Prior sanction for probing officers hampered judicial powers: SC

The Supreme Court Tuesday felt that the Centre’s insistence to retain its power of granting approval for investigation against joint secretary and above-rank officers, even in court-monitored cases, hampered judicial powers.

Hearing the coal blocks allocation case, a three-judge bench headed by Justice R M Lodha said that criminality in a case could be ascertained only after the investigation.
The court studied Section 6A of the Delhi Special Police Establishment Act, which enjoined the probe agency to seek prior approval of the competent authority for questioning a joint secretary and above-rank officer.

“The executive becomes the judge of its own cause if it gets to decide a part of the investigation that may relate to it. Complicity and criminality in a case can be unearthed only if investigation is taken to the logical conclusion,” the bench, also comprising Justices Madan B Lokur and Kurian Joseph said.The court reserved its order on the question whether the CBI required to approach the government for permission to probe officers of Joint Secretary-level and above in court-monitored investigations.

The bench said that the court started monitoring investigations only in exceptional cases where there was an apprehension of impediments against a free and fair probe; so there was no reason why the normal procedure should hinder a court order passed in special circumstances.

“We don’t want to take the role of an investigating officer. However, we monitor investigation only to uphold the rule of law by ensuring investigation is uninfluenced by extraneous reasons,” the bench said.Attorney General G E Vahanvati, appearing for the Centre, said the statute mandated a sanction before investigating top officials, which could not be changed in any circumstances. “A law is a law and there is nothing extraordinary or exceptional about its applicability,” he said.

To a suggestion that there was no such provision in ordinary law, the AG said the two could be harmonised if the court let the authority decide requests for sanction and reserve the final word on the issue.