SC holds former CBI In-Charge Director, another officer guilty of contempt

The Supreme Court today held two top officials of the Central Bureau of Investigation (CBI) -- Additional Director M Nageshwar Rao, who was holding charge of the agency recently as In-Charge Director, and its Additional Legal Adviser and In-Charge Director of Prosecution Bhasuran S. -- guilty of contempt of court for ordering the transfer of an officer who was investigating the sexual abuse of children at shelter homes run by the Bihar Government.
The two officers were sentenced till the rising of the court and told to pay fines of Rs. one lakh each, to be deposited within a week.
The order was pronounced by a three-judge bench consisting of Chief Justice Ranjan Gogoi, Justice L. Nageswara Rao and Justice Sanjiv Khanna while disposing of a contempt petition against the two officers for ordering the transfer of the officer, A.K. Sharma, Joint Director, CBI (In-Charge of Investigation), though there were explicit instructions from the apex court against any such move.
The court had issued a notice of contempt to the two officers on February 7. The charge against the was that, notwithstanding the orders of the court, dated October 31, 2018 and November 28, 2018, restraining any change in the team investigating the Muzaffarpur shelter home case and despite explicit directions that Sharma would 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 (CRPF).
In its order of February 7, 2019, the Supreme Court had required the Director, CBI, to give it details leading to the order relieving Sharma from the agency and order posting him in the CRPF. It had also asked for the names of all the persons involved in the decision-making process and in its implementation.
The court had also asked Nageshwar Rao and Bhasuran S. to be personally present and offer their explanations.
In response, the present CBI Director Rishi Kumar Shukla, Nageshwar Rao and Bhasuran had submitted their reports and affidavits.
Nageshwar Rao and Bhasuran, in their affidavits, apologized and admitted the commission of a mistake but denied wilful disobedience of the court's orders.
On the basis of the CBI Director's explanation and other documents and file notes, the court noted that, on January 18, the Department of Personnnel and Training (DoPT) had conveyed that the Appointments Committee of the Cabinet (ACC) had approved the curtailment of the tenure of Sharma with immediate effect and that the Ministry of Home Affairs had conveyed its approval for appointment of the officer to the post of Additional Director General, CRPF.
Accordingly, a draft relieving order of Sharma, with effect from the afternoon of January 18, was submitted for approval of the Director, CBI. 
Nageshwar Rao as In-Charge Director, sought the legal opinion of Bhasuran with reference to the Supreme Court's order that he cannot be removed as head of the investigation into the shelter home cases.
Bhasuran said in his opinion that Sharma's new position was one level higher than his present post. He said that, in view of the fact that the transfer order was "beneficial" to Sharma, there may not be any legal impediment to relieve the officer.
"We may bring this fact to the notice of the Hon’ble Supreme Court by way of an affidavit in the concerned cases, the facts and circumstances under which the officer was relieved and get an approval from the Hon’ble Supreme Court.”
The court said it did not agree with this view because its orders regarding the continuance of Sharma were clear and categorical.
"That apart, Mr. Bhasuran S. in his note had suggested that the process of relieving the officer i.e. Mr. A.K. Sharma, Joint Director, C.B.I. 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 Mr. M. Nageshwar Rao, the then In-Charge Director, C.B.I. (now Additional Director, C.B.I.), Mr. Bhasuran S. could have bona fide given the opinion that the officer ‘was’ relieved, namely, how Mr. Bhasuran S. could have used the past tense to a pending action under consideration," the court said.
Nageshwar Rao expressed his approval on Bhasuran's note and asked the concerned branches to submit an affidavit to the Supreme Court after consulting the counsels suitably.
"This was again on 18.1.2019. It appears that the file went back to the DoPT and once again a draft order for relieving Mr. A.K. Sharma, Joint Director, C.B.I. and giving charge of the said office to one Mr. G. K. Goswami, JD/HoZ, C.B.I., ACHQ-I, New Delhi was put up for approval of Mr. M. Nageshwar Rao, the then In-Charge Director, C.B.I. (now Additional Director, C.B.I.). Mr. M. Nageshwar Rao approved the said proposal on 18.1.2019 itself. We do not understand nor can we appreciate and comprehend how Mr. M. Nageshwar Rao being aware of this Court’s orders, as the first note signed by him would indicate, and when he had sought an affidavit to be filed before this Court by his second note dated 18.1.2019, could, without satisfying himself that this Court had been taken into confidence, approve of the draft order relieving Mr. A.K. Sharma from the C.B.I. and giving additional charge to Mr. G.K. Goswami, JD/HoZ, C.B.I., ACHQ-I, New Delhi.
Attorney General K. K. Venugopal contended that, as Nageshwar Rao's action was on the basis of a legal opinion, there had not been any wilful disobedience of the orders of the court.
"...we cannot agree with what the learned Attorney General has suggested. In our considered view, the present is a case where contempt has been committed, both by Mr. M. Nageshwar Rao ... and Mr. Bhasuran S.....
" 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," the court added, while holding the two officers guilty of contempt and pronouncing the sentence.

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