# MANOHAR LAL SHARMA v. THE PRINCIPAL SECRETARY AND ORS

- **Citation:** [2013] 17 S.C.R. 1099
- **Court:** Supreme Court of India
- **Decided:** 2013-12-17
- **Bench:** R.M. Lodha, Kurian Joseph, Madan B. Lokur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/manohar-lal-sharma-v-the-principal-secretary-and-ors-29089
- **Pages:** 55

## Headnote

DELHI
SPECIAL
POLICE
ESTABLISHMENT
A
B
ACT, 1946:
C
s. 6-A - Approval of Central Government to conduct
inquiry or investigation - Court monitored investigation --
Allocation of coal blocks - Investigation by CBI - Supreme
Court monitoring the investigation - Held: Approval of Central
Government is not necessary uls 6A in a matter where
D
inquiry/investigation into the crime under the PC Act is being
monitored by Supreme 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 it - When Court monitors the investigation, there is already
E
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 and in exceptional
situation having regard to the larger public interest, the inquiry/ F
investigation into the crime under the PC Act against public
servants_ by CBI must be allowed to have its course
unhindered and uninfluenced and the procedure
contemplated by s.6A cannot be put at the level which
impedes exercise of constitutional power by Supreme Court
G
under Arts. 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 - The fact that
the investigation is monitored by the constitutional court is
1099
H
1100
SUPREME COURT REPORTS
[2013] 17 S.C.R.
- ._,
A itself an assurance that investigation/inquiry by 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 - Any prohibition
B or restriction contained in ordinary laws cannot act as a
/imitation on the constitutional power of Supreme Court - In
the event any senior officer (Joint Secretary or above) or the
Central Government in an ongoing inquiry/investigation by
CBI.being monitored by the Court has reason to believe that
c such officer may be unnecessarily harassed by CBI, then
Central Government or the senior officer can always apply to
the: Cpurt which is monitoring the inquiry/investigation for
protection of his rights - The interplay between s. 6A of the
Act and a constitutional court monitored investigation should
be such as to protect senior government officials from
D 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 - Besides, the Code
enables ff.le local police to investigate a senior Government
E officer without previous approval of Central Government [ss.
156 and 155] - It is, therefore, necessary that s. 6A be so
interpreted that the requirement of a previous approval is not
necessary when the investigation by CBI is being monitored
by a constitutional court - An official act of CBI must also be
F presumed to have been done in accordance with law -
Constitution of India, 1950 - Arts. 32, 136 and 142 - Code of
Criminal Procedure, 1973 - ss.155 and 156.
INVEST/GA TION:
G
Court's power in respect of investigation - Held: Power
H
to investigate into the cognizable offences by the police officer
is ordinarily not impinged by any fetters - Courts ordinarily
do not interfere in the matters of investigation by police,
particularly, when the facts and circumstances do not indicate
MANOHAR LAL SHARMA v. PRINCIPAL SECRETARY
1101
that the investigating officer is not functioning bona fide - In
A
very exceptional cases, however, where courl finds that the
police officer has exercised his investigatory powers in breach
of the statutory provision putting the personal liberty and/or
the properly of the citizen in jeopardy by illegal and improper
use· of the power or there is abuse of

## Text

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[2013] 17 S.C.R. 1099
MANOHAR LAL SHARMA
v.
THE PRINCIPAL SECRETARY AND ORS.
(Writ Petition (Criminal) No. 120 of 2012)
DECEMBER 17, 2013.
[R.M. LODHA, KURIAN JOSEPH AND
MADAN B. LOKUR, JJ.]
DELHI
SPECIAL
POLICE
ESTABLISHMENT
A
B
ACT, 1946:
C
s. 6-A - Approval of Central Government to conduct
inquiry or investigation - Court monitored investigation --
Allocation of coal blocks - Investigation by CBI - Supreme
Court monitoring the investigation - Held: Approval of Central
Government is not necessary uls 6A in a matter where
D
inquiry/investigation into the crime under the PC Act is being
monitored by Supreme 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 it - When Court monitors the investigation, there is already
E
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 and in exceptional
situation having regard to the larger public interest, the inquiry/ F
investigation into the crime under the PC Act against public
servants_ by CBI must be allowed to have its course
unhindered and uninfluenced and the procedure
contemplated by s.6A cannot be put at the level which
impedes exercise of constitutional power by Supreme Court
G
under Arts. 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 - The fact that
the investigation is monitored by the constitutional court is
1099
H
1100
SUPREME COURT REPORTS
[2013] 17 S.C.R.
- ._,
A itself an assurance that investigation/inquiry by 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 - Any prohibition
B or restriction contained in ordinary laws cannot act as a
/imitation on the constitutional power of Supreme Court - In
the event any senior officer (Joint Secretary or above) or the
Central Government in an ongoing inquiry/investigation by
CBI.being monitored by the Court has reason to believe that
c such officer may be unnecessarily harassed by CBI, then
Central Government or the senior officer can always apply to
the: Cpurt which is monitoring the inquiry/investigation for
protection of his rights - The interplay between s. 6A of the
Act and a constitutional court monitored investigation should
be such as to protect senior government officials from
D 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 - Besides, the Code
enables ff.le local police to investigate a senior Government
E officer without previous approval of Central Government [ss.
156 and 155] - It is, therefore, necessary that s. 6A be so
interpreted that the requirement of a previous approval is not
necessary when the investigation by CBI is being monitored
by a constitutional court - An official act of CBI must also be
F presumed to have been done in accordance with law -
Constitution of India, 1950 - Arts. 32, 136 and 142 - Code of
Criminal Procedure, 1973 - ss.155 and 156.
INVEST/GA TION:
G
Court's power in respect of investigation - Held: Power
H
to investigate into the cognizable offences by the police officer
is ordinarily not impinged by any fetters - Courts ordinarily
do not interfere in the matters of investigation by police,
particularly, when the facts and circumstances do not indicate
MANOHAR LAL SHARMA v. PRINCIPAL SECRETARY
1101
that the investigating officer is not functioning bona fide - In
A
very exceptional cases, however, where courl finds that the
police officer has exercised his investigatory powers in breach
of the statutory provision putting the personal liberty and/or
the properly of the citizen in jeopardy by illegal and improper
use· of the power or there is abuse of the investigatory power
B
and process by police or investigation by police is found to
be not bona fide or investigation is tainted with animosity,
courl may inteNene to protect personal and/or properly rights
of citizens.
INVEST/GA TJON:
Investigation by CBI - Held: A proper investigation into
crime is one of the essentials of the criminal justice system
c
and an integral facet of rule of law - Investigation by police
,
under the Code has to be fair, impartial and uninfluenced by o
external influences -
Where investigation iRtO crime is
handled by CBI under 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.
E
INVEST/GA TION:
Monitoring of investigation by Court -
Held: The
monitoring of investigations/ inquiries by the courl is intended
to ensure that proper progress takes place without directing
F
or channeling the mode or manner of investigation -
The
monitoring by the courl aims to lend credence to the inquiry!
investigation being conducted by CBI as premier
investigating agency and to eliminate any impression of bias,
Jack of fairness and objectivity therein - A constitutional courl G
monitors an investigation by State police or CBI only and only
in public interest in compelling circumstances -- A
constitutional courl monitored investigation is the adoption of
a procedure ofa 'continuing mandamus' which traces its origin,
like public interest litigation, to Arl. 32 of the Constitution and
H
1102
SUPREME COURT REPORTS
(2013] 17 S.C.R.
A Supreme Court's contribution to jurisprudence - A statutory
fetter such as s. BA of the Act cannot bind the exercise of
plenary power by Supreme Court of issuing orders in the
nature of a continuing mandamus under Art. 32 - Any
statutory emasculation, intended or unintended, of the powers
B exercisable under Art. 32 is impermissible - Section BA 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 Art. 32
in an exercise of judicial review and of issuing a continuing
c mandamus - Constitution of India, 1950 - Art.32 - Delhi
Special Police Establishment Act, 194B - s.B-A.
INVEST/GA TION:
Monitoring of investigation/inquiry by court and
o supervision of investigation/inquiry - Difference between -
Explained - Held: 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, the superior courts may monitor
E an investigation to ensure that the investigating agency
conducts the investigation in a free, fair and time-bound·
manner without any external interference.
F
CIRCULARS/GOVERNMENT
NOT/FICA TIONS:
ORDERS
Office Memorandum No. 37211912011-A VD-1/(Part-I)
daled 2B.9.2011 - Held: The Office Memorandum can hardly
be termed as efficacious in any manner - Firstly, it cannot
be used to interpret a provision of law such as s. BA of the Act
-
Secondly, the Office Memorandum can always be
G withdrawn, modified or amended on the whim of the executive
Government, on the same rationale as given for enacting s.
BA of the Act, namely, for 'protecting' a senior government
official - Therefore, it does not effectively prevent possible
misuse of the law - Delhi Special Police Establishment Act,
H 194B - s.B-A.
MANOHAR LAL SHARMA v. PRINCIPAL SECRETARY 1103
Per R.M. Lodha, J.
State of U.P. v. Poosu and Another 1976 (3) SCR 1005 =
(1976) 3 SCC 1; Ganga Bishan v. Jai Narain (1986) 1 SCC
75; and Navnit R. Kamani v. R.R. Kamani 1988 (3) Suppl.
SCR 123 = (1988) 4 SCC 387 - relied on.
Vineet Narain and Others v. Union of India and Anr. 1997
(6) Suppl. SCR 595 = (1998) 1 SCC 226; K. Veeraswami
A
B
v. Union of India 1991 (3) SCR 189 = (1991) 3 SCC
655; State of Bihar v. J.A.C Saldanha 19130 (2) SCR 16 =
(1980) 1 SCC 554; Subramanian Swamy (Dr.) v. Director, CBI c
and Others (2005) 2 SCC 317; State of West Bengal v.
Committee for Protection of Democratic Rights 2010
(2) SCR 979 = (2010) 3 sec 571; 2013 (12) JT 90; H. N.
Rishbud v. State of Delhi 1955 SCR 1150 = AIR 1955 SC 196
Shahid Balwa v. Union of India and Ors. 2013(12) JT 90;
0
Babubhai Jamnadas Patel v. State of Gujarat (2009) 9 SCC
610; Prem Chand Garg v. Excise Commissioner, U.P. and
Others 1963 Supp (1) SCR 885; A.R. Antulay v. R.S. Nayak
and Another 1988 (1) Suppl. SCR 1 = (1988) 2 SCC 602;
Delhi Judicial Service Association, Tis Hazari Court, Delhi v.
E
State of Gujarat and others 1991 (3) SCR 936 = (1991) 4 SCC
406; Union Carbide Corporation and Others vs. Union of
India and Others 1991 (1) Suppl. SCR 251 = (1991) 4 SCC
584; Supreme Court Bar Association v. Union of India and
Another 1998 (2) SCR 795 = (1998) 4 SCC 409 - referred
F
to.
The Due Process of law; First Indian Reprint 1993,
pg. 102 -
refe~red to.
Per Lokur. J.
Vineet Narain and Others v. Union of India and Anr. 1997
G
(6) Suppl. SCR 595 = (1998) 1 SCC 226; Centre for Public
Interest Litigation v. Union of India I.A. No.14091 of 2013 in
Writ Petition (C) No. 11550 of 2009 passed by the Delhi
High Court on 4.4.2011; P. Sirajuddin v. The State of H
1104
SUPREME COURT REPORTS
[2013] 17 S.C.R.
A Madras, 1970 (3) SCR 931 = (1970) 1 SCC 595; Samaj
Parivartan Samudaya v. State of Karnataka, 2012 (5)
SCR 1074 = (2012) 7 SCC 407; Centre for PIL v. Union of
India,
2011 (4)
SCR 445 = (2011) 4 SCC 1; Dr.
Subramanian Swamy v. Dr. Manmohan Singh, 2012 (3)
B SCR 52 = (2012) 3 SCC 64; Subramanian Swamy (Dr.) v.
Director, CBI and Others (2005) 2 SCC 317; M.C. Mehta v.
Union of India 2007 (10) SCR 1060 =(2008) 1 SCC 407;
State of West Bengal v. Committee for Protection of
Democratic Rights 2010 (2) SCR 979 = (2010) 3 SCC 571 -
c referred to.
D
E
F
G
H
Case Law Reference:
1997 (6) Suppl. SCR 595
referred to
1991 (3) SCR 189
referred to
1980 (2) SCR 16
(2005) 2 sec 317
2010 (2) SCR 979
2013(12) JT 90
1955 SCR 1150
(2009) 9 sec 610
referred to
referred to
referred to
referred to
referred to
referred to
t963 Supp (1) SCR 885
referred to
1988 (1) Suppl. SCR 1
1991 (3) SCR 936
1976 (3) SCR 1005
referred to
referred to
relied on
(1986) 1 sec 75
relied on
1988 (3) Suppl. SCR 123 relied on
1991 (1) Suppl. SCR 251
referred to
1998 (2) SCR 795
referred to
para 5
para 7
para 7
para 18
para 28
para 28
para 33
para 48
para 49
para 49
para 49
para 49
para 49
para 49para 50
para 51
MANOHAR LAL SHARMA v. PRINCIPAL SECRETARY 1105
Per Lokur, J.
A
1997 (6) Suppl. SCR 595
referred to
para 6
1970 (3) SCR 931
referred to
para 19
2012 (5) SCR 1074
referred to
para 27
B
2011 (4) SCR 445
referred. to
para 30
2012 (3) SCR 52
referred to
para 31
(2cl05) 2 sec 311
referred to
para 36
,.i1·;
.. ~
c
2007 (10) SCR 1060
referred. to
para 37
201012) SCR 979
referred to
para 39
CRIMINAUCIVIL ORIGINAL JURISDICTION : Writ Petition
(Crl.) NO. 120 OF 2012
D
UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA
WITH
W. P. (C) No. 463, 515, 283, 498, 429 of 2012.
Mohan Parasaran, S.G., Paras Kuhad, A.S.G., Vivek K.
E
Tankha, Raju Ramachandran, Amrendra Sharan, A.T.M.
Rangaramanujam, Ravindra Shrivastava ,Suman, Pranav
Sachdeva, Prashant Bhushan, Satyajit A. Desai, Somanath
Padhan, Anagha S. Desai, Jyoti Mendiratta, Suresh Chandra
Tripathy, Mrinmayee Sahu, Jitin Chaturvedi, Abhinav Mukherji,
F
Swati Vijaywargiya, D.S. Mahra, B.V. Bairam Das, Amit Anand
Tiwari, Ashutosh Jha, Avinash Tripathi, Sanchit Guru, Tapesh
K Singh, Mohd. Waquas, D. Mahesh Babu, Amjid Maqbool,
Suchitra Hrangkhawl, Amit K. Nain, Asha Gopalan Nair, C.D.
Singh, B. Ramakrishna Rao, Varun Pathak, Kirti R. Misra,
G
Apurva Upmanyu, Anip Sachthey, Mishra Saurabh, Varun
Chopra, Raheel Kohl, Aparna Bhat, Prashanto Sen, Apporv
Kurup, Sunny Choudhary, Anshuman Shrivastava, Harmeet
Ruprah, Suvigya Awasthi, Kamini Jaiswal, Milind Kumar, Raj
Kumar Mehta, Mahi! Paul, Rishabh Sancheti, Vanshaja Shukla, _ H
Saniav Parikh. Bushra Parveen, Marnia Saxena. Pukhrambam
1106
SUPREME COURT REPORTS
[2013) 17 S.C.R.
A Ramesh Kr., A.N. Singh, Bhavan·ishankar V. Gadnis, M/s
Corporate Law Group, Advocates, with them, for the appearing
parties and Manohar Lal Sharma, Petitioner-in-person.
B
The following order of the Court was delivered
ORDER
R.M. LODHA, J. 1. The question for the purposes of this
order really resolves itself into this: whether the approval of the
'Central Government is necessary under Section 6A of the Delhi
C 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
D (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
E into the allocation of coal blocks are being monitored by this
Court and the CBI has been submittirrg reports about the status
of the progress made in that regard.
2. On 08.05.2013, the Court noted that in the matter of
F 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 s0 th'at CBI is viewed as
G a non-partisan investigating agency. The learned Attorney
General sought time to seek instructions and report to the Court
by way of an affidavit on behalf of the Central Government. The
matter was, accordingly, fixed for July 10, 2013.
H
3. In pursuance of the order dated 08.05.2013, an affidavit
MANOHAR LAL SHARMA v. PRINCIPAL SECRETARY
1107
[R.M. LODHA, J.]
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, purto the learned Attorn![!y 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.
5. In Vineet Narain', this Court was approached under
Article 32 of the Constitution allegedly as there was inertia by
A
B
c
D
E
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
F
by this Court is indicated in the first paragraph2 of the judgment.
1.
Vineet Narain and Others v. Union of India and Anr; (1998) 1 sec 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 G
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 tne recent past. The primary question was: V\(hether it is
within the domain of judicial review and it could be an effective instrument
H
A
B
c
- D
E
F
G
H
1108
SUPREME COURT REPORTS
[2013] 17 S.C.R.
The Single Directive 4.7(3)3 which contained certain instructions
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 wogressed, 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 permi_ssion 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 Centriil 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 Directo~
and above of the SEB! 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 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
MANOHAR LAL SHARMA v. PRINCIPAL SECRETARY
1109
[R.M. LODHA, J.]
to the CBI regarding modalities of initiating an inquiry or
A
registering a case against certain categories of civil servants
fell for consideration.
6. On behalf of the Union while defending the Single
DirecUve 4. 7(3), it was contended before this Court in Vineet
Narain' 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 flOted the report of Independent Review
Committee (IRC) and few decisions of this Court, particularly,
K. Veeraswamf' and J.A. C Saldanha 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.
Veeraswami" ·was held distinguishable.
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
B
c
D
E
F
up to ·the rank of Additional Secretary or equi~alent, 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 G
(Personnel).
(rv) 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 l~dia; (1991) 3 SCC 655.
5.
State of Bihar v. J.A.C Saldanha; (1960) 1 SCC 554.
H
1110
SUPREME COURT REPORTS
[2013] 17 S.C.R.
A Central Government. The jurisdiction of the SPE extenCted 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.
B
c
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
D 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
offenr:es or classes of offences specified in a notification under
E
F
. Section 3.
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.
1-3. 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. S11b-section (1) of
Section 4 now provides that the superintendence of the Delhi
G Special Police Establishment insofar as. it relates to
investigation of offen~s 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:
H
MANOHAR LAL SHARMA v. PRINCIPAL SECRETARY
1111
[R.M. LODHA, J.]
"Section 6 A - Approval of Central Government to conduct
A
inquiry or investigation.-(1) The Delhi Special Police
Establishment shall not conduct'any inquiry or investigation
·into any offence alleged to ha\/e been committed under the
Prevention of Corruption Act, 1988 except with the previous
approval of the Central Government where such allegation
B
relates to -
(a) the employees of the Central Government of the
1.evel of Joint Secretary and above; and
(b) such officers as are appointed by the Central
C
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 subsection (1 ), no such approval shall be necessary for
cases involving arrest of a person on the spot on
D
the charge of accepting or attempting to accept any
gratification other than legal remuneration referred
E
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
F
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
G
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
H
1112
SUPREME COURT REPORTS
(2013] 17 S.C.R.
A categories of public servants as is reflected from the
Preamble".
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
8
as under:
c
D
E
F
G 6.
H
"8. Functions and powers of Central Vigilance
Commission.-(1) The functions and powers of the
Commission shall be tci-
(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 1,rnder the Prevention of Corruption
Act, 1988 or a~ offence with which a public servant
specified in sub-section (2) may, under the Code of
Criminal Procedure, 1973, be charged at the same trial;
(b) give directions to the De.lhi 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 Establishme·ni to investigate or dispose of
any case in a particular manner;
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.
MANOHAR LAL SHARMA v. PRINCIPAL SECRETARY
1113
[R.M. LODHA, J.]
(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
A
B
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
C
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 touc~
upon this aspect at all.
D
19. We have heard Mr. Goolam E. Vahanvati, learned
Attorney General, Mr. Amarendra Sharan, learned senior
counsel for the CBI, Mr. Manohar Lal Sharma, _petitioner-inperson, Mr. Prashant Bhushan, learned counsel in the writ . E
petition filed by Common Cause and Mr. (3opal
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
F
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 .G
that the Court has recognised the need for protecting highranking officials from vexatious litigation. Learned Attorney
General fairly submits that the observations made by this Court
7.
Subramanian Swamy (Dr.) v. Director, CBI and Others; (2005) 2 SCC 317.
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1114
SUPREME COURT REPORTS
[2013] 17 S.C.R.
A in paragraph 28 in K. Veeraswami" have been distinguished
in Vineet Narain1.but he submits that the observations in Vineet
Na;ain' have been doubted in the referral order in
Subramanian Swamy (Dr.)7.
8
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
C constitutionality in favour of a statutory provision, which cannot
be nullified/amended/modified by an interim order; (iii) a
statutory provision cannot be struck down without a ~pecific
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
D 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
E 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.
F These provisions operate in two different stages.
22. The learned Attorney General states that the Central
GoverJ1ment accepts the position that CBl's investigation must
be conducted in a non-partisan manner without any extraneous
G 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.
H
MANOHAR LAL SHARMA v. PRINCIPAL SECRETARY
1115
[R.M. LODHA, J.)
23. In response to the second query, learned Attorney
A
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
B
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 c
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.
D
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
E
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 are repository of the faith of the people
F
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 thatthis G
Court has consistently held with reference to Section 6 0,f 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
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1116
SUPREME COURT REPORTS
[2013] 17 S.C.R.
A 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
investigirtlon i6 monitored by the constitutional court. He argues
that requirement of approval under Section 6A, if held to be
s 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
c Secretary and above without prior permission of the Central
Government. Such e1n 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.
27. Mr. Amarendra Sharan, learned senior counsel has
D 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;1arguments of Mr. Prashant Bhushan, learned
E counsel for thE! Common Cause, Mr. Manohar Lal Sharma, one
of the p.eHtioners, who appears in person and Mr. Gopal
Sankaranarayanan, learned counsel for the intervenor are in
fine with the arguments of Mr. Amarendra Sharan. They submit
that Section SA cannot be a bar to investigation in Court
F 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 Rights", that principle equally applies to Section
6A. They referred to the orders passed by this Court in 2G case
G and, particularly, reference was made to the order dated
03.09.2013 in Shahid Balwa•.
8.
State of West Bengal and Other5 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
H
Ors.
MANOHAR LAL SHARMA v. PRINCIPAL SECRETARY
1117
[R.M. LODHA, J.]
29. In the criminal justice system the investigation of an
A
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 in the
matters of investigation by police, particularly, when the facts
and circumstances do not ii=!dicate that the investigatirig. officer
B
• is not functioning bona fide. In very exceptional cases, however,
where the Court finds that the poik:e officer has exerCised his
investigatory powers in breach of the statutory provision putting c
the personal liberty and/or t.he property of the citizen in jeopardy
by illegal arid 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 pro.!ect the personal and/or property rights of the citizens.
30. Lord Denning10 has described the role of the police
thl,ls:
D
"In safeguarding our freedoms, the police play vital role.
E
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.
·
F
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 .......... "
G
31. One of the responsibilities of the police is protection
of life, liberty and property of citizens. The investigation of
10. The Due Process of law; First Indian Reprint 1993, pg. 102.
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1118
SUPREME COURT REPORTS
[2013] 17 S.C.R.
A offences is one of the 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
8 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. Rishbud", this Court explained that the
C investigation generally consists of the following steps:
D
E
F
G
.1.
2.
3.
4.
Proceeding. to the spot;
Ascertainment of the facts and circumstances of the
case;
Discovery .;md arrest of the suspected offender;
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) tlie 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.
H
11. H.N. Rishbud v. State of Delhi; AIR 1955 SC 196.
MANOHAR LAL SHARMA v. PRINCIPAL SECRETARY
1119
[R.M. LODHA, J.]
34. Once jurisdiction is conferred on the CBI to investigate
A
the offence by virtue of notification under Section 3 of the DSPE
Act or the CBI takes up investigation in rel(1tion 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 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
B
in the Manual, indicate serious misconduct on the part of a
public servant but is not adequate to justify registration of a c
fegular 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 0
obtaining orders from the head office.