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CBI : “CAGED PARROR” or PREYING FALCON?

“Power tends to corrupt, and absolute power corrupts absolutely”- An observation that a person’s sense of morality lessens as his or her power increases. The statement was made by Lord Acton, a British historian of the late 19th and early 20th centuries.

This statement has to be viewed and weighed in terms of differing perceptions about country’s premier and elite investigation agency- Central Bureau of Investigation (CBI) endowed with absolute powers to probe, whether to call it a “Caged Parrot” or preying Falcon. Another growing perception is that CBI has become the handmaiden of the ruling government?

CBI is a national agency with police powers. CBI is not an independent body as it derived its legal powers from Delhi Special Police Establishment Act, 1946, for investigating cases. This Act confers concurrent and coextensive powers, duties, privileges and liabilities on the members of Delhi Special Police Establishment (CBI) with police officers of the union territories.
CBI was established vide a Resolution of the Ministry of Home Affairs, Government of India on April, 1963. The central government can authorise CBI to investigate serious crimes and cases of corruption in a State after getting the nod of the State concerned. The Supreme Court and high courts however can order CBI to investigate such a crime anywhere in the country without the consent of the State.

The Central Bureau of Investigation (CBI ) is an elite force playing a major role in preservation of values in public life and in ensuring the health of the national economy. It is also the nodal police agency in India which coordinates investigation on behalf of Interpol member countries.
The Anti-Corruption Division of the CBI has handled cases against chief ministers, ministers, secretaries to government, officers of the All India Services, CMDs of banks, financial institutions, public sector undertakings, etc. CBI investigations have a major impact on the political and economic life of the nation. The following broad categories of criminal cases are handled by the CBI:-

Cases of corruption and fraud committed by public servants of all central government departments, central public sector undertakings and central financial institutions.

Economic crimes, including bank frauds, financial frauds, import export & foreign exchange violations, large-scale smuggling of narcotics, antiques, cultural property and smuggling of other contraband items etc. Special crimes, such as cases of terrorism, bomb blasts, sensational homicides, kidnapping for ransom and crimes committed by the mafia/the underworld.
The CBI is headed by a Director. The other police ranks in CBI are special director/additional director, joint director, dy. inspector general of police, inspector, sub-inspector, assistant sub-inspector, head constable and constable. The total sanctioned police strength including all ranks is 4078. The sanctioned strength of administrative staff is 1284. In addition, CBI has also a sanctioned strength of 230 law officers, 155 technical posts, 144 Group D posts and 171 posts of scientists in CFSL.

As per the CVC Act notified on 12.09.2003, the superintendence over CBI so far as it relates to investigation of the offences alleged to have been committed under the Prevention of Corruption Act 1988, shall vest in Central Vigilance Commission.

The following are a few recent unproved scandals in India of political, financial and corporate nature. The year relates to the reporting of occurrence.

2020

Himachal PPE Scam: Himachal Pradesh’s suspended director of health services, Dr. A. K. Gupta, allegedly “demanded a bribe” following the delivery of six to seven consignments of personal protection equipment (PPE) kits worth over Rs 1 crore from a Derabassi-based manufacturer.

2019

PMC Bank scam; DHFL scam; UPPCL employee provident fund (EPF) scandal;
INX Media case against former Union Minister P. Chidambaram;
IMA ponzi scheme; D. K. Shivakumar money-laundering case.

2018

Rotomac bank fraud: Rotomac allegedly defaulted on loans worth 3,695 crore (36.95 billion). The FIR said that Rotomac diverted the loans to a fictitious company, which routed the money back to Rotomac.

Punjab National Bank Scam: A fraudulent letter of undertaking worth 11,600 crore (US$1.77 billion) was issued at the Punjab National Bank branch in Brady House, Mumbai, making the bank liable for the amount. The fraudulent transactions linked to Nirav Modi, were first noticed by a new employee of the bank. Two branch employees were involved in the scam. 2017 Maharashtra scholarship scam - An investigation of alleged misappropriation of government scholarships intended for Other Backward Class students found that hundreds of institutes across the state had pocketed several thousand crore rupees since 2010. On 5 April 2017, the CBI registered six cases against Winsome Diamonds and Jewellery and Forever Precious Jewellery and Diamonds and their chief promoter, Jatin Mehta, for allegedly cheating three government banks of1,530 crore.

A public-interest litigation petition was filed against Adani Group, Reliance Group, Essar Group and other mining and energy companies for an investigation of alleged 290 billion overcharges for Indonesian coal and imported power equipment from 2011 to 2015. 2016 Narada sting operation. 2015 The Supreme Court found that the Ministry of Housing and Urban Poverty Alleviation's National Urban Livelihood Mission had built only 208 houses for nine lakh (900,000) homeless people, although the central government had allocated1,078 crore to the mission.

Delhi Jal Board tanker scam (400 crore)[19] – Former Delhi chief minister Sheila Dikshit was accused of floating costly tenders. The government of Delhi's Anti-Corruption Branch filed an FIR against Dikshit and Delhi CM Arvind Kejriwal. Amethi Rajiv Gandhi Charitable Trust land-grab case - A revenue court ordered the return of land sold to the Rajiv Gandhi Charitable Trust by an industrial house to the Uttar Pradesh State Industrial Development Corporation. Delhi CNG scam (100 crore) – Former Delhi chief minister Sheila Dikshit and lieutenant governor Najeeb Jung were accused in the scam.

Delhi power scam – The CAG reported that Reliance Anil Dhirubhai Ambani Group subsidiary BRPL is accused of inflating their rates by almost 8,000 crore, and rates in the city should be reduced. Gujarat fisheries scam (400 crore) – Gujarat ministers Purshottam Solanki and Dileepbhai Sanghani were accused of illegally granting fishing contracts for 58 reservoirs.

Mizoram office of profit scam – Health minister Lal Thanzara (brother of chief minister Lal Thanhawla) resigned from the cabinet for allegedly holding a 21.6 percent share in Sunshine Overseas, a road construction company which had received government contracts.

Integrated Child Development Services (ICDS) “Chikki” controversy (206 crore) - Maharashtra women and child welfare minister Pankaja Munde did not solicit mandatory e-tenders in awarding contracts to vendors. Lalit Modi corruption case - The former Indian Premier League (IPL) commissioner used eight credit cards, none of which were in his name. Corporate espionage - Officials of Reliance Industries, Reliance Anil Dhirubhai Ambani Group, Essar Group, Cairn India and Jubilant Energy were accused of stealing documents from the Petroleum Ministry. Uttarakhand flood-relief scam (100 crore) – When hundreds of thousands of people in Uttarakhand went hungry during the 2013 floods, state officials partied on flood-relief funds.

NSE co-location scam (about 50,000 crore) – Insider trading on the National Stock Exchange of India (NSE) from 2010 to 2014. 2014 Mumbai International Airport scam[46] - FIRs were registered against GVK and Airports Authority of India officials for cheating and forgery. The project was deliberately delayed for three years to funnel5,000 crore to GVK.

Aavin scam – Ten-year adulteration of milk supplied from societies of the Tamil Nadu State Milk Union, estimated at 27 lakh per day. The owner of the truck was arrested in Chennai. Illegal mining in the Aravalli Range (Haryana and Rajasthan). Siliguri Jalpaiguri Development Authority scam, West Bengal (200 crore).

Reliance Jio spectrum-auction-rigging scam.
National Herald land scam.
Vyapam scam.

Madhya Pradesh farmer welfare and agriculture development minister Gauri Shankar Chaturbhuj Bisen disproportionate assets case (2,000 crore). Haryana Urban Development Authority (HUDA) discretionary quota plot scam. Hindustan Aeronautics Limited and Rolls-Royce defence scam (10,000 crore).

Air India Family Fare Scheme scam.
Bokaro Steel Plant recruitment scam.

Delhi Jal Board scam (10,000 crore). Indian Railways "emergency quota" ticket scam. Cremation shed scam- Rajya Sabha MP T. M. Selvaganapathy was sentenced to two years years and resigned for corruption. Maharashtra money laundering - A special investigative team was formed to probe Chhagan Bhujbal and his family. 2013 Delhi-Gurgaon Toll Plaza scam. Employees' Provident Fund Organisation scam Haryana seed scam (5 crore).

Directorate General of Civil Aviation “free ticket” scam.
Leave Travel Concession scam.
NSEL case (5,500 crore). Railway iron ore freight scam (17,000 crore).
Uttar Pradesh illegal sand mining.
Vodafone tax controversy.
Railway bribery scam – The CBI arrested railway minister Pawan Kumar Bansal’s nephew for allegedly accepting a 9 million bribe for a Railway Board member. 2013 Indian Premier League spot-fixing and betting case. 2012 Granite scam in Tamil Nadu (about160 billion (US$2.2 billion).
NHAI allegations – The World Bank’s Institutional Integrity Unit identified fraud and corruption, requesting an investigation.
Ultra Mega Power Projects scam – The central government lost 290.33 billion (US$4.1 billion) due to undue benefits to Reliance Power. Foreign exchange derivatives scam (320 billion).
Service Tax and Central Excise fraud (19,000 crore). Maharashtra stamp duty scam (6.4 billion).
Maharashtra land scam.
Maharashtra Housing and Area Development Authority repair scam (1 billion). Ministry of External Affairs gift scam. Flying Club fraud –1.9 billion (US$27 million).
Andhra Pradesh liquor scam.
Jammu and Kashmir Cricket Association scam (about 500 million). Jammu and Kashmir PHE scam. Jammu and Kashmir recruitment scam. Jammu and Kashmir exam scandal. Punjab paddy scam (180 million).
NHPC cement scam.
Uttar Pradesh stamp duty scam (1,200 crore). Uttar Pradesh horticulture scam (700 million).
Uttar Pradesh palm tree plantation scam (550 million). Uttar Pradesh seed scam (500 million).
Uttar Pradesh elephant-memorial scam (1,400 crore). Uttar Pradesh Labour and Construction Co-operative Federation scam. Patiala land scam (2.5 billion).
Tax refund scam (30 million). Bharat Earth Movers housing-society scam. MSTC gold-export scam (4.64 billion).
Indian coal allocation scam.
Maharashtra Irrigation Scam (about 720 billion). 2011 Belekeri port scam, estimated loss to the public exchequer at35,000 crores.
Pune housing scam.
Pune land scam.
Orissa pulse scam (7 billion). Kerala investment scam (10 billion).
Mumbai sales tax fraud (10 billion). Uttar Pradesh Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) scam. Orissa MGNREGA scam. Indian Air Force land scam. Bihar solar lamp scam (400 million).
B. L. Kashyap, Employees’ Provident Fund Organisation scam (`1.69 billion).
Assam education scam.
Pune ULC scam.

In Rashtriya Janta Dal (RJD) chief Lalu Prasad Yadav’s sentences in fodder scam cases CBI has recently cited Section 427 (1) IPC before the Court hearing Prasad’s bail application, according to which sentence in multiple cases can not run concurrently. This would mean that Prasad’s cumulative sentence stretches to 27.5 years instead of maximum that has been awarded in one of these cases as 14 years.

Over the years CBI had made its mark as an independent, objective and fair investigation agency with high degree of professionalism and integrity. It had earned the confidence of the Nation, resulting in a constant demand for investigating sensitive and complex cases of crime, especially of corruption among upper echelons of public service. The services of its investigating officers are sought for all major investigations in the country. “CBI as an organisation has been held in high esteem by the Supreme Court, the high courts, the Parliament and the public at large. The CBI investigates major crimes in the country having interstate and international ramifications. It is also involved in collection of criminal intelligence pertaining to three of its main areas of operation, viz., Anti-Corruption, Economic Crimes and Special Crimes.” However, of late CBI has often been criticised for its alleged failure to function impartially and objectively.

The working of the CBI was exposed in the Vineet Narain case. The order in the Vineet Narain case was delivered by a Bench comprising Justices S P Bharucha and S C Sen on December 18 1997. Narain a prominent journalist and anti-corruption crusader had exposed the Jain Hawala scandal. He had filed a petition in the Supreme Court after the CBI had failed to initiate investigations against the officials and politicians who were accused of receiving bribe.

The Supreme Court agreed that the CBI had failed miserably to investigate the allegations of corruption. Also the court laid down guidelines to ensure the independence and autonomy of the CBI. Further it ordered that the CBI probe be placed under the supervision of the Central Vigilance Commission. This ensured that the CBI was removed from the supervision of the central government. It was the CVC which would ensure that the CBI probes thoroughly into the allegations of corruption, the judgement said, while adding that there would be no interference by the government. The court also struck down the validity of a directive issued by the government that required the CBI to seek approval of the government before going ahead with the probe against bureaucrats of the level of joint secretary and above on grounds that it violated the independence of the investigative process.
However, this provision was reinstated by the Central Vigilance Commission Act, 2003. The issue came up again before the Supreme Court, which went on to strike it down in 2014 on the basis that it violated the right to equality guaranteed in the Constitution. The Court had also laid down several guidelines to shield the CBI director from outside influence. The SC had observed there was a need to “provide permanent insulation” to agencies such as CBI against “extraneous influences to enable them to discharge their duties in the manner required for proper implementation of the rule of law.”

On May 8, 2013, a Bench of the Supreme Court comprising Justices R.M. Lodha, Madan B Lokur and Kurian Joseph while hearing Coalgate scam expressed its displeasure over interference of the ruling government in the working of the agency. The Bench observed that the CBI is acting like a “Caged Parrot” and asked the government if it intended bringing in any law to provide the agency functional autonomy to insulate its investigation from outside interference. The government in its response rejected the idea.
Noted lawyer, Yawer Qazalbash, opined, “At almost the fag end of the British Rule in India, Delhi Special Police Establishment Act 1946 was legislated. This special police establishment continued through an Ordinance (22 of 1943), which was to conduct investigations in bribery and corruption. During 1963 an executive order changed the name of the Delhi Special Police Establishment to CBI to investigate the cases of corruption by the sweet-will of Home Department; or through an order of High Court or Supreme Court.

The Home department, which controls the CBI, used it to nail the adversaries to the party in power and at the helm that was why became infamous for its partisan attitude, and sometimes earned comments like “Caged Parrot” etc.

A Division Bench of Gauhati High Court in (Navendra Kumar Vs Union of India decided on 6.11.2013), discussing in detail whether CBI is a statuary body or not and quashed the resolution of 1.4.1963, which constituted the CBI. This way the very existence of CBI became in jeopardy. But the Government and CBI went in appeal and got a stay on the execution of the order of the High Court, which is still pending disposal.

No doubt the scams and rampant corruption among the society are in vogue and there is dire need to bring to book the wrong doers, there is dire need for existence of a central agency. With the training, which inculcates the professional approach CBI is fit to be used for the purpose; but at the same time its control must be shifted to the higher judiciary, instead of political bosses sitting in the Department of Home.

Vasudeva Rao, IPS (Retd.), former special commissioner of police, Delhi, commented, “CBI’s activities and behaviour  sometimes give such an impression that it is a caged Parrot. This can best be avoided by doing what is right and appearing to do so. Excessive obedience is counterproductive. A statutory authority is a must for protecting CBI’s professional  autonomy. But much more needs to be done to dispel wrong impressions in public mind about politically sensitive cases. A ruling party can never avoid its political temptations and get  investigations distorted or derailed. CBI’s investigational and administrative  infrastructure must be strengthened much more for matching FBI.”

Vasudeva Rao further said, “Despite reservations on some aspects of its functioning,  people still believe in and trust CBI. Its superior quality of investigation ensures better outcomes than those of state police. Evidence marshalled during investigations does affect careers and lives of public personalities. Resurrection is difficult, for,  once one’s image is dented,  it is difficult to recover the lost ground. Scam cases are bound to arise in the course of social,  political and economic life of a country. It is rooted in man’s unbridled greed for wealth and power. Systems should be in place for prevention of scams to the maximum extent. But once they happen,  politicians must keep their hands off the probe. Courts should give clear-cut directions to everyone here. The role of judiciary comes only after fil ng of the charge sheet/ final report. The professional head must have executive supervision  over the quality, depth and direction of investigation. Agencies like CVC can have better oversight.”

Major General Nilendra Kumar (Retd.) said, “Special Police Establishment (SPE), forerunner of the CBI was set up in 1941 by the Government of India to investigate the corruption in supplies. The head of the CBI does not enjoy administrative and functional powers of the Secretary, Government of India. The observations by Chief Justice RM Lodha were made in the context of the Union’s rejection of a suggestion to provide functional autonomy to the agency. The government does not intend bringing any law to equip the bureau with any such operational freedom. Cases of corruption and shoddy investigation are a negation of equality of status and of opportunity as enshrined in the preamble to the Constitution of India.”
General Kumar further said, “CBI operates under the jurisdiction of the Ministry of Personnel, Public Grievance and Pensions of the Government of India. Grant of an independent status will empower the efficient, expeditious and impartial probes. For its performance, it should be made a constitutional functionality like the Attorney General or the heads of UPSC, CAG, Election Commission of India or the Minorities Commission.
“According to the CBI, it has been speaking in its master’s voice. It is denuded of authority to articulate its free and frank opinion. Whenever the government wants to put pressure on its political opponents, it does not hesitate to use the agency to pursue the cases of disproportionate assets against them. The timings and pace of its inquiry is based on political convenience. The professional competence of its officials does not inspire confidence because of the general belief about the presence of corrupt officers in the CBI who are pliable in the hands of the government.”
“CBI is expected to function as India’s foremost investigative agency. However, some of the well-known cases that it failed to crack include Syed Modi, Arushi and Sunanda Pushkar deaths, the 2G Spectrum, Bofors payoff, coal scam, illegal mining in Bellari and countless others.”

V.M. Pandit, former Superintendent of Police (SP) CBI, sharing his views said, “CBI is an inanimate object. It is neither Parrot nor Falcon. The observation of former Chief Justice of India (CJI) was symbolic. Parrot is supposed to learn and talk what is taught. Cage is symbolic to class room for tutoring. I agree with the connotation of the observation but not with the literary meaning thereof.”

Pandit further said, “Change is the natural phenomenon and absolute need for progression. CBI is an organisation created to meet the requirements of changing times in India. So the point to stress upon is that a change in structural design of the agency would surely bring about a change in its functional efficiency. The Supreme Court has rightly spoken in terms of making CBI an independent entity with adequate safeguards of preventing political or executive interference. The government has to abide by trying to give CBI an autonomous status. There is a need to change the structure of CBI, both by giving it administrative and functional autonomy. The functional independence is not achievable without administrative independence. If appointment of the head of the CBI (Director) is totally in the hands of the government alone, the mindset of the functional head can never be independent.”

Earlier, E. N. Rammohan, former Director General (DG) of Border Security Force (BSF), in an interview to Lawyers Update had revealed, “I have worked with CBI as SP CBI, Shillong and DIG CBI, Hyderabad. I investigated several cases of corruption and in certain cases I recommended prosecution, my superiors recommended prosecution, the legal branch recommended prosecution, but finally the Director under political pressure said that “no case is made out” and he ordered the closure of the report. However, contrary to this, if an honest Director dares to refuse to oblige the political authority, he will meet the fate of the former Director CBI, Dr.Trinath Mishra, who was removed from the prestigious post unceremoniously within 24 hours by the then National Security Adviser in the year 1999.”

Former senior most IPS officer Rammohan’s statement can be corroborated with the recent order of Delhi’s CBI special court judge Sanjeev Aggarwal, who questioned the CBI , why it had not questioned it’s former directors , Ranjit Sinha, A.P. Shah and Alok Verma in connection with a bribery case registered in February 2017 against millionaire Moin Akhtar Qureshi. In the FIR, the CBI had alleged that Qureshi worked as a middle man for ‘certain public servants’ and was helped by A.P. Shah, who retired as CBI chief in 2012. The Court also asked CBI as to whether the alleged role played by Verma in stalling the probe had been investigated?

Commenting on the performance of CBI, the Central Vigilance Commission recently observed that CBI has been slow in investigating certain cases for numerous reasons including work overload, staff shortage, delay in obtaining reply to the Letter Rogatories sent to various countries and government departments, not supplying relevant records and delay in obtaining forensic reports from laboratories, etc.

According to December 2019 annual report, investigation was pending in 744 CBI cases for more than one year, of which 678 were related to Prevention of Corruption Act. A total of 1239 investigations were pending with the CBI till December, 2019. CBI registered a total of 608 FIRs and 102 preliminary enquires in 2019.

Another worrying trend is of CBI cases pending in courts. As of December 2019, 6226 cases under Prevention of Corruption Act were pending in courts, some for more than 20 years. Whereas, a staggering 11380 appeals/ revisions are pending in various courts.

The report says that such inordinate delays in investigation defeat the very purpose of fight against corruption.

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Hasan Khurshid

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