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another turn in 2G Scam =By this order we are disposing of the prayer made by the appellants for appointment of a group of independent persons to assist the Court in monitoring the investigation being carried out by the Central Bureau of Investigation (CBI), the Enforcement Directorate and the Income Tax Department in ‘2G case’.= We, therefore, issue the following directions: (i)In future copies of the report(s) of the investigation conducted by the CBI and other agencies shall be made available to the Central Vigilance Commissioner in sealed envelopes.

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Central Bureau of Investigation

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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

 

CIVIL APPEAL NO.10660 OF 2010

 
CENTER FOR PIL & OTHERS …….APPELLANTS

 

VERSUS

 

UNION OF INDIA & OTHERS ……RESPONDENTS

 

O R D E R

 

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

appellants for appointment of a group of independent persons to

assist the Court in monitoring the investigation being carried

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

Enforcement Directorate and the Income Tax Department in ‘2G

case’.

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

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

Investigation Team into what was termed as ‘2G Spectrum Scam’

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

then Union Minister, Department of Telecommunications, senior

officers of the department, middlemen, businessmen and others

was dismissed by the Delhi High Court vide order dated

25.5.2010.
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3. The appellants challenged the order of the Delhi High

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

16.12.2010, this Court granted leave and issued the following

directions:

“(i) CBI shall conduct thorough investigation into
various issues highlighted in the report of the
Central Vigilance Commission, which was forwarded
to the Director, CBI vide letter dated 12-10-2009
and the report of the CAG, who have prima facie
found serious irregularities in the grant of
licences to 122 applicants, majority of whom are
said to be ineligible, the blatant violation of the
terms and conditions of licences and huge loss to
the public exchequer running into several thousand
crores. CBI should also probe how licences were
granted to large number of ineligible applicants
and who was responsible for the same and why TRAI
and DoT did not take action against those licensees
who sold their stakes/equities for many thousand
crores and also against those who failed to fulfil
rollout obligations and comply with other
conditions of licence.

(ii) CBI shall conduct the investigation without
being influenced by any functionary, agency or
instrumentality of the State and irrespective of
the position, rank or status of the person to be
investigated/probed.

(iii) CBI shall, if it has already not registered
first information report in the context of the
alleged irregularities committed in the grant of
licences from 2001 to 2006-2007, now register a
case and conduct thorough investigation with
particular emphasis on the loss caused to the
public exchequer and corresponding gain to the
licensees/service providers and also on the issue
of allowing use of dual/alternate technology by
some service providers even before the decision was
made public vide press release dated 19-10-2007.

(iv) CBI shall also make investigation into the
allegation of grant of huge loans by the public
sector and other banks to some of the companies
which have succeeded in obtaining licences in 2008
and find out whether the officers of DoT were
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signatories to the loan agreement executed by the
private companies and if so, why and with whose
permission they did so.

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

(vi) Both the agencies i.e. CBI and the Directorate
of Enforcement shall share information with each
other and ensure that the investigation is not
hampered in any manner whatsoever.

(vii) The Director General, Income Tax
(Investigation) shall, after completion of analysis
of the transcripts of the recording made pursuant
to the approval accorded by the Home Secretary,
Government of India, hand over the same to CBI to
facilitate further investigation into the FIR
already registered or which may be registered
hereinafter.”

 

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

CBI, the Directorate of Enforcement and the Income Tax Department

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

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

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

order dated 11.4.2001 decided the issue relating to appointment

of the Special Public Prosecutor.

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

learned counsel for the appellants repeatedly made a request for

appointment of a group of independent persons to assist the Court

in monitoring the investigation, which request was strongly

opposed by Shri K.K. Venugopal.
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6. Shri Prashant Bhushan, submitted that keeping in view the

nature of the case in which political and executive functionaries

of the State have connived with the businessmen for causing loss

to the public exchequer to the tune of many thousand crore

rupees, some of whom have already been chargesheeted before the

Special Judge, CBI, this Court should appoint independent persons

for assistance in monitoring the further progress of the case.

Learned counsel submitted that the first chargesheet filed by the

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

large number of reports have been submitted before this Court by

the CBI, the Enforcement Directorate and the Income Tax

Department which require detailed study of different facets of

the crime allegedly committed by large number of persons and,

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

monitoring by the Court will become more convenient and

effective.

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

the CBI argued that the Court should not entertain the prayer

made on behalf of the petitioner and appoint any outsider for

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

other agencies have very effectively investigated the case and

filed two chargesheets. Learned senior counsel submitted that the

Court has also expressed satisfaction with the mode and pace of

investigation so far carried out by the CBI and the Enforcement

Directorate and, therefore, there is no warrant for appointment
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of any other person who may act as a super-CBI. Shri Venugopal

emphasized that the Court monitoring the investigation cannot

issue direction regarding the manner in which such investigation

should be carried out because that would tantamount to

interference with the functioning of the CBI which is a statutory

body established under the Delhi Special Police Establishment

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

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

Vigilance Commission Act, 2003 (for short, ‘the 2003 Act’) the

Central Vigilance Commission has been clothed with the power to

exercise superintendence over the functioning of the Delhi

Special Police Establishment, it cannot interfere with the

investigation or direct the manner in which the investigation

should be conducted. Learned senior counsel also submitted that

the monitoring before this Court has already come to an end

insofar as the chargesheets filed before the Special Court are

concerned and in the midst of further investigation there is no

justification for appointment of a group of persons to monitor

the investigation in the name of assisting the Court.

 
8. We have considered the respective submissions. In Vineet

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

petition filed under Article 32 of the Constitution and ordered

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

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

the three-Judge Bench examined different facets of the need of an
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independent agency to investigate the cases of corruption by

public servants and issued several directions concerning the CBI,

the Central Vigilance Commission, the Enforcement Directorate,

etc., including the following:

“58. As a result of the aforesaid discussion, we
hereby direct as under:

I. CENTRAL BUREAU OF INVESTIGATION (CBI) AND CENTRAL
VIGILANCE COMMISSION (CVC)

1. The Central Vigilance Commission (CVC) shall be
given statutory status.

2. Selection for the post of Central Vigilance
Commissioner shall be made by a Committee comprising
the Prime Minister, Home Minister and the Leader of
the Opposition from a panel of outstanding civil
servants and others with impeccable integrity, to be
furnished by the Cabinet Secretary. The appointment
shall be made by the President on the basis of the
recommendations made by the Committee. This shall be
done immediately.

3. The CVC shall be responsible for the efficient
functioning of the CBI. While Government shall remain
answerable for the CBI’s functioning, to introduce
visible objectivity in the mechanism to be
established for overviewing the CBI’s working, the
CVC shall be entrusted with the responsibility of
superintendence over the CBI’s functioning. The CBI
shall report to the CVC about cases taken up by it
for investigation; progress of investigations; cases
in which charge-sheets are filed and their progress.
The CVC shall review the progress of all cases moved
by the CBI for sanction of prosecution of public
servants which are pending with the competent
authorities, specially those in which sanction has
been delayed or refused.

4. The Central Government shall take all measures
necessary to ensure that the CBI functions
effectively and efficiently and is viewed as a non-
partisan agency.

6. Recommendations for appointment of the Director,
CBI shall be made by a Committee headed by the
Central Vigilance Commissioner with the Home
Secretary and Secretary (Personnel) as members. The
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views of the incumbent Director shall be considered
by the Committee for making the best choice. The
Committee shall draw up a panel of IPS officers on
the basis of their seniority, integrity, experience
in investigation and anti-corruption work. The final
selection shall be made by the Appointments Committee
of the Cabinet (ACC) from the panel recommended by
the Selection Committee. If none among the panel is
found suitable, the reasons thereof shall be recorded
and the Committee asked to draw up a fresh panel.”

9. After taking note of the directions given in Vineet

Narain’s case, the Government introduced the Central Vigilance

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

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

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

under:

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

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

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

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

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

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

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

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

(a) exercise superintendence over the functioning of
the Delhi Special Police Establishment insofar as it
relates to the investigation of offences alleged to
have been committed under the Prevention of
Corruption Act, 1988 (49 of 1988), or an offence with
which a public servant specified in sub-section (2)
may, under the Code of Criminal Procedure, 1973 (2 of
1974), be charged at the same trial;

(b) give directions to the Delhi Special Police
Establishment for the purpose of discharging the
responsibility entrusted to it under sub-section (1)
of section 4 of the Delhi Special Police
Establishment Act, 1946 (25 of 1946):

Provided that while exercising the powers of
superintendence under clause (a) or giving directions
under this clause, the Commission shall not exercise
powers in such a manner so as to require the Delhi
Special Police Establishment to investigate or
dispose of any case in a particular manner;

(c) inquire or cause an inquiry or investigation to
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be made on a reference made by the Central Government
wherein it is alleged that a public servant being an
employee of the Central Government or a corporation
established by or under any Central Act, Government
company, society and any local authority owned or
controlled by that Government, has committed an
offence under the Prevention of Corruption Act, 1988
(49 of 1988), or an offence with which a public
servant may, under the Code of Criminal Procedure,
1973 (2 of 1974), be charged at the same trial;

(e) review the progress of investigations conducted
by the Delhi Special Police Establishment into
offences alleged to have been committed under the
Prevention of Corruption Act, 1988 (49 of 1988) or
the public servant may, under the Code of Criminal
Procedure, 1973 (2 of 1974), be charged at the same
trial;”

 

10. A combined reading of the directions given by this

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

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

Vigilance Commission is required to exercise superintendence over

the functioning of the Delhi Special Police Establishment in

matters relating to the investigation of offences allegedly

committed under the Prevention of Corruption Act and/or an

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

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

give directions to the Delhi Special Police Establishment for the

purpose of discharging the responsibility entrusted to it under

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

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

cannot, while exercising the power of superintendence under

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

Special Police Establishment to investigate or dispose of any
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case in a particular manner. In other words, the power of

superintendence cannot be used by the Central Vigilance

Commission for interfering with the manner and method of

investigation or consideration of any case by the CBI in a

particular manner.

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

the matter relating to investigation of 2G case with requisite

seriousness, after 16.12.2010 it has satisfactorily conducted the

investigation. Therefore, there is no justification to appoint a

group of persons to directly or indirectly scrutinise or

supervise the further investigation being conducted by the CBI

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

case and involvement of large number of influential persons, we

feel that it will be appropriate to require the Central Vigilance

Commissioner and the Senior Vigilance Commissioner appointed

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

Court in effectively monitoring the further investigation of the

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

Section 8(1) of the 2003 Act.

 
12. We, therefore, issue the following directions:

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

conducted by the CBI and other agencies shall be made

available to the Central Vigilance Commissioner in sealed

envelopes.
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(ii)Within next one week the Central Vigilance

Commissioner and the Senior Vigilance Commissioner shall

examine the report(s) and send their observations /

suggestions to this Court in sealed envelopes which shall

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

other investigating agencies.

 
13. The aforesaid direction shall not in any manner be

construed as a reflection on the integrity of the investigation

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

which may be done in future or their competence to effectively

perform the job in relation to 2G case.

 

 

……………………….J.
( G.S.SINGHVI )

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

 

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