From Director of CBI to Ex-Director of CBI – Shri Alok Verma’s Case

The issue

On 23rd October, 2018, the Central Vigilance Commission (hereinafter referred to as “CVC”) passed an order divesting Shri Alok Kumar Verma, Director, Central Bureau of Investigation of the powers, functions, duties, supervisory role, etc. vested in him as the Director of the CBI.

He was divested of his functions, powers, duties and supervisory role, specifically, is in respect of all cases already registered and/or required to be registered and/or being inquired/enquired/investigated under the Prevention of Corruption Act, 1988.

The exercise of said power by the aforesaid order dated 23rd October, 2018, signed by the Central Vigilance Commissioner and two other Vigilance Commissioners holding office, was stated to be under Section 8(1)(a) and 8(1)(b) of the Central Vigilance Commission Act, 2003 read with Section 4(1) of the Delhi Special Police Establishment Act, 1946.

The aforesaid order was stated to be in the nature of an interim measure till completion of an inquiry into the allegations contained in a complaint dated 24th August, 2018 submitted/forwarded by the Cabinet Secretary by letter dated 31stAugust, 2018 to the CVC.

The said order dated 23rd October, 2018 of the CVC was followed by an order of the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training of the same date i.e. 23rd October, 2018 divesting Shri Alok Kumar Verma, Director, CBI of his functions, powers, duties and supervisory role in any manner as the Director, CBI with immediate effect and until further orders.

Yet another order of the same date i.e. 23rd October, 2018 of the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training by which one Shri M. Nageshwar Rao, IPS, Joint Director, CBI was asked to look after the duties and functions of Director, CBI with immediate effect.

What was essentially stated therein the order of the CVC dated 23rd October, 2018 was that a complaint dated 24th August, 2018 was forwarded to the CVC by the Cabinet Secretary by letter dated 31st August, 2018 which, prima facie, revealed charges of corruption against the Director, CBI, Shri Alok Kumar Verma. The CVC considered it worthwhile to take note of the contents thereof and had sought the explanation/comments of the Director, CBI along with the relevant record(s). According to the CVC, instead of cooperating in the matter, the Director, CBI had sought information as to the identity of the person who had complained to the Cabinet Secretary in that regard and had gone to the extent of bringing specific allegations against the Special Director, CBI Shri Rakesh Asthana. Details of several cases of corruption wherein the Special Director, CBI was alleged to be involved were also brought to the notice of the CVC by Shri Alok Kumar Verma.

In the order of the CVC dated 23rd October, 2018 it was further recorded that Shri Rakesh Asthana, Special Director, CBI had also made serious allegations against Shri Alok Kumar Verma, Director, CBI and that, in fact, on 15th October, 2018, the CBI had registered RC 13A of 2018 of AC III, New Delhi under Section 7 and 13(2) read with 13(1)(d) and Section 7A of the PC Act as amended in 2018 against Shri Asthana. The said RC case was stated to have been registered on the complaint of one Satish Babu Sana who is an accused in a case investigated by Special Director, CBI.At the same time, the CVC also took note of the fact that Mr. Rakesh Asthana, Special Director, CBI had recordedinformation received from various sources that huge amounts of bribe were given to the Director, CBI to avoid taking any action against Satish Babu Sana.

It is in these circumstances, that the CVC had thought it proper to invoke its powers under Sections 8(1)(a), 8(1)(d) and 11 of the CVC Act to pass the impugned order dated 23rd October, 2018 divesting the Director, CBI of his powers, functions, duties, etc.

The legality, validity and correctness of the aforesaid orders and the action spelt out therein was challenged before the Hon’ble Supreme Court.

What was held by the Supreme Court?

In its judgement dated 8thJanuary 2019, the 3-judge bench comprising of Hon’ble Chief Justice of India Ranjan Gogoi, Hon’ble Justice Sanjay Kishan Kaul and Hon’ble Justice K.M Joseph held that:

(Para 33)The Court, in its bid to understand the true legislative intention behind the statutory enactments in question, cannot be oblivious of the views expressed by the Hon’ble Supreme Court in Vineet Narain and others vs. Union of India and another [(1998) 1 SCC 226 ].

The clear legislative intent in bringing Section 4A and Section 4B of the Delhi Special Police Establishment Act, 1946 to the statute book was for the purpose of ensuring complete insulation of the office of the Director, CBI from all kinds of extraneous influences, as may be, as well as for upholding the integrity and independence of the institution of the CBI as a whole. (Para 34)

There are certain other relevant facts that cannot be ignored. Section 6 of the CVC Act, specifically contemplates certain interim measures against the Central Vigilance Commissioner or a Vigilance Commissioner pending consideration by the Supreme Court of the reference made by the President to the Court for removal of any such incumbent. Removal of any of the aforesaid incumbents holding any of the aforesaid posts is also contemplated on certain contingencies occurring as spelt out by sub­section (3) of Section 6 of the CVC Act. No such provision has been engrafted so far as the office of the Director, CBI is concerned except what is contained in Section 4B(2) of the DSPE Act, namely, that “the Director shall not be transferred except with the previous consent of the Committee referred to in sub­section (1) of section 4A”. As already noticed, Section 4B including sub­ section (2) thereof of the DSPE Act, as it exists on date, were brought in by the same legislation i.e. CVC Act.(Para 35)

If the legislative intent would have been to confer in any authority of the State a power to take interim measures against the Director, CBI thereby affecting his functioning, surely, the legislation would have contained enabling provisions to that effect and consequently would have been differently worded and drafted. It is against this backdrop that the words “transferred except with the previous consent of the Committee” mentioned in Section 4B(2) of the DSPE Act has to be understood. (Para 36)

If the word “transferred” has to be understood in its ordinary parlance and limited to a change from one post to another, as the word would normally convey and on that basis the requirement of “previous consent of the Committee” is understood to be only in such cases, i.e. purely of transfer, such an interpretation would be self­ defeating and would clearly negate the legislative intent. In such an event it will be free for the State Authority to effectively disengage the Director, CBI from functioning by adopting various modes, known and unknown, which may not amount to transfer but would still have the same effect as a transfer from one post to another, namely, cessation of exercise of powers and functions of the earlier post. This is clearly not what the legislature could have intended. (Para 36)

The long history of evolution has shown that the institution of the CBI has been perceived to be necessarily kept away from all kinds of extraneous influences so that it can perform its role as the premier investigating and prosecuting agency without any fear and favour and in the best public interest. The head of the institution, namely, the Director, naturally, therefore, has to be the role model of independence and integrity which can only be ensured by freedom from all kinds of control and interference except to the extent that Parliament may have intended. Such intendment would require all Authorities to keep away from intermingling or interfering in the functioning of the Director. In a situation where such interference may at all be called for, public interest must be writ large against the backdrop of the necessity. The relevance and adequacy of the reasons giving rise to such a compelling necessity can only be tested by the opinion of the Committee constituted under Section 4A(1) of the DSPE Act in whom the power to make recommendations for appointment of the Director has been vested by Parliament. (Para 36)

(Para 39)Therefore the Hon’ble Supreme Court set aside the following orders dated 23rd October, 2018:

(i)  of the CVC divesting the powers, functions, duties, supervisory role, etc. of Shri Alok Kumar Verma as Director, CBI

(ii)  of the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training divesting Shri Alok Kumar Verma, Director, CBI of his functions, powers, duties and supervisory role with immediate effect and until further orders.

(iii) of the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training by which one Shri M. Nageshwar Rao, IPS, Joint Director, CBI has been asked to look after the duties and functions of Director, CBI with immediate effect.

(Para 41)The issue of divestment of power and authority of the Director, CBI was still open for consideration by the Committee and it was directed that the petitioner Shri Alok Kumar Verma, Director, CBI

  • be reinstated
  • Upon reinstatement, will cease and desist from taking any major policy decisions till the decision of the Committee permitting such actions and decisions becomes available within the time frame indicated.
  • during the interregnum and in terms of this order, shall have his role as the Director, CBI confined only to the exercise of the ongoing routine functions without any fresh initiative, having no major policy or institutional implications.

Copy of Judgement: Judgement_08-Jan-2019

Decision of the Committee

The Appointments Committee comprising of Prime Minister Sh. Narendra Modi, Hon’ble Justice A K Sikri (CJI nominee) and Leader of Opposition Sh. Mallikarjun Kharge on 10thJanuary approved that:

  1. Alok Kumar Verma. IPS(AGMU:79) is transferred from the post of Director, CBI and posted as Director General, Fire Services, Civii Defence & Home Guards for the residual period of his present term ending on 31.01.2019.
  2. As per the earlier arrangement, Shri M. Nageshwar Rao, IPS(OD:86), Additional Director, CBI will look after the duties of the Director, CBI till the appointment of a new Director, CBI, or until further orders, whichever is earlier.

Copy of order: Order-10.01.2019

Yesterday, on 11th January 2019, a day after his transfer from the post of Director, CBI to Director General, Fire Services, Civil Defence & Home Guards, the former CBI Chief submitted his resignation from service.

-Tushar Kaushik

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