Full Judgment
1. WE have heard Sri G.S. Chaturvedi, learned Senior Counsel for the petitioner, Sri S. Luthra, Additional Solicitor General of India for the C.B.I. However as Sri Luthra states that as he has instructions also to appear on behalf of the D.O.P.T., we have heard him in that capacity also.
2. THIS order will cover all the connected writ petitions. The background for this order may first be noticed. Disposing of Writ Petition No. 3611 (MB) of 2011 (P.I.L.), Sachchidanand (Sachchey) versus State of U.P. and other connected Writ petitions, on 15.11.2011 an earlier Division bench after examining the reports of the yearly inspections by the Central Joint Review Missions, the reports of the inspecting Central NRHM Finance teams, report of the Director of Audit and Account, Government of U.P. dated 4.7.2011 and other material brought on record by the petitioners, was satisfied that a prima facie case of gross irregularities, financial and administrative in the execution and implementation of the National Rural Health Mission (NRHM) including the matter of award of contracts, procurement of goods and articles etc. was disclosed. The Division Bench thereupon directed the Director CBI to get a preliminary enquiry conducted in the matter of execution and implementation of the NRHM and utilisation of funds at various levels during such implementation in the entire State of U.P. and to register a regular case in respect of persons against whom a prima facie cognizable offence appeared to be made out and to proceed in accordance with law. The enquiry was to relate from the period commencing 2005-2006 till date. The inquiry was to be concluded within four months. The State government and Central Governments were directed to render full support and co-operation to the CBI.
Significantly the said order of the Division Bench dated 15.11.2011 has not been challenged by the petitioner or others before the Apex Court. The learned Counsel for the petitioner, Sri Rakesh Dwivedi in his submissions before this Court on earlier dates also does not question the propriety of the aforesaid order. He concedes that the restriction under section 6 of the Delhi Special Police Establishment Act, requiring permission from the State government before allowing the CBI to investigate into commission of cognizable offences within a State would not apply if the High Court or Supreme Court had directed such an inquiry upon disclosure of a prima facie case in view of the Constitutional bench decision in State of West Bengal v Committee for Protection of Democratic Rights, (2010) 5 SCC 571. His contention however was that no approval of the Central Government had been taken for conducting the investigation against the petitioner which was mandated under section 6 A of the Delhi Special Police Establishment Act as the petitioner according to the learned counsel was an employee of the Central Government above the level of Joint Secretary. The correctness of this contention will be examined in a subsequent order.
3. ON 25.7.2012, the Counsel for the CBI had submitted before us that charge sheet against the petitioner was ready in the case (RC-220-2012-E0003) and as 90 days of the petitioner's detention would be over on 7.8.12, if the earlier order dated 28.6.2012 restraining the CBI from submitting the charge sheet was not vacated, the Counsel apprehended that the petitioner might be released on bail on the technical plea of violation of section 167 Cr.P.C. We had therefore by our order dated 25.7.12 left it open to the CBI to file the charge sheet, which act would be subject to any final decision of this Court. However despite the Court's order dated 25.7.12 allowing the CBI to file the charge sheet/ police report the petitioner was allowed to be released on bail on 8.8.2012, on the ground that the charge sheet had not been submitted within the stipulated period of 90 days. Neither was a charge sheet submitted before the Special CBI Court, nor was any information furnished by the investigating officer before the said Court that investigation by the CBI had been concluded in the concerned case (RC-220-2012-E0003), and that the charge sheet had been prepared, but the same had been forwarded to the Central Government for sanction under section 19 of the Prevention of Corruption Act 1988 (PC Act). Expressing our regret on this state of affairs we had sought an explanation from the Additional Solicitor General in this regard by our order dated 16.8.2012.
4. TODAY pursuant to our dated 16.8.2012 Sri Luthra has handed over a copy of a status report regarding progress of the investigation in all the five cases registered against the petitioner in sealed cover. He has also filed the CBI report in sealed cover concluding the investigation in case No. RC-220-2012-E0002 relating to Writ petition No. 8350 of 2012. This case deals with the criminal conspiracy in which the petitioner was a party along with others during the period 2009-10 to misappropriate NRHM funds placed at the disposal of UPPCL in the matter of construction of Modular OTs and setting up of AC/Air handling units in 36 district hospitals which resulted in a likely loss of Rs. 25 lacs per OT. On the request of the CBI it is directed that the said status report of the investigation of CBI and the report of investigation in RC-220-2012-E0002 may again be placed in sealed cover. Although the CBI takes a plea that it is overstretched in these matters as it has filed FIRs in 14 cases and also 5 preliminary enquiries are pending against the petitioner and others, and it is stated that a large number of places are to be visited and witnesses and documents are to be examined. Still we are not satisfied with the pace of investigation in the 5 matters against the petitioner, especially as a direction had been issued by the Division Bench in Sachchidanand's case on 15.11.2011 to complete the inquiry within 4 months. More than 9 months have elapsed since that order. We find that out of the 5 FIRs lodged against the petitioner only in the said case (RC-220-2012-E0003) where the accused was granted bail on 8.8.2012 and another case, RC-220-2012-E0002 charge sheets have been prepared and the files have been transmitted to the Central Government for seeking sanction for prosecution under section 19 of the Prevention of Corruption Act in RC-220-2012-E0003 on 26.7.12 and in RC-220-2012-E0002 on 29.8.2012. In the remaining three other cases, Sri Luthra was not even in a position to inform us as to when the investigation was likely to be concluded.
Even in RC-220-2012-E0002 and RC-220-2012-E0003 the period by which the matters of sanctions in the said cases are likely to be considered has not be clarified. We fail to understand the reason for the delay in preparation of the charge sheet in RC-220-2012-E0003, as only the submission of the police report of completion of investigation before the court concerned had been stayed by the order dated 28.6.12, (which was vacated on 25.7.2012) but there was no restraint on the preparation of the police report. Also there was no restriction on forwarding of the police report to the Central government for consideration of the matter of grant of sanction under section 19 of the PC Act. It needs to be pointed out here that the Apex Court in Subramanian Swamy v Manmohan Singh, (2012) 3 SCC 64 has again recently emphasized the need for not allowing the matters of consideration matters of sanctions to be put in the back burner and approved of the outer limit of 3 months for considering the matter, subject to an additional period of 1 month where opinion of the Attorney General or an officer of his department is required as as laid down in Vineet Narain v Union of India, (1998) 1 SCC 226 (paragraph 58). It has also been observed in paragraph 50 in the aforesaid law report that all that the competent authority is "required to see is whether the material placed by the complainant or the investigating agency prima facie discloses commission of an offence. The competent authority cannot undertake a detailed inquiry to decide whether or not the allegations made against the public servant are true."
5. IN the present case the urgency for considering the matter of grant of sanction was much greater in RC-220-2012-E0003 as the police report needed to be submitted by 7.8.2012 to prevent the accused being released on bail for breach of section 167 Cr.P.C. Also on a query made by the Court as to what follow up action has been taken pursuant to the charge sheet RC-220-2012-E0002, learned Additional Solicitor General stated that the police report has been sent to the DOPT on 29.8.2012 which is the competent authority for grant of sanction of prosecutions, under section 19 of the Prevention of Corruption Act 1988. However Sri Luthra informed us that some decision has been taken not to apprehend the petitioner in this case, RC-220-2012-E0002, which relates to cheating and misappropriation of NRHM funds. As after perusal of the contents of the police report, handed over to us in sealed cover we were prima facie satisfied that cognizable offences were disclosed against the petitioner we questioned Sri Luthra as to the considerations for the decision not to apprehend the petitioner in this case. He stated that he would seek clarification from the investigating agency in this regard and get back to the Court on the next hearing.
6. WE would also like to be apprised about the criteria which the investigating agency is adopting for arresting or not arresting accused persons, in the present as well as other cases, after investigation has been concluded against the said accused. We would also like to be informed as to whether there are any criteria for selecting the point of time when the said arrests can be made. Sri Luthra may obtain specific instructions in this regard from the appropriate authorities in the CBI and apprise the Court on the next hearing. We therefore find that the petitioner was allowed to be released on bail on 8.8.2012 on the ground that no charge sheet/ report of conclusion of investigation was submitted to the CBI Special Court within the stipulated period of 90 days in RC-220-2012-E0003, there is a decision of the CBI not to take coercive steps against the petitioner in RC-220-2012-E0002, in which the police report has been prepared and the investigation has been concluded, no time schedule has been indicated by which the police reports would be ready against the petitioner in the remaining three cases. There appears to be only a half hearted appreciation of the urgency to complete the preliminary inquiry within 4 months and thereafter to proceed with registration of regular cases against all the accused persons who may be involved in these offences in compliance of the order of the Division bench in Sachchidanand's case dated 15.11.2011. In this background we have taken a decision to henceforth treat this petition as a Public interest litigation and to call for reports periodically for monitoring the progress of the preliminary inquiries, investigations, grant of sanctions and other consequential matters for ensuring that there are no further unacceptable delays at different stages as the matter involves the larger public interest and the faith of the public in governance and the judiciary is at stake. It is clarified that by the Chief Justice's order dated 13.10.2011 the jurisdiction to entertain criminal PILs has been conferred on a bench presided over by one of us (Hon'ble Amar Saran J). This court forging out a new tool of issuing continuing mandamuses and keeping the matter pending to issue directions to investigating and other agencies when the investigation was being stalled in matters involves corruption and misuse of power at high places has been approved by the Apex Court in Vineet Narain v Union of India, AIR 1998 SC 889. In Balwant Singh Chaufal v State of Uttaranchal, (2010) 3 SCC 402 (paragraphs 96 to 103), it has been mentioned that public interest litigations may be entertained in matters involving corruption at high places, which are "a sine qua non for an efficient system of administration and for the development of the country." Transparency and probity in governance relates to the third phase of PILs, which the Supreme Court expanded in the 1990s We direct the Secretary D.O.P.T Ministry of Personnel, Public Grievances and Pensions, to file his personal affidavit giving an explanation for the delay in grant of sanction in RC-220-2012-E0003 resulting in the non-submission of a police report by the investigating officer before the court concerned within the stipulated period of 90 days under section 167 Cr.P.C and the consequent grant of bail to the petitioner, and what steps are being taken for streamlining this procedure so that sanctions are given in time, and the accused are not successful in obtaining bail on the technical plea of non-submission of police report within 90 days of their arrest purportedly for want of sanction.
We also require a personal affidavit from an officer not below the rank of S.P. CBI-EOU-II monitoring the investigation to explain to this Court as to the reasons for the investigating agency not submitting a police report or otherwise furnishing information to the CBI Special Court within 90 days of the petitioner's arrest mentioning that investigation had been concluded and only sanction was awaited from the Central government under section 19 of the PC Act in Case No. RC-220-2012-E0003 and to also clarify what steps are being taken for preventing such lapses in future. The Superintendent of Police, CBI EOU-IV shall also file his personal affidavit indicating the expected time period for the investigation to be completed in the remaining three cases.
7. ALTHOUGH today learned Additional Solicitor General of India has appeared on behalf of DOPT, but we find that Union of India through the Secretary concerned has not been made a respondent party. Accordingly, the Union of India through its Secretary, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training), New Delhi is directed to be impleaded as respondent no.5. Learned counsel appearing for the CBI shall serve a copy of all the pleadings exchanged between the parties in all the cases upon the learned Additional Solicitor General, at Allahabad, so that he may also file his appearance on behalf of the said respondent and appropriately respond to the Court's directions. The said exercise may be carried out within seven days. Sri G.S. Chaturvedi, learned senior advocate prays for fixing a short date to conclude arguments on behalf of the petitioner on merits in all the petitions and informs us that Sri Rakesh Dwivedi would not be appearing for the petitioner on subsequent dates. As Sri Luthra states that he would require some time to obtain instructions on the various queries raised by the Court from various quarters, and we have heard the petitioner and the CBI on several dates on merit, the petitioner has also already secured bail in RC-220-2012-E0003 and the Court has a very busy calendar, we direct that the case be next listed for further hearing on 25.9.2012 at 2 p.m. On that date Sri Chaturvedi may address this Court also on the merits of the matter.