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 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 (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 into the allocation of coal blocks are being monitored by this Court and the CBI has been submitting reports about the status of the progress made in that regard.

2. On 08.05.2013, the Court noted that in the matter of 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 so that CBI is viewed as 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.

3. In pursuance of the order dated 08.05.2013, an affidavit was filed by the Central Government. In that affidavit various actions which were taken in compliance of the directions of this Court in Vineet Narain 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, put to the learned Attorney 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 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 by this Court is indicated in the first paragraph of the judgment. The Single Directive 4.7(3) which contained certain instructions to the CBI regarding modalities of initiating an inquiry or registering a case against certain categories of civil servants fell for consideration.

6. On behalf of the Union while defending the Single Directive 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 noted the report of Independent Review Committee (IRC) and few decisions of this Court, particularly, K. Veeraswami 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 Central Government. The jurisdiction of the SPE extended 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.

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 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 offences or classes of offences specified in a notification under 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.

13. In pursuance of the judgment of this Court in Vineet Narain, DSPE Act came to be amended with effect from 11.09.2003. Section 4 was amended. Sub-section (1) of Section 4 now provides that the superintendence of the Delhi Special Police Establishment insofar as it relates to investigation of offences 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:

“Section 6 A - Approval of Central Government to conduct inquiry or investigation.—

(1) The Delhi Special Police Establishment shall not conduct any inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act,1988 except with the previous approval of the Central Government where such allegation relates to -

(a) the employees of the Central Government of the level of Joint Secretary and above; and

(b) such officers as are appointed by the Central 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 sub-section (1), no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any gratification other than legal remuneration referred 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 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 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 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 as under:

“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 in so far as it relates to the investigation of offences alleged to have been committed under the Prevention of Corruption Act, 1988 or an 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 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:

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) to (h) ……..

(2) ………”

18. The constitutional validity of Section 6A is pending before the Constitution Bench of this Court. In Subramanian Swamy (Dr.), 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 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 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 touch upon this aspect at all.

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-in-person, Mr. Prashant Bhushan, learned counsel in the writ petition filed by Common Cause and Mr. Gopal 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 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. Veeraswami and submits that the Court has recognised the need for protecting high-ranking officials from vexatious litigation. Learned Attorney General fairly submits that the observations made by this Court in paragraph 28 in K. Veeraswami have been distinguished in Vineet Narain but he submits that the observations in Vineet Narain have been doubted in the referral order in Subramanian Swamy (Dr.).

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 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 specific challenge being leveled 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 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 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. These provisions operate in two different stages.

22. The learned Attorney General states that the Central Government accepts the position that CBI’s investigation must be conducted in a non-partisan manner without any extraneous 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.

23. In response to the second query, learned Attorney 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 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 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.

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 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 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 that this Court has consistently held with reference to Section 6 of 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 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 investigation is monitored by the constitutional court. He argues that requirement of approval under Section 6A, if held to be 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 Secretary and above without prior permission of the Central Government. Such an 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 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 arguments of Mr. Prashant Bhushan, learned counsel for the Common Cause, Mr. Manohar Lal Sharma, one of the petitioners, who appears in person and Mr. Gopal Sankaranarayanan, learned counsel for the intervenor are in line with the arguments of Mr. Amarendra Sharan. They submit that Section 6A cannot be a bar to investigation in Court 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[8], that principle equally applies to Section 6A. They referred to the orders passed by this Court in 2G case and, particularly, reference was made to the order dated 03.09.2013 in Shahid Balwa.

29. In the criminal justice system the investigation of an 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 indicate that the investigating officer is not functioning bona fide. In very exceptional cases, however, where the Court finds that the police officer has exercised his investigatory powers in breach of the statutory provision putting the personal liberty and/or the property of the citizen in jeopardy by illegal and 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 protect the personal and/or property rights of the citizens.

30. Lord Denning has described the role of the police thus:

“In safeguarding our freedoms, the police play vital role. 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.

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……….”

31. One of the responsibilities of the police is protection of life, liberty and property of citizens. The investigation of 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 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 investigation generally consists of the following steps:

1. Proceeding to the spot;

2. Ascertainment of the facts and circumstances of the case;

3. Discovery and arrest of the suspected offender;

4. 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) the 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.

34. Once jurisdiction is conferred on the CBI to investigate the offence by virtue of notification under Section 3 of the DSPE Act or the CBI takes up investigation in relation 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 in the Manual, indicate serious misconduct on the part of a public servant but is not adequate to justify registration of a regular 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 obtaining orders from the head office. When the complaint and source information reveal commission of a prime facie cognizable offence, a regular case is to be registered as enjoined by law. PE may be converted into RC as soon as sufficient material becomes available to show that prima facie there has been commission of a cognizable offence. When information available is adequate to indicate commission of cognizable offence or its discreet verification leads to similar conclusion, a regular case may be registered instead of a PE.

35. Paragraph 9.10 of the Manual states that PE relating to allegations of bribery and corruption should be limited to the scrutiny of records and interrogation of bare minimum persons which may be necessary to judge whether there is any substance in the allegations which are being enquired into and whether the case is worth pursuing further or not.

36. Paragraph 10.1 of the Manual deals with registration and first information report. To the extent it is relevant, it reads as under:

“10.1 On receipt of a complaint or after verification of an information or on completion of a Preliminary Enquiry taken up by CBI if it is revealed that prima facie a cognizable offence has been committed and the matter is fit for investigation to be undertaken by Central Bureau of Investigation, a First Information Report should be recorded under Section 154 Criminal Procedure Code and investigation taken up. While considering registration of an FIR, it should be ensured that at least the main offence/s have been notified under Section 3 of the Delhi Special Police Establishment Act. The registration of First Information Report may also be done on the direction of Constitutional Courts, in which case it is not necessary for the offence to have been notified for investigation by DSPE. The FIRs under investigation with local Police or any other law enforcement authority may also be taken over for further investigation either on the request of the State Government concerned or the Central Government or on the direction of a Constitutional Court. ……..”

37. Paragraph 10.6 of the Manual, inter alia, provides that if a case is required to be registered under the PC Act against an officer of the rank of Joint Secretary and above, prior permission of the Government should be taken before inquiry/investigation as required under Section 6A of the DSPE Act except in a case under Section 7 of the PC Act where registration is followed by immediate arrest of the accused.

38. A proper investigation into crime is one of the essentials of the criminal justice system and an integral facet of rule of law. The investigation by the police under the Code has to be fair, impartial and uninfluenced by external influences. Where investigation into crime is handled by the CBI under the 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.

39. The abuse of public office for private gain has grown in scope and scale and hit the nation badly. Corruption reduces revenue; it slows down economic activity and holds back economic growth. The biggest loss that may occur to the nation due to corruption is loss of confidence in the democracy and weakening of rule of law.

40. In recent times, there has been concern over the need to ensure that the corridors of power remain untainted by corruption or nepotism and that there is optimum utilization of resources and funds for their intended purposes.

41. In 350 B.C.E., Aristotle suggested in the “Politics” that to protect the treasury from being defrauded, let all money be issued openly in front of the whole city, and let copies of the accounts be deposited in various wards. What Aristotle said centuries back may not be practicable today but for successful working of the democracy it is essential that public revenues are not defrauded and public servants do not indulge in bribery and corruption and if they do, the allegations of corruption are inquired into fairly, properly and promptly and those who are guilty are brought to book.

42. In this group of matters, it is alleged that coal blocks for the subject period have been allocated for extraneous considerations by unknown public servants in connivance with businessmen, industrialists and middlemen. The allocation of coal blocks is alleged to suffer from favouritism, nepotism and pick and choose. The Comptroller and Auditor General (CAG) in its Performance Audit on allocation of coal blocks and augmentation of coal production has estimated loss to the public exchequer to the tune of about Rs.1.86 lac crore as on 31.03.2011 for Open-cast mines/Open-cast reserves of Mixed mines while pointing out inadequacies and shortcoming in the allocation. Our reference to the CAG report, we clarify, does not mean that we have expressed any opinion about its correctness or otherwise. Be that as it may, having regard to the serious allegations of lack of objectivity and transparency and the PEs having already registered by the CBI to inquire/investigate into allegations of corruption against unknown public servants in the allocation of coal blocks, this Court in larger public interest decided to monitor the inquiries/investigations being conducted by CBI.

43. The monitoring of investigations/inquiries by the Court is intended to ensure that proper progress takes place without directing or channeling the mode or manner of investigation. The whole idea is to retain public confidence in the impartial inquiry/investigation into the alleged crime; that inquiry/investigation into every accusation is made on a reasonable basis irrespective of the position and status of that person and the inquiry/investigation is taken to the logical conclusion in accordance with law.

44. The monitoring by the Court aims to lend credence to the inquiry/investigation being conducted by the CBI as premier investigating agency and to eliminate any impression of bias, lack of fairness and objectivity therein.

45. However, the investigation/inquiry monitored by the court does not mean that the court supervises such investigation/inquiry. To supervise would mean to observe and direct the execution of a task whereas to monitor would only mean to maintain surveillance. The concern and interest of the court in such ‘court directed’ or ‘court monitored’ cases is that there is no undue delay in the investigation, and the investigation is conducted in a free and fair manner with no external interference. In such a process, the people acquainted with facts and circumstances of the case would also have a sense of security and they would cooperate with the investigation given that the superior courts are seized of the matter. We find that in some cases, the expression ‘court monitored’ has been interchangeably used with ‘court supervised investigation’. Once the court supervises an investigation, there is hardly anything left in the trial. Under the Code, the investigating officer is only to form an opinion and it is for the court to ultimately try the case based on the opinion formed by the investigating officer and see whether any offence has been made out. If a superior court supervises the investigation and thus facilitates the formulation of such opinion in the form of a report under Section 173(2) of the Code, it will be difficult if not impossible for the trial court to not be influenced or bound by such opinion. Then trial becomes a farce. Therefore, 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 referred to above, the superior courts may monitor an investigation to ensure that the investigating agency conducts the investigation in a free, fair and time-bound manner without any external interference.

46. The Court is of the view that a fair, proper and full investigation by the CBI into every accusation by the CBI in respect of allocation of coal blocks shall help in retaining public confidence in the conduct of inquiry/investigation. Moreover, the Court-monitoring in a matter of huge magnitude such as this shall help in moving the machinery of inquiry/investigation at appropriate pace and its conclusion with utmost expedition without fear or favour.

47. As regards the first query put to the learned Attorney General on 10.07.2013, we are of the view that the said query takes within its fold one of the facets of the constitutionality of Section 6A and since that is under consideration by the Constitution Bench of this Court, we do not think it is necessary to deal with that query. Accordingly, this order is confined to the second query, namely, whether the approval of the Central Government is necessary in respect of Court-monitored or Court-directed investigations.

48. There is no doubt that the objective behind the enactment of Section 6A is to give protection to certain officers (Joint Secretary and above) in the Central Government at the decision making level from the threat and ignominy of malicious and vexatious inquiries/investigations and the provision aims to ensure that those, who are in decision making positions, are not subjected to frivolous complaints and make available some screening mechanism for frivolous complaints but the question is: is the restrictive provision contained in Section 6A rendered nugatory or its objective is otherwise not achieved where the investigations into the crime under PC Act are monitored by the constitutional court We do not think so. The constitutional courts are the sentinels of justice and have been vested with extraordinary powers of judicial review to ensure that the rights of citizens are duly protected.

49. The power under Article 142(1) of the Constitution which provides that Supreme Court in exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any “cause” or “matter” has been explained in large number of cases. It has been consistently held that such power is plenary in nature. The legal position articulated in Prem Chand Garg and A.R. Antulay, with regard to the powers conferred on this Court under Article 142(1) has been explained in Delhi Judicial Service Association. It is exposited by the three Judge Bench in Delhi Judicial Service Association that power under Article 142(1) to do “complete justice” is entirely of different level and of a different quality. Any prohibition or restriction contained in ordinary laws cannot act as a limitation on the constitutional power of this Court. Once this Court is in seisin of a cause or matter before it, it has power to issue any order or direction to do “complete justice” in the matter. This legal position finds support from other decisions of this Court in Poosu, Ganga Bishan and Navnit R. Kamani.

50. The majority view of the Constitution Bench in Union Carbide, with regard to power of this Court under Article 142 of the Constitution holds the same view as expressed by this Court in Delhi Judicial Service Association16. The majority view in Union Carbide20 in paragraph 83 of the Report has reiterated that the prohibitions or limitations or provisions contained in ordinary laws, cannot ipso facto, act as prohibitions or limitations on the constitutional powers under Article 142. Such prohibitions or limitations in the statutes might embody and reflect the scheme of a particular law, taking into account the nature and status of the authority or the Court on which conferment of powers limited in some appropriate way is contemplated. The powers under Article 142 are not subject to any express statutory prohibitions.

51. In Supreme Court Bar Association, this Court stated, “It, however, needs to be remembered that the powers conferred on the Court by Article 142 being curative in nature cannot be construed as powers which authorise the Court to ignore the substantive rights of a litigant while dealing with a cause pending before it. This power cannot be used to “supplant” substantive law applicable to the case or cause under consideration of th Court. Article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly…….”. The Court, however, went on to say that the constitutional powers cannot, in any way, be controlled by any statutory provisions but at the same time these powers are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in a statute dealing expressly with the subject.

52. The proper way for the Court, as stated in Union Carbide, in exercise of the powers under Article 142 is to take note of the express prohibitions in any substantive statutory provision based on some fundamental principles of public policy and regulate the exercise of its power and discretion accordingly. Where the Court finds that statutory limitations are so fundamental that any departure therefrom may result in a consequence directly contrary to the purpose for which the plenary power under Article 142(1) is meant, obviously, the Court will exercise its power appropriately having regard to the statutory limitations.

53. The Supreme Court has been conferred very wide powers for proper and effective administration of justice. The Court has inherent power and jurisdiction for dealing with any exceptional situation in larger public interest which builds confidence in the rule of law and strengthens democracy. The Supreme Court as the sentinel on the qui vive, has been invested with the powers which are elastic and flexible and in certain areas the rigidity in exercise of such powers is considered inappropriate.

54. In the event of any senior officer (Joint Secretary or above) or the Central Government in an ongoing inquiry/investigation by the CBI being monitored by the Court has reason to believe that such officer may be unnecessarily harassed by the CBI, then the Central Government or the senior officer (Joint Secretary or above) can always apply to the Court which is monitoring the inquiry/investigation for protection of his rights. Such legal course being available to the category of officers covered by Section 6A, we hardly find any merit in the submission of the learned Attorney General that requirement of approval under Section 6A cannot be waived even in Court-monitored investigations and inquiries.

55. The argument of the learned Attorney General 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 overlooks the vital aspect that Court monitoring of the inquiry/investigation conducted by the CBI is itself a very strong check on the CBI from misusing or abusing its power of inquiry/investigation. The filtration mechanism which Section 6A provides to ensure that the senior officers at the decision making level are not subjected to frivolous inquiry is achieved as the constitutional court that monitors the inquiry/investigation by CBI acts as guardian and protector of the rights of the individual and, if necessary, can always prevent any improper act by the CBI against senior officers in the Central Government when brought before it.

56. When Court monitors the investigation, there is already 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/investigation into the crime under the PC Act against public servants by the CBI must be allowed to have its course unhindered and uninfluenced and the procedure contemplated by Section 6A cannot be put at the level which impedes exercise of constitutional power by the Supreme Court under Articles 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.

57. In the case of Committee for Protection of Democratic Rights, the Constitution Bench of this Court has held that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to CBI to investigate a cognizable offence alleged to have been committed within the territory of the State without the consent of the State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. In this regard, it is relevant to refer to the conclusions recorded by the Constitution Bench in clauses vi and vii, paragraph 68 of the Report which read as under:

“68. (i) to (v) ………

(vi) If in terms of Entry 2 of List II of the Seventh Schedule on the one hand and Entry 2-A and Entry 80 of List I on the other, an investigation by another agency is permissible subject to grant of consent by the State concerned, there is no reason as to why, in an exceptional situation, the Court would be precluded from exercising the same power which the Union could exercise in terms of the provisions of the statute. In our opinion, exercise of such power by the constitutional courts would not violate the doctrine of separation of powers. In fact, if in such a situation the Court fails to grant relief, it would be failing in its constitutional duty.

(vii) When the Special Police Act itself provides that subject to the consent by the State, CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State police, the Court can also exercise its constitutional power of judicial review and direct CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the constitutional courts. Therefore, exercise of power of judicial review by the High Court, in our opinion, would not amount to infringement of either the doctrine of separation of power or the federal structure.”

58. Learned Attorney General with reference to the above judgment submitted that the principle of law laid down in the case of Committee for Protection of Democratic Rights8 cannot be extended to requirement of prior approval under Section 6A. He submitted that Committee for Protection of Democratic Rights8 was concerned with Section 6 of the DSPE Act while the present case is concerned with Section 6A which is totally different provision. Learned Attorney General has argued that the need for consent of the State Government before investigation is carried out by the CBI in terms of Section 6 of the DSPE Act is a requirement that flows from the federal structure of the Constitution, because police and law and order are State subjects. On the other hand, he argues that the need for prior approval under Section 6A is in the nature of protection conferred on a particular cadre of persons, which is necessitated by the need of administration. Therefore, no parallel can be drawn between two provisions and the law laid down in respect of one provision cannot be extended to the other.

59. Learned Attorney General is right that the two provisions, namely, Section 6 and Section 6A are different provisions and they operate in different fields, but the principle of law laid down in respect of Section 6, in our view, can be extended while considering applicability of Section 6A to the Court-monitored investigations. If Section 6 necessitates the prior sanction of the State Government before investigation is carried out by the CBI in terms of that provision and the principle of law laid down by the Constitution Bench of this Court is that the constitutional courts are empowered to direct the investigation of a case by CBI and in such cases no prior sanction of the State Government is necessary under Section 6 of the DSPE Act, there is no reason why such principle is not extended in holding that the approval of the Central Government is not necessary under Section 6A of the DSPE Act in a matter where the inquiry/investigation into the crime under the PC Act is being monitored by the Court. It is the duty of this Court that anti-corruption laws are interpreted and worked out in such a fashion that helps in minimizing abuse of public office for private gain.

60. Learned Attorney General heavily relied upon the observations made in paragraph 28 by the Constitution Bench of this Court in K. eeraswami4. He, particularly, referred to the following observations with emphasis on the highlighted portion:

“28. . . . . . . Section 6 is primarily concerned to see the prosecution for the specified offences shall not commence without the sanction of a competent authority. That does not mean that the Act was intended to condone the offence of bribery and corruption by public servant. Nor it was meant to afford protection to public servant from criminal prosecution for such offences. It is only to protect the honest public servants from frivolous and vexatious prosecution. The competent authority has to examine independently and impartially the material on record to form his own opinion whether the offence alleged is frivolous or vexatious. The competent authority may refuse sanction for prosecution if the offence alleged has no material to support or it is frivolous or intended to harass the honest officer. But he cannot refuse to grant sanction if the material collected has made out the commission of the offence alleged against the public servant. Indeed he is duty bound to grant sanction if the material collected lend credence to the offence complained of. There seems to be another reason for taking away the discretion of the investigating agency to prosecute or not to prosecute a public servant. When a public servant is prosecuted for an offence which challenges his honesty and integrity, the issue in such a case is not only between the prosecutor and the offender, but the State is also vitally concerned with it as it affects the morale of public servants and also the administrative interest of the State. The discretion to prosecute public servant is taken away from the prosecuting agency and is vested in the authority which is competent to remove the public servant. The authority competent to remove the public servant would be in a better position than the prosecuting agency to assess the material collected in a dispassionate and reasonable manner and determine whether sanction for prosecution of a public servant deserves to be granted or not.”

61. In Vineet Narain, this Court distinguished the above observations in paragraphs 34 and 35 of the report which read as under:

“34. The other decision of this Court is in K. Veeraswami. That was a decision in which the majority held that the Prevention of Corruption Act applies even to the Judges of the High Court and the Supreme Court. After taking that view, it was said by the majority (per Shetty, J.) that in order to protect the independence of judiciary, it was essential that no criminal case shall be registered under Section 154 CrPC against a Judge of the High Court or of the Supreme Court unless the Chief Justice of India is consulted and he assents to such an action being taken. The learned Attorney General contended that this decision is an authority for the proposition that in case of high officials, the requirement of prior permission/sanction from a higher officer or Head of the Department is permissible and necessary to save the officer concerned from harassment caused by a malicious or vexatious prosecution. We are unable to accept this submission.

35. The position of Judges of High Courts and the Supreme Court, who are constitutional functionaries, is distinct, and the independence of judiciary, keeping it free from any extraneous influence, including that from executive, is the rationale of the decision in K. Veeraswami. In strict terms the Prevention of Corruption Act, 1946 could not be applied to the superior Judges and, therefore, while bringing those Judges within the purview of the Act yet maintaining the independence of judiciary, this guideline was issued as a direction by the Court. The feature of independence of judiciary has no application to the officers covered by the Single Directive. The need for independence of judiciary from the executive influence does not arise in the case of officers belonging to the executive. We have no doubt that the decision in K. Veeraswami has no application to the wide proposition advanced by the learned Attorney General to support the Single Directive. For the same reason, reliance on that decision by the IRC to uphold the Single Directive is misplaced.”

62. In Vineet Narain, this Court clarified that the decision in K. Veeraswami has no application to the officers covered by the single directive. In other words, the observations made by this Court in K. Veeraswami were held to be confined to the Judges of the High Courts and the Supreme Court who are constitutional functionaries and their position being distinct and different from the government officers.

63. The referral order in Subramanian Swamy (Dr.), records theargument advanced on behalf of the Central Government that the view in Vineet Narain with regard to the observations in K. Veeraswami case was not correct but, in our view, recording the contention of the Central Government in the referral order and the pendency of constitutionality of Section 6A before the Constitution Bench do not mean that what has been said in Vineet Narain about the observations in paragraph 28 of K. Veeraswami stand obliterated.

64. The fact that the investigation is monitored by the constitutional court is itself an assurance that investigation/inquiry by the 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.

65. In light of the above discussion, our answer to the question is in the negative and we hold that the approval of the Central Government is not necessary under Section 6A of the DSPE Act in a matter where inquiry/investigation into the crime under the PC Act is being monitored by this 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 this Court.