Holding

The High Court must limit its intervention to ensuring the CBI performs its statutory duty, refer any internal differences of opinion to the Attorney General, and may not pass on the merits of the case or issue impermissible directives.

Summary

The Supreme Court reviewed orders of the Patna High Court that were monitoring the Central Bureau of Investigation's (CBI) probe into the Bihar scam. The Court clarified that the High Court's role is limited to ensuring that the CBI performs its statutory duty and must not pass on the merits of the accusations. It reaffirmed its earlier direction that any difference of opinion within the CBI should be referred to the Attorney General rather than being decided by the CBI Director. The Court held that the Director's personal appearance before the High Court is required only when essential and that the High Court may suggest, but not direct, that officers of the Bihar cadre be avoided in the investigation. Observations by the High Court that ventured into the merits of the case were deemed inappropriate, while procedural guidance to the CBI was permissible. Consequently, the appeals against the High Court's orders were dismissed, and the Supreme Court’s earlier guidelines were upheld.

Issues considered

Whether the High Court may direct the personal presence of the CBI Director in proceedings monitoring the investigation.
Whether the High Court can order the submission of CBI reports directly to the Court and intervene in the content of those reports.
Whether the High Court may express opinions on the merits of the accusations in a monitoring proceeding.
Whether a difference of opinion within the CBI should be referred to the Attorney General for resolution.
Whether the High Court can direct the CBI to avoid involving officers of the Bihar cadre in the investigation.

Legislation cited

Code of Criminal Procedure
Constitution of Indias. Article 136

Subjects

CBI investigationHigh Court monitoringAttorney Generaldifference of opinioncontinuing mandamusrule of lawBihar scamjudicial oversightcriminal procedureconstitutional law

Judgment

A UNION OF INDIA AND ORS.
v.
SUSHIL KUMAR MODI AND ORS.

JANUARY 24, 1997

B [.T.S. VERMA, K. RAMASWAMY AND S.P. BHARUCHA, JJ.]

Constitution of India, 1950 : A1ticle 136

State of Bihar-Scam--Order passed by Supreme Cowt-As a sequel
C thereto writ petitions decided by Patna High Cowt--Obse1vations made by
Patna High Cowt-Validity of

Investigation-Monito1ing by Coult-Continuous Mandamus-Purpose
of proceedings is essentially to ensure pe1fonnance of statutory duty by C.B.I.
and other Govemment Agencies in accordance with law for proper implemen-
D ration of Rule of Law.

State of Bihar-Scam-lnvestigation-Monitoring of by Court-Role of
High Cowt in 111011it01ing-Differe11ce of opinion between CBI and other
Officers during investigation-Held in such a case final decision should not
be taken by the Director C.B.J. or any other officer but by Attorney General
E on reference being to him-Personal presence of Director CBI during inves-
tigation-Held may be required only when it is essential for a purpose which
cannot be served by presence of the other Officers of C.B.I.-However it is the
duty of Director C.B.I. to ensure proper representation in the Court-Sugges-
tion by Hilft Court to Director CBI to consider desirability of not involving
any Officer of Bihar Cadre in the investigation--Held such cbse1vation do not
cast any aspersio;i on the Officers of C.B.J.-While monitoring the investiga-
F
tion process High Court should not enter into the me1its of any of the
accusations.

Union of India & Ors. v. Sushi! Kumar Modi & Ors., [1996) 6 SCC 500
explained.
G Vineet Narain & Ors. v. Union uf India & Anr., [1996) 2 SCC 199;
Anukul Chandra Pradhan v. Union of India & India & Ors., [1996) 6 SCC
354; R. v. Metropolitan Police Commissioner, (1968) 1 All. E.R. 763; Vineet _.
Narain & Ors. v. Union of India &Anr., (1996) 3 Scale (SP) 15 andAbhinan-
dan !ha v. Dinesh Mishra, AIR (1968) SC 117 = [1967] 3 SCR 668, referred
H to.
490
U.O.I. v. SUSHIL KUMAR MODI 491
CfVIL APPELLATE JURISDICTION: Civil Appeal Nos. 304-305 A
of 1997.

From the Judgment and Order dated 13.11.96 and 19.12.96 of the
Patna High Court in C.W.J.C. No. 1617 and 602 of 1996.

Ashok H. Desai, Attorney General of India, T.R. Andhyarujina, B
Solicitor General of India and P. Parmeswaran, A. Mariarputham and
Pallav Shishodia for the Appellants.

Ram Jathmalani for the Respondent No. 1.

Arun Jaitley, Ravi Shankar Prasad and Ms. Kamini Jaiswal for the c
Respondent No. 3.

Basant K. Chaudhary, Prashant K. Chaudhury, Pramod Kumar,
Gopal Singh and Ms. Vimla Sinha for the Respondent No. 2.
D
Dr. Rajeev Dhawan, P.K. Shahni, B.K. Chaudhary, Pramod Kumar,
'-r Gopal Singh and Ms. Vimla Sinha for the Respondent No. 11.

B.B. Singh for the State of Bihar.

The following Order of the Court was delivered : E
Leave granted. This order has to be read in continuation of our order
dated November 5, 1996 passed in Civil Appeal Nos. 14164-65 of 1996,
Union of India & Ors. v. Sushi/ Kumar Modi & Ors., reported in (1996] 6
SCC 500. These appeals by special leave are against some portions of the
orders dated November 13, 1996 and December 19, 1996 passed by the F
Patna High Court in the same matter-CW.TC No. 1617 of 1996 with CWJC
No. 602 of 1996-as a sequel thereto. The material facts need not be
reiterated as they are mentioned in our aforesaid order dated November
5, 1996.

When the matter was taken up in the Patna High Court subsequent G
to our aforesaid order dated November 5, 1996, during the further
proceedings after our order, the High Court has made the two orders dated
November 13, 1996 and December 19, 1996. The learned Attorney General,
on behalf of the appellants, has iudicated certain portions of these two
orders and contended that they do not match with our earlier order dated H

--
'
492 SUPREME COURT REPORTS [1997] 1 S.C.R.
A November 5, 1996. It would be appropriate at this stage to quote those ;1-
portions of the two orders to which grievance is made by the leaned
Attorney General. These are : ·

In order dated November 13, 1996 :

B P01tion 'A':

"The Supreme Court has not laid down the modality of making
reference to the Attorney General in case of difference of opinion.
What if the Director does not make the reference on his own.
According to us, this can be sorted out by asking the Director,
c . CBI, to submit the complete report( s) submitted by the Joint
Director and/or other investigating officers so that in the event
Court finds that there is difference of opinion, which requires
resolution by the Attorney General, the same may be referred to
him."
D
Portion 'B' :

"The aforesaid aspects of the matter as also other aspects, which
were briefly mentioned during the course of hearing today, can be
more properly and effectively discussed in the presence of the
E Director, CBI himself. He is also to be told about the import of
the Supreme Court's orders. We are, therefore, of the opinion that
the next hearing, of the opinion that the next hearing should taken
place in his presence."

In order dated December 19, 1996 :
F
Whole of para 4, particular the following :

Portion 'C' :

"....... the present case is the only case of its kind in which inves-
G tigation is being monitored by the High Court... ... .in the interest of
proper and effective monitoring of the case we think it appropriate
to direct that the final report which is submitted to the CBI
Headquarters/Director be submitted in its original form ......... The
correct position, which emerges from the order of the Supreme
H Court, is that the report of the Joint Director is not to be submitted

(
U.O.I. v. SUSHIL KUMAR MODI 493
to this Court directly, the same has to be sent to the Director, A
CBI/Headquarters and then the same is to be filed in this Court.
As indicated above, there is a very thin line of distinction between
vetting and editing and if this authority to vet the report submitted
tci him is given to the Director, he may as well edit a part of it.
The proper course, no doubt, would be to hold discussions across
B
the table between the Director, Joint Director and others whose
presence may be considered necessary so that differences, if any,
between them are ironed out and a unanimous report is submitted.
However, if such unanimity is not possible to arrive at, the Director
must submit the original report as submitted to him along with his
comments/views so that this Court may consider that too and issue c
appropriate directions."

In para 5, the following :

Portion 'D' :
D
"..... In those cases also the conspiracy angle does not appear to
have been gone into, which is so vital for proper investigation into
the crimes and in respect of which judicial finding has been
recorded in the main judgment."

In para 6, the following : E

Portion 'E' :

"In this connection we would also like to impress upon the Director
to consider in consultation with the Joint Director the desirability
of posting/retaining officers, who do not belong to this State or the
F
state cadre. Keeping in view the involvement of a very .large number
of persons of different hue and kind, chances of their influencing
persons having local background cannot be ruled out.. ...... ".

In para 8, the following : G
Portion 'F' :

".... The reports contain materials which constitute prim a f acie case
against the persons c0ncerned and it is not understandable as to
why chargesheet cannot be submitted on the basis of the materials H
~,

494 SUPREME COURT REPORTS [1997) 1 S.C.R.

A referred to therein ..... "

The learned Attorney General submitted that the above extracts of the two
orders made by the High Court, in particular, are unwarranted apart from
certain other observations therein which could have been avoided. In reply
B Shri Ram Jethmalani submitted that the observations of the High Court
have to be understood in the context as indicating the manner in which the
Central Bureau of Investigation (CBI) is required to conduct the investiga-
tion. He submitted that a grievance of this kind by the CBI does not appear
to be appropriate.

c
At the outset, we would indicate that the nature of proceedings
before the High Court is somewhat similar to those pending in this Court
in Writ petition (Cr!.) Nos. 340-343 of 1993, Vineet Narain & Ors. v. Union
of India & Ors., and Writ Petition (Civil) No. 640of1995,Anukul Chandra
D Pradhan v. Union of India & Ors., and, therefore, the High Court is
required to proceed with the matter in a similar manner. It has to be borne
in mind that the purpose of these proceedings is essentially to ensure
performance of the statutory duty by the CBI and the other Government
agencies in accordance with law for the proper implementation of the rule
law. To achieve this object a fair, honest and expeditious investigation into
E every reasonable accusation against each and every person reasonably
suspected of involvement in the alleged offences has to be made strictly in
accordance with Jaw. The duty of the Court in such proceedings is, there-
fore, to ensure that the cm and other Government agencies do their duty
and do so strictly in conformity with law. In these proceeding, the Court is
F not required to go into the merits of the accusation or even to express any
opinion thereon, which is a matter for consideration by the competent
court in which the charge-sheet is filed and the accused have to face trial. i
It is, therefore, necessary that not even an observation relating to the merits J
of the accusation is made by the Court in these proceedings lest it prejudice
G the accused at the trial. The nature of these proceeding.~ may be described
as that of 'continuing mandamus' to require performance of its duty by the
CBI and the other concerned Government agencies. The concerned agen-
cies must bear in mind and, if needed, be the reminded of the caution
administered by Lord Denning in this behalf in R v. Metropolitan Police
Commissio11e1; (1968) 1 All. E.R. 763. Indicating the duty of the Commis-
H sioner of Police, Lord Denning stated thus :
,,,<-

U.O.I. v. SUSHIL KUMAR MODI 495

-~ "... I have no hesitation, however, in holding that, like every con- A
stable in the land, he should be, and is, independent of the executive.
He is not subject to the orders of the Secretary of State ..... I hold it
to be the duty of the Commissioner of Police, as it is of every chief
constable, to enforce the law of the l~nd. He must take steps so to
post his men that crimes may be detected; and that honest citizen
B
may go about their affairs in peace. He must decide whether or
no suspected persons are to be prosecuted; and, if need be, bring
the prosecution or see that it is brought; but in all these things he
is not the se1va11t of anyone, save of the law itself No Minister of
the Crown can tell him that he must, or must not, keep obse1vatio11
on this place or that; or that he must, or must not, prosecute this C
man or that one. Nor can any police cuth01ity tell him so. The
responsibility for law enforcement lies on him. He is answerable to
the law and to the law alone..... "

The nature of such a proceeding in a Court of law was also indicated by D
Lord Denning, as under :

"A question may be raised as to the machinery by which he
could be compelled to do his duty. On Principle, it seems to me
that once a duty exists, there should be a means of enforcing it. This
duty can be enfarced, I think, _either by action at the suit of the E
Attorney-General : or by the prerogative order of mandamus ...".

(Page 769)
(emphasis supplied)

There can hardly be any doubt that the obligation the police in our F
constitutional scheme is no less.

According to the Code of Criminal Procedure, the formation of the
opinion as to whether or not there is a case to place the accused for trial
is that of the police officer making the investigation and the final step in G
the investigation is to be taken only by the police and by no other
authority, (See,Abhinandan Iha v. Dinesh Mishra, AIR (1968) SC 117 =
(1967] 3 SCR 668). This must be borne in mind as also that the scope and
purpose of a proceeding like the present is to ensure a proper and faithful
performance of its duty by the police officer by resort to the prerogative
writ of mandamus. H
496 SUPREME COURT REPORTS [1997] 1 S.C.R.

A To ensure this aspect, we had directed in our earlier order dated
November 5, 1996 that in case of difference of opinion at any stage during
the investigation, the final decision is not to be taken by the Director, CBI
or any other officer but by the Attorney General on reference being made
to him of the difference of opinion between the concerned officers. This
part of our earlier directions was clear in the context in which it was made
B and this is to be understood as a direction to the Director, CBI for
compliance in the manner indicated. The High Court is only required to
ensure that the Director, CBI does not close any investigation based only
upon his individual opinion if there be any difference of opinion between
him and the concerned officers in the CBI. Such a matter is then requi1 ed
C to be referred by the Director to the Attorney General for his opinion,
which would govern the further action to be taken therein. The above
quoted portion 'A' of the order dated November 13, 1996 of the High
Court requires the High Court to act in the manner herein indicated.

D So far as portion 'B', as quoted above, of the order November 13,
1996 is concerned, it is sufficient for us to observe that the High Court -r-·
would take into account the fact that the personal presence of the Director,
CBI in the High Court may be required only when it is essential for a
purpose which cannot be served by the presence of the other officers of
the CBI who normally represent the CBI at the hearings in the High Court.
E In view of the numerous cases pending in different High Courts, the
Director, CBI personally may not be left with sufficient time for him official
duties to appear personally at the hearings of these matters in the High
Courts. However, it is the duty of the Director, CBI to ensure proper
representation on his behalf in the High Court so that the High Court gets
p all the assistance needed at the hearings.

The observations of the High Court contained in the above quoted
portion 'D' in para 5 and portion 'F' in para 8 of its order, do not appear
to conform strictly to the manner of exercise of the monitoring process by
G the Court. It is likely that they may be construed as expression of opinion
on the merits of the case. Portion 'C' in para 4 of the High Court's order
appears to be unnecessary. For the purpose of properly monitoring the
case in terms· of the order of this Court,· keeping in view the nature of this
proceedings and the manner in which the exercise is to be performed to
ensure performance of its duty by the CBI, guidance through the counsel
H for the CBI could have been given by the High Court without entering into
U.O.I. v. SUSHIL KUMAR MODI 497
- ·~ the merits of any of the accusations. A
The only remaining portion of the High Court's order for considera-
tion is Portion 'E' in para 6. Suffice it to say that the High Court has merely
suggested to the Director, CBI to consider the desirability of not involving
any officer of the Bihar cadre in the investigation but not such direction
has been given. It appears that the High Court intended to impress upon B
the Director, CBI the need to consider avoiding any possible embarrass-
ment to officers of the Bihar cadre in view of the suspicion of the alleged
involvement of several important persons in the State administration. We
do not read the observations to mean that they cast any aspersion on the
officers of the Bihar cadre. The learned Attorney General also did not C
further press this objection since this observation has to be so construed
in the context.

It appears to us necessary to reiterate that the proceeding before the
High Court in the Present case being somewhat similar to the proceedings
in Writ Petition (Cr!.) Nos. 340-343 of 1993, Vineet Narain & Ors. v. Union D
of India & Ors., and Writ Petition (Civil) No. 640 of 1995,Anukul Chandra
Pradhan v. Union of India & Ors., pending in this Court, the procedure
required to be adopted by the High Court has to be on the same lines. We
also consider it appropriate to draw the attention of the CBI and the High
Court to the orders of this Court made in these matters indicating the E
manner of performance of the duty. In Vineet Narain & Ors. v. Union of
India & Anr., [1996) 2 SCC 199, it was said :

"In this proceeding we are not concerned with the merits of the
accusations or the individuals alleged to be involved, but only with
the performance of the legal duty by the government agencies to F
fairly, properly and fully investigate into every such accusation
against every person, and to take the logical final action in accord-
ance with law.

In case of persons against whom a prim a f acie case is made out
and a charge-sheet is filed in the competent court, it is that court G
which will then deal with that case on merits, in accordance with
law."
(Page 201)
In Vineet Narain & Ors. v. Union of India & Anr., (1996) 3 Scale (SP) 15, H
498 SUPREME COURT REPORTS [1997] 1 S.C.R.

A it was said :
"To eliminate any impression of bias and avoid erosion of
credibility of the investigation being made by the CBI and any
reasonable impression of lack of fairness and objectivity therein,
it is directed that the CBI would not take any instructions from
B report to, or furnish any particulars thereof to any authority per-
sonally interested in or likely to be affected by the outcome of the
investigations into any accusations. This direction applies even in
relaiion to any authority which exercises administrative control
over the CBI by virtue of the office he holds, without any exception.
c We may add that this also accords with that learned Solicitor
General has very fairly submitted -before us about the mode of
functioning of the CBI in this matter."

In Anukul Chandra Pradhan v. Union of India & Ors., [1996] 6 SCC 354, it
was said:
D
"A note of caution may be appropriate. No occasion should
arise for an impression that the publicity attaching to these matters
has tended to dilute the emphasis on the essentials of a fair trial
and the basic principles of jurisprudence including the presump-
tion of innocence of the accused unless found guilty at the end of
E the trial. This requirement, undoubtedly has to be kept in view
during the entire trial. It is reiterated, that any observation made
by this Court for the purpose of the proceedings pending here has
no bearing in the merits of the accusation, and is not to influence
!Jie trial in any manner. Care must be taken to ensure that the
F credibility of the judicial process is not undermined in any manner."
(Pages 356-357)
The true purpose and scope of a proceeding of this nature clearly
emerges from the above quoted orders passed in the cases pending in this
Court. Some of the orders are indicated above. The required guidance to
G the CBI and other government agencies as well as to the courts' monitoring
such investigations is available from the same. The delicate task of ensuring
implementation of the rule of law by requiring proper performance of its ~-
duty by the CBI and other Government agencies, while taking care to avoid
the likelihood of any prejudice to the accused at the ensuing trial because
H of any observation made on the merits of the accusation in the present
U.0.1. v. SUSHIL KUMAR MODI 499

- '" proceedings, has to be performed with the dexterity and tact needed in the
conduct of such a proceeding. We have no doubt that all concerned,
A

including the High Court, would bear in mind this aspect to prevent any
reasonable impression of erosion in the credibility of the judicial process.

We have no doubt that the CBI and the High Court would proceed
further in the matter as indicated above. There can be no grievance to the B
CBI or any other authority if the High Court's order and the proceedings
before it are so understood and continued. We make it clear that the above
orders made by the High Court are to be construed and understood in the
manner indicated herein.

These appeals are disposed of, accordingly,
c
T.N.A. Appeals are disposed of.

r