The basic grammar of criminal machinery dictates the following main steps in an ascending order i.e. complaint, investigation, filing of charge sheet, hearing on charges, framing of charges, plea bargaining, trial, sentencing and lastly appeals. It is well settled that the courts cannot interfere at the stage of investigation simply because it will vitiate the whole process. However, the Supreme Court evolved jurisprudence of ‘Court monitored investigations’ precisely does this. In the ongoing Coalgate scam, the Court decided to monitor investigations of CBI, kept aside the CVC act and ignored the criminal jurisprudence altogether.
The CBI was formed under the Delhi Special Police Establishment Act, 1946 (DSPE). Sec. 6A of this act lays down that the CBI has to take prior approval from Central Government to conduct an investigation against employees ranking joint Secretary and above and has been incorporated to protect high ranking officials from vexatious litigation. While its constitutional validity is still pending before a larger bench, a three judge bench in this case decided to monitor the investigations first and later on ignoring the provision altogether held that in monitored investigations, no such prior approval is necessary to be taken. They also deliberately did not define the ‘extent/ nature/ scope/ meaning of this monitoring’ done.
In Vineet Narain Case (Jain Hawala Diaries case) for the first time it was realized that the CBI should be free from external influences. This led to creation of the CVC under the CVC Act. The Act makes it very clear that the CVC is granted vast powers to ‘supervise’ and ‘administer’ CBI. The two terms ‘supervision’ (by CVC) and ‘monitoring’ (by Court) are more or less synonymous. In fact, supervision carries a wider meaning than monitoring. In no manner whatsoever, the Supreme Court is empowered to ignore the whole purpose of this statute book by undertaking the job of CVC to itself. They have recently realized and allowed CBI to submit files to CVC too.
In a sensitive matter like the Coalgate Scam, a palpable reluctance to meaningfully adhere to statutory provisions cannot be entertained. The Coal Order orchestrates two questions- will all important issues justify court’s intervention at a nascent stage and secondly, when the court reasons its verdicts based on a ‘larger public interest’, can it distrust other agencies and assume powers to monitor functions of one agency which have been statutorily granted to another one?
My lords have to avoid turning into practitioners of power. If the Supreme Court only in view to position itself as the guardian of the constitution acts positively, it may be correct, but if it subterfuges the democratic spirit by polluting the very existence of statutes, then to our demise, the legal pedigree of this country is in danger. It will be a national waste of futile judicial exercises if the final outcome again turns out to be a nil sum game like what happened in the Vineet Narain Case- Zero Conviction!
But again, no one is there to monitor the Supreme Court. Fingers crossed.