UNION OF INDIA versus PRAKASH P. HINDUJA AND ANR.

25. The facts and circumstances in which the writ petition was filed, the allegations made and the relief claimed therein would show that the CBI and H other Government Agencies had not performed their statutory duty for a very long time to investigate commission of offences as the accused involved U.0.1. v. PRAKASH P. fllNDUJA [G.P. MA THUR, J.] were holding high offices. The Single Directive issued by the Government A created an embargo on the power of the CBI in registering or investigating cases against officers of the Government, Public Sector Undertakings and Nationalised Banks above a certain level without prior sanction of the designated authority. The proceedings of the case revealed that there was a complete disinclination on the part of the CBI to proceed with investigation B of offences against persons holding high offices even after the matter had been brought to Court. The Court came to the conclusion that wherever the alleged offender was a powerful person, the CBI rei.1ai11~d a silent spectator and practically took no steps to investigate the matter.

After examination of the statutory provisions, the Court came to the conclusion that the Single Directive had the effect of restraining the recording of FIR and initiation of C investigation, which could not be issued in exercise of power under Section 4(1) of the DSPE Act as the powers of investigation are governed by statutory provisions. It was therefore considered expedient that the CBI should be insulated from extraneous influence of any kind. The Court also came to the conclusion that in order to establish rule of law, it was necessary that proper investigation is made which is followed by equally proper prosecution. It was D in these circumstances that various directions were issued with regard to the functioning of CBI and CVC, Enforcement Directorate, Nodal Agencies and Prosecution Agencies. The entire emphasis in the judgment is that as no one is above the law, the persons holding high offices are not able to escape either on account of inertia or inaction of the CBI to investigate the commission E of offence or on account of incomplete or improper investigation or faulty prosecution in Court.

A duty has been cast on the CVC to review the progress of all cases moved by the CBI for sanction of prosecution, specially those in which sanction has been delayed or refused. The judgment nowhere says that the CBI will have to take concurrence or sanction from the CVC before filing charge sheet in Court. No right of any kind has been conferred upon the F alleged offender or the accused to approach the CVC or to challenge the action of CBI in submission of charge-sheet in Court on the ground of some purported irregularity in making a report to the eve regarding progress of investigation.

26. The view taken by the High Court that as the CBI submitted the charge-sheet without reporting and taking approval or consent from the CVC, the same was illegal and no cognizance could be taken thereon is, therefore, wholly erroneous and does not at all follow from the judgment.

27. Shri Jethmalani has strenuously urged that as the eve has been H A entrusted with the responsibility of superintendence over the CBl's functioning, the CVC can as well direct CBI not to submit a charge sheet in a given case. The accused can bring to the notice of the CVC that either there was not sufficient material or it was not a fit case where prosecution should be launched and ifthe CVC is satisfied with the plea of the accused, it will have the right B to give a direction to the CBI not to submit a charge-sheet against the accused. According to learned counsel the power with the CVC is akin to Section 36 Cr.P.C. which lays down that police officers superior in rank to an officer in charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station and, therefore, the eve has the authority to direct the C CBI not to submit charge sheet in a given case just as a Superintendent of Police can give this type of direction to an officer incharge of a police station.

We are unable to accept the contention raised. The directions issued cannot be interpreted in abstract but have to be read and understood in the context of the facts and circumstances leading to the filing of the writ petition. The facts which were revealed and were brought to light during the course D of hearing showed that the CBI had failed to perform its statutory duty and legal obligation of investigating offences and after completing the investigation taking it to its logical conclusion of launching prosecution against all those who were found to have committed offences. The direction issued never meant to create or confer some kind of additional rights in favour of the E accused as held by the High Court. The accused has absolutely no right to approach the CVC for taking any steps to stop the CBI from either proceeding against him or from launching prosecution against him by filing a charge sheet.

Further, the directions issued do not confer any kind of a right upon the accused to assail the charge sheet on the ground that the CBI had not reported the progress of investigation to the eve or had not taken some kind F of approval or concurrence from it before submission of the charge sheet in Court.

28. Shri Jethmalani has contended that the directions issued in Vineet Narain have not been complied by the Union of India in as much as the CVC G has not been given a statutory status and strict compliance of other directions has also not been made. Seeking analogy from Section I 9(2)(c) of Contempt of Courts Act, learned counsel has urged that the appellant Union of India has committed contempt of the order passed by this Court in the case of Vineet Narain and therefore it should not be heard. Learned Solicitor General has controverted this argument by submitting that Central Vigilance H Commission Ordinance 15 of 1998 was promulgated on 25.8.1998 and on U.0.1. v. PRAKASH P. HINDUJA (G.P. MA THUR . .I.] 33 I 27.10.1998 Central Vigilance Commission (Amendment) Ordinance, 1998 A was promulgated. Thereafter, CVC Bill 1998 was introduced in the Lok Sabha on 7.12.1998 but the matter was referred to the Standing Committee. On 8.1.1999 CVC Ordinance 4 of 1999 was promulgated to continue the provisions of earlier Ordinances. The Lok Sabha passed CVC Bill 1999 on 15.3.1999 and thereafter it was listed in the Rajya Sabha but could not be B taken up. On 4.4.1999 the Government of India Resolution No.371/20/99 – A VD (III) was published in the Gazette to continue the Central Vigilance Commission as the Parliament being in session no fresh Oruinance could be issued and Ordinance No.4 of I 999 was going to expire on 5.4.1999. The Lok Sabha dissolved on 26.4.1999 and consequently CVC Bill 1999 pending consideration in the Rajya Sabha also lapsed. On 20.12.1999, CVC Bill 1999 C was introduced in Lok Sabha which passed the same on 26.2.2003 and on 5.3.2003 notice was sent to Secretary General, Rajya Sabha for consideration of CVC Bill 2003 as passed by the Lok Sabha. These facts show that the appellant has been taking steps to comply with the directions issued in Vineet Narain.

29. Under our constitutional scheme the Parliament exercises sovereign power to enact laws and no outside power or authority can issue a direction to enact a particular piece of legislation. In Supreme Court Employees' Welfare Association v. Union of India, [I989] 4 SCC 187 (para 51) it has been held that no Court can direct a legislature to enact a particular law. Similarly, E when an executive authority exercises a legislative power by way of subordinate legislation pursuant to the delegated authority of a legislature, such executive authority cannot be asked to enact a law which he has been empowered to do under the delegated legislative authority. This view has been reiterated in State of J&K v. AR Zakki and Ors., AIR (1992) SC 1546. F In AK Roy v. Union of India, AIR (1982) SC 710 it was held that no mandamus can be issued to enforce an Act which has been passed by the legislature., Therefore, the direction issued regarding conferment of statutory status on CVC cannot be treated to be of such a nature, the non-compliance whereof may amount to contempt of the order passed by this Court.

30. Shri Jethmalani has also referred to some correspondence which ensued between the Embassy of India and Federal Office for Police Matters of the Federal Department of Justice and Police, Bern, Switzerland and has laid emphasis on the following sentence occurring therein – "The requesting authority has examined those documents in detail and has reached at the conclusion that the documents transmitted are unfortunately too limited to H A sustain a charge sheet against Hinduja brothers and do not correspond to the mission of its request for assistance dated 23.01.1990." Learned counsel has submitted that as the CBI itself was of the opinion that the documents transmitted could not sustain a charge against Hinduja brothers, there was no justification for submitting a charge sheet and the trial would be abuse of the B process of the Court. It has been further urged that the evidence sought to be relied upon by the CBI is wholly deficient and can under no case establish any charge against accused-respondent No. I. According to learned counsel the charge sheet has been submitted only on account of political vendetta and to malign the name of the Prime Minister, who was in office at the time when the contract was signed.

It may be stated at the very outset that the letter, C reliance on which has been placed by Shri Jethmalani, was written by the Federal Office of Police to the Investigating Judge in Switzerland in connection with execution of Letters rogatory in Switzerland. This letter has not been written either by the CBI or by any authority in India. Therefore, it cannot form the basis for assailing any action of the CBI. That apart we are not D concerned here with the merits of the allegations and the nature of the evidence which the prosecution would produce in Court to establish the charge as this was not the plea of the accused before the High Court nor the High Court has examined the same. The High Court has proceeded on entirely different grounds for quashing the cognizance taken by the learned Special Judge.

31. In reply to the petition filed by respondent Prakash Hinduja in the High Court, separate counter-affidavits on behalf of CBI and CVC were filed. In the counter-affidavit filed by CBI in para 5 the details of the Ordinances issued are given and it is stated that the Bill is pending before the Parliament and consequently no statutory power of superintendence had as F yet been conferred upon the eve and its role in relation to investigation of offences under the Prevention of Corruption Act was governed by the Government Resolution dated 4.4.1999 which was issued as the Ordinance was going to lapse. The Resolution provided that CVC shall have the power to inquire or cause an inquiry or investigation to be made on a reference made by the Central Government wherein it is alleged that a public servant G above a particular level has committed an offence under the Prevention of Corruption Act and to review the progress of applications pending with the competent authorities for sanction of prosecution under the aforesaid Act.

The CVC shall exercise superintendence over the vigilance, administration of various Ministries of the Central Government or Corporations established by or under any Central Act and shall tender advice to them. In para 7 of the H counter-affidavit it is stated that under the existing administrative directions U.0.1. v. PRAKASH P. HINDUJA [G.P. MATHUR, J.] the CBI has a practice of reporting to the eve all developments in cases A involving public servants. Accordingly, well before filing of the first charge sheet, an investigation report was sent to the eve and the eve was apprised of the developments in the case. It is further stated that the name of G.P. Hinduja is mentioned in the FIR itself and since in the first charge sheet it was mentioned that further investigations are being carried out to unearth the B full details of the commission paid by Bofors and the papers received in December 1999 revealed with sufficient particularity receipt of commissions by Hinduja brothers, a supplementary charge sheet was filed against them.

The counter-affidavit on behalf of the CVC was filed by Shri RK Bajaj, Director in the Central Vigilance Commission. In para 3 of the affidavit it is categorically stated that the statements made in the counter-affidavit filed by C CBI as to the presentation of the investigation report to the CVC are correct. It is further stated that eve has no role in filing of the charge sheets and the conduct of cases as pleaded by the accused and the directions of the Supreme Court in Vineet Narain only require the CVC to function in a supervisory character. Investigation of cases, filing of charge sheets and then prosecution of such cases are essentially for the CBI, the duty of the CVC being to ensure D that the CBI discharges its duties without any interference and without undue favour to any person. In para 7 it is stated that the CVC holds review meetings with the CBI to review the progress of cases and the meetings are held on monthly basis and in this manner the CVC is discharging its duties under the Government Resolution dated 4.4.1999 as well as the directions of this Court.

E It is also specifically stated that the registration of cases and its investigation is primarily the duty of CBI and filing of charge sheet does not in any manner require any approval of the CVC. The averrnents made in these affidavits clearly show that the investigation report was sent to the CVC by the CBI before filing of the first charge sheet and the CVC was also apprised of the developments in the case. As mentioned earlier, in para 62 of the first F charge sheet, it was clearly mentioned that the in 1vestigation regarding further transfer of the funds routed through various countries was continuing and investigation regarding the role played by three Hinduja brothers was also continuing. On account of the fact that CVC Bill could not be passed by the Rajya Sabha, the functioning of the eve was being regulated by the G Government Resolution dated 4.4.1999 and this nowhere provided for taking any concurrence or approval from the CVC before filing of the charge sheet.

The CVC having filed an affidavit stating that investigation report had been submitted to it by the CBI and that it had no role in the filing of the charge- sheet and the conduct of the cases, the plea raised by the accused fell to the A ground and the petition filed by him ought to have been dismissed straight away. The High Court committed serious error in not giving due consideration to the counter affidavits filed by the CBI and CVC and especially to the fact that on account of non-passing of the CVC Bill by the Rajya Sabha and lapsing of the Ordinance, the duties and functions of the CVC are to be B performed in accordance with the Government of India Resolution dated 5.4.1999, which nowhere provided for taking any kind of a concurrence or approval from the eve before submission of the charge sheet.

32. In para 31 of the judgment, the High Court has placed reliance on Gokul Chand Dwarka Das Morarka v. King, AIR (1948) PC 82. But here the C conviction was set aside as the sanction granted to prosecute the accused, which was a requirement of the statute, was found to be invalid. As discussed earlier there is no requirement of any sanction by the CVC either under any statute or even under the directions of Vineet Narain and, therefore, the ratio of this case can have no application at all. In para 34 of the judgment the High Court has placed reliance on Prabhu Dayal Deorah v. District Magistrate, D AIR (1974) SC 183, wherein the detention order passed under Maintenance of I ntemal Security Act was set aside on the finding that one of the grounds communicated to detenu was vague. We fail to understand how the principle laid down in a case where challenge is made to preventive detention can have any application whatsoever to the case in hand.

33. With respect we find the High Court judgment to be quite confusing and self contradictory. In para 18( c) it is observed that "there is no requirement to seek clearance before charge sheets are filed" and in para 19 it is said that "the only requirement in this regard is of reporting and the role of the eve on this would be to give its comments in its annual report." In para 20 it is p said that "the direct power of review granted to the eve is only of pending applications for sanction" and "the CVC is not cast with the role of reviewing as such the steps taken in the course of investigation and thereafter." In para 21 it is said that "the duty to report of the steps taken in the course of investigation is not and cannot be equated with the duty to obtain prior approval or consent of any other authority to these steps." Again in para 24 G it is said that ·'the contention of the petitioner that a breach of these directions would render the action of the CBI void since the directions are to be rigidly complied with is equally misconceived." It is further said that "even the rigid compliance with these directions cannot go beyond the CVC over-viewing CBI 's working and the CBI 's reporting to the CVC." U.0.1. v. PRAKASH P. HINDU.IA [G.P. MATHUR, .I.]

34. The High Court having arrived at the aforesaid findings, the only A result which could logically follow was to dismiss the petition. There was absolutely no occasion for allowing the same and quashing the cognizance and further proceedings in the case.

35. In view of the discussion made above the appeals are allowed and the judgment and order dated 10.6.2002 of the High Court is set aside. The B learned Special Judge shall proceed with the trial of the case. While framing the charge he shall carefully scrutinise the material on record and other circumstances of the case in accordance with law. N.J. Appeals allowed. C