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Report No. 161

Chapter VI

Recommendations and Conclusions

6.1. The Commission has perused the judgment of the Hon'ble Supreme Court in Vineet Narayan's case (supra) and other relevant decision in the preceding chapters and has also perused the draft Bill entitled "the Central Vigilance Commission Bill" prepared by the Chief Vigilance Commission stated in para 1.1, supra. As noticed hereinbefore the directions given by the Supreme Court are not confined to the CVC but extend to CBI and ED as well. Indeed the functions and duties of the CVC indicated by the court cannot be divorced and disassociated from the functioning of the CBI and ED.

The Commission presumes that giving a statutory basis to CVC is the first step in implementation of the said directions and that the government will be taking up simultaneously the issue of implementation of the directions of the Supreme Court with respect to the CBI and ED. The Central Government may also consider taking immediate steps to create the nodal agency and the prosecution agency in accordance with the directions contained in sections III and N of para. 62 of the judgment.

6.2. Accordingly, the Law Commission is submitting a draft of the proposed Bill called the Central Vigilance Commission Bill, 1998 and two consequential amending Bills, namely, the Delhi Special Police Establishment (Amendment) Bill, 1998 and the Foreign Exchange Regulation (Amendment) Bill, 1998, at the end of this chapter. The Commission makes the following recommendations as regards certain basic features of the proposed Central Vigilance Commission Bill, 1998.

6.3. It may be mentioned that though the directions of the Supreme Court contemplate a single-member Central Vigilance Commission, the Law Commission is of the opinion that having regard to the vast jurisdiction, extensive powers and expansive supervisory jurisdiction now being vested in the Central Vigilance Commission, it is better and appropriate that the Central Vigilance Commission is made a multi-member body. It is axiomatic that such extraordinary powers should never be vested in one individual. Moreover, a multi-member body may have the advantage of mutual deliberation and debate which would go to make the decisions of the Central Vigilance Commission more considered and result of thorough analysis. Accordingly, we are recommending for a five-member body comprising a Chief Vigilance Commissioner and four Vigilance Commissioners.

In T.N. Seshan, Chief Election Commissioner of India v. Union of India, UT 1995 (5) SC 3371, the Supreme Court referred to the decision in S.S. Dhanoa v. Union of India, (1991) 3 SCC 567, paragraph 26 as follows:

"There is no doubt that two heads are better than one, and particularly when an institution like the Election Commission is entrusted with vital functions, and is armed with exclusive uncontrolled powers to execute them, it is both necessary and desirable that the powers are not exercised by one individual, however, allwise he may be. It is true that the independence of an institution depends upon the persons who main it and not on their number. A single individual may sometimes prove capable of withstanding all the pulls and pressures, which many may not. However, when vast powers are exercised by an institution which is accountable to none, it is politic to entrust its affairs to more hands than one. It helps to assure judiciousness and want of arbitrariness. The fact, however, remains that where more individuals than one, man an institution, their roles have to be clearly defined, if the functioning of the institution is not to come to a naught."

The Constitution Bench approved the observations made in T.N. Seshan's case, supra holding under para 14 as follows:-

"Notwithstanding this bitter experience, the Division Bench made the observations in paragraph 26 extracted herein before, with which we are in respectful agreement."

6.4. The Supreme Court has indicated for taking measures for improvement of infrastructure, methods of investigation etc. It has emphasised that in order to strengthen CBI's in-house, machinery, professionals from the revenue, banking and security sectors should be inducted into the CBI [see para. 62(I)(11) of the decision). Similarly it has stressed that in-house legal advice mechanism shall be strengthened by appointment of competent legal advisors in the CBI/Directorate of Enforcement [see para. 62(11)(11) of the decision]. As far as the directions concerning the improvement of infrastructure and methods of investigation are concerned, it is relevant to refer to the organisational set up for investigation of offences by the Serious Fraud Office ("SFO") in U.K. (Arlidge & Parry on Fraud, 2nd Edn., Chapter 13).

In 1983 the Lord Chancellor and the Home Secretary appointed Fraud Trials Committee under the Chairmanship of Lord Roskill to address concerns which have been expressed as to the difficulties of investigating and prosecuting complex fraud. The SFO became fully operational in April, 1998. Thereafter the Graham and Davie reports also recommended for changes in the working practices of the SF º. It is pertinent to quote the relevant para concerning organisational set up of investigating such serious offences of fraud there:

"13-012. If a case is accepted for investigation, a case team is appointed by the Deputy Director. This team is headed by a case controller, who will be an experienced lawyer. Other members of the team may include an investigating lawyer, accountants, police officers, information technology personnel and administrative support staff. It is this multi-disciplinary approach to investigations that is the innovating hallmark of the S.F.O. The case team may also work closely with other experts, e.g. bankers, stockbrokers and computer specialists, seconded to the S.F.O. as required by the needs of a particular investigation. The case team meets regularly at case conferences, at which the conduct of the investigation is reviewed and its future direction considered."

Thus, the multi-disciplinary approach to investigations is the innovative hallmark of the S.F.O. Besides the case team may also work closely with other experts for example bankers, stockbrokers and computer specialists, seconded to the S.F.O. as required by the needs of a particular investigation. The Commission feels that in sensitive cases and also cases involving complex issues, it is better and appropriate to have a multi-disciplinary investigative team which may work closely with experts in other fields according to the needs of a particular investigation.



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