SC Reserves Judgment On Petition Challenging CBI Special Director Rakesh Asthana's Appointment

The Supreme Court bench of Justice RK Agrawal and Justice AM Sapre on Friday reserved judgment on a writ petition, filed by NGO Common Cause, seeking the quashing of the appointment of Gujarat cadre IPS officer Rakesh Asthana as the CBI special director.

Advocate Prashant Bhushan, appearing on behalf of the petitioner, relied on the judgment of the apex court in the Vineet Narain case [(1998) 1 SCC 226], in so much as it provides for appointments up to the post of joint director, CBI, to be determined by the Central Vigilance Commissioner, the home secretary and the secretary, Department of Personnel and Training, in consultation with the CBI director. In the light of the objections raised to the respondent’s appointment by CBI director Alok Verma, the petition further quoted the provisions of Section 4C of the Delhi Special Police Establishment Act of 1946 which require the inputs of the director, CBI, regarding such appointments to be mandatorily considered. Further, Bhushan submitted that the term “consultation” as used in Section 4C has to be understood as “concurrence” in view of the Supreme Court judgment in the judges’ appointment case [(1993) 4 SCC 441], wherein it was held, “it must be seen who is best equipped and likely to be more correct in his view for achieving the purpose and performing the task satisfactorily. In other words, primacy should be in him who qualifies to be treated as the ‘expert’ in the field. Comparatively greater weight to his opinion may then be attached...the word ‘consultation’ instead of ‘concurrence’ was used, but that was done merely to indicate that absolute discretion was not given to anyone...”

Thereafter, the counsel cited the judgment in CPIL vs UoI [(2011) 4 SCC 1], in so much as it was held thereunder that for appointments to integrity institutions like the CBI and the CVC, it is necessary that the selection committee keeps in mind institutional integrity along with the personal integrity of an individual. On August 30, the CBI’s Delhi unit had registered a FIR against certain public servants under the Prevention of Corruption Act of 1988 for allegedly accepting bribes from Gujarat-based Sterling Biotech and Sandesara Group of Companies in connection with the charge against the companies for cheating public sector banks of Rs. 5,383 crores. The present petition seeks the quashing of the cabinet committee order dated October 22 appointing Asthana as the CBI special director on account of the seizure of one ‘Diary of 2011’ in a 2011 income tax raid at the premises of the said companies. The diary, containing the details of monthly payouts made to several income tax and police officials and politicians in Gujarat and Delhi, also mentions the name of the respondent, the then Commissioner of Police of Surat. On account of these circumstances, the petitioner questioned the ability of the CBI to effectively investigate the FIR under the directorship of Asthana. “The CBI inquiry has not proceeded at all. Even the 3 Income Tax officials against whom the FIR on August 30 was lodged have not been questioned. Whatever little progress has been made is at the behest of the Enforcement Directorate,” Bhushan said.

Further, the petitioner drew the attention of the bench to the fact that Ankush Asthana, son of the present respondent, was employed as assistant manager at Sterling Biotech between 2010 and 2012. Moreover, in November, 2016, the cocktail function of the respondent’s daughter was held at the Sandesara-owned farmhouse. “The wedding function was hosted at that venue even after the Income Tax Vigilance report of September 2016, wherein 73 offshore entities set up in tax havens by Sterling Biotech have been revealed and the details of offences of money laundering, benami transactions, diversion of bank loans and siphoning of funds for personal use by the said companies have been disclosed,” Bhushan said.

The advocate also submitted that Asthana has not filed his property returns in 2016 as mandated by the CVC and on which ground several officers have been denied empanelment to the post of additional director, director general etc., at the Centre.

“Even the fugitive Vijay Mallya has filed an affidavit containing inputs of a professor at the School of Oriental and African Studies in London, stating that the CBI is completely under the control of the government and cannot be deemed to conduct credible investigation,” Bhushan said.

Attorney General KK Venugopal produced the minutes of the meeting dated October 21 of the CBI selection committee, wherein it was observed that Rakesh Asthana, in view of his years of experience and his contributions in the investigations of the AgustaWestland scam, Kingfisher cases, the coal and iron ore mining scams etc., is best suited for appointment to the post of CBI special director.

Venugopal also submitted that the aforesaid FIR does not mention the name of Rakesh Asthana and that at the time when his appointment was effected, there were no pending complaints against him.

Bhushan mocked the observations of the Selection Committee, saying, “They read the CBI Director’s note regarding Asthana’s alleged involvement in the commission of offences by Sterling and Sandesara and said that the person referred to in the note is not the present respondent Rakesh Asthana.”

The matter is listed for pronouncement of final orders and judgment on November 28.