Attorney-General G.E. Vahanvati on Thursday justified the power of the Centre to give the Central Bureau of Investigation prior sanction for probe into cases under the Prevention of Corruption Act.

Responding to a query from a three-judge Bench of the Supreme Court hearing the coal allocation case, he said: “The power of superintendence of the Central Vigilance Commission (CVC) operates during the stage of investigation and the power to grant sanction under Section 6 A of the Delhi Special Police Establishment Act comes into play at the pre-investigation stage.”

On July 10, the Bench, wanted to know from the AG “why sanction of government is necessary in respect of court-monitored or court-directed investigation like the coal case.” It also asked, “Why a clarification should not be made that sanction for investigation of offences alleged to have been committed under the Prevention of Corruption Act was necessary from the government when the government's stand was that the power of supervision for investigation had already been shifted from the government to the CVC pursuant to the direction issued by this court in the Vineet Narain case.”

When Justice R.M. Lodha told the AG that this was unworkable in a case of this nature as every time the CBI would need prior permission of the government to question an officer, the AG said the concern of the court was that the CBI must conduct the probe in a non-partisan manner without any extraneous influence. He said a high-power committee comprising the CVC, the Cabinet Secretary and the Secretary of the Ministry concerned would look into the applications received from the CBI, seeking sanction, and take an objective decision within four weeks.

“There is no justifiable reason to suspect that approval under the Section 6 A will be withheld in deserving cases. In case, there is any instance where the power of sanction under Section 6 A is abused or is utilised to shield an accused who should be prosecuted, the court always has the power of judicial review to correct the same,” the AG said.

Justice Lodha told him: “Section 6A operates in the ordinary course of investigation when the CBI has to seek government approval. But in court-monitored cases such sanction was not necessary as it would delay the progress of investigation.”

The AG said: “Court-monitored or court-directed investigations do not stand on a footing different from normal investigations in terms of procedure. Even in the exercise of powers under Article 142 [to do substantial justice], court cannot waive or negate express statutory provisions. The requirement of Section 6 A cannot be waived under any circumstances.”

Justice Lodha drew AG’s attention to the fact that the government had initially refused the CBI leave to question the former Coal Secretary, H. C. Gupta, and later, on May 23 gave it permission. “It has to be ensured that the case and the prosecution do not suffer from any lacunae,” the judge said.

Mr. Vahanvati said: “The object of Section 6A of the DSPE Act is 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 enable them to take decisions without fear.”

Quoting a Constitution Bench judgment in the case of Justice K. Veeraswamy, the AG said the need for protecting high-ranking officials from vexatious litigation had been recognised by this court. A balance had to be struck between the interest of the investigating agency and the interest of officers, he said.

Senior counsel Amarendra Saran, appearing for the CBI, told the Bench, which included Justices Madan Lokur and Kurian Joseph: “No sanction under Section 6(A) is necessary, where the cases are monitored by the court. Sanction for prosecution is not mandatory when the same is monitored by the court.”

Advocate-petitioner M.L. Sharma drew the court’s attention to the fact that Prime Minister Manmohan Singh and the present or former Coal Minister were not being probed as their names did not figure in coal block allocations. When he asked “how can an enquiry not be conducted against Coal Ministers but only against coal allottees,” Justice Lodha pointed out that the probe was at a preliminary stage. “Enquiry is not circumscribed by any constraint and the enquiry is to cover the entire ambit. It is an ongoing probe. They are still probing to find out truth,” Justice Lodha said.