Opinion - News Analysis

The CBI and the superintendence issue

By Mukund Padmanabhan

Much of the Central Bureau of Investigation's labour over the last four-and-a-half years could be undone if the recent Delhi High Court judgment, quashing the chargesheet filed against the Hinduja brothers in the Bofors case, is not reversed. Sources in the premier investigating agency fear that the decision could approximately affect a staggering 1000 other cases.

The Delhi High Court arrived at its decision on the procedural ground that the CBI had not sought the consent of the Chief Vigilance Commissioner (CVC) before filing the chargesheet against the Hindujas.

The single judge hearing the case held that in not doing so, the CBI had ``failed'' to comply with the Supreme Court's judgment in the Vineet Narain/Jain hawala case (which vested the superintendence of the CBI with an autonomous and statutory CVC).

Sources in the CBI say that the agency has filed about 1000 chargesheets involving over 2000 accused since the Vineet Narain judgment was delivered in December 1977.

And in no case was the express consent of the CVC taken before the chargesheet was placed in court.

The fear is that the Delhi High Court's ruling could be cited by these accused to plead that the chargesheets against them also be quashed.

In other words, the implications of the ruling go far beyond the Bofors case.

If the CBI's appeal against it is not upheld, it may be forced to file fresh chargesheets in about a thousand other cases — an eventuality which would mean enormous delay and a possible weakening in some cases due to altered circumstances.

At the heart of the court's ruling lies the question of how one paragraph (no. 58 sub para 3) of the Vineet Narain judgment should be interpreted. The most relevant portion being, "... the CVC shall be entrusted with the responsibility of superintendence of the CBI's functioning.

The CBI shall report to the CVC about cases taken up by it for investigation; progress of investigations; cases in which chargesheets have been filed and their progress.''

Concluding that the power of superintendence is real and includes the power to direct something to be done or not done, the single judge went on to conclude that the CVC is ``certainly required to review the results of the investigation before the same are placed before the court.''

The conclusion goes against the CBI's contention that the CVC's role is largely advisory and, that the agency's obligation in connection with investigations/chargesheets really lies in keeping the CVC briefed and noting his advice/comments.

More significantly, it goes against the very practice being followed over the past few years, where the CVC's direct power of review has been limited to granting sanction of prosecution for accused public servants.

What the Delhi High Court judgment has done is to alter the existing CBI-CVC equation in a manner which puts the latter almost squarely in charge of the investigating agency — vested with a discretionary power to overview cases from inception to end.

Not surprisingly, this is something that the CBI is not happy with.

With the CBI and the CVC preferring an appeal against the judgment, the final interpretation of what exactly `superintendence' means is still to be finally settled.

But there are at least a couple of questions of pragmatic import which need to be considered.

The CBI has been reporting to the CVC about the cases taken up for investigation, the progress of the investigation and the cases in which chargesheets are filed. If this is not sufficient, what more is required?

If it is the court's intention to make the CBI seek prior permission before it takes any step (from launching an investigation to determining who should be interrogated/arrested, to filing the chargesheets), it will seriously hamper flexibility and the pace of work.

Collection of evidence and supervision is a seamless and continuous process, one that will be extremely difficult if a procedure of seeking constant permission from the CVC is introduced.

Moreover, chargesheets filed by the CBI are not only vetted by the top but also cleared by the agency's law officers.

What kind of review is a CVC expected to make after this?

Does the Commission have both the manpower and the technical expertise to examine the hundreds of chargesheets prepared every year in their totality — from evaluating the strength of the collected evidence to vetting them from a legal perspective?

Prior sanction of the CVC does not find a mention in the CrPC, the Prevention of Corruption Act or the Delhi Special Police Establishment Act (under which the CBI was founded).

The CBI is praying that it will not be made a requirement by the final court of appeal.

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