The Supreme Court on Tuesday rejected the defence put by former CBI interim director M Nageswara Rao and legal advisor S Bhasuram to escape punishment for contempt of court saying their apology was not unconditional "though it was stated to be so" and they have willfully disobeyed its orders.
"The apology tendered, though stated to be unconditional, is not so. There is a submission/contention that the actions were not willful, with which contention, we are in total disagreement," a bench headed by Chief Justice Ranjan Gogoi said in its order.
The bench also comprising justices L Nageswara Rao and Sanjiv Khanna said it was exercising its power under Article 129 of the Constitution for commission of contempt of court by sentencing them "till the rising of the Court"
It also imposed "a fine of Rs one lakh each on Rao, the then In-Charge Director, CBI and now Additional Director, CBI and Bhasuram S, Additional Legal Advisor and In-Charge Director of Prosecution, CBI to be deposited within a week".
The apex court noted that Rao was fully aware of its order that A K Sharma, joint director CBI, who was heading the team probing the Muzaffarpur shelter home cases cannot be transferred without the permission of the top court.
The bench said it did not understand nor can appreciate and comprehend how Rao without satisfying himself that the court had been taken into confidence, approve of the draft order relieving Sharma from the CBI and giving additional charge to G K Goswami.
It noted that the charge against them is that they violated October 31, 2018 and November 28, 2018 orders restraining any change in the team investigating the Muzaffarpur shelter home case.
Despite explicit directions of the court that Sharma, Joint Director, CBI will continue to remain the head of the investigating team, he had been transferred out of the CBI and posted as the Additional Director General, Central Reserve Police Force, the court said.
"In addition to the aforesaid two orders of this court, there is an earlier order dated September 18, 2018, to the same effect, when this court was considering the order dated August 29, 2018 passed by the High Court of Patna, requiring a fresh team of investigators to be constituted by the then Special Director of CBI," the apex court noted.
It said that in pursuance to its February 7 order, Rao and Bhasuram filed their respective affidavits and have apologised and admitted the commission of a mistake.
"In the same breath, they have denied willful disobedience of the orders of this court. Notwithstanding the apology tendered as some kind of defence has been put up, this court has no option but to consider the merits of the defence put up, namely, that there has been no willful disobedience of the directions of this court," the order said.
The bench, which examined their affidavits and notes furnished to it, said all the documents go to show that on January 18, Department of Personnel and Training (DoPT) had conveyed that the Appointments Committee of the Cabinet had approved the curtailment of tenure of Sharma with immediate effect, and that the Ministry of Home Affairs had conveyed its approval for his appointment to the post of Additional Director General, CRPF.
"Accordingly, a draft relieving order oF Sharma, Joint Director, CBI with effect from the afternoon of January 18 was submitted for approval of the Director, CBI M Nageshwar Rao, the then In-Charge Director, CBI (now Additional Director, CBI) considered the aforesaid note," it noted.
The aforesaid note signed by Rao, dated January 18, would fully show that he was aware of the orders of this court with regard to the continuance of Sharma as the head of the investigating team, it said.
The court noted that Bhasuram expressed an opinion that as the posting of Sharma was to a higher post and, therefore, a promotion, there may not be any legal impediment to relieve the officer.
"We do not agree, as the orders of this court regarding the continuance of A K Sharma were clear and categorical. That apart, Bhasuram in his note had suggested that the process of relieving the officer may be brought to the notice of the Supreme Court by way of an affidavit indicating the facts and circumstances under which the officer was' relieved and seek an approval from the Supreme Court.
"We do not understand how when the file was pending at the stage of approval of the relieving order by Rao, Bhasuram could have bona fide given the opinion that the officer was' relieved, namely, how Bhasuram could have used the
past-tense to a pending action under consideration," the court said.
The bench noted the argument advanced by Attorney General K K Venugopal who called upon the court to administer justice by tempering the same with mercy.
His arguments also centred around the legal advice of Bhasuram which he termed to be an error of judgment.
"It is the contention of Attorney General that as the action of Rao, the then in-charge Director, CBI was on the basis of a legal opinion, there has not been any willful disobedience of the orders of this court,"the bench noted.
However, the court said, "For the reasons elucidated earlier in detail, we cannot agree with what the Attorney General has suggested.
"In our considered view, the present is a case where contempt has been committed, both by Rao and Bhasuram...," the order said.
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