of the  

judgment. The Single Directive 4.7(3)3  which contained certain instructions  

1 Vineet Narain and Others v. Union of India and Anr; (1998) 1 SCC 226

2  These writ petitions under Article 32 of the Constitution of India brought in public interest, to begin with,  did not appear to have the potential of escalating to the dimensions they reached or to give rise to several   issues of considerable significance to the implementation of rule of law, which they have, during their  progress. They began as yet another complaint of inertia by the Central Bureau of Investigation (CBI) in   matters where the accusation made was against high dignitaries. It was not the only matter of its kind  during the recent past. The primary question was: Whether it is within the domain of judicial review and it  could be an effective instrument for activating the investigative process which is under the control of the   executive? The focus was on the question, whether any judicial remedy is available in such a situation?  However, as the case progressed, it required innovation of a procedure within the constitutional scheme of  judicial review to permit intervention by the court to find a solution to the problem. This case has helped  to  develop a procedure  within the discipline of  law for  the conduct  of such a proceeding  in similar   situations. It has also generated awareness of the need of probity in public life and provided a mode of   enforcement of accountability in public life. Even though the matter was brought to the court by certain  individuals  claiming  to  represent  public  interest,  yet  as  the  case  progressed,  in  keeping  with  the  requirement of public interest, the procedure devised was to appoint the petitioners’ counsel as the amicus  curiae and to make such orders from time to time as were consistent with public interest. Intervention in   the proceedings by everyone else was shut out but permission was granted to all, who so desired, to  render such assistance as they could, and to provide the relevant material  available with them to the  amicus curiae for being placed before the court for its consideration. In short, the proceedings in this   matter have had great educative value and it does appear that it has helped in future decision-making and  functioning of the public authorities.

3  4.7(3)(i) In regard to any person who is or has been a decision-making level officer (Joint Secretary or  equivalent or above in the Central Government or such officers as are or have been on deputation to a   Public  Sector  Undertaking;  officers  of  the  Reserve  Bank  of  India  of  the  level  equivalent  to  Joint   Secretary  or  above  in  the  Central  Government,  Executive  Directors  and  above  of  the  SEBI  and  Chairman & Managing Director and Executive Directors and such of the bank officers who are one level  below  the  Board  of  Nationalised  Banks),  there  should  be  prior  sanction  of  the  Secretary  of  the  Ministry/Department concerned before SPE takes up any enquiry (PE or RC), including ordering search  in respect of them.  Without such sanction, no enquiry shall be initiated by the SPE.  

(ii)    All cases referred to the Administrative Ministries/Departments by CBI for obtaining  necessary prior sanction as aforesaid, except those pertaining to any officer of the rank of Secretary or  Principal Secretary,  should be disposed of by them preferably within a period of two months of the  receipt of such a reference.  In respect of the officers of the rank of Secretary or Principal Secretary to  Government,  such  references  should  be  made  by  the  Director,  CBI  to  the  Cabinet  Secretary  for  consideration of a Committee consisting of the Cabinet Secretary as its Chairman and the Law Secretary   and the Secretary (Personnel) as its members.  The Committee should dispose of all such references   

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to the CBI regarding modalities of initiating an inquiry or registering a case  

against certain categories of civil servants fell for consideration.

6. On behalf  of the Union while defending the Single Directive  

4.7(3), it was contended before this Court in Vineet Narain1 that protection  

to officers at the decision-making level was essential to protect them and  

to relieve them of the anxiety from the likelihood of harassment for taking  

honest decisions.  It was argued on behalf of the Union that the absence of  

any  such  protection  to  them  could  adversely  affect  the  efficiency  and  

efficacy of these institutions because of the tendency of such officers to  

avoid taking any decisions which could later lead to harassment by any  

malicious and vexatious inquiries/investigations.   

7. The Court noted the report of Independent Review Committee  

(IRC) and few decisions of this Court,  particularly,  K. Veeraswami4 and  

J.A.C Saldanha5 and struck down the Single Directive 4.7(3).  Pertinently,  

the Court noted that the view it had taken was not in conflict with  J.A.C.  

Saldanha5.  K. Veeraswami4  was held distinguishable.     

preferably within two months from the date of receipt of such a reference by the Cabinet Secretary.  

(iii) When there is any difference of opinion between the Director, CBI and the Secretary of  the Administrative Ministry/Department in respect of an officer up to the rank of Additional Secretary or  equivalent,  the  matter  shall  be  referred  by  CBI  to  Secretary  (Personnel)  for  placement  before  the  Committee referred to in clause (ii) above.  Such a matter should be considered and disposed of by the   Committee preferably  within two months from the date of receipt  of such a reference by Secretary  (Personnel).  

(iv) In regard to any person who is or has been Cabinet Secretary, before SPE takes any step  of the kind mentioned in (i) above the case should be submitted to the Prime Minister for orders.

4 K. Veeraswami v. Union of India; (1991) 3 SCC 655 5 State of Bihar v. J.A.C Saldanha; (1980) 1 SCC 554  

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8. The DSPE Act was brought into force in 1946.  Under this Act,  

the  superintendence  of  the  Special  Police  Establishment  (SPE)  was  

transferred to the Home Department  and its functions were enlarged to  

cover all departments of the Central Government.  The jurisdiction of the  

SPE extended to all  the Union Territories.   Its jurisdiction could also be  

extended to the States with their consent.  The CBI was established on  

01.04.1963  vide  Government Resolution issued by the Ministry of Home  

Affairs, Government of India.  

9. Section 3 of that Act empowers the Central  Government  to  

specify  by  notification  in  the  official  gazette  the  offences  or  classes  of  

offences  which  are  to  be  investigated  by  the  Delhi  Special  Police  

Establishment (DSPE).  

10. Section  4  relates  to  superintendence  and  administration  of  

SPE.  

11. Section 5 deals with extension of powers and jurisdiction of  

SPE to other areas.  The Central  Government has been empowered to  

extend to any area (including railway areas), in a State not being a Union  

Territory  the  powers  and  jurisdiction  of  members  of  the  DSPE for  the  

investigation  of  any  offences  or  classes  of  offences  specified  in  a  

notification under Section 3.  

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12. Section  6  provides  that  Section  5  shall  not  be  deemed  to  

enable any member of the DSPE to exercise powers and jurisdiction in any  

area in a State, not being a Union Territory or railway area, without the  

consent of the Government of that State.  

13. In pursuance of the judgment of this Court in  Vineet Narain1,  

DSPE Act came to be amended with effect from 11.09.2003.  Section 4  

was  amended.  Sub-section  (1)  of  Section  4  now  provides  that  the  

superintendence of  the Delhi  Special  Police Establishment  insofar  as it  

relates to investigation of offences alleged to have been committed under  

the PC Act shall vest in the Central Vigilance Commission. Section 4A to  

4C and Section 6A have been inserted.  

14. Section 6A reads as under:

“Section  6 A -  Approval  of  Central  Government  to  conduct  inquiry  or  investigation.—(1)  The  Delhi  Special  Police  Establishment  shall  not  conduct  any inquiry  or  investigation  into any offence alleged to have been committed under the  Prevention  of  Corruption  Act,1988 except  with  the  previous  approval  of  the  Central  Government  where  such  allegation  relates to -

(a)  the  employees  of  the  Central  Government  of  the  level of Joint Secretary and above; and (b)  such  officers  as  are  appointed  by  the  Central  Government in corporations established by or under any  Central Act, Government companies, societies and local  authorities owned or controlled by that Government.

(2) Notwithstanding anything contained in sub-section (1), no  such approval shall be necessary for cases involving arrest of  a person on the spot on the charge of accepting or attempting  to  accept  any  gratification  other  than  legal  remuneration  

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referred to in clause (c) of the Explanation to section 7 of the  Prevention of Corruption Act, 1988.”

15. Section  6A,  thus,  provides  for  obtaining  approval  of  the  

Central  Government  to  conduct  inquiry  or  investigation  where  the  

allegations for commission of an offence under the PC Act relate to the  

employees of the Central Government of the level of the Joint Secretary  

and above.

16. The amendments in the DSPE Act were made effective from  

11.09.2003.   On the same date the Central  Vigilance Commission Act,  

2003 (for short,  ‘CVC Act’) was enacted. The CVC Act provides for the  

constitution  of  a  Central  Vigilance  Commission  (CVC)  to  inquire  into  

offences  alleged to  have been committed  under  the PC Act  by certain  

categories of public servants as is reflected from the Preamble.6  

17. Section 8 of the CVC Act deals with the functions and powers  

of the CVC. To the extent, it is relevant, Section 8 reads as under:

“8. Functions and powers of Central Vigilance Commission.— (1) The functions and powers of the Commission shall be to--

(a) exercise superintendence over the functioning of the  Delhi Special Police Establishment in so far as it relates to the  investigation  of  offences  alleged  to  have  been  committed  under  the  Prevention  of  Corruption  Act, 1988 or  an  offence  with which a public servant specified in sub-section (2) may,  

6  An Act to provide for the constitution of a Central Vigilance Commission to inquire or cause inquiries to  be conducted into offences alleged to have been committed under the Prevention of Corruption Act, 1988  by certain categories of public servants of the Central Government, corporations established by or under  any  Central  Act,  Government  companies,  societies  and  local  authorities  owned  or  controlled  by  the   Central Government and for matters connected therewith or incidental thereto.

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under the Code of Criminal Procedure, 1973, be charged at  the same trial;

(b) give  directions  to  the  Delhi  Special  Police  Establishment for the purpose of discharging the responsibility  entrusted to it under sub-section (1) of section 4 of the Delhi  Special Police Establishment Act, 1946: Provided that while exercising the powers of superintendence  under  clause (a)  or  giving directions  under  this  clause,  the  Commission shall not exercise powers in such a manner so as  to  require  the  Delhi  Special  Police  Establishment  to  investigate or dispose of any case in a particular manner; (c) to (h) …….. (2) ………”

18. The constitutional validity of Section 6A is pending before the  

Constitution Bench of this Court. In  Subramanian Swamy (Dr.)7, a three-

Judge  Bench  of  this  Court  referred  the  matter  to  the  larger  bench  to  

authoritatively  adjudicate  the  validity  of  Section  6A.   The  challenge  is  

based on the touchstone of Article 14 of the Constitution as it is the case of  

the petitioner therein that Section 6A is wholly arbitrary and unreasonable.  

The contention of the Union on the other hand is that arbitrariness and  

unreasonableness  are  not  available  as  grounds  to  invalidate  the  

legislation. Since the question of validity of Section 6A is pending before  

the Constitution Bench of this Court, we make it clear that this order does  

not touch upon this aspect at all.  

19. We have heard Mr. Goolam E. Vahanvati, learned  Attorney  

General,  Mr.  Amarendra  Sharan,  learned   senior  counsel  for  the  CBI,  

7  Subramanian Swamy (Dr.) v. Director, CBI and Others; [(2005) 2 SCC 317] 9

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Mr.  Manohar  Lal  Sharma,  petitioner-in-person,  Mr.  Prashant  Bhushan,  

learned counsel in the writ petition filed by Common Cause  and Mr. Gopal  

Sankaranarayanan, learned counsel for the intervenor.   

20. Mr. Goolam E. Vahanvati, learned Attorney General says ‘Yes’  

to  the  question  which we have indicated  in  the  beginning  of  the  order  

because he says that the whole idea behind Section 6A is to provide a  

screening mechanism to filter out frivolous or motivated investigation that  

could  be  initiated  against  senior  officers  and  to  protect  them  from  

harassment and to enable them to take decisions without fear. He heavily  

relies on the decision of this Court in K. Veeraswami4 and submits that the  

Court  has recognised the need for protecting high-ranking officials from  

vexatious  litigation.  Learned  Attorney  General  fairly  submits  that  the  

observations made by this Court in paragraph 28 in K. Veeraswami4  have  

been distinguished in Vineet Narain1  but he submits that the observations  

in Vineet Narain1  have been doubted in the referral order in Subramanian  

Swamy (Dr.)7 .

21. Learned Attorney General argues that it will not be appropriate  

to issue clarification in the terms proposed in the order dated 10.07.2013 in  

respect of first query for the reasons: (i) requirement  of prior sanction does  

not flow from the power of superintendence; (ii) there is a presumption of  

constitutionality  in  favour  of  a  statutory  provision,  which  cannot  be  

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nullified/amended/modified by an interim order;  (iii)  a  statutory provision  

cannot be struck down without a specific challenge being levelled thereto;  

and (iv) the Court has the power of judicial  review to set right improper  

exercise  of  power  conferred  under  Section 6-A.  Elaborating  the above,  

learned Attorney General submits that while the power of superintendence  

operates  during  the  stage of  investigation,  the power  to  grant  sanction  

comes into play at the pre-investigation stage. Therefore, the two powers  

operate in different spheres and one cannot be said to flow from the other.  

Section 8(1) of the CVC Act, which vests the power of superintendence of  

investigation of cases under PC Act is not in conflict with Section 6A of the  

DSPE Act, which requires prior approval of the Government to initiate any  

investigation or inquiry for the officers of level of Joint Secretary and above  

under the PC Act. These provisions operate in two different stages.

22. The  learned  Attorney  General  states  that  the  Central  

Government  accepts  the  position  that  CBI’s  investigation  must  be  

conducted in a non-partisan manner without any extraneous influences but  

a statutory provision cannot be nullified on a presumption that the power  

under Section 6A may be exercised improperly. If there is any instance  

where the power under Section 6A is abused or is utilized to shield an  

accused who should be prosecuted, this Court always has the power of  

judicial review to correct the same.

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23. In response to the second query,  learned Attorney General  

submits that Section 6A is in the nature of procedure established by law for  

the purposes of Article 21 and where consequences follow in criminal law  

for  an accused,  the Court  is  not  at  liberty  to negate the same even in  

exercise  of  powers  under  Article  32  or  Article  142.  According  to  him,  

requirement of sanction under Section 6A is to be interpreted strictly and  

cannot be waived under any circumstances. That the Court  monitors or  

directs an investigation does not affect  the basis of protection available  

under  law  and  the  CBI  cannot  be  asked  to  proceed  with  inquiry  or  

investigation de hors the statutory mandate of Section 6A.

24. Learned  Attorney  General,  thus,  submits  that  Section  6A  

which has  a definite  objective  must  be allowed to operate  even in  the  

cases  where  the  investigation  into  the  crimes  under  PC  Act  is  being  

monitored by the Court.

25. Mr. Amarendra Sharan, learned senior counsel who assisted  

the Court on behalf of CBI with equal emphasis at his command says ‘No’  

to that question. He states that the objective behind enactment of Section  

6A to give protection to officers at the decision-making level from the threat  

and  ignominy  of  malicious  and  vexatious  inquiry/investigation  and  

likelihood of harassment for taking honest decisions is fully achieved when  

a case is monitored by the constitutional court. The constitutional courts  

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are repository of the faith of the people as well as protector of the rights of  

the individual and, therefore, no prior approval of the Central Government  

under Section 6A in the cases in which investigation is monitored by the  

constitutional court is necessary.

26. Learned senior counsel for the CBI submits that this Court has  

consistently held with reference to Section 6 of the DSPE Act and Section  

19 of  the PC Act  that  requirement  of  sanction for  prosecution was not  

mandatory when the same is done pursuant to the direction of the Court or  

where  cases  are  monitored  by  the  Court.  On  the  same  analogy,  he  

submits that it can be safely concluded that the approval under Section 6A  

of  the  DSPE Act  is  not  necessary  in  the  cases  where  investigation  is  

monitored  by  the  constitutional  court.  He  argues  that  requirement  of  

approval  under  Section  6A,  if  held  to  be  necessary  even  in  Court-

monitored cases, it would amount to restricting power of monitoring by a  

constitutional court up to officers below the ranks of Joint Secretary only  

which would mean that the constitutional court has no power to monitor  

investigation  of  an offence involving  officers  of  the Joint  Secretary  and  

above  without  prior  permission  of  the  Central  Government.  Such  an  

interpretation will be directly contrary to the power (as well as constitutional  

duty) of the constitutional court to monitor an investigation in larger public  

interest.

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27. Mr.  Amarendra  Sharan,  learned senior  counsel  has  argued  

that  Section 6A must  be read down to mean that  prior  approval  is  not  

necessary in cases where investigation is monitored by the constitutional  

court.

28. The arguments of Mr. Prashant Bhushan, learned counsel for  

the Common Cause, Mr. Manohar Lal Sharma, one of the petitioners, who  

appears in person and Mr. Gopal Sankaranarayanan, learned counsel for  

the intervenor are in line with the arguments of Mr. Amarendra Sharan.  

They  submit  that  Section 6A cannot  be a bar  to  investigation  in  Court  

monitored cases. According to them, if Section 6 is not a restriction on the  

Court but only on the Central Government as has been held by this Court  

in  Committee for Protection of Democratic Rights8,  that principle equally  

applies to Section 6A. They referred to the orders passed by this Court in  

2G  case  and,  particularly,  reference  was  made  to  the  order  dated  

03.09.2013 in Shahid Balwa9.

29. In the criminal justice system the investigation of an offence is  

the  domain  of  the  police.  The power  to  investigate  into  the cognizable  

offences  by  the  police  officer  is  ordinarily  not  impinged  by  any  fetters.  

However,  such power  has to be exercised consistent  with the statutory  

provisions and for legitimate purpose. The Courts ordinarily do not interfere  

8 State of West Bengal and Others v. Committee for Protection of Democratic Rights, West Bengal and     Others; [(2010) 3 SCC 571]

9 Writ Petition (Civil) No. 548 of 2012; Shahid Balwa v. Union of India and Ors. 14

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in the matters of investigation by police, particularly, when the facts and  

circumstances  do  not  indicate  that  the  investigating  officer  is  not  

functioning bona fide. In very exceptional cases, however, where the Court  

finds  that  the  police  officer  has  exercised  his  investigatory  powers  in  

breach of  the statutory  provision  putting  the personal  liberty  and/or  the  

property of the citizen in jeopardy by illegal and improper use of the power  

or  there is abuse of  the investigatory power and process by the police  

officer or the investigation by the police is found to be not bona fide or the  

investigation is tainted with animosity, the Court may intervene to protect  

the personal and/or property rights of the citizens.

30. Lord Denning10 has described the role of the police thus:

“In safeguarding our freedoms, the police play vital role.  Society  for  its  defence  needs  a  well-led,  well-trained  and well-disciplined force or police whom it  can trust,  and enough of them to be able to prevent crime before it  happens, or if it does happen, to detect it and bring the  accused to justice.  The  police,  of  course,  must  act  properly.  They  must  obey the rules of  right  conduct.  They must  not  extort  confessions  by  threats  or  promises.  They  must  not  search a man’s house without authority. They must not  use more force than the occasion warrants……….”  

31. One of the responsibilities of the police is protection of  life,  

liberty and property of citizens. The investigation of offences is one of the  

10  The Due Process of law; First Indian Reprint 1993, pg. 102 15

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important  duties  the  police  has  to  perform.  The  aim of  investigation  is  

ultimately to search for truth and bring the offender to the book.

32. Section  2(h)  of  the  Code  of  Criminal  Procedure  (for  short,  

“Code”) defines investigation to include all the proceedings under the Code  

for collection of evidence conducted by a police officer or by any person  

(other than a Magistrate) who is authorised by Magistrate in this behalf.  

33. In  H.N. Rishbud11,  this Court explained that the investigation  

generally consists of the following steps:

1. Proceeding to the spot; 2. Ascertainment of the facts and circumstances of the case; 3. Discovery and arrest of the suspected offender; 4. Collection  of  evidence  relating  to  the  commission  of  the  offence which may consist of the examination of:  

(a) various persons (including accused) and the reduction  of statement into writing, if the officer thinks fit; (b) the search of places and seizure of things, considered  necessary for the investigation and to be produced at the trial;  

5. Formation  of  the  opinion  as  to  whether  on  the  materials  collected, there is a case to place the accused before a Magistrate  for  trial,  if  so,  take  the  necessary  steps  for  the  same  for  filing  necessary charge-sheet under Section 373, Cr.P.C.

34. Once jurisdiction  is  conferred on the CBI to investigate  the  

offence by virtue of notification under Section 3 of the DSPE Act or the CBI  

takes up investigation in relation to the crime which is otherwise within the  

jurisdiction of the State police on the direction of the constitutional court,  

the exercise of the power of investigation by the CBI is regulated by the  

11  H.N. Rishbud v. State of Delhi; AIR 1955 SC 196  16

Page 17

Code  and  the  guidelines  are  provided  in  the  CBI  (Crime)  Manual.  

Paragraph 9.1 of the Manual says that when, a complaint is received or  

information is available which may,  after  verification,  as enjoined in the  

Manual, indicate serious misconduct on the part of a public servant but is  

not adequate to justify registration of a regular case under the provisions of  

Section 154 of  the Code, a preliminary enquiry (PE) may be registered  

after obtaining approval of the competent authority. It also says that where  

High Courts  and Supreme Court  entrust  matters  to CBI for  inquiry  and  

submission of report, a PE may be registered after obtaining orders from  

the  head  office.  When  the  complaint  and  source  information  reveal  

commission of a  prime facie cognizable offence, a regular case is to be  

registered as enjoined by law. PE may be converted into RC as soon as  

sufficient material  becomes available to show that  prima facie there has  

been commission of a cognizable offence. When information available is  

adequate  to  indicate  commission  of  cognizable  offence  or  its  discreet  

verification leads to similar conclusion, a regular case must be registered  

instead of a PE.    

35. Paragraph  9.10  of  the  Manual  states  that  PE  relating  to  

allegations of bribery and corruption should be limited to the scrutiny of  

records  and  interrogation  of  bare  minimum  persons  which  may  be  

necessary to judge whether there is any substance in the allegations which  

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are being enquired into and whether the case is worth pursuing further or  

not.

36. Paragraph 10.1 of the Manual deals with registration and first  

information report. To the extent it is relevant, it reads as under:

“10.1   On  receipt  of  a  complaint   or  after  verification  of  an  information or on completion of a Preliminary Enquiry taken up by  CBI if it is revealed that prima facie a cognizable offence has been  committed and the matter is fit for investigation to be undertaken by  Central Bureau of Investigation, a First Information Report should  be  recorded  under  Section  154  Criminal  Procedure  Code  and  investigation taken up.  While considering registration of an FIR, it  should  be  ensured  that  at  least  the  main  offence/s  have  been  notified under Section 3 of the Delhi Special Police Establishment  Act.  The registration of First Information Report may also be done  on the direction of  Constitutional  Courts,  in  which case it  is  not  necessary for the offence to have been notified for investigation by  DSPE.  The FIRs under investigation with local Police or any other  law  enforcement  authority  may  also  be  taken  over  for  further  investigation  either  on  the  request  of  the  State  Government  concerned  or  the  Central  Government  or  on  the  direction  of  a  Constitutional Court. ……..”

37. Paragraph 10.6 of  the  Manual,  inter  alia,  provides  that  if  a  

case is required to be registered under the PC Act against an officer of the  

rank of  Joint  Secretary  and above,  prior  permission of  the Government  

should be taken before inquiry/investigation as required under Section 6A  

of the DSPE Act except in a case under Section 7 of the PC Act where  

registration is followed by immediate arrest of the accused.  

38. A proper investigation into crime is one of the essentials of the  

criminal  justice  system  and  an  integral  facet  of  rule  of  law.   The  

investigation by the police under the Code has to be fair,  impartial  and  

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uninfluenced  by  external  influences.  Where  investigation  into  crime  is  

handled by the CBI under the DSPE Act, the same principles apply and  

CBI as an investigating agency is supposed to discharge its responsibility  

with competence, promptness, fairness and uninfluenced and unhindered  

by external influences.  

39. The abuse of public office for private gain has grown in scope  

and scale and hit the nation badly.  Corruption reduces revenue; it slows  

down economic activity and holds back economic growth. The biggest loss  

that may occur to the nation due to corruption is loss of confidence in the  

democracy and weakening of rule of law.

40. In  recent  times,  there  has  been  concern  over  the  need  to  

ensure  that  the  corridors  of  power  remain  untainted  by  corruption  or  

nepotism and that there is optimum utilization of resources and funds for  

their intended purposes.12  

41. In  350  B.C.E.,  Aristotle  suggested  in  the  “Politics”  that  to  

protect the treasury from being defrauded, let all money be issued openly  

in front of the whole city, and let copies of the accounts be deposited in  

various wards. What Aristotle said centuries back may not be practicable  

today but for successful working of the democracy it is essential that public  

revenues  are not defrauded and public servants do not indulge in bribery  

12 Hon’ble Shri Pranab Mukherjee, President, Republic of India, in his speech at the inauguration of All      India Lokayktas Conference, 2012

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and corruption and if they do, the allegations of corruption are inquired into  

fairly, properly and promptly and those who are guilty are brought to book.

42. In this group of matters, it is alleged that coal blocks for the  

subject  period  have  been  allocated  for  extraneous  considerations  by  

unknown public  servants  in  connivance with  businessmen,  industrialists  

and middlemen.  The allocation  of  coal  blocks is  alleged  to  suffer  from  

favouritism, nepotism and pick and choose. The Comptroller and Auditor  

General (CAG) in its Performance Audit on allocation of coal blocks and  

augmentation  of  coal  production  has  estimated  loss  to  the  public  

exchequer to the tune of  about  Rs.1.86 lac crore as on 31.03.2011 for  

Open-cast mines/Open-cast  reserves of  Mixed mines while pointing out  

inadequacies and shortcoming in the allocation.  Our reference to the CAG  

report,  we clarify,  does  not  mean that  we have expressed any opinion  

about its correctness or otherwise.  Be that as it may, having regard to the  

serious  allegations  of  lack  of  objectivity  and transparency  and the PEs  

having already registered by the CBI to inquire/investigate into allegations  

of  corruption  against  unknown public  servants  in  the  allocation  of  coal  

blocks,  this  Court  in  larger  public  interest  decided  to  monitor  the  

inquiries/investigations being conducted by CBI.

43. The  monitoring  of  investigations/inquiries  by  the  Court  is  

intended to ensure that proper progress takes place without directing or  

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channeling  the  mode  or  manner  of  investigation.  The  whole  idea  is  to  

retain  public  confidence  in  the  impartial  inquiry/investigation  into  the  

alleged crime; that inquiry/investigation into every accusation is made on a  

reasonable basis irrespective of the position and status of that person and  

the inquiry/investigation is taken to the logical conclusion in accordance  

with law.    

44. The  monitoring  by  the  Court  aims to  lend credence  to  the  

inquiry/investigation being conducted by the CBI as premier investigating  

agency  and  to  eliminate  any  impression  of  bias,  lack  of  fairness  and  

objectivity therein.   

45. However, the investigation/inquiry monitored by the court does  

not mean that the court supervises such investigation/inquiry. To supervise  

would  mean to  observe  and direct  the execution  of  a task whereas  to  

monitor  would  only  mean  to  maintain  surveillance.  The  concern  and  

interest of the court in such ‘court directed’ or ‘court monitored’ cases is  

that there is no undue delay in the investigation, and the investigation is  

conducted in a free and fair manner with no external interference. In such  

a process, the people acquainted with facts and circumstances of the case  

would also have a sense of security and they would cooperate with the  

investigation given that the superior courts are seized of the matter. We  

find  that  in  some  cases,  the  expression  ‘court  monitored’  has  been  

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interchangeably used with ‘court supervised investigation’. Once the court  

supervises an investigation, there is hardly anything left in the trial. Under  

the Code, the investigating officer is only to form an opinion and it is for the  

court  to  ultimately  try  the  case  based  on  the  opinion  formed  by  the  

investigating officer and see whether any offence has been made out. If a  

superior  court  supervises  the  investigation  and  thus  facilitates  the  

formulation of such opinion in the form of a report under Section 173(2) of  

the Code, it  will  be difficult if  not impossible for the trial court to not be  

influenced  or  bound  by  such  opinion.  Then  trial  becomes  a  farce.  

Therefore, supervision of investigation by any court is a contradiction in  

terms. The Code does not envisage such a procedure, and it cannot either.  

In the rare and compelling circumstances referred to above, the superior  

courts may monitor an investigation to ensure that the investigating agency  

conducts the investigation in a free, fair and time-bound manner without  

any external interference.    

46. The  Court  is  of  the  view  that  a  fair,  proper  and  full  

investigation by the CBI into every accusation by the CBI in respect  of  

allocation of  coal  blocks shall  help in retaining public confidence in the  

conduct of inquiry/investigation. Moreover, the Court-monitoring in a matter  

of  huge magnitude such as this  shall  help  in moving the machinery  of  

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inquiry/investigation  at  appropriate  pace  and  its  conclusion  with  utmost  

expedition without fear or favour.

47. As regards the first query put to the learned Attorney General  

on 10.07.2013, we are of the view that the said query takes within its fold  

one of the facets of the constitutionality of Section 6A and since that is  

under  consideration by the Constitution Bench of  this Court,  we do not  

think  it  is  necessary  to  deal  with  that  query.  Accordingly,  this  order  is  

confined to the second query, namely, whether the approval of the Central  

Government is necessary in respect of Court-monitored or Court-directed  

investigations.

48. There is no doubt that the objective behind the enactment of  

Section 6A is  to  give protection  to certain  officers  (Joint  Secretary  and  

above) in the Central Government at the decision making level from the  

threat and ignominy of malicious and vexatious inquiries/investigations and  

the  provision  aims  to  ensure  that  those,  who  are  in  decision  making  

positions,  are not  subjected  to  frivolous  complaints  and make available  

some screening mechanism for frivolous complaints but the question is:  is  

the restrictive provision contained in Section 6A rendered nugatory or its  

objective is otherwise not achieved where the investigations into the crime  

under PC Act are monitored by the constitutional court?  We do not think  

so.  The constitutional courts are the sentinels of justice and have been  

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vested with extraordinary powers of judicial review to ensure that the rights  

of citizens are duly protected13.

49. The  power  under  Article  142(1)  of  the  Constitution  which  

provides that Supreme Court in exercise of its jurisdiction may pass such  

decree or make such order as is necessary for doing complete justice in  

any “cause” or “matter” has been explained in large number of cases. It  

has been consistently held that such power is plenary in nature.  The legal  

position articulated in Prem Chand Garg14 and A.R. Antulay15,  with regard  

to  the  powers  conferred  on  this  Court  under  Article  142(1)  has  been  

explained in  Delhi  Judicial  Service Association16.   It  is exposited by the  

three Judge Bench in Delhi Judicial Service Association16 that power under  

Article 142(1) to do “complete justice” is entirely of different level and of a  

different quality.  Any prohibition or restriction contained in ordinary laws  

cannot act as a limitation on the constitutional power of this Court.  Once  

this Court is in seisin of a cause or matter before it, it has power to issue  

any order or direction to do “complete justice” in the matter.  This legal  

position finds support from other decisions of this Court in Poosu17, Ganga  

Bishan18 and  Navnit R. Kamani19.

13  Babubhai Jamnadas Patel v. State of Gujarat; [(2009) 9 SCC 610] 14  Prem Chand Garg v. Excise Commissioner, U.P. and Others; [1963 Supp (1) SCR 885] 15   A.R. Antulay v. R.S. Nayak and Another; [(1988) 2 SCC 602] 16  Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat and others;  

    [(1991) 4 SCC 406] 17  State of U.P. v. Poosu and Another;  [(1976) 3 SCC 1] 18  Ganga Bishan v. Jai Narain; [(1986) 1 SCC 75] 19  Navnit R. Kamani v. R.R. Kamani; [(1988) 4 SCC 387]

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50. The  majority  view  of  the  Constitution  Bench  in  Union  

Carbide20,  with  regard  to  power  of  this  Court  under  Article  142  of  the  

Constitution  holds  the  same view as  expressed  by  this  Court  in  Delhi   

Judicial  Service Association16.   The majority  view in  Union Carbide20 in  

paragraph  8321 of  the  Report  has  reiterated  that  the  prohibitions  or  

limitations or provisions contained in ordinary laws, cannot  ipso facto,  act  

as prohibitions or limitations on the constitutional powers under Article 142.  

Such prohibitions or limitations in the statutes might embody and reflect  

20  Union Carbide Corporation and Others vs. Union of India and Others; [(1991) 4 SCC 584] 21  83.It is necessary to set at rest certain misconceptions in the arguments touching the scope of the   

powers of this Court under Article 142(1) of the Constitution. These issues are matters of serious  public  importance.  The  proposition  that  a  provision  in  any  ordinary  law  irrespective  of  the  importance of the public policy on which it is founded, operates to limit the powers of the apex Court  under Article 142(1) is unsound and erroneous. In both Garg as well as Antulay cases the point was  one of  violation of constitutional  provisions and constitutional  rights.  The observations as to the  effect  of  inconsistency  with  statutory  provisions  were  really  unnecessary  in  those  cases  as  the  decisions in the ultimate analysis turned on the breach of constitutional rights. We agree with Shri  Nariman that the power of the Court under Article 142 insofar as quashing of criminal proceedings  are concerned is not exhausted by Section 320 or 321 or 482 CrPC or all of them put together. The  power under Article 142 is at an entirely different level and of a different quality. Prohibitions or   limitations  or  provisions  contained  in  ordinary  laws  cannot,  ipso  facto,  act  as  prohibitions  or   limitations on the constitutional powers under Article 142. Such prohibitions or limitations in the  statutes might embody and reflect the scheme of a particular law, taking into account the nature and  status of the authority or the court on which conferment of powers — limited in some appropriate   way — is contemplated.  The limitations may not necessarily reflect or be based on any fundamental  considerations of public policy. Sri Sorabjee, learned Attorney General, referring to Garg case, said  that limitation on the powers under Article 142 arising from “inconsistency with express statutory  provisions of  substantive law” must  really  mean and be understood as  some express  prohibition  contained in any substantive statutory law. He suggested that if the expression ‘prohibition’ is read in  place  of  ‘provision’  that  would  perhaps  convey  the  appropriate  idea.  But  we  think  that  such  prohibition should also be shown to be based on some underlying fundamental and general issues of   public policy and not merely incidental to a particular statutory scheme or pattern. It will again be  wholly  incorrect  to  say  that  powers  under  Article  142  are  subject  to  such  express  statutory   prohibitions. That would convey the idea that statutory provisions override a constitutional provision.  Perhaps, the proper way of expressing the idea is that in exercising powers under Article 142 and in   assessing the needs of “complete justice” of a cause or matter, the apex Court will take note of the  express prohibitions in any substantive statutory provision based on some fundamental principles of  public policy and regulate the exercise of its power and discretion accordingly. The proposition does  not relate to the powers of the Court under Article 142, but only to what is or is not ‘complete justice’  of a cause or matter and in the ultimate analysis of the propriety of the exercise of the power. No  question of lack of jurisdiction or of nullity can arise.  

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the scheme of a particular law, taking into account the nature and status of  

the authority or the Court on which conferment of powers – limited in some  

appropriate way – is contemplated. The powers under Article 142 are not  

subject to any express statutory prohibitions.  

51. In  Supreme  Court  Bar  Association22,  this  Court  stated,  “It,  

however, needs to be remembered that the powers conferred on the Court  

by Article 142 being curative in nature cannot  be construed as powers  

which authorise the Court to ignore the substantive rights of a litigant while  

dealing  with  a  cause pending  before  it.  This  power  cannot  be used to  

“supplant”  substantive  law  applicable  to  the  case  or  cause  under  

consideration of the Court. Article 142, even with the width of its amplitude,  

cannot  be  used  to  build  a  new  edifice  where  none  existed  earlier,  by  

ignoring express statutory provisions dealing with a subject and thereby to  

achieve something indirectly which cannot be achieved directly…….”. The  

Court, however, went on to say that the constitutional powers cannot, in  

any way, be controlled by any statutory provisions but at the same time  

these  powers  are  not  meant  to  be  exercised  when  their  exercise  may  

come directly in conflict with what has been expressly provided for in a  

statute dealing expressly with the subject.

52. The proper way for the Court, as stated in Union Carbide20 , in  

exercise of the powers under Article 142 is to take note of the express  22  Supreme Court Bar Association v. Union of India and Another;  [(1998) 4 SCC 409]

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prohibitions  in  any  substantive  statutory  provision  based  on  some  

fundamental  principles  of  public  policy  and  regulate  the  exercise  of  its  

power  and discretion accordingly.   Where the Court  finds that  statutory  

limitations are so fundamental that any departure therefrom may result in a  

consequence directly contrary to the purpose for which the plenary power  

under Article 142(1) is meant, obviously, the Court will exercise its power  

appropriately having regard to the statutory limitations.  

53. The Supreme Court has been conferred very wide powers for  

proper  and  effective  administration  of  justice.  The  Court  has  inherent  

power and jurisdiction for dealing with any exceptional situation in larger  

public interest which builds confidence in the rule of law and strengthens  

democracy. The Supreme Court as the sentinel on the qui vive, has been  

invested with the powers which are elastic and flexible and in certain areas  

the rigidity in exercise of such powers is considered inappropriate.  

54. In the event of any senior officer (Joint Secretary or above) or  

the  Central  Government  in  an  ongoing  inquiry/investigation  by  the  CBI  

being monitored by the Court has reason to believe that such officer may  

be unnecessarily harassed by the CBI, then the Central Government or the  

senior  officer  (Joint  Secretary  or  above)  can always apply  to the Court  

which  is  monitoring  the  inquiry/investigation  for  protection  of  his  rights.  

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Such legal course being available to the category of officers covered by  

Section  6A,  we hardly  find  any  merit  in  the  submission  of  the  learned  

Attorney General that requirement of approval under Section 6A cannot be  

waived even in Court-monitored investigations and inquiries.  

55. The argument of the learned Attorney General that Section 6A  

is in the nature of procedure established by law for the purposes of Article  

21 and where consequences follow in criminal  law for an accused,  the  

Court is not at liberty to negate the same even in exercise of powers under  

Article 32 or Article 142 overlooks the vital aspect that Court monitoring of  

the inquiry/investigation conducted by the CBI is itself a very strong check  

on the CBI from misusing or abusing its power of inquiry/investigation.  The  

filtration mechanism which Section 6A provides to ensure that the senior  

officers at the decision making level are not subjected to frivolous inquiry is  

achieved as the constitutional court that monitors the inquiry/investigation  

by CBI acts as guardian and protector of the rights of the individual and, if  

necessary, can always prevent any improper act by the CBI against senior  

officers in the Central Government when brought before it.  

56. When  Court  monitors  the  investigation,  there  is  already  

departure inasmuch as the investigating agency informs the Court about  

the progress of the investigation.  Once the constitutional court monitors  

the inquiry/investigation which is only done in extraordinary circumstances  

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and in exceptional situation having regard to the larger public interest, the  

inquiry/investigation  into  the  crime  under  the  PC  Act  against  public  

servants by the CBI must be allowed to have its course unhindered and  

uninfluenced and the procedure contemplated by Section 6A cannot be put  

at  the  level  which  impedes  exercise  of  constitutional  power  by  the  

Supreme Court under Articles 32, 136 and 142 of the Constitution.  Any  

other  view  in  this  regard  will  be  directly  inconsistent  with  the  power  

conferred on the highest constitutional court.  

57. In the case of Committee for Protection of Democratic Rights8,  

the Constitution Bench of this Court has held that a direction by the High  

Court, in exercise of its jurisdiction under Article 226 of the Constitution, to  

CBI to investigate a cognizable offence alleged to have been committed  

within the territory of  the State without the consent of the State will neither  

impinge  upon  the  federal  structure  of  the  Constitution  nor  violate  the  

doctrine of separation of power and shall be valid in law. In this regard, it is  

relevant to refer to the conclusions recorded by the Constitution Bench in  

clauses vi and vii, paragraph 68 of the Report which read as under:

“68. (i) to (v)   ……… (vi) If in terms of Entry 2 of List II of the Seventh Schedule on  the one hand and Entry 2-A and Entry 80 of List I on the other,  an investigation by another agency is permissible subject to  grant of consent by the State concerned, there is no reason as  to  why,  in  an  exceptional  situation,  the  Court  would  be  precluded from exercising the same power which the Union  could exercise in terms of the provisions of the statute. In our  

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opinion,  exercise of  such power by the constitutional  courts  would not violate the doctrine of separation of powers. In fact,  if in such a situation the Court fails to grant relief, it would be  failing in its constitutional duty.  (vii) When the Special Police Act itself provides that subject to  the  consent  by  the  State,  CBI  can take  up  investigation  in  relation  to  the  crime  which  was  otherwise  within  the  jurisdiction of the State police, the Court can also exercise its  constitutional power of judicial review and direct CBI to take  up the investigation within the jurisdiction of  the State.  The  power of the High Court under Article 226 of the Constitution  cannot be taken away, curtailed or diluted by Section 6 of the  Special  Police Act.  Irrespective of  there being any statutory  provision acting as a restriction on the powers of the Courts,  the restriction imposed by Section 6 of the Special Police Act  on the powers of the Union, cannot be read as restriction on  the powers of the constitutional courts. Therefore, exercise of  power  of  judicial  review  by  the  High  Court,  in  our  opinion,  would  not  amount  to  infringement  of  either  the  doctrine  of  separation of power or the federal structure.”

58. Learned  Attorney  General  with  reference  to  the  above  

judgment  submitted  that  the  principle  of  law  laid  down  in  the  case  of  

Committee  for  Protection  of  Democratic  Rights8  cannot  be  extended  to  

requirement  of  prior  approval  under  Section  6A.  He  submitted  that  

Committee  for  Protection  of  Democratic  Rights8  was  concerned  with  

Section  6  of  the  DSPE  Act  while  the  present  case  is  concerned  with  

Section 6A which is totally different provision. Learned Attorney General  

has  argued  that  the need for  consent  of  the  State  Government  before  

investigation is carried out by the CBI in terms of Section 6 of the DSPE  

Act  is  a  requirement  that  flows  from  the  federal  structure  of  the  

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Constitution, because police and law and order are State subjects. On the  

other hand, he argues that the need for prior approval under Section 6A is  

in  the  nature  of  protection  conferred  on  a  particular  cadre  of  persons,  

which is necessitated by the need of administration. Therefore, no parallel  

can be drawn between two provisions and the law laid down in respect of  

one provision cannot be extended to the other.

59. Learned  Attorney  General  is  right  that  the  two  provisions,  

namely, Section 6 and Section 6A are different provisions and they operate  

in different fields, but the principle of law laid down in respect of Section 6,  

in our view, can be extended while considering applicability of Section 6A  

to the Court-monitored investigations. If  Section 6 necessitates the prior  

sanction of the State Government before investigation is carried out by the  

CBI in terms of that provision and the principle of law laid down by the  

Constitution  Bench  of  this  Court  is  that  the  constitutional  courts  are  

empowered to direct the investigation of a case by CBI and in such cases  

no prior sanction of the State Government is necessary under Section 6 of  

the DSPE Act, there is no reason why such principle is not extended in  

holding  that  the  approval  of  the  Central  Government  is  not  necessary  

under  Section  6A  of  the  DSPE  Act  in  a  matter  where  the  

inquiry/investigation into the crime under the PC Act is being monitored by  

the  Court.  It  is  the  duty  of  this  Court  that  anti-corruption  laws  are  

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interpreted  and  worked  out  in  such  a  fashion  that  helps  in  minimizing  

abuse of public office for private gain.  

60. Learned  Attorney  General  heavily  relied  upon  the  

observations made in paragraph 28 by the Constitution Bench of this Court  

in K. Veeraswami4.  He, particularly, referred to the following observations  

with emphasis on the highlighted portion:

“28.  . .  .  . .  .   Section 6 is primarily concerned to see that  prosecution  for  the  specified  offences  shall  not  commence  without the sanction of a competent authority. That does not  mean that  the Act was intended to condone the offence of  bribery and corruption by public servant. Nor it was meant to  afford protection to public servant from criminal prosecution for  such offences. It is only to protect the honest public servants  from  frivolous  and  vexatious  prosecution.  The  competent  authority  has  to  examine  independently  and  impartially  the  material on record to form his own opinion whether the offence  alleged is frivolous or vexatious. The competent authority may  refuse sanction for prosecution if the offence alleged has no  material to support or it is frivolous or intended to harass the  honest officer. But he cannot refuse to grant sanction if  the  material collected has made out the commission of the offence  alleged against the public servant. Indeed he is duty bound to  grant sanction if the material  collected lend credence to the  offence complained of. There seems to be another reason for  taking  away  the  discretion  of  the  investigating  agency  to  prosecute or not to prosecute a public servant. When a public  servant  is  prosecuted  for  an  offence  which  challenges  his  honesty  and integrity,  the  issue in  such a case is  not  only  between the prosecutor and the offender, but the State is also  vitally  concerned  with  it  as  it  affects  the  morale  of  public  servants and also the administrative interest of the State. The  discretion to prosecute public servant is taken away from the  prosecuting  agency  and  is  vested  in  the  authority  which  is  competent  to  remove  the  public  servant.  The  authority  competent to remove the public servant would be in a better  position than the prosecuting agency to assess the material  

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collected  in  a  dispassionate  and  reasonable  manner  and  determine whether sanction for prosecution of a public servant  deserves to be granted or not.”

61. In  Vineet  Narain1,  this  Court  distinguished  the  above  

observations in paragraphs 34 and 35 of the report which read as under:

“34. The other decision of this Court is in K. Veeraswami. That  was a decision in which the majority held that the Prevention  of Corruption Act applies even to the Judges of the High Court  and the Supreme Court. After taking that view, it was said by  the  majority  (per  Shetty,  J.)  that  in  order  to  protect  the  independence  of  judiciary,  it  was  essential  that  no  criminal  case shall  be registered under Section 154 CrPC against  a  Judge of the High Court or of the Supreme Court unless the  Chief Justice of India is consulted and he assents to such an  action being taken. The learned Attorney General contended  that this decision is an authority for the proposition that in case  of high officials, the requirement of prior permission/sanction  from a higher officer or Head of the Department is permissible  and necessary to save the officer concerned from harassment  caused  by  a  malicious  or  vexatious  prosecution.  We  are  unable to accept this submission. 35. The position of Judges of High Courts and the Supreme  Court, who are constitutional functionaries, is distinct, and the  independence of judiciary, keeping it free from any extraneous  influence, including that from executive, is the rationale of the  decision in  K. Veeraswami.  In strict terms the Prevention of  Corruption  Act,  1946  could  not  be  applied  to  the  superior  Judges and, therefore, while bringing those Judges within the  purview  of  the  Act  yet  maintaining  the  independence  of  judiciary, this guideline was issued as a direction by the Court.  The feature of independence of judiciary has no application to  the  officers  covered  by  the  Single  Directive.  The  need  for  independence of judiciary from the executive influence does  not arise in the case of officers belonging to the executive. We  have  no  doubt  that  the  decision  in  K.  Veeraswami has  no  application to the wide proposition advanced by the learned  Attorney General to support the Single Directive. For the same  

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reason,  reliance on that  decision  by the IRC to  uphold  the  Single Directive is misplaced.”

62. In  Vineet Narain1,  this Court clarified that the decision in  K.  

Veeraswami4  has  no  application  to  the  officers  covered  by  the  single  

directive.  In  other  words,  the  observations  made  by  this  Court  in  K.  

Veeraswami4 were held to be confined to the Judges of the High Courts  

and  the  Supreme  Court  who  are  constitutional  functionaries  and  their  

position being distinct and different from the government officers.

63. The referral order in Subramanian Swamy (Dr.)7  , records the  

argument advanced on behalf of the Central Government that the view in  

Vineet Narain1 with regard to the observations in K. Veeraswami4  case was  

not  correct  but,  in  our  view,  recording  the  contention  of  the  Central  

Government in the referral order and the pendency of constitutionality of  

Section 6A before the Constitution Bench do not mean that what has been  

said  in  Vineet  Narain1 about  the  observations  in  paragraph  28  of  K.  

Veeraswami4 stand obliterated.

64. The  fact  that  the  investigation  is  monitored  by  the  

constitutional court is itself an assurance that investigation/inquiry by the  

CBI is not actuated with ulterior motive to harass any public servant and  

the  investigating  agency  performs  its  duties  and  discharges  its  

responsibility of fair and impartial investigation uninfluenced by extraneous  

considerations.   34

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65. In light of the above discussion, our answer to the question is  

in the negative and we hold that the approval of the Central Government is  

not  necessary  under  Section  6A  of  the  DSPE  Act  in  a  matter  where  

inquiry/investigation into the crime under the PC Act is being monitored by  

this Court.  This position holds good in cases which are directed by the  

Court  to  be  registered  and  the  inquiry/investigation  thereon  is  actually  

being monitored by this Court.  

…………………………J. (R.M. Lodha)

…………………………J. (Kurian Joseph)

New Delhi; December 17, 2013.  

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL/CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO. 120 OF 2012

Manohar Lal Sharma               ….Petitioner Versus

The Principal Secretary & Ors.                         ...Respondents WITH

WRIT PETITION (CIVIL) NO.463 OF 2012

WITH

WRIT PETITION (CIVIL) NO.429 OF 2012

WITH

WRIT PETITION (CIVIL) NO.498 OF 2012

WITH

WRIT PETITION (CIVIL) NO.515 OF 2012

WITH

WRIT PETITION (CIVIL) NO.283 OF 2013

O R D E R

Madan B. Lokur, J.

1. The question for consideration relates to the applicability of Section  

6A of the Delhi Special Police Establishment Act, 1946 (hereinafter referred  

to as the Act) to an inquiry or investigation monitored by a constitutional  

court. In my opinion, this section has no application to a constitutional court  

monitored inquiry or investigation. While I agree with the same conclusion  

arrived at by Brother Justice Lodha, my reasons are quite different.  36

Page 37

2. Section 6A of the Act reads as under:

“Approval  of  Central  Government  to  conduct  inquiry  or  investigation.—(1)  The  Delhi  Special  Police  Establishment  shall not conduct any inquiry or investigation into any offence  alleged  to  have  been  committed  under  the  Prevention  of  Corruption Act,  1988 (49 of  1988)  except  with the previous  approval  of  the  Central  Government  where  such  allegation  relates to –

1. the employees  of  the Central  Government  of  the level  of  Joint Secretary and above; and

2. such officers as are appointed by the Central Government in  corporations  established  by  or  under  any  Central  Act,  Government  companies,  societies  and  local  authorities  owned or controlled by that Government.

(2) Notwithstanding anything contained in sub-section (1), no  such approval shall be necessary for case involving arrest of a  person on the spot on the charge of accepting or attempting to  accept any gratification other than legal remuneration referred  to  in  clause  (c)  of  the  Explanation to  Section  7  of  the  Prevention of Corruption Act, 1988 (49 of 1988).”

3. At the outset, one must appreciate that a constitutional court monitors  

an investigation by the State police or the Central Bureau of Investigation  

(for short the CBI) only and only in public interest. That is the leitmotif of a  

constitutional  court  monitored  investigation.  No  constitutional  court  

‘desires’ to monitor an inquiry or an investigation (compendiously referred  

to hereafter as an investigation) nor does it encourage the monitoring of any  

investigation by a police authority, be it the State police or the CBI. Public  

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interest  is  the  sole  consideration  and  a  constitutional  court  monitors  an  

investigation  only  when  circumstances  compel  it  to  do  so,  such  as  

(illustratively) a lack of enthusiasm by the investigating officer or agency  

(due to ‘pressures’ on it) in conducting a proper investigation, or a lack of  

enthusiasm  by  the  concerned  Government  in  assisting  the  investigating  

authority  to  arrive  at  the  truth,  or  a  lack  of  interest  by  the  investigating  

authority or the concerned Government to take the investigation to its logical  

conclusion  for  whatever  reason,  or  in  extreme  cases,  to  hinder  the  

investigation.

4. Having  made  this  position  clear,  the  present  concern  is  only  with  

respect to an investigation conducted by the CBI into the allocation of coal  

blocks, the monitoring of that investigation by this Court and the impact of  

Section 6A of the Act on the investigation.

Background - The Single Directive   

5. Section 6A of the Act was brought on the statute book with effect  

from 11th September 2003. Prior thereto, the sum and substance of Section  

6A of the Act was in the form of a ‘Single Directive’ issued by the executive  

Government. The Single Directive protected,  inter alia, a class of officers  

from being investigated by the CBI or in the registering of a case against that  

class of officers.  This was through a provision requiring prior sanction of  

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the  Secretary  of  the  concerned  Ministry  or  Department  before  the  CBI  

undertakes an investigation against an officer of the rank of a Joint Secretary  

or above.  The Single Directive made it clear that “Without such sanction, no  

inquiry shall be initiated by the SPE (Special Police Establishment).” The  

relevant extract of the Single Directive has been quoted by Brother Justice  

Lodha and it is not necessary to repeat it.

6. The Single Directive was the subject of challenge in Vineet Narain v.   

Union of India, (1998) 1 SCC 226. This Court struck it down, inter alia, on  

three grounds that are best expressed in the words of this Court:  

(i) “The learned Attorney General contended that this decision23 is an  authority  for  the  proposition  that  in  case  of  high  officials,  the  requirement  of  prior  permission/sanction  from  a  higher  officer  or  Head  of  the  Department  is  permissible  and  necessary  to  save  the  officer concerned from harassment caused by a malicious or vexatious  prosecution. We are unable to accept this submission.   “…….The feature of independence of judiciary has no application to  the  officers  covered  by  the  Single  Directive.  The  need  for  independence of judiciary from the executive influence does not arise  in the case of officers belonging to the executive. We have no doubt  that  the decision  in  K. Veeraswami has no application to  the wide  proposition advanced by the learned Attorney General to support the  Single Directive.” [paragraph 34 and 35 of the Report].

(ii) “In the absence of any statutory requirement of prior permission or  sanction  for  investigation,  it  cannot  be  imposed  as  a  condition  precedent  for  initiation  of  the  investigation  once  jurisdiction  is  conferred  on  the  CBI  to  investigate  the  offence  by  virtue  of  the  notification under Section 3 of the Act.” [paragraph 43 of the Report].

23 K. Veeraswami v. Union of India, (1991) 3 SCC 655

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(iii)  “The  law does  not  classify  offenders  differently  for  treatment  thereunder,  including investigation  of  offences  and  prosecution  for  offences,  according to their  status in life.  Every person accused of  committing the same offence is to be dealt with in the same manner in  accordance with law, which is equal in its application to everyone.”  [paragraph 44 of the Report].

7. Among other things, this Court also considered a Report given by an  

Independent  Review Committee (IRC) constituted by the  Government  of  

India by an order dated 8th September 1997 and noted one of its observations  

in the preface to its Report, namely,

“In  the  past  several  years,  there  has  been  progressive  increase  in  allegations of corruption involving public servants.  Understandably,  cases  of  this  nature  have  attracted  heightened  media  and  public  attention. A general impression appears to have gained ground that the  Central  investigating  agencies  concerned  are  subject  to  extraneous  pressures and have been indulging in dilatory tactics in not bringing  the guilty to book. The decisions of higher courts to directly monitor  investigations in certain cases have added to the aforesaid belief.”

8. Unfortunately,  rather  than  make  a  serious  attempt  to  consider  the  

Report or the views of this Court, the Single Directive was given a fresh  

lease of life, and a statutory one at that, by enacting Section 6A in the Delhi  

Special Police Establishment Act, 1946.  

9. The  justification  for  the  enactment  was  the  recommendations  

contained in the Report of the Joint Committee of both Houses of Parliament  

set up to examine the provisions of the Central Vigilance Commission Bill,  

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1999. In its Report presented to Parliament on 22nd November 2000 the Joint  

Committee had this to say:

“41. The Committee note that many witnesses who appeared before  the Committee had expressed the need to protect the bona fide actions  at the decision making level.  At present there is no provision in the  Bill for seeking prior approval of the Commission or the head of the  Department etc. for registering a case against a person of the decision  making level.  As such, no protection is available to the persons at the  decision making level.  In this regard, the Committee note that earlier,  the prior approval of the Government was required in the form of a  ‘Single Directive’ which was set aside by the Supreme Court.  The  Committee feel that such a protection should be restored in the same  format which was there earlier and desire that the power of giving  prior approval for taking action against a senior officer of the decision  making  level  should  be  vested  with  the  Central  Government  by  making appropriate provision in the Act.  The Committee, therefore,  recommend that Clause 27 of the Bill be accordingly amended so as to  insert a new section 6A to the DSPE Act, 1946, to this effect.”

10. Furthermore, in the debate in Parliament relating to the Bill, the Union  

Law Minister stated that the rationale behind the Single Directive was “that  

those  who  are  in  senior  decision-making  positions,  those  who  have  to  

exercise  discretion,  those  who have to  take  vital  decisions,  could be  the  

targets  of  frivolous  complaints.”  Justifying  Section  6A  of  the  Act,  the  

Hon’ble Minister went on to say:

“Do  we  allow those  complaints  against  them to  go  on  and  those  people to be subjected to all these?  Or, do we have some screening  mechanism whereby  serious  complaints  would  be  investigated  and  frivolous  complaints  would  be  thrown  out?   And  this  is  how  the  single-point directive was born, and in 1988, they replaced the senior  

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civil servants in the senior decision-making positions by saying “Joint  Secretaries  and  above’.   And,  if  you  were  to  say  that  there  is  no  protection to be given to you, when you take all the decisions, when  you make all the discretions, and anybody can file a complaint, and an  inspector or the CBI or the police can raid your house any moment, if  this elementary protection is not to be given to the senior decision- makers, you may well have a governance where instead of tendering  honest  advice  to  political  executives,  a  very  safe,  non-committal  advice is going to be given.”

11. It is under these circumstances that Section 6A of the Act replaced the  

Single Directive.

12. In his written submissions, learned Attorney-General summed up the  

discussion by saying that Section 6A is intended “to provide a screening  

mechanism to filter out frivolous or motivated investigation that could be  

initiated  against  senior  officers  to  protect  them  from  harassment  and  to  

enable them to take decisions without fear.”  

Cause for the present discussion   

13. Why  has  the  applicability  of  Section  6A of  the  Act  come up  for  

discussion?  Prior  to  the  present  case,  there  was  a  general  outcry  that  

allocations of coal blocks for mining and exploitation were arbitrarily made  

in various parts of the country to private players which in effect amounted to  

distribution of largesse by the Central Government to these private players.  

The financial implications of the allocations came under the scrutiny of the  

Comptroller and Auditor General of India (C&AG) and, based on the Report  42

Page 43

submitted by the C&AG and tabled in Parliament on 16th August 2012, some  

believed that the allocations were not made with bona fide motives and that  

the whole gamut of allocations ought to be impartially investigated by the  

CBI. Although the CBI had begun investigations on the basis of directions  

issued by the Central Vigilance Commission, it was perceived that the CBI  

was ‘going slow’ or not actively investigating the allegations perhaps with a  

view  to  protect  some  powerful  vested  interest.  It  is  under  these  

circumstances that public interest litigation was initiated in this Court. Given  

the importance of the case and the issues involved, this Court decided, in the  

larger public interest, to monitor the investigations being conducted by the  

CBI.

14. While the matter of allocations is being considered on merits, one of  

the issues that has arisen is with regard to the interpretation of Section 6A of  

the Act since it was apprehended by the petitioners that despite this Court  

monitoring the investigations, the Central Government could stall them by  

declining to give previous approval to the CBI to carry out an inquiry or  

conduct an investigation into the allegations since officers of the level of  

Joint Secretary and above would be involved.

15. The issue got precipitated when it was brought to our notice through  

an  application  filed  by  the  CBI  that  previous  approval  sought  by  it  (to  

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examine a particular officer) was granted by the Central Government only  

after  some  clarifications  were  given  and  that  too  after  a  lapse  of  three  

months.24 This is what was said by the CBI in paragraph 8 of its application:

“8. It is relevant to mention that prior to the passing of order dated  08.05.2013, a request had been made vide letter dated 06.03.2013 for  approval under Section 6A in three of the RC’s.  The said approval  was  initially  declined  on  22.05.2013.   However,  after  sending  a  detailed report, sanction was granted by the Government and received  by the Respondent no.3 on 12.06.2013.”

16.  This  request  for  previous  approval  was  in  sharp  contrast  to  the  

submission earlier made by the CBI in Centre for Public Interest Litigation   

v. Union of India25 when it had submitted (with reference to Section 6A of  

the  Act)  that  “as  the  investigation  was  directed  by  this  Court,  grant  of  

approval/permission is not necessary and the CBI shall investigate into the  

allegations as per law.” The change in stance over the years was highlighted  

before  us  by  the  petitioners  who  perceived  this  to  be  an  instance  of  

‘pressure’ put on the CBI.  

Submissions

17. Learned Attorney-General submitted that though the requirement of  

previous approval  under Section 6A of the Act may seem onerous to an  

investigating agency or a public interest litigant, its rigour has undergone  

24 I.A. No.14091 of 2013 in Writ Petition (Crl) No.120 of 2012 filed on 8th July 2013 25 WP (C) No.11550 of 2009 – order dated 4.4.2011 passed by the Delhi High Court  

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substantial slackening and that this ought to meet the requisites of a non-

partisan  investigation  by  the  CBI.  Reference  was  made  to  the  

recommendations given in March 2011 by a Group of Ministers which dealt,  

inter  alia,  with  the  “relevance/need  for  Section  6A of  the  Delhi  Special  

Police Establishment Act, 1946”. The recommendations were accepted by  

the Central Government and Office Memorandum No. 372/19/2011-AVD-II  

(Part-I) dated 26th September, 2011 was issued.  The relevant extract of the  

Office Memorandum reads as follows:-

“The  undersigned  is  directed  to  state  that  the  provision  of  section 6A of the DSPE Act, 1946 provides for safeguarding senior  public  officials  against  undue  and  vexatious  harassment  by  the  investigating agency.  It  had been observed that the requests being  made by the investigating agency under said provision were not being  accorded due priority and the examination of such proposals at times  lacked objectivity.  The matter was under consideration of the Group  of Ministers constituted to consider measures that can be taken by the  Government to tackle Corruption.

The Government has accepted the following recommendation  of the Group of Ministers, as reflected in para 25 of the First Report of  the Group of Ministers:-

1.  The competent authority shall decide the matter within three  months  of  receipt  of  request  accompanied  with  relevant  documents.

2. The competent  authority  will  give  a  Speaking Order,  giving  reasons for its decision.

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(c)  In  the  event  a  decision  is  taken  to  refuse  permission,  the  reasons  thereof  shall  be put  up to  the next  higher  authority  for  information within one week of taking the decision.

(d)  Since  section  6A specifically  covers  officers  of  the  Central  Government,  above  the  rank  of  Joint  Secretary,  the  competent  authority  in  these  cases  will  be  the  Minister  in  charge  in  the  Government of India.  In such cases, intimation of refusal to grant  permission along with reasons thereof, will have to be put up to the  Prime Minister.

The above decision of the Government is brought to the notice  of  all  Ministries/Departments  for  due  adherence  and  strict  compliance.”

18. Learned  Attorney-General  also  submitted  that  apart  from  the  

safeguards introduced by the Office Memorandum, the constitutional courts  

always  have  the  power  of  judicial  review  if  previous  approval  for  

investigation  is  withheld  for  collateral  reasons.  He  submitted  that,  if  

necessary,  some  additional  safeguards  may  also  be  incorporated  by  this  

Court, including that in the event a decision for granting previous approval  

is not taken within a specified period, a default clause of a deemed previous  

approval would automatically apply.

19. He  justified  giving  protection  to  senior  officers,  who  are  decision  

makers,  on the ground that the CBI will  have only one side of the story  

before it embarks on an investigation. The senior Government functionary  

sought  to  be  investigated  would  not  even  have  a  hearing  before  

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investigations  commence.  Reliance  was  placed  on  P.  Sirajuddin  v.  The  

State of Madras, (1970) 1 SCC 595 to submit that if baseless allegations are  

made against senior Government officials, it would cause incalculable harm  

not only to the officer in particular but to the department that he belonged to,  

in general. The following passage was relied upon:

“Before a public servant, whatever be his status, is publicly charged  with acts  of  dishonesty  which amount  to  serious misdemeanour  or  misconduct of the type alleged in this case and a first information is  lodged against him, there must be some suitable preliminary enquiry  into the allegations by a responsible officer. The lodging of such a  report against a person, specially one who like the appellant occupied  the  top  position  in  a  department,  even  if  baseless,  would  do  incalculable  harm  not  only  to  the  officer  in  particular  but  to  the  department he belonged to, in general.”

20. It  was  also  submitted  that  the  fact  that  an  investigation  is  being  

monitored by a constitutional court will ensure that the Central Government  

does not withhold granting previous approval for collateral reasons. It was  

submitted  that  there  is  a  presumption  that  official  acts  are  performed  

lawfully and it is only to protect a decision maker from undue harassment  

that Section 6A has been introduced in the Act. Protection of honest public  

servants  from frivolous and vexatious complaints was emphasized by the  

learned Attorney-General.   

21. The learned Attorney-General made a concession to the effect that in  

the event of the CBI conducting an enquiry, as opposed to an investigation  

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into the conduct of a senior government officer, no previous approval of the  

Central Government is required since an enquiry does not have the same  

adverse connotation that an investigation has.

Discussion

22. Some of the safeguards suggested by the learned Attorney-General  

find  a  mention  in  Vineet  Narain.  However,  these  were  not  specifically  

accepted or rejected while considering the validity of the Single Directive  

only  because  this  Court  held  that  the  Single  Directive  had  been  issued  

without  any  legislative  sanction  and  it  amounted  to  interdicting  the  

investigations.

23. No doubt the rigour of Section 6A of the Act has already been diluted  

by the issuance of the Office Memorandum dated 26th September 2011. But  

the question is this: Is there a need for a further dilution of Section 6A of the  

Act  in  respect  of  a  constitutional  court  monitored  investigation?  Is  it  

necessary  for  the  CBI  to  take  the  previous  approval  of  the  Central  

Government for investigating a senior official even in a constitutional court  

monitored investigation?

24. What is an investigation has already been discussed by Brother Justice  

Lodha and I  endorse  his  views on this.  However,  what  is  crucial  for  an  

investigation is that it should conclude expeditiously from the point of view  

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of all concerned: from the point of view of the accused, a quick conclusion  

to  the  investigation  will  clear  his  name  and  image  in  society  if  he  is  

innocent. This is certainly of considerable importance to a person who has  

been wrongly accused or framed for an offence; from the point of view of  

society, a quick closure to investigation is necessary so that those against  

whom there is evidence of the commission of a crime are tried at the earliest  

and  punished  if  they  are  guilty.  This,  so  far  as  society  is  concerned,  is  

essential for maintaining the rule of law; and from the point of view of the  

investigator,  an  expeditious  conclusion  of  investigations  is  necessary  

because greater the delay, greater the chances of evidence being destroyed,  

witnesses  being  compromised  or  the  accused  being  able  to  manipulate  

circumstances to his or her advantage.  

25. In  this  light,  the  interplay  between  Section  6A  of  the  Act  and  a  

constitutional  court  monitored  investigation  should  be  such  as  to  protect  

senior government officials from frivolous and vexatious complaints and at  

the  same time prevent  them from exercising  influence  or  prolonging the  

grant of previous approval by the Central Government thereby effectively  

scuttling the investigation.  

26. On  the  protective  side,  it  was  submitted  by  the  learned  Attorney-

General that when the CBI requests for the grant of previous approval, it  

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presents only one side of the story and it  is necessary to give the senior  

government official an opportunity of explaining his side of the story before  

approval is granted by the Central Government to conduct investigations by  

the  CBI.   Assuming  a  senior  government  officer  is  being  unfairly  

investigated  by the  CBI  in  a  constitutional  court  monitored  investigation  

without the previous approval of the Central Government, is it difficult for  

him or her to approach the constitutional court and present his side of the  

story and contend that he or she should not be investigated for an alleged  

offence?  It  is  only  the  substitution  of  a  forum,  from  a  Minister  to  a  

constitutional  court,  which  will  consider  the  officer’s  request  and  a  fair  

hearing  given  by  a  constitutional  court  certainly  cannot  be  said  to  be  

detrimental to his or her interest. On the contrary, the protection given by a  

constitutional court will be more real.

27. On the preventive side, one must not forget that senior government  

officials  wield  at  least  some influence.  This  Court  has  also  cautioned in  

Samaj Parivartan Samudaya v. State of Karnataka, (2012) 7 SCC 407 that  

our  criminal  jurisprudence  contemplates  that  “an  investigation  should  be  

fair, in accordance with law and should not be tainted. But, at the same time,  

the court has to take precaution that interested or influential persons are not  

able  to  misdirect  or  hijack  the  investigation  so  as  to  throttle  a  fair  

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investigation resulting in the offenders escaping the punitive course of law.”  

Effectively, therefore, Section 6A of the Act calls for an equal  treatment  

before law for all, and that is precisely what a constitutional court monitored  

investigation seeks to achieve – preventing misuse of the law.

28. The Office Memorandum relied on by the learned Attorney-General  

can hardly be termed as efficacious in any manner. Firstly, it cannot be used  

to  interpret  a  provision of  law such as  Section 6A of  the Act.  I  am not  

inclined  to  give  any  importance  to  the  Office  Memorandum  for  

understanding or appreciating Section 6A of the Act. Secondly, the Office  

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

of the executive Government, on the same rationale as given for enacting  

Section 6A of the Act, namely, for ‘protecting’ a senior government official.  

Therefore, it does not effectively prevent possible misuse of the law.

29. The entire issue may be looked at from another angle. Section 156 of  

the  Criminal  Procedure  Code  enables  the  local  police  to  investigate  a  

cognizable  offence  while  Section  155  of  the  Criminal  Procedure  Code  

enables  a  police  officer  to  investigate  a  non-cognizable  offence  after  

obtaining an appropriate order from the magistrate having power to try such  

case or commit the case for trial regardless of the status of the concerned  

officer.  Therefore,  the  local  police  may  investigate  a  senior  Government  

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officer without previous approval of the Central Government, but the CBI  

cannot do so. This is rather anomalous.  

30. This anomaly has, in fact, occurred. In  Centre for PIL v. Union of   

India, (2011) 4 SCC 1 investigations were conducted by the local police in  

respect of a senior government official, without any previous approval, and a  

challan filed in the court of the Special Judge dealing with offences under  

the Prevention of Corruption Act, 1988. It is difficult to understand the logic  

behind such a dichotomy unless it is assumed that frivolous and vexatious  

complaints are made only when the CBI is the investigating agency and that  

it  is  only  the  CBI  that  is  capable  of  harassing  or  victimizing  a  senior  

Government official while the local police of the State Government does not  

entertain frivolous and vexatious complaints and is not capable of harassing  

or  victimizing a  senior  government  official.  No  such  assumption  can  be  

made.  

31. With regard to the time factor for taking a decision, as proposed by  

the  learned  Attorney-General  it  is  worth  referring  to  Dr. Subramanian  

Swamy v. Dr. Manmohan Singh, (2012) 3 SCC 64 wherein this Court noted  

in paragraph 17 of the Report as follows:-

“During  the  course  of  hearing,  the  learned  Attorney  General  filed  written  submissions.   After  the  hearing  concluded,  the  learned  Attorney General filed supplementary written submissions along with  

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a compilation of 126 cases in which the sanction for prosecution is  awaited for periods ranging for more than one year to a few months.”

32. Referring to this situation, this Court observed in paragraph 70 of the  

Report as follows:-

“Therefore, in more than one-third cases of request for prosecution in  corruption  cases  against  public  servants,  sanctions  have  not  been  accorded. The aforesaid scenario raises very important constitutional  issues  as  well  as  some questions  relating  to  interpretation  of  such  sanctioning provision and also the role that an independent judiciary  has to play in maintaining the Rule of Law and common man’s faith  in the justice-delivering system. Both the Rule of Law and equality  before law are cardinal questions in our constitutional laws as also in  international law and in this context the role of the judiciary is very  vital.”

33. It is true that in Swamy this Court was referring to delays in sanctions  

for prosecution but it is not unlikely that a similar scenario may play itself  

out  in  respect  of  the  grant  of  previous  approval  for  investigation  

notwithstanding  time  lines  being  laid  down  as  mentioned  in  the  Office  

Memorandum.  This is  because if  the time lines are not adhered to, it  is  

unlikely that the CBI, in the absence of any realistic functional autonomy,  

will be able to press the Central Government beyond a point for expeditious  

approval for investigating an offence against a senior government official.  

Investigations can be paralyzed by unwarranted delays, both intentional and  

unintentional.

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34. Equality before law has been emphasized by this Court in Sirajuddin  

in the passage cited by the learned Attorney-General.  This has also been  

emphasized in Swamy in the passage quoted above.  In Vineet Narain, the  

issue of equality before law was adverted to in paragraph 44 of the Report.  

Keeping this salutary equality principle in mind, it is necessary that Section  

6A be  so  interpreted  that  the  requirement  of  a  previous  approval  is  not  

necessary  when  an  investigation  by  the  CBI  is  being  monitored  by  a  

constitutional court. The protection afforded to a senior government officer  

can  be  adequately  taken  care  of  by  a  fair  and  impartial  hearing  in  a  

constitutional court; the preventive mechanism for a fair investigation can be  

impartially  taken care  of  by  a  constitutional  court;  expeditious  and non-

partisan  conclusion  of  an  investigation  can  be  and  will  undoubtedly  be  

monitored by a constitutional court. More importantly, public interest will be  

taken care of if Section 6A of the Act is interpreted as not putting a fetter on  

the power of a constitutional court in a case of a continuing mandamus.

35. The learned Attorney-General is right in saying that official acts are  

presumed to have been done in accordance with law.  While this certainly  

applies to senior government officers, it equally applies to the CBI which, it  

is presumed, will ‘officially’ act against a senior government officer in a  

constitutional court monitored investigation only if it is confident that there  

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is enough material before it to conduct an investigation.  It is not possible to  

assume that in a constitutional court monitored investigation the CBI will, in  

a  trigger-happy  manner,  ride  roughshod  and  target  senior  government  

officers only because they are empowered to do so. The submission of the  

learned Attorney-General must equally apply to the CBI and an official act  

of the CBI must also be presumed to have been done in accordance with law.

36. Interestingly, as noted in  Subramaniam Swamy v.  Director (CBI),   

(2005) 2 SCC 317 no previous approval for investigation was required by  

the CBI from the date of decision in  Vineet Narain  (18th December 1997)  

till the insertion of Section 6-A of the Act with effect from 12th September  

2003 except for a brief period of two months from 25th August 1998 to 27th  

October 1998. Absolutely no material was placed before us to suggest that  

during the period when the Single Directive was not in operation, nor was  

Section 6A of the Act on the statute book, the CBI investigated frivolous and  

vexatious complaints against senior government officers or harassed any of  

them in any way. The fear that decision makers in the Government will be  

wary  of  taking  a  bona  fide decision  that  may  inadvertently  stir  up  an  

avoidable controversy does not appear to be based on any material.  

37. Finally, a constitutional court monitored investigation is nothing but  

the adoption of a procedure of a ‘continuing mandamus’ which traces its  

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origin, like public interest litigation, to Article 32 of the Constitution and is  

our contribution to  jurisprudence.  This  has been sufficiently discussed in  

Vineet Narain and there is no present necessity of any further discussions on  

this.  In  M.C.  Mehta  v.  Union  of  India,  (2008)  1  SCC  407  this  Court  

referred,  in  the  context  of  ongoing  investigations,  to  a  ‘continuous  

mandamus’ and observed that:  

“The jurisdiction of the Court to issue a writ of continuous mandamus  is only to see that proper investigation is carried out. Once the Court  satisfies itself that a proper investigation has been carried out, it would  not venture to take over the functions of the Magistrate or pass any  order which would interfere with his judicial functions.”

38. The question therefore is, can a statutory fetter such as Section 6A of  

the Act bind the exercise of plenary power by this Court of issuing orders in  

the nature of a continuing mandamus under Article 32 of the Constitution?  

The answer is quite obviously in the negative. Any statutory emasculation,  

intended or unintended, of the powers exercisable under Article 32 of the  

Constitution is impermissible.  

39. In  the  Constitution  Bench  decision  in  State  of  West  Bengal  v.   

Committee  for  Protection of  Democratic  Rights,  (2010)  3  SCC 571 the  

question  that  arose was whether  the High Court  could direct  the CBI to  

investigate a cognizable offence, which is alleged to have taken place within  

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the  territorial  jurisdiction  of  a  State,  without  the  consent  of  the  State  

Government. Apart from the constitutional issue relating to the separation of  

powers, the other issue related to the statutory bar on investigations, without  

the consent of the State Government, imposed by Section 6 of the Act. This  

Section reads as follows:

6.  Consent  of  State  Government  to  exercise  of  powers  and  jurisdiction.—Nothing  contained  in  Section  5  shall  be  deemed  to  enable  any  member  of  the  Delhi  Special  Police  Establishment  to  exercise powers and jurisdiction in any area in a State, not being a  Union  Territory  or  railway  area,  without  the  consent  of  the  Government of that State.”

40. The  Constitution  Bench  discussed  the  issue  of  

separation of powers and later dealt with the statutory bar in  

the  context  of  judicial  review.  The  Constitution  Bench  

referred (in paragraph 51 of the Report) to the speech of Dr.  

Ambedkar  in  the  Constituent  Assembly,  with  reference  to  

Article 32 of the Constitution, wherein he said.

“If  I  was asked to name any particular  article in  this  Constitution as the most important - an article without  which this Constitution would be a nullity - I could not  refer to any other article except this one. It is the very  soul of the Constitution and the very heart of it and I  am glad that the House has realised its importance.”   

Thereafter,  explaining the importance of clause (2) of  Article 32 and the  

expression “in the nature of” used therein, the Constitution Bench held, in  

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paragraph 53 of the Report that the power conferred is “in the widest terms  

and is not confined to issuing the high prerogative writs specified in the said  

clause but  includes within its  ambit  the power to issue any directions or  

orders  or  writs  which  may  be  appropriate  for  enforcement  of  the  

fundamental rights. Therefore, even when the conditions for issue of any of  

these writs are not fulfilled, this Court would not be constrained to fold its  

hands in despair and plead its inability to help the citizen who has come  

before  it  for  judicial  redress  (per  P.N.  Bhagwati,  J.  in  Bandhua  Mukti   

Morcha v. Union of India26).”

41. Concluding the discussion, the Constitution Bench held (in paragraph  

68(vii)  of  the Report)  that  the power of  judicial  review exercisable  by a  

constitutional court cannot be restricted by a statutory provision. It was held  

as follows:

(vii) When the Special Police Act itself provides that subject to the  consent by the State, CBI can take up investigation in relation to the  crime which was otherwise within the jurisdiction of the State police,  the Court can also exercise its constitutional power of judicial review  and direct CBI to take up the investigation within the jurisdiction of  the  State.  The  power  of  the  High  Court  under  Article  226  of  the  Constitution cannot be taken away, curtailed or diluted by Section 6 of  the  Special  Police  Act.  Irrespective  of  there  being  any  statutory  provision  acting  as  a  restriction  on  the  powers  of  the  Courts,  the  restriction  imposed  by Section  6  of  the  Special  Police  Act  on  the  powers of the Union, cannot be read as restriction on the powers of  the  constitutional  courts.  Therefore,  exercise  of  power  of  judicial  

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review  by  the  High  Court,  in  our  opinion,  would  not  amount  to  infringement  of  either  the  doctrine  of  separation  of  power  or  the  federal structure.”

42. The law laid down by the Constitution Bench vis-à-vis a High Court  

exercising  judicial  review  under  Article  226  of  the  Constitution  and  a  

statutory restriction under Section 6 of the Act, would apply (perhaps with  

greater vigour)  mutatis mutandis  to the exercise of judicial review by this  

Court  under  Article  32  of  the  Constitution  with  reference  to  a  statutory  

restriction imposed by Section 6A of the Act. That being so, Section 6A of  

the Act must be meaningfully and realistically read, only as an injunction to  

the executive and not as an injunction to a constitutional court monitoring an  

investigation under Article 32 of the Constitution in an exercise of judicial  

review and of issuing a continuing mandamus.

43. The  need  for  a  separate  opinion  has  arisen  since  I  have  some  

reservations on the interpretation of the decisions of this Court referred to by  

Brother Justice Lodha with regard to the plenitude of powers exercisable by  

this Court under Article 142 of the Constitution. Those reservations are not  

at all material for the present since the conclusion arrived at is the same – the  

route being different. While Brother Justice Lodha has relied on Article 142  

of the Constitution to arrive at a conclusion that Section 6A of the Act has  

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no  application  to  a  constitutional  court  monitored  investigation,  I  have  

reached the  same conclusion by relying,  inter  alia,  on  Article  32  of  the  

Constitution and the discussion on judicial review found in Committee for  

Protection of Democratic Rights.

..……………………..J. New Delhi;    (Madan B. Lokur) December 17, 2013

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