Holding

Section 6A of the Delhi Special Police Establishment Act does not apply to investigations monitored by the Supreme Court, and prior Central Government approval is not required in such cases.

Summary

The Supreme Court examined whether Section 6A of the Delhi Special Police Establishment Act, 1946, which requires prior Central Government approval for CBI investigations into senior officials, applies when the investigation is being monitored by the Court itself. The Court noted that the CBI had initiated investigations into alleged corruption in coal block allocations, and the Supreme Court was overseeing the progress. It held that the statutory requirement of Section 6A cannot impede the Court’s constitutional power to monitor investigations under Articles 32, 136 and 142, and therefore prior approval is not required in court‑monitored cases. The Court emphasized that monitoring ensures fairness and prevents harassment, and that any statutory fetter must be read as an injunction to the executive, not to a constitutional court. Consequently, the petition’s query was answered in the negative, confirming that Section 6A does not apply to investigations monitored by the Supreme Court.

Issues considered

The applicability of Section 6A of the Delhi Special Police Establishment Act, 1946, to CBI investigations that are being monitored by the Supreme Court.
Whether the requirement of prior Central Government approval under Section 6A impedes the Court’s power under Articles 32, 136 and 142 to issue a continuing mandamus.
The extent to which statutory provisions can limit the plenary powers of a constitutional court.

Legislation cited

Central Vigilance Commission Act, 2003s. 8
Code of Criminal Procedure, 1973s. 154, s. 155, s. 156, s. 173
Constitution of Indias. Article 136, s. Article 142, s. Article 32
Delhi Special Police Establishment Act, 1946s. 3, s. 4, s. 5, s. 6, s. 6A
Prevention of Corruption Act, 1988

Subjects

Section 6ADelhi Special Police Establishment ActCBI investigationCourt monitoringContinuing mandamusArticle 32Article 142Prevention of Corruption ActSenior government officialsJudicial reviewStatutory fetter

Judgment

[2013] 17 S.C.R. 1099

MANOHAR LAL SHARMA A
v.
THE PRINCIPAL SECRETARY AND ORS.
(Writ Petition (Criminal) No. 120 of 2012)
DECEMBER 17, 2013.
B
[R.M. LODHA, KURIAN JOSEPH AND
MADAN B. LOKUR, JJ.]

DELHI SPECIAL POLICE ESTABLISHMENT
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
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
H
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:
c
Investigation by CBI - Held: A proper investigation into
crime is one of the essentials of the criminal justice system
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.
CIRCULARS/GOVERNMENT ORDERS
NOT/FICA TIONS:
F
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. A
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.
B
Vineet Narain and Others v. Union of India and Anr. 1997
(6) Suppl. SCR 595 = (1998) 1 SCC 226; K. Veeraswami
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
to. F

The Due Process of law; First Indian Reprint 1993,
pg. 102 - refe~red to.
Per Lokur. J.
G
Vineet Narain and Others v. Union of India and Anr. 1997
(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.
Case Law Reference:
1997 (6) Suppl. SCR 595 referred to para 5
1991 (3) SCR 189 referred to para 7
D
1980 (2) SCR 16 referred to para 7
(2005) 2 sec 317 referred to para 18
2010 (2) SCR 979 referred to para 28
E 2013(12) JT 90 referred to para 28
1955 SCR 1150 referred to para 33
(2009) 9 sec 610 referred to para 48
t963 Supp (1) SCR 885 referred to para 49
F
1988 (1) Suppl. SCR 1 referred to para 49
1991 (3) SCR 936 referred to para 49
1976 (3) SCR 1005 relied on para 49
G (1986) 1 sec 75 relied on para 49
1988 (3) Suppl. SCR 123 relied on para 49-
1991 (1) Suppl. SCR 251 referred to para 50
1998 (2) SCR 795 referred to para 51
H
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
..
c
~
,.i1·;
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.
The following order of the Court was delivered
B 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 A
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 B
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
c
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 D
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.
E
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 F
by this Court is indicated in the first paragraph 2 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
1108 SUPREME COURT REPORTS [2013] 17 S.C.R.

A 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
B 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
c 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
- D 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
E 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, .
F 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
G 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
H 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 B
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
c
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 D
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. Saldanha 5 • K.
Veeraswami" ·was held distinguishable. E
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
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
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).

c 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
. Section 3.
E 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.
F
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.
D
(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 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
as under:
8
"8. Functions and powers of Central Vigilance
Commission.-(1) The functions and powers of the
Commission shall be tci-

c (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
D 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
E section 4 of the Delhi Special Police Establishment
Act, 1946:

Provided ·that while exercising the powers of
superintendence under clause (a) or giving directions
F 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;

G 6. 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
H for matters connected therewith or incidental thereto.
MANOHAR LAL SHARMA v. PRINCIPAL SECRETARY 1113
[R.M. LODHA, J.]

(c) to (h) ....... . A

(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 B
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 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-in-
person, 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 high-
ranking 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. H
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.

21. Learned Attorney General argues that it will not be
8
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
H
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 B
matters of investigation by police, particularly, when the facts
and circumstances do not ii=!dicate that the investigatirig. officer
• 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
D
to pro.!ect the personal and/or property rights of the citizens.

30. Lord Denning 10 has described the role of the police
thl,ls:

"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. H
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
short,· "Code") defines investigation to include all the
8
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:

.1. Proceeding. to the spot;

2. Ascertainment of the facts and circumstances of the
case;
D
3. Discovery .;md arrest of the suspected offender;

4. Collection of evidence relating to the commission
of the offence which may consist of the examination
E of:

(a) various persons (including accused) and the
reduction of statement into writing, if the officer
thinks fit;

F (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
G
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 B
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 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. When the complaint and
source information reveal commission of a prime facie
cognizable offence, a regular case is to.be registered a.s.
enjoined by law. PE-may be converted into RC as soon as.
sufficient material becomes available to show that prima facie
there has been corii'mission of a cognizable offence. When E
information available is adequate to indiciite ·commission of
cognizable offence or its discreet verification leads to similar
conclusion, a regular case must be registered instead of a PE.

35. Paragraph 9.10 of the Manual states that PE relating F
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. G

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

"10.1 On receipt of a complaint or after verification of an H
1120 SUPREME COURT REPORTS [2013] 17 S.C.R.

.A 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
B recorded under Section 154 Criminal Procedure Code
and investigation taken up. While considering registration
of.an $IR, it s"1ould .be ensured that at least the main
.offen:ce/s have been notified under Section 3 of the Delhi
Special Police Gstab~shment Act. The registration of First
c Information. Report may also be .done,on the direction of
Constitutional Courts; in w.hich 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 .
D
Government concerned or the Central Government or on
the direction of a Constitutional Court ......... "

'3,1. Paragraph 10.6 of the Manual, inter alia, provides that
if a_ cqlSe is required to be registered under the f'C Act against
E 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.
F
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
G 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.

H 39. The abuse of public office for private gain has grown
MANOHAR LAL SHARMA v. PRINCIPAL SECRETARY 1121
[R.M. LODHA, J.]

in scope and scale and hit the nation badly. Corruption reduces A
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.
B
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 12 •

41. In 350 B.C.E .. Aristotle suggested in the "Politic§" that C
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 D
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.
E
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
F
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 exchequel"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 G
allocation. Our reference to the CAG report, we clarify, does
not mean that we have expressed any opinion about its

12. Hon'ble Shri Pranab Mukherjee, President, Republic of India, in his speech
at the inauguration of All India Lokayktas Conference, 2012. H
1122 SUPREME COURT REPORTS [2013) 17 S.C.R.

A 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, tliis Court in larger
B 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.
C 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 -
D 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,
E 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
F mean to maintain surveHlance. 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
G 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'.
H Once the court supervises an investigation, there is hardly
- MANOHAR LAL SHARMA v. PRINCIPAL SECRETARY 1123
[R.M_ LODHA, J.]

anything left in the trial. Under the Code, the investigating officer A
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 ttius facilitates
the formulation of such opinion in the form of a report under B
Section 173(2) of the Code, it will be difficult if not impossible
for the trial court to not be influenced or bound fly sUc:h 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 c
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 Coll'rt· is of the view that a fair, proper and full D
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 !'JS this
shall help in moving the machinery of inquiry/investigation at E
appropriate pace and its conclusion with utmost expedition
without fear or favour.

4 7. As regards the first query put to the learned Attorney
General on 10.07.2013, we are of the view that the said query F
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;'na~, Whether the approval of the Central G
Government is necessary in respect of Court-monitored or
Court-directed investigations.

48. T~ere 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 H
1124 SUPREME COURT REPORTS [2013) 17 S.C.R.

A decision making level from the threat and ignominy of malicious
1
and vexatious inquiries/investigations and the provision aims
to ensure that those, who are io decision making positions, are
not subjected to frivolous complaints and make available some
screening mechanism for frivolous complaints but the question
s 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
c 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
D 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 14 and AR. Antulay15, with
regard to the powers conferred on this Court under Article
E 142(1) has been explained in Delhi Judicial Service
Association. It is exposited by the three Judge Bench in Delhi
Judicial Service Association 16 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
F 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

G 13. Babubhai Jamnadas Patel v. State of Gujarat; [(2009) 9 SCC 610]
14. Prem Chand Garg v. Excise Commissioner, U.P. and Others; [1963 Supp
(1) SCR 885]
15. A.R. Antulay v. R.S. Nayak and Another; [(1988) 2 SCC 602]
16. Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarati
H and others; [(1991) 4 sec 406]
MANOHAR LAL SHARMA v. PRINCIPAL SECRETARY 1125
[R.M. LODHA, J.]

support from other decisions of this Court in Poosu 17 , Ganga A
Bishan 16 and Navnit R. Kamani' 9 .

50. The majority view of the Constitution Bench in Union
Carbide 20, wiih regard to power of this Court under Article 142
qf the Constitution hol_ds the same view as expressed by this
8
Court in Delhi Judicial Service Association 16 • The majority view
in Union Carbide 20 in paragraph 83 21 of the Report has

17. State of U.P. v. Poosu and Another; [(1976) 3 SCC 1]
18. Ganga Bishan v. Jai Narain; [(1986) 1 SCC 75] c
19. Navnit R. Kamani v. R.R. Kamani; [(1988) 4 SCC 387]
20. Union Carbide Corporation and Others vs. Union of India and Others;
[(1991) 4 sec 584]•
21. 83.lt is necessary to set at rest certain misconceptions in the arguments
touching the scope of the powers of this Court under Article 142(1) of the
Constitution. These issues are matters of serious public importance. The D
proposition that a provision in any ordinary law irrespective of the importance
of the public policy on which it is founded, operates to limit the powers of
the apex Court under Article 142(1) is unsound and erroneous. In both Garg
as well as Antu/ay cases the point was one of violation of constitutional
provisions and constitutional rights. The observations as to the effect of
inconsistency with statutory provisions were really unnecessary in those
cases as the decisions in the ultimate analysis turned on the breach of E
constitutional rights. We agree with Shri Nariman that the power of the Court
under Article 142 insofar as quashing of criminal proceedings are
concerned is not exhausted by Section 320 or 321 or 482 CrPC or all of
them put together. The power under Article 142 is at an entirely different
level and of a different quality. Prohibitions or limitations or provisions
contained ir ordinary laws cannot, ipso facto, act as prohibitions or F
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 whjch conferment of powers - limited in some appropriate
way - is contemplated. The limitations may not necessarily reflect or be
based on any fundamental considerations of public policy. Sri Sorabjee,
learned Attorney General, referring to Garg case, said that limitation on the G
powers und_er Article 142 arising from "inconsistency with express statutory
provisions of substantive law" must really mean and be understood as
some express prohibition contained in any substantive statutory law. He
suggested that if the expression 'prohibition' is read in place of 'provision'
that would perhaps convey the appropriate idea. But we think that such
prohibition should also be shown to be based on some underlying
H
1126 SUPREME COURT REPORTS (2013) 17 S.C.R.

A 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
B 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 Association22, 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
D "supplant'' substantive law applicable to the case or .. oouse
under consideration of the Court. Article 142, even with the
width of its amplitude, cannot be used to build a new ediflce
where none existed earlier, by ignoring express statutory
provisions dealing with a subject and thereby to achiev_e
E something indirectly which cannot be achieved directly ...... .".

fundamental and general issues of public policy and not merely incidental
to a particular statutory scheme or pattern. It will again be wholly incorrect
to say that powers under Article 142 are subject to such express statutory
F prohibitions. That would convey the idea that statutory provisions override
a constitutional provision. Perhaps. the proper way of expressing the idea
is that in exercising powers under Article 142 and in assessing the needs
of "complete justice" of a cause or matter, the apex Court will 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. The proposition does not relate to
G the powers of the Court under Article 142. but only to what is or is not
'complete justice' of a cause or matter and in the ultimate analysis of the
propriety of the exercise of the power. No question of lack of jurisdiction or
of nullity can 'arise.
22. Supr!'me Court Bar Associatio,n v. Union of India and Another; [(1998) 4
sec· 409].
H
MANOHAR LAL SHARMA v. PRINCIPAL SECRETARY 1127
[R.M. LODHA, J.]

The Court, however, went on to say that the constitutional A
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. B

52. The proper .way for the Court, as stated in Union
Carbide2°, 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 C
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 j42(1) is meant, obviously, the
Court will exercise its power appropriately having regard to the D
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 E
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 F
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 G
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
H
1128 SUPREME COURT REPORTS [2013) 17 S.C.R.

A 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
B 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 oveFlooks the vital aspect that Court monitoring of the
C 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
D 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.
E
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
F only done in extraordinary circ,umstances 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
G 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.

H
MANOHAR LALSHARMAv. PRINCIPAL SECRETARY 1129
[R.M. LODHA, J.]

57. In the case of Committee for Protection of Democratic A
Rights8, 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 B
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 ii\. clauses vi and vii, paragraph 68
of the Report which read as under: c
"68. (i) to (v) ........ .

(vt) 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· -0'
subject to grant of consent by the State concerned, there
is no reas.on 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 E
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.
F
(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
. with.in 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 G
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
H
• 1130 SUPREME COURT REPORTS (2013] 17 S.C.R.

A 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 pour!, in our opinion, would not
B amount to infringement of either the doctrine of separation
of power or the federal structure."

58. Learned Atforney General with reference to the above
judgment submitted that the principle of law laid down in the
C case of Committee for Protection of Democratic. RightsB
cannot be extended to requirement of prior approval under
Section 6A. He submitted that Committee for Protection of
Democratic Rights" 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
D 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
E 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
F 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
G 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
H
MANOHAR LAL SHARMA v. PRINCIPAL SECRETARY . 1131
[R.M. LODHA, J.]
the constitutio·nal courts are empowered to direct the A
/ 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 Ce.ntral
Government is not oecessary under Section. 6A of the DSPE B
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.
c
60. Learned Attorney General heavily relied upon the
observations made in paragraph 28 by the Constitution Bench
of this Court in K. Veeraswami4. He, particularly, referred to the
following observations with emphasis on the highlighted portion:
D
· "28 ....... Section 6 is primarily concerned to see that
prosecution for the specified offences shaJI 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 E
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 au.thority has to examine
independently and impartially the material on record to
F
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 thematerial collected has made out the commission of G
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
H
1132 SUPREME COURT REPORTS [2013] 17 S.C.R.

A 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
B 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
c 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."

D 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.
E 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 Shelly, J.) that in order
to protect the independence of judiciary, it was essential
that no criminal case shall be registered under Section
F
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
G 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.
H
MANOHAR LAL SHARMA v. PRINCIPAL SECRETARY 1133
[R.M. LODHA, J.]

35. The position of Judges of High Courts and the A
Supreme Court, wh.o 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 B
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 c
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 D
·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 E
in K. Veeraswami4 has no application to the officers covered
by the single directive. In other words, the observations made
by this Court in K. Veeraswami4 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 F
different from the government officers.

63. The referral order in Subramanian Swamy (Dr.)7 ,
records the argument advanced on behalf of the Central
Government that the view in Vineet Narain1 with regard to the G
observations in K. Veeraswami4 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 mear;i' that
what has been said in Vineet Narain1 about the observations
H
1134 SUPREME COURT REPORTS [2013] 17 S.C.R.

A in paragraph 28 of K. Veeraswami4 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
B 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
C 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 th is Court. Th is position
holds good in cases which are directed by the Court to be
registered and the inquiry/investigation thereon is actually being
D monitored by this Court. ·

ORDER

MADAN B. LOKUR, J. 1. The question for consideration
relates to the applicability of Section 6A of the Delhi Special
E Police Establishment Act, 1946 (hereinafter referred to as the
Act) to an inquiry or investigation monitored by a constitutional
court. In my opinion, this section has no application to a
constitutional court monitored inquiry or investigation. While I ·
agree With" the same conclusion arrived at by Brother Justice
F Lodha, my reasons are quite different.

2. Section 6A of the Act reads as under:

"Approval of Central Government to conduc:t inquiry
·or investigation.-(1) The Delhi SpE1cial Police
G Establishment shall not conduct any inquiry or investigation
into any offence-alleged to have been committed under the
Prevention of Corruption Act, 1988 (49 of 1988) except with
the previous approval of the Central Government where
such allegation relates to -
H
MANOHAR LAL SHARMA v. PRINCIPAL SECRETARY 1135
[MADAN B. LOKUR, J.]

(a) the employees of the Central Government of the A
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, B
societies and local authorities owned or controlled
by that Government.

(2) Notwithstanding anything contained in sub-section (1 ),
no such approval shall be neces,Sary for case involving
arrest of a person on the spot rn<the charge of accepting C
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 (49
of 1988)."
D
3. At the outset, one must appreciate that a constitutional
court monitors an investigation by the State police or the Central
Bureau of Investigation (for short the CBI) only and only in public
interest. That is the leitmotif of a constitutipri,al court monitored
investigation. No constitutional court 'desires' to monitor an
E
.. inquiry or an investigation (compendiously referred to hereafter
as an investigation) nor does it encourage the monitoring of
any investigation by a police authority, be it the State police or
the CBI. Public interest is the sole consideration and a
constitutional court monitors an investigation only when
F
circumstances compel it to do so, such as (illustratively) a lack
of enthusiasm by the investigating officer or agency (due to
'pressures' on it) in conducting a proper investigation, or a lack
of enthusiasm by the concerned Government in assisting the
investigating authority to arrive at the truth, or a lack of interest
by the investigating authority or the concerned Government to G
take the investigation to its logical conclusion for whatever
reason, or in extreme cases, to hinder the investigation.,

4. Having made this position clear, the present concern is
only with respect to an investigation conducted by the CBI into H
1136 SUPREME COURT REPORTS [2013) 17 S.C.R.

A the allocation of coal blocks, the monitoring of that investigation
by this Court and the impact of Section 6A of the Act on the
investigation.

Background - The Single Directive
B
5. Section 6A of the Act was brought on the statute book
with effect from 11th September 2003. Prior thereto, the sum
and substance of Section 6A of the Act was in the form of a
'Single Directive' issued by the executive Government. The
Single Directive protected, inter alia, a class of officers from
C being investigated by the CBI or in the registering of a case
against that class of officers. This was through a provision
requiring prior sanction of 38 the Secretary of the concerned
Ministry or Department before the CBI undertakes an
investigation against an officer of the rank of a Joint Secretary
D or above. The Single Directive made it clear that "Without such
-sanction, no inquiry shall be initiated by the SPE (Special
Police Establishment)." The relevant extract of the Single
Directive has been quoted by Brother Justice Lodha and it is
not necessary to repeat it.
E
6. The Single Directive was the subject of challenge in
Vineet Narain v. Union of India, (1998) 1 SCC 226. This Court
struck it down, inter a/ia, on three grounds that are best
expressed in the words of this Court:

F· (i) "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
G from harassment caused by a malicious or vexatious
prosecution. We are unable to accept this submission.

" ....... The feature of independence of judiciary has no

H 1. K. Veeraswai v. Union of India, (1991) 3 SCC 655.
'
MANOHAR LAL SHARMA v.PRINCIPAL SECRETARY 1137
[MADAN B. LOKUR, J.]

application to the officers covered by the Single Directive. A
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 B
Single Directive." [paragraph 34 and 35 of the Report].

(ii) "In the absence of any statutory requirement of prior
permission or sanction for investigation, it cannot be
imposed as a•condition precedent for initiation of the C
investigation once jurisdiction is conferred on the CBI to
· investigate the offence by virtue of the notification under
Section 3 of the Act." [paragraph 43 of the Report].

(iii) "The law does not classify offenders differently for
treatment thereunder, including investigation of offences D
and prosecution for offences, according to their status in
life. Every person accused of committing the same offence
is to be dealt with in the same manner in accordanc\e with
law, which is equal in its application to everyone."
[paragraph 44 of the Report]. E

7. Among other things, this Court also considered a Report
given by an Independent Review Committee (IRC) constituted
by the Government of India by an order dated 8th September
1997 and noted one of its observations in the preface to its
Report, namely,
F

"In the past several years, there has been progressive
increase in allegations of corruption involving public
servants. Understandably, cases of this nature have
attracted heightened media.and public attention. A general G
impression appears to have gained ground that the Central
investigating agencies concerned are subject to
extraneous pressures and have been indulging in dilatory
tactics in not bringing the guilty to book. The decisions of
H
1138 SUPREME COURT REPORTS [2013] 17 S.C.R.

A higher courts to directly monitor investigations in certain
cases have added to the aforesaid belief."

8. Unfortunately, rather than make a serious attempt to
consider the Report or the views of this Court, the Single
B Directive was given a fresh lease of life, and a statutory one at
that, by enacting Section 6A in the Delhi Special Police
Establishment Act, 1946.

9. The justification for the enactment was the
recommendations contained in the Report of the Joint
C Committee of both Houses of Parliament set up to examine the
provisions of the Central Vigilance Commission Bill, 1999. In
its Report presented to Parliament on 22nd November 2000
the Joint Committee had this to say:

D "41. The Committee note that many witnesses who
appeared before the Committee had expressed the need
to protect the bona fide actions at the decision making
level. At present there is no provision in the Bill for seeking
prior approval of the Commission or the head of the
Department etc. for registering a case against' a person
E
of the decision making level. As such, no protection is
available to- the persons at the decision making level. In
this regard, the Committee note that earlier, the prior
approval of the Government was required in the form of a
'Single Directive' which was set aside by the Supreme
F Court. The Committee feel that such a protection should
be restored in the same format which was there earlier and
desire that the power of giving prior approval for taking
action against a senior officer of the decision making level
should be vested with the Central Government by making
G appropriate provision in the Act. The Committee, therefore,
recommend that Clause 27 of the Bill be accordingly
amended so as to insert a new section 6A to the DSPE
Act, 1946, to this effect."

H
MANOHAR LAL SHARMA v. PRINCIPAL SECRETARY 1139
[MADAN B. LOKUR, J.)

10. Furthermore, in the debate in Parliament relating to the A
Bill, the Union Law Minister stated that the rationale behind the
Single Directive was "that those who are in senior decision-
making positions, those who have to exercise discretion, those
who have to take vital decisions, could be the targets of frivolous
complaints." Justifying Section 6A of the Act, the Hon'ble B
Minister went on to say:

"Do we allow those complaints against them to go on and
those people to be subjected to all these? Or, do we have
· some screening· mechanism whereby serious complaints
would be investigated and frivolous complaints would be C
thrown out? And this is how the single-point directive was
born, and in 1988, they replaced the senior civil servants
iri the senior decision-making positions by saying "Joint
.Secretaries and above'. And, if you were to say that there
is no protection to be given to you, when you take all the D
decisions, when you make all the discretions, and anybody
can file a complaint, and an inspector or the CBI or the
police can raid your house any moment, if this elementary
protection is not to be given to the senior decisionmakers,
you may well have a governance where instead of E
tendering honest advice to political executives, a very safe,
non-committal advice is going to be given."

11. It is under these circumstances that Section 6A of the
Act replaced the Single Directive.
F
12. In his written submissions, learned Attorney-General
summed up the discussion by saying that Section 6A is
intended "to provide a screening mechanism to filter out
frivolous or motivated investigation that could be initiated
against senior officers to protect them from harassment and to G
enable them to take decisions without fear."

·Cause for the present discussion

13. Why has the applicability of Section 6A of the Act come
H
1140 SUPREME COURT REPORTS [2013] 17 S.C.R.

A up for discussion? Prior to the present case, there was a
general outcry that allocations of coal blocks for mining and
exploitation were arbitrarily made in various parts of the country
to private players which in effect amounted to distribution of
largesse by the Central Government to these private players.
B The financial implications of the allocations came under the
scrutiny of the Comptroller and Auditor General of India (C&AG)
and, based on the Report submitted by the C&AG and tabled
in Parliament on 16th August 2012, some believed that the
allocations were not made with bona fide motives and that the
C whole gamut of allocations ought to be impartially investigated
by the CBI. Although the CBI had begun investigations on the
basis of directions issued by the Central Vigilance
Commission, •it was perceived that the CBI was 'going.slow'
or not actively investigating the allegations perhaps with a view
to protect some powerful vested interest. It is under these
D circumstances that public interest litigation was initiated in this
Court. _Given the importance of the case and the issues
~nvolved, this Court decided, in the larger public interest, to
monitor the investigations being conducted by the CBI.

E 14. While the matter of allocations is being considered on
merits, one of the issues that has arisen is with regard to the
interpretation of Section 6A of the Act since it was
apprehended by the petitioners that despite this Court
monitoring the investigations, the Central Government could
F stall them by declining to give.previous approval to the CBI to
carry out an inquiry or conduct an investigation into the
allegations since officers of the level of Joint Secretary and
above would be involved.

15. The issue got precipitated when it was brought to our
G notice through an application filed by the CBI that previous
approval sought by it (to examine a particular officer) was
granted by the Central Government only after some
clarifications were given and that too after a lapse of three

H
MANOHAR LAL SHARMA v. PRINCIPAL SECRETARY 1141
[MADAN B. LOKUR, J.]

months. 2 This is what was said by the CBI in paragraph 8 of A
its application:

"8. It is relevant to mention that prior to the passing of order
dated 08.05.2013, a request had been made vide letter
dated 06.03.2013 for approval under Section 6A in three B
of the RC's. The said approval was initially declined on
22.05.2013. However, after sending a detailed report,
sanction was granted by the Government and received by
the Respondent no.3 on 12.06.2013."

16. This request for previous approval was i'n sharp C
contrast to the submission earlier made by the CBI in Centre
for Public Interest Litigation v. Union of lndia 3 when it had
submitted (with reference to Section 6A of the Act} that "as the
investigation was directed by this Court, grant of approval/
permission is not necessary and the CBI shall investigate into. D
the allegations as per law." The ehange in stance over the years
was highlighted before us by the petitioners who perceived this
to be an instance of 'pressure' put on the CBI.
~ ' .
Submissions E
17. Learned·Attorney-General submitted that though the
requirement of previous approval under Section 6A of the Act
may seem onerous to an investigating agency or a public
interest litigant, its rigour has undergone substantial slackening
and that this ought to meet the requisites of a nonpartisan F
investigation by the CBI. Reference was made to the·
recommendations given in March 2011 by a Group of Ministers
which dealt, inter alia, with the "relevance/need for Section 6A
of the Delhi SpeCial Police Establishment Act, 1946". The
recommendations were accepted by the Central Government G

2. I.A. No. 14091 of 2013 in Writ Petition (Crt) No. 120 of 2012 filed on 8th
July 2013.
'3. WP (C) Nc1. 11550 of 2009-ori:ter dated 4.4.2011 passed by the Delhi High
Court. · H
1142 SUPREME COURT REPORTS [2013] 17 S.C.R.

A and Office Memorandum No. 372/19/2011-AVD-ll (Part-I) dated
26th September, 2011 was issued. The relevant extract of the
Office Memorandum reads as follows:-

. "The undersigned is directed to state that the
provision of section 6A of the DSPE Act, 1946 provides
B
for safeguarding senior public officials against undue and
vexatious harassment by the investigating agency. It had
been observed that the requests being made by the
investigating agency under said provision were not being
accorded due priority and the examination of such
c proposals at times lacked objectivity. The matter was under
consideration of the Group of Ministers constituted to
consider measures that can be taken by the Government
to tackle Corruption.

D The Government has accepted the following
recommendation of the Group of Ministers, as reflected in
para 25 of the First Report of the Group of Ministers:-

(a) The competent authority shall decide the matter
within three months of receipt of request
E
accompanied with relevant documents.

(b) The competent authority will give a Speaking Order,
giving reasons for its decision.

F (c) In the event a decision is taken to refui;e
permission, the reasons thereof shall be put up to
the next higher authority for information withi)l one
week of taking the decision.

(d) Since section 6A specifically covers officers of the
G Central Government, above the rank of Joint
Secretary, the competent authority in these cases
will be the Minister in charge in the Government of
India. In such cases, intimation of refusal to grant
permission along with reasons thereof, will have to
H
MANOHAR LAL SHARMA v. PRINCIPAL SECRETARY 1143
[MADAN B. LOKUR, J.]

be put up to the Prime Minister. A

The above decision of the Government is brought to
the notice of all Ministries/Departments for due adherence
and strict compliance."

18. Learned Attorney-General also submitted that apart B
from the safeguards introduced by the Office Memorandum, the
constitutional courts always have the power of judicial review if
previous approval for investigation is withheld for collateral
reasons. He submitted that, if necessary, some additional
safeguards may also be incorporated by this Court, including C
that in the event a decision for granting previous approval is
not taken within a specified period, a default clause of a deemed
previous approval would automatically apply.

19. He justified giving protection to senior officers, who are D
decision makers, on the ground that the CBI will have only one
side of the story before it embarks on an investigation. The
senior Government functionary sought to be investigated would
not even have a hearing before investigations commence.
Reliance was placed on P. Sirajuddin v. The State of Madras,
E
(1970) 1 sec 595 to submit that if baseless allegations are
made against senior Government officials, it would cause
incalculable harm not only to the officer in particular but to the
department that he belonged to, in general. The following
passage was relied upon:
F
"Before a public servant, whatever be his status, is publicly
charged with acts of dishonesty which amount to serious
misdemeanour or misconduct of the type alleged in this
case and a first information is lodged against him, there
must be some suitable preliminary enquiry into the G
allegations by a responsible officer. The lodging of such
a report against a person, specially one who like the
appellant occupied the top position in a department, even
if baseless, would do incalculable harm not only to the
H
1144 SUPREME COURT REPORTS [2013] 17 S.C.R.

A officer in particular but to the department he belonged to,
in general."

20. It was also submitted that the fact that an investigation
is being monitored by a constitutional court will ensure that the
B Central Government does not withhold granting previous
approval for collateral reasons. It was submitted that there is a
presumption that official acts are performed lawfully and it is
only to protect a decision maker from undue harassment that
Section 6A has been introduced in the Act. Protection of honest
public servants from frivolous and vexatious complaints was
C emphasized by the learned Attorney~General.

21. The learned Attorney-General made a concession to
the effect that in the event of the CBI conducting an enquiry, as
opposed to an investigation into the conduct of a senior
D government officer, no previous approval of the Central
· Government is required since an enquiry does not have the
same adverse connotation that an investigation has.

Discussion

E 22. Some of the safeguards suggested by the learned
Attorney-General find a mention in Vineet Narain. However,
these were not specifically accepted or rejected while
considering the validity of the Single Directive only because this
Court held that the Single Directive had been issued without
F any legislative sanction and it amounted to interdicting the
investigations.

23. No doubt the rigour of Section 6A of the Act has
already been diluted by the issuance of the Office
G Memorandum dated 26th September 2011. But the question
is this: ls.there a need for a further dilution of ~ection 6A of the
Act in respect of a constitutional court monitored inve_stigation?
Is it necessary for the CBI to take the previous approval of the
Central Government for investigating a senior official even in a
H constitutional court. monitored investigation?
MANOHAR LAL SHARMA v. PRINCIPAL SECRETARY 1145
[MADAN B. LOKUR, J.]

24. What is an investigation has already been discussed A
by Brother Justice Lodha a·nd I .endorse his views on this.
However, what is crucial for an investigation is that it should
conclude expeditiously from the point of view of all concerned:
from the point of view of ttle accused, a quick conclusion to the
investigation will clear his name and image in society if he is B
innocent. This is certainly of considerable importance to a
person who has been wrongly accused or framed for an
offence; from the point of view of society, a quick closure to
investigation is necessary so that those against whom tl'lere is
evidence of the commission of a crime are tried at the earliest -c
and punished if they are guilty. This, so far as society is
concerned, is essential for maintaining the rule of law; and from
the point of view of the investigator, an expeditious conclusion
of investigations is necessary because greater the delay,
greater the chances of evidence being destroyed, witnesses
0
being compromised or the accused being able to manipulate
circumstances to his or her advantage.

25. In this light, the interplay between Section 6A of the Act
and a constitutional court monitored investigation should be
such as to protect senior government officials from frivolous and E
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.
F
26. On the protective side, it was submitted by the learned ·
Attorney- General that when the CBI requests for the grant of
previous approval, it presents only one side of the story and it
is necessary to give the senior government official an
opportunity of explaining his side of the story before approval G
is granted by the Central Government to conduct investigations
by the CBI. Assuming a senior government officer is being
unfairly investigated by the CBI in a constitutional court
monitored investigation without the previous approval of the
Central Government, is it difficult for him or her to approach the
H
1146 SUPREME COURT REPORTS [2013] 17 S.C.R.

A constitutional court and present his side of the story and contend
that he or she should not be investigated for an alleged offence?
It is only the substitution of a forum, from a Minister to a
constitutional court, which will consider the officer's request and
a fair hearing given by a constitutional court certainly cannot be
B said to be detrimental to his pr her interest. On the contrary,
the protection given by a constitutional court will be more real.

27. On the preventive side, one must not forget that senior
government officials wield at least some influence. This Court
C has also cautioned in Sama} Parivartan Samudaya v. State
of Kamataka, (2012) 7 SCC 407 that our criminal jurisprudence
contemplates that "an investigation should be fair, in
. accordance with law and should not be tainted. But, at the same
time, the court has to take precaution that interested or
intluential persons are not able to misdirect or hijack'•the '
D investigation so as to throttle a fair investigation resulting in the
offenders escaping the punitive course of law." Effectively,
therefore, Section 6A of the Act calls for an equal treatment
before law for all, and that is precisely what a constitutional court
, .monitored investigation seeks to achieve - preventing misuse
E · of the law.

28. The Office Memorandum relied on by the learned
Attorney-General can hardly be termed as efficacious in any
manner. Firstly, it cannot be used to interpret a provision of law
F such as Section 6A of the Act. I am not inclined to give any
importance to the Office Memorandum for understanding or ·
appreciating Section 6A of the Act. Secondly, the Office
Memorandum can always be withdrawn, modified or amended
on the whim of the executive Government, on the same rationale
G as ,given for enacting Section 6A of the Act, namely, for
'protecting' a senior government official. Therefore, it does not
effectively prevent possible misuse of the law.

29. The entire issue may be looked at from another angle.
Section 156 of the Criminal Procedure Code enables the local
H
MANOHAR LAL SHARMA v. PRINCIPAL SECRETARY 1147
[MADAN B. LOKUR, J.] ~-

police to investigate a cognizable offence while Section 155 A
of the Criminal Procedure Code enables a police officer to
investigate a non-cognizable offence after obtaining an
appropriate order from the magistrate having power to try such
case or commit the case for trial regardless of the status of the
concerned officer. Therefore, the local police may investigate B
a senior Government officer without previous approval of the
Central Government, but the CBI cannot do so. This is rather
anomalous.

30. This anomaly has, in fact, occurred. In Centre for PIL C
v. Union of India, (2011) 4 SCC 1 investigations were
conducted by the local police in respect of a senior government
. official, without any previous approval, and a challan.filed in the
court of the Special Judge dealing with offences under the
Prevention of Corruption Act, 1988. It is difficult to understand
the logic behind such a dichotomy unless it is assumed that · D
frivolous and vexatious complaints are made only when the CBI
is the investigating agency and that it is only the CBI that is
capable of harassing or victimizing a senior Government official
while the local police of the State Government does not
entertain frivolous and vexatious complaints and is not capable E
of harassing or victimizing a senior government official. No
such assumption can be made.

31. With regard to the time factor for taking a decision, as
proposed by the learned Attorney-General it is worth referring F
to Dr. Subramanian Swamy v. Dr. Manmohan Singh, (2012)
3 SCC 64 wherein this Court noted in paragraph 17 of the
Report as follows:-

" Du ring the course of hearing, the learned Attorney
General filed written submissions. After the hearing G
concluded, the learned Attorney General filed
supplementary written submissions along with a
compilation of 126 cases in which the sanction for
prosecution is awaited for periods ranging for more than
H
1148 SUPREME COURT REPORTS [2013) 17 S.C.R.

A one year to a few month~."

32. Referring to. this situation, this Court observed in
paragraph 70 of the Report as follows:-

''Therefore, in more than one-third cases of request for
B prosecution in corruption cases against public servants,
sanctions have nofbeen accorded. The aforesaid scenario
raises very important constitutional issues as well as some
questions relating to interpretation af such sanctioning
provision and also the rble that an independent judiciary
c has to play in maintaining the Rule of Law and common
man's faith in the justice-delivering system. Both the Rule
of Law and equality before law are cardinal questions in
our constitutional laws as also in international law and in
this context the role of the judiciary is very vital."
D
33. It is true that in Swamy this Court was referring to
delays in sanctions for prosecution but it is not unlikely that a
similar scenario may play itself out in respect of the grant of
previous approval for investigation notwithstanding time lines
E being laid down as mentioned in the Office Memorandum. This
is because if the time lines are not adhered to, it is unlikely that
the CBI, in the absence of any realistic functional autonomy, will
be able to press the Central Government beyond a point for
expeditious approval for investigating an offence against a
F ·senior government official. Investigations can be paralyzed by
unwarranted delay~. both intentional and unintentional.

34. Equality before law has been emphasized by this Court
in Sirajuddin in the passage cited by the learned Attorney-
Genel"al. This has also been emphasized in Swamy in the
G passage quoted above. In Vineet Narain, the issue of equality
before law was adverted to in paragraph 44 of the Report.
Keeping this salutary equality principle in mind, it is necessary
that Section 6A be so interpreted that the requirement of a
previous approval is not necessary when an investigation by
H the CBI is being monitored by a constitutional court. The
MANOHAR LAL SHARMA v. PRINCIPAL SECRETARY 1149
[MADAN B. LOKUR, J.]

protection afforded to a senior government officer. can be A
adequately taken care of by a fair and impartial hearing in a
constitutional court; the preventive mechanism for a fair
investigation can be impartially taken care of by_ a colJ'Stitutional
court; expeditious and nonpartisan conclusion of an investigation
can be and will undoubtedly be monitored by a constitutional B
court. More importantly, public interest will be taken care of if
Section 6A of the Act is interpreted as not putting a fetter on
a
the power of a constitutional court in case of a continuing
mandamus.
' c
35. The learned Attorney-General is right in saying that
official acts are presumed to have been done in accordance
with law. While this certainly applies to senior government
officers, it equally applies to the CB.I which, it is presumed, will
'officially' act against a senior government officer in a
constitutional court monitored Investigation only if it is confident D
that there is enough material before it to conduct an
investigation. It is not possible to assume that in a constitutional
court monitored investigation the CBI will, in a trigger-happy
manner, ride roughshod and target senior government officers
only because they are empowered to do so. The submission E ·
of the learned Attorney-General must equally apply to the CBI
and an official act of the CBI must also be presumed to have
been done in accordance with law.

36. Interestingly, as noted in Subramaniam Swamy v. F
Director (CBI), (2005) 2 SCC 317 no previous approval for
investigation was required by the CBI from the date of decision
in Vineet Narain (18th December 1997) till the insertion of
Section 6-A of the Act with effect· from 12th September 2003
except for a brief period of two months from 25th August 1998 G
to 27th October 1998. Absolutely no material was placed before
us to suggest that during the period when the Single Directive
was !JOI in operation, nor was Section 6A of the Act on the
statute book, the CBI investigated frivolous and vexatious
complaints against senior government officers or harassed any H
1150 SUPREME COURTREPORTS (2013] 17 S.C.R.

A of them in any way. The fear that decision makers in the
Government will be wary of taking a bona fide decision that may
inadvertently stir up an avoidable controversy does not appear
to be based on any rpaterial.

37. Finally, a constitutional court monitored investigation
8
is nothing but the adoption of a procedure of a 'continuing
mandamus' which traces its origin, like public interest litigation,
to Article 32 of the Constitution and is our contribution to
jurisprudence. This has been sufficiently discussed in Vineet
Narain and there is no present necessity of any further
C discussions on this. In M. C. Mehta v. Union of India, (2008) 1
SCC 407 this Court referred, in the context of ongoing
investigations, to a 'continuous mandamus' and observed that:

"The jurisdiction of the Court to issue a writ of continuous
D mandamus is only to see that proper investigation is
carried out. Once the Court 6atisfies itself that a proper
investigation has been car,ried out, it would not venture to
take over the functions of the Magistrate or pass any order
which woulc(interfere with his judicial functions."
'•' ~ J•

E
38. The question therefore is, can a statutory fetter such
as Section 6A of the Act bind the exercise of plenary power
by this Court of issuing orders in the nature of a continuing
mandamus under Article 32 of the Constitution? The answer
is quite obviously in the negative. Any statutory emasculation,
F intended or unintended, of the powers exercisable under Article
32 of the Constitution is impermissible.

39. In the Constitution Bench decision in State of West
Bengal v. Committee for Protection of Democratic Rights,
G (2010) 3 sec 571 the question that arose was whether the
High Court could direct the CBI to investigate a cognizable
offence, which is alleged to have taken place within the territorial
jurisdiction of a State, without the consent of the State
Government. Apart from the constitutional issue relating to the
H separation of powers, the other issue related. to the statutory
MANOHAR LAL SHARMA v. PRINCIPAL SECRETARY 1151
[MADAN B. LOKUR, J.)

bar on investigations, without the consent of the State A
Government, imposed by Section 6 of the Act.

This S~ction reads as follows:

6. Consent of State Government to exercise of powers and
jurisdiction.-NQthing contained in Section 5 shall be B
deemed to enable any member of the Delhi Special Police
Establishment to exercise powers and jurisdiction in any
a
area in a State, not being Union Territory or railway area,
without the consent of the Government of that State."
c
40. The Constitution Bench discussed the issue of
separation of powers and later dealt with the statutory bar in
the context of judicial review. The Constitution Bench referred
(in paragraph 51 of the Report) to the speech of Dr. Ambedkar
in the Constituent Assembly, with reference to Article 32 of the D
Constitution,
.. wherein he said .

"If I was asked to name any particular article in this
Constitution as the most important - an article without
which this Constitution would be a nullity - I could not refer
to any .other article except this one. It is the very soul of E·
the Constitution and the very heart of it and I am glad that
the House has realised its importance."

Thereafter, explaining the importance of clause (2) of
Article 32 and the expression "in the nature or used F
therein, the Constitution Bench held, in paragraph 53 of the
Report that the power conferred is "in the widest terms and
is not confined· to issuing the high prerogative writs
specified in the said clause but includes within its ambit
the power to issue any directions or orders or writs which G
may be appropriate for enforcemerit of the fundamental
tights. Therefore, even when the conditions for issue of any
of these writs are not fulfilled, this Court would not be
constrained to fold its hands in despair and plead its
inability to help the citizen who has come before it for H
1152 SUPREME COURT REPORTS (2013] 17 S.C.R.

A judicial redress (per P.N. Bhagwati, J. in Bandhua Mukti
Morcha v. Union of lndia 4 )."

41. Concluding the discussion, the Constitution Bench held
(in paragraph 68(vii) of the Report) that the power of judicial
B review exercisable by a constitutional court cannot be restricted
by a statutory provision. It was held as follows:

(vit) 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
C 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 withip the jurisdiction
of the State. The power of the High Court under Article 226
of the Constitution cannot be taken away, curtailed or
D 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
E 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."

42. The law laid down by the Constitution Bench vis-a-vis
F a High Court exercising judicial review under Article 226 of the
Constitution and a statutory restriction under Section 6 of the
Act, would apply (perhaps with greater vigour) mutatis
mutandis to the exercise of judicial review by this Court under
Article 32 of the Constitution with reference to a statutory
G restriction imposed by Section 6A of the Act. That being so,
Section 6A of the Act must be meaningfully and r~alistically
read, only as an injunction to the executive and not as an
injunction to a constitutional court monitoring an investigation

H 4. (1984) 3 sec 1s1.
MANOHAR LAL SHARMA v. PRINCIPAL SECRETARY 1153
[MADAN B. LOKUR, J.)

under Article 32 of the Constitution in an exercise of judicial A
review and of issuing a continuing mandamus.

43. The need for a separate opinion has arisen since I
have some reservations on the interpretation of the decisions
of this Court referred.JQ":b,y Brother Justice Lodha with regard B
to the plenitude of powers exercisable by this Court under
Article 142 of the Constitution. Those reservations are not at
all material for the present since the conclusion arrived at is the
same - the route being different. While Brother Justice Lodha
has relied on Article 142 of the Constitution to arrive at a C
conclusion that Section 6A of the Act has no application to a
constitutional court monitored investigation, I have reached the
same ·conclusion by relying, inter alia, on Article 32 of the
Constitution and the discussion on judicial review found in
Committee for Protection of Democratic Rights.
D
Rajendra Prasad Question of Law answered.