Order
Civil Appeal No. 10660 of 2010
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 CBI or a Special Investigation Team into what was termed as “2G Spectrum Scam” for unearthing the role of Respondent 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 WP (C) No. 3522 of 2010.
3. The appellants challenged the order of the Delhi High Court in SLP (C) No. 24873 of 2010. By a detailed order dated 16-12-2010 (2011) 1 SCC 560, 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 Comptroller and Auditor General, 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 a 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 roll-out 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 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, 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 11-4-2011 (2012) 3 SCC 117 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.
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 charge-sheeted before the Special Judge, CBI, this Court should appoint independent persons for assistance in monitoring the further progress of the case. The learned counsel submitted that the first charge-sheet filed by CBI is accompanied by documents running into 80,000 pages and large number of reports have been submitted before this Court by 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 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 CBI and other agencies have very effectively investigated the case and filed two charge-sheets. The learned Senior Counsel submitted that the Court has also expressed satisfaction with the mode and pace of investigation so far carried out by CBI and the Enforcement Directorate and, therefore, there is no warrant for appointment of any other person who may act as a super-CBI.
8. Shri Venugopal emphasised 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 CBI which is a statutory body established under the Delhi Special Police Establishment Act, 1946 (for short “the 1946 Act”). The 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. The learned Senior Counsel also submitted that the monitoring before this Court has already come to an end insofar as the charge-sheets 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.
9. We have considered the respective submissions. In Vineet Narain case (1998) 1 SCC 226, this Court entertained the petition filed under Article 32 of the Constitution and ordered an investigation by 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 independent agency to investigate the cases of corruption by public servants and issued several directions concerning 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, the 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) CVC shall be responsible for the efficient functioning of CBI. While Government shall remain answerable for CBI's functioning, to introduce visible objectivity in the mechanism to be established for overviewing CBI's working, CVC shall be entrusted with the responsibility of superintendence over CBI's functioning. CBI shall report to CVC about cases taken up by it for investigation; progress of investigations; cases in which charge-sheets are filed and their progress. CVC shall review the progress of all cases moved by 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 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 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.”
10. After taking note of the directions given in Vineet Narain case (1998) 1 SCC 226, 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:
“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. Constitution of Central Vigilance Commission.—(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 (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 4-4-1999 as amended vide Resolution of even number, dated 13-8-2002 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—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 (Central Act 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 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;”
11. A combined reading of the directions given by this Court in Vineet Narain case (1998) 1 SCC 226 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 the 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 the Delhi Special Police Establishment to investigate or dispose of any 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 CBI in a particular manner.
12. Although, initially 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 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.
13. We, therefore, issue the following directions:
(i) In future copies of the report(s) of the investigation conducted by CBI and other agencies shall be made available to the Central Vigilance Commissioner in sealed envelopes.
(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 CBI and other investigating agencies.
14. 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.
IA No. 18 of 2011 in Civil Appeal No. 10660 of 2010
15. Dr. Subramanian Swamy who was allowed to act as an intervener in the proceedings of Civil Appeal No. 10660 of 2010 has filed this application with the prayer that a direction be issued to the Central Bureau of Investigation (CBI) to institute and proceed with the investigation in the matter of Mr P. Chidambaram, Union Home Minister. The applicant has alleged that criminal conspiracy to which reference has been made in Charge E of the first charge-sheet filed by CBI in April 2011 in connection with case RC No. DAI-2009(A)-0045, CBI, ACB, New Delhi could not have been possible but for the connivance of Shri P. Chidambaram.
16. In Para 6 of the application, the applicant has made the following assertions:
“6. (a) Under the 2003 decision of the Empowered Group of Ministers, approved by the Cabinet, the pricing formula for spectrum was required to be finalised jointly by the Department of Telecommunications (hereinafter referred to as ‘DoT’) and the Ministry of Finance (hereinafter referred to as ‘MoF’) i.e a pricing formula for spectrum, would not be valid and binding until it had the concurrence of both DoT and MoF.
(b) All the steps of the conspiracy delineated in CBI's first charge-sheet dated 3-4-2011, on pp. 56 to 59, are concerned with events and conspiracies up to 10-1-2008, whereby DoT had finalised two decisions:
(i) cut-off date;
(ii) first-come-first-served policy.
Both of which decisions would ensure preferential allotment of licence to Mr Raja's nominees.
(c) But neither of these two decisions would ensure that the favoured nominees would get their allotments at the cheap price of
(i) entry fee of Rs 1651 crores;
(ii) nil spectrum charges;
(iii) revenue share/licence fee as a percentage of AGR.
(d) To ensure the bonanza of the above cheap price especially (c)(ii) … nil spectrum charges … the concurrence of MoF was absolutely necessary; and this could only be done by reversing all the MoF/TRAI recommendations till date and finalising the cheap price as set out in (c).
In particular see the following matters which would have to be reversed:
(1) Annexure B, being Note No. 21.AS(EA)/18 dated 10.1.2008 where the Additional Secretary (EA) makes three alternative options available viz.
‘06. Review entry fee
07. Review revenue share percentages
08. Review spectrum charges.’
None of which three options provide for the desired ‘nil spectrum charges’;
(2) Annexure C, being Para 2.55 of TRAI's recommendations dated 28-8-2007, extracted from TRAI's ‘Review of Licence Terms and Conditions and Capping of Access Providers’.
(e) That this was done by Mr P. Chidambaram is manifested in at least three notes:
(i) Mr P. Chidambaram's note dated 15-1-2008, Annexure D hereto, where for the first time he slips in the suggestion that re ‘licensees who already hold spectrum over and above the start up spectrum’, that ‘in such cases, the past may be treated as a closed chapter … and the payments made in the past for additional spectrum (over and above the start-up spectrum) may be treated as the charges for spectrum for that period’ i.e these people will get spectrum at nil spectrum charges in the teeth of Annexures B and C.
(ii) The speech of the Prime Minister dated 16-2-2011, interacting with editors of the electronic media, of which the relevant portion is extracted as Annexure E hereto, wherein he made the point that:
(a) On 2-11-2007, Mr Raja told him that auction was not feasible as it had not been suggested by either TRAI or the Telecom Commission; and anyway existing players already have ‘got their spectrum free of charge’.
(b) After many discussions, ‘the two Ministries agreed that as far as 2G is concerned, we have to live with the present system, particularly with regard to the amount of spectrum that is built and embedded into a licence agreement’.
(iii) Mr P. Chidambaram's letter dated 21-4-2008 to Mr A. Raja, Annexure F hereto, mooting the necessary further dual meeting of the two Ministers.
Apparently it is at this last meeting said to be in July 2008 (whose minutes, despite the applicant's RTI application, have not been made available to the applicant) that the final decision of nil spectrum charges was formalised obviously with the full concurrence of Mr P. Chidambaram.”
17. During the hearing of the application on 21-9-2011, Dr. Subramanian Swamy filed an affidavit of the same date enclosing therewith xerox copies of the minutes of meeting dated 30-1-2008 of the Ministry of Finance, Department of Economic Affairs and Letter No. F 3/11/2001-Inf(Part) dated 25-3-2011 of the Ministry of Finance to the PMO. Thereafter, the applicant filed IA No. 24 of 2011 for placing on record the following documents:
“2. Annexure I being translation of news item dated 8-8-2009 in Nakeeran.
3. Annexure J Colly being (i) covering letter dated 8-6-2011 of DoT to the applicant; (ii) a file noting dated 5-11-2008 of the Office of the Minister of Communications and Information Technology.
4. Annexure K Colly being (i) news item dated 15-6-2011 of The Times of India, Delhi; (ii) note by CBI, tabulating information required by the Public Accounts Committee Branch, Lok Sabha, vide Letter No. 19/1/3/2010.PAC dated 11-3-2011; (iii) news item appearing in The Sunday Guardian, Delhi dated 12-6-2011; (iv) news item appearing in The Indian Express, Delhi dated 16-6-2011; (v) news item appearing in The Hindu, Delhi dated 16-6-2011; (vi) news item appearing in the The Times of India, Delhi, dated 17-6-2011.
5. Annexure L Colly being: (i) Letter F. No. 86598.RTI/2011 dated 4-7-2011 by the Ministry of Finance to the intervener; (ii) news item appearing in The Economic Times dated 28-7-2011.
6. Annexure M being Letter dated 15-7-2011 of certain office-bearers and Members of Parliament of the BJP to the Director, CBI.
7. Annexure N being Letter No. 815/2.C/2/2011-Pol/20276 dated 22-6-2011 from the Director, PMO to the intervener.
8. Annexure O being Letter No. D.O No. 261/3/2011-AVDII dated 10-8-2011 from the Minister of State, PMO to intervener.”
18. Dr. Subramanian Swamy submitted that the documents produced by him are sufficient to draw an inference that Shri P. Chidambaram was very much a party to the grant of letters of intent and spectrum to a large number of ineligible persons and, therefore, CBI should be directed to question him on his role in the grant of the letters of intent and spectrum at the 2001 prices.
19. Shri K.K Venugopal, learned Senior Counsel appearing for CBI opposed the application and submitted that CBI is a statutory body constituted under the Delhi Special Police Establishment Act, 1946 (for short “the 1946 Act”) and the Court cannot direct the manner of investigation or impleadment of a particular individual as an accused. Learned counsel referred to Section 173(8) and Section 319 of the Code of Criminal Procedure (for short “the CrPC”) and submitted that this Court, which is monitoring the investigation in 2G case in furtherance of the order passed on 16-12-2010 (2011) 1 SCC 560, cannot issue directions in the matters which are pending before the Special Judge, CBI, more so because the applicant has already filed an application before the Special Judge, CBI with a similar prayer. Shri Venugopal referred to the statement of Shri D. Subba Rao, the then Secretary (Finance), Ministry of Finance, Government of India on 5-3-2011 under Section 160 CrPC and submitted that the entire file which has a bearing on the issue of pricing of spectrum was relied upon by Shri D. Subba Rao while making statement and no further investigation is required to be made in the matter.
20. Shri P.P Rao, learned Senior Counsel appearing for the Union of India emphasised that once the charge-sheet has been filed before the competent court, the monitoring of investigation by this Court should cease and the Special Judge, CBI should be left free to deal with all issues including further investigation, summoning of material witnesses or any person who not being an accused, appears from the evidence to have committed any offence for which he should be tried together with the persons already made accused.
21. The learned Senior Counsel relied upon the judgments of this Court i.e Vineet Narain v. Union of India (1998) 1 SCC 226, Union of India v. Sushil Kumar Modi (1998) 8 SCC 661, M.C Mehta (Taj Corridor Scam) v. Union of India (2007) 1 SCC 110, Jakia Nasim Ahesan v. State of Gujarat (2011) 12 SCC 302, (2011) 10 Scale 246, Rajiv Lalan Singh “Lalan” (8) v. Union of India (2006) 6 SCC 613 and submitted that in view of the law laid down in these cases, no direction should be given to CBI to make investigation with reference to the documents produced by the applicant. Shri Rao submitted that the observations made in para 70 of the two-Judge Bench judgment in Narmada Bai v. State of Gujarat (2011) 5 SCC 79 are obiter and run contrary to the law declared by the three-Judge Bench in Vineet Narain v. Union of India (1998) 1 SCC 226 and the same cannot be treated as law laid down by this Court within the meaning of Article 141 of the Constitution. Shri Rao pointed out that the applicant has already filed a similar application before the Special Judge, CBI and argued that this Court should not entertain the prayer made in IA No. 18 of 2011. The learned Senior Counsel also submitted that once the trial court has taken cognizance of the offence then the trial will be deemed to have commenced and the prayer for summoning any other person as an accused can be made only before the trial court, which in this case is the Special Judge, CBI.
22. We have considered the respective submissions. In our opinion, there is no merit in the argument of Shri P.P Rao that the monitoring of 2G case should be stopped because CBI has already filed charge-sheets in the Court of the Special Judge, CBI. It is not in dispute that although CBI has filed charge-sheet in April 2011 and a supplementary charge-sheet in August 2011, the investigation into some of the facets of 2G case is yet to be completed and CBI and the Enforcement Directorate have filed reports showing further progress made in the investigation. Therefore, the ratio of the judgments relied upon by the learned Senior Counsel for the Union of India cannot be pressed into service for entertaining the argument that this Court should not pass any further order in the matter. However, keeping in view the fact that the intervener has already filed an application before the Special Judge, CBI, before whom he is appearing in person in the complaint case instituted by him and made a prayer for summoning Shri P. Chidambaram as an accused, we do not consider it proper to entertain his prayer for issue of a mandate to CBI to investigate Mr P. Chidambaram.
23. With the above observations, IA No. 18 of 2011 in Civil Appeal No. 10660 of 2010 is disposed of. However, it is made clear that this order shall not in any manner prejudicially affect the applicant's case in the matter pending before the Special Judge, CBI and the court concerned shall decide the applications already filed by him or which he may file in future without being influenced by this order.