Supreme Court asks Delhi HC to nominate sessions judge to try coal allocation case3 min read . Updated: 19 Jul 2014, 01:28 AM IST
Move paves way for a structured, consolidated prosecution in the coal blocks allocation case
New Delhi: Paving the way for a structured and consolidated prosecution in the coal block allocation case, the Supreme Court on Friday asked the Delhi high court to nominate a sessions judge for a special court to look into offences under the Indian Penal Code (IPC), Prevention of Corruption Act (PCA), Prevention of Money Laundering Act (PMLA) and “other allied offences".
A bench consisting of chief justice R.M. Lodha and justices Madan B. Lokur and Kurian Joseph passed orders requiring the Delhi high court to submit a name from the Delhi higher judicial services to be appointed special judge by 25 July.
Prashant Bhushan, appearing for non-governmental organization (NGO) and petitioner Common Cause, had asked for the setting up of a special court as had been done in the case related to alleged irregularities in the 2008 allocation of 2G spectrum.
Bhushan also asked the court to appoint a special public prosecutor to assist the special court. A rejoinder filed by Bhushan, a copy of which has been reviewed by Mint, states that a special court is required for “swift trial by a court of competent jurisdiction." At present, different cases are being tried in different courts, which could lead to delay, it stated. There was much debate on what the role of a special public prosecutor would be because the Central Bureau of Investigation (CBI) didn’t want an outsider overseeing charge-sheets and closure reports filed by the agency. Senior lawyer Amrendra Sharan, appearing for the investigating agency, said there couldn’t be a “supercop" above CBI.
The apex court appeared in favour of appointing an independent special public prosecutor who could scrutinize the material available with CBI. The court pointed out that a senior public prosecutor with CBI (with its prosecution department) can scrutinize charge-sheets before they are filed with court and comment on final reports, according to the CBI manual. Similar powers would, in this case, also be available with an independent special public prosecutor.
This was contested by CBI, which said a senior public prosecutor’s opinion on charge-sheets and final reports went through several levels of consideration like the deputy legal officer, legal officer and finally the director of prosecution. It was only the director of prosecution who decides whether to proceed with the prosecution or not, CBI submitted to the court.
The court added that in a court-monitored probe, the assistance of parties involved is paramount. It highlighted that it had not appointed an amicus curiae (friend of the court) or a special investigative team (SIT). CBI has consistently challenged any move for outsider intervention into its investigation.
CBI lawyer Sharan said the agency’s concerns over a special public prosecutor looking into its investigation had been “vindicated".
“The decision to file closure reports or charge-sheets is still with CBI. It decides whom to prosecute and whom not to. The person concerned (the special public prosecutor) will assist the court." he said. “No lawyer can overturn the decision of the investigative agency." he added, citing this as the reason for the apex court to not allow the special prosecutor powers to access CBI investigation material.
Bhushan said: “The special public prosecutor will have access to all the material." He added that it was still unclear whether it would be before or after filing of the charge-sheet.
In an earlier hearing, the court had asked for suggestions on potential candidates for appointment as a special prosecutor. Manohar Lal Sharma, the main petitioner in the case, suggested senior lawyer Gopal Subramanium’s name.
Subramanium had served as a special public prosecutor in the Parliament attack case of 2001. More recently, he stopped practising in the apex court after withdrawing consent to be a Supreme Court judge.
Bhushan stated that the court was in favour of Subramanium being the special public prosecutor, if he accepted the post. Three other names had been proposed by Bhushan. He declined to disclose the names to Mint.
Alleged irregularities in the allocation of coal blocks could have led to a notional loss of 1.86 trillion to the exchequer, the government auditor, the Comptroller of Auditor General (CAG), said in a report in 2012, uncovering what has been dubbed “coalgate" by sections of the media.
The case will be heard next on 25 July.