Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITON (CIVIL) NO.401 OF 2013

Subrata Chattoraj …Appellant

Versus

Union of India & Ors. …Respondents

WITH

WRIT PETITON (CIVIL) NO.402 OF 2013

AND

T.P. (C) NO.445 OF 2014

AND

WRIT PETITON (CIVIL) NO.413 OF 2013

Alok Jena …Appellant

Versus

Union of India & Ors. …Respondents

WITH

WRIT PETITON (CIVIL) NO.324 OF 2014

1

Page 2 J U D G M E N T

T.S. THAKUR, J.

1.Writ Petitions seeking transfer of investigation from the

State Agencies to the Central Bureau of Investigation (CBI)

under the Delhi Special Police Establishment Act, is by no

means uncommon in the High Courts in this country. Some,

if not most of such cases in due course travel to this Court

also, where, issues touching the powers of the High Courts

and at times the power of this Court to direct such transfers

are raised by the parties. The jurisdictional aspect is,

however, no longer res integra, the same having been

answered authoritatively by a Constitution Bench of this

Court in State of West Bengal & Ors. v. Committee for

Protection of Democratic Rights, West Bengal & Ors.

(2010) 3 SCC 571 . This Court in that case was examining

whether the federal structure and the principles of

separation of powers, made it impermissible for the superior

courts to direct transfer of investigation from the State

Police to the CBI. Rejecting the contention, this Court held

2

Page 3 that power of judicial review itself being a basic feature of

the Constitution, the writ courts could issue appropriate writ,

directions and orders to protect the fundamental rights of

the citizens. This Court observed:

“51. The Constitution of India expressly confers the

power of judicial review on this Court and the High

Courts under Articles 32 and 226 respectively. Dr.

B.R. Ambedkar described Article 32 as the very soul

of the Constitution—the very heart of it—the most

important article. By now, it is well settled that the

power of judicial review, vested in the Supreme

Court and the High Courts under the said articles of

the Constitution, is an integral part and essential

feature of the Constitution, constituting part of its

basic structure. Therefore, ordinarily, the power of

the High Court and this Court to test the

constitutional validity of legislations can never be

ousted or even abridged. Moreover, Article 13 of the

Constitution not only declares the pre-Constitution

laws as void to the extent to which they are

inconsistent with the fundamental rights, it also

prohibits the State from making a law which either

takes away totally or abrogates in part a

fundamental right. Therefore, judicial review of laws

is embedded in the Constitution by virtue of Article

13 read with Articles 32 and 226 of our Constitution.

52. It is manifest from the language of Article 245 of

the Constitution that all legislative powers of

Parliament or the State Legislatures are expressly

made subject to other provisions of the Constitution,

which obviously would include the rights conferred in

Part III of the Constitution. Whether there is a

contravention of any of the rights so conferred, is to

be decided only by the constitutional courts, which

are empowered not only to declare a law as

unconstitutional but also to enforce fundamental

rights by issuing directions or orders or writs of or

“in the nature of” mandamus, certiorari, habeas

3

Page 4 corpus, prohibition and quo warranto for this

purpose.

53. It is pertinent to note that Article 32 of the

Constitution is also contained in Part III of the

Constitution, which enumerates the fundamental

rights and not alongside other articles of the

Constitution which define the general jurisdiction of

the Supreme Court. Thus, being a fundamental right

itself, it is the duty of this Court to ensure that no

fundamental right is contravened or abridged by any

statutory or constitutional provision. Moreover, it is

also plain from the expression “in the nature of”

employed in clause (2) of Article 32 that the power

conferred by the said clause is in the widest terms

and is not confined to issuing the high prerogative

writs specified in the said clause but includes within

its ambit the power to issue any directions or orders

or writs which may be appropriate for enforcement

of the fundamental rights. Therefore, even when the

conditions for issue of any of these writs are not

fulfilled, this Court would not be constrained to fold

its hands in despair and plead its inability to help the

citizen who has come before it for judicial redress

(per P.N. Bhagwati, J. in Bandhua Mukti Morcha v.

Union of India

(1984) 3 SCC 161

).”

2.This Court summed up the conclusions in the following

words:

“68. Thus, having examined the rival contentions in

the context of the Constitutional Scheme, we

conclude as follows:

(i) The fundamental rights, enshrined in Part III of

the Constitution, are inherent and cannot be

extinguished by any Constitutional or Statutory

provision. Any law that abrogates or abridges such

rights would be violative of the basic structure

doctrine. The actual effect and impact of the law on

the rights guaranteed under Part III has to be taken

into account in determining whether or not it

destroys the basic structure.

4

Page 5 (ii) Article 21 of the Constitution in its broad

perspective seeks to protect the persons of their

lives and personal liberties except according to the

procedure established by law. The said Article in its

broad application not only takes within its fold

enforcement of the rights of an accused but also the

rights of the victim. The State has a duty to enforce

the human rights of a citizen providing for fair and

impartial investigation against any person accused of

commission of a cognizable offence, which may

include its own officers. In certain situations even a

witness to the crime may seek for and shall be

granted protection by the State.

(iii) In view of the constitutional scheme and the

jurisdiction conferred on this Court under Article 32

and on the High Courts under Article 226 of the

Constitution the power of judicial review being an

integral part of the basic structure of the

Constitution, no Act of Parliament can exclude or

curtail the powers of the Constitutional Courts with

regard to the enforcement of fundamental rights. As

a matter of fact, such a power is essential to give

practicable content to the objectives of the

Constitution embodied in Part III and other parts of

the Constitution. Moreover, in a federal constitution,

the distribution of legislative powers between the

Parliament and the State Legislature involves

limitation on legislative powers and, therefore, this

requires an authority other than the Parliament to

ascertain whether such limitations are transgressed.

Judicial review acts as the final arbiter not only to

give effect to the distribution of legislative powers

between the Parliament and the State Legislatures,

it is also necessary to show any transgression by

each entity. Therefore, to borrow the words of Lord

Steyn, judicial review is justified by combination of

"the principles of separation of powers, rule of law,

the principle of constitutionality and the reach of

judicial review".

(iv) If the federal structure is violated by any

legislative action, the Constitution takes care to

protect the federal structure by ensuring that Courts

act as guardians and interpreters of the Constitution

and provide remedy under Articles 32 and 226,

5

Page 6 whenever there is an attempted violation. In the

circumstances, any direction by the Supreme Court

or the High Court in exercise of power under Article

32 or 226 to uphold the Constitution and maintain

the rule of law cannot be termed as violating the

federal structure.

(v) Restriction on the Parliament by the Constitution

and restriction on the Executive by the Parliament

under an enactment, do not amount to restriction on

the power of the Judiciary under Article 32 and 226

of the Constitution.

(vi) If in terms of Entry 2 of List II of The Seventh

Schedule on the one hand and Entry 2A and Entry

80 of List I on the other, an investigation by another

agency is permissible subject to grant of consent by

the State concerned, there is no reason as to why, in

an exceptional situation, court would be precluded

from exercising the same power which the Union

could exercise in terms of the provisions of the

Statute. In our opinion, exercise of such power by

the constitutional courts would not violate the

doctrine of separation of powers. In fact, if in such a

situation the court fails to grant relief, it would be

failing in its constitutional duty.

(vii) When the Special Police Act itself provides that

subject to the consent by the State, the CBI can take

up investigation in relation to the crime which was

otherwise within the jurisdiction of the State Police,

the court can also exercise its constitutional power of

judicial review and direct the CBI to take up the

investigation within the jurisdiction of the State. The

power of the High Court under Article 226 of the

Constitution cannot be taken away, curtailed or

diluted by Section 6 of the Special Police Act.

Irrespective of there being any statutory provision

acting as a restriction on the powers of the Courts,

the restriction imposed by Section 6 of the Special

Police Act on the powers of the Union, cannot be

read as restriction on the powers of the

Constitutional Courts. Therefore, exercise of power

of judicial review by the High Court, in our opinion,

would not amount to infringement of either the

doctrine of separation of power or the federal

structure.

6

Page 7 69. In the final analysis, our answer to the question

referred is that a direction by the High Court, in

exercise of its jurisdiction under Article 226 of the

Constitution, to the CBI to investigate a cognizable

offence alleged to have been committed within the

territory of a State without the consent of that State

will neither impinge upon the federal structure of the

Constitution nor violate the doctrine of separation of

power and shall be valid in law. Being the protectors

of civil liberties of the citizens, this Court and the

High Courts have not only the power and jurisdiction

but also an obligation to protect the fundamental

rights, guaranteed by Part III in general and under

Article 21 of the Constitution in particular, zealously

and vigilantly”

(emphasis supplied)

3.Having said that this Court sounded a note of caution

against transfer of cases to CBI for mere asking and

observed:

“70. Before parting with the case, we deem it

necessary to emphasise that despite wide powers

conferred by Articles 32 and 226 of the Constitution,

while passing any order, the Courts must bear in

mind certain self-imposed limitations on the exercise

of these Constitutional powers. The very plenitude of

the power under the said Articles requires great

caution in its exercise. In so far as the question of

issuing a direction to the CBI to conduct

investigation in a case is concerned, although no

inflexible guidelines can be laid down to decide

whether or not such power should be exercised but

time and again it has been reiterated that such an

order is not to be passed as a matter of routine or

merely because a party has levelled some

allegations against the local police. This extra-

ordinary power must be exercised sparingly,

cautiously and in exceptional situations where it

becomes necessary to provide credibility and instill

7

Page 8 confidence in investigations or where the incident

may have national and international ramifications or

where such an order may be necessary for doing

complete justice and enforcing the fundamental

rights. Otherwise the CBI would be flooded with a

large number of cases and with limited resources,

may find it difficult to properly investigate even

serious cases and in the process lose its credibility

and purpose with unsatisfactory investigations.”

(emphasis supplied)

4.We may at this stage refer to a few cases in which this

Court has either directed transfer of investigation to the CBI

or upheld orders passed by the High Court directing such

transfer.

5.In Inder Singh v. State of Punjab (1994) 6 SCC

275 this Court was dealing with a case in which seven

persons aged between 14 to 85 were alleged to have been

abducted by a senior police officer of the rank of Deputy

Superintendent of Police in complicity with other policemen.

Since those abducted were not heard of for a considerable

period, a complaint was made against their abduction and

disappearance before the Director General of Police of the

State. It was alleged that the complaint was not brought to

the notice of the Director General of Police (Crime). Instead

8

Page 9 his P.A. had marked the same to the I.G. (Crime)

culminating in an independent inquiry through the

Superintendent of Police, Special Staff, attached to his

office. The report of the Superintendent of Police

recommended registration of a case against the officials

concerned under Section 364 of the IPC. Despite the said

recommendation no case was registered on one pretext or

the other against the concerned police officer till 23

rd

March,

1994. It was at this stage that a writ petition was filed

before this Court under Article 32 of the Constitution of India

for a fair, independent and effective investigation into the

episode. Allowing the petition this Court directed an

independent investigation to be conducted by the CBI into

the circumstances of the abduction of seven persons; their

present whereabouts or the circumstances of their

liquidation. An inquiry was also directed into the delay on

the part of the State Police in taking action between 25

th

January 1992 when the complaint was first lodged and 23

rd

March, 1994 when the case was finally registered.

9

Page 10 6.In R.S. Sodhi Advocate v. State of U.P. and Ors.

1994 (Supp) (1) SCC 143 this Court was dealing with a

petition under Article 32 of the Constitution of India seeking

an independent investigation by the CBI into a police

encounter resulting in the killing of ten persons. The

investigation into the incident was being conducted at the

relevant point of time by an officer of the rank of Inspector

General level. The State Government also appointed a one-

member Commission headed by a sitting Judge of the

Allahabad High Court to inquire into the matter. This Court

found that since the local police was involved in the alleged

encounter an independent investigation by the CBI into what

was according to the petitioner a fake encounter, was

perfectly justified. This Court held that, however, faithfully

the police may carry out the investigation, the same will lack

‘credibility’ since the allegations against them are serious.

Such a transfer was considered necessary so that all those

concerned including the relatives of the deceased feel

assured that an independent agency was looking into the

matter thereby lending credibility to the outcome of the

investigation. This Court observed:

10

Page 11 “We have perused the events that have taken

place since the incidents but we are refraining from

entering upon the details thereof lest it may

prejudice any party but we think that since the

accusations are directed against the local police

personnel it would be desirable to entrust the

investigation to an independent agency like the

Central Bureau of Investigation so that all concerned

including the relatives of the deceased may feel

assured that an independent agency is looking into

the matter and that would lend the final outcome of

the investigation credibility. However faithfully the

local police may carry out the investigation, the

same will lack credibility since the allegations are

against them. It is only with that in mind that we

having thought it both advisable and desirable as

well as in the interest of justice to entrust the

investigation to the Central Bureau of Investigation

forthwith and we do hope that it would complete the

investigation at an early date so that those involved

in the occurrences, one way or the other, may be

brought to book. We direct accordingly. In so

ordering we mean no reflection on the credibility of

either the local police or the State Government but

we have been guided by the larger requirements of

justice. The writ petition and the review petition

stand disposed of by this order.”

(emphasis supplied)

7.A reference may also be made to State of Punjab v.

CBI (2011) 9 SCC 182 where the High Court of Punjab and

Haryana transferred an investigation from the State Police to

the CBI in relation to what was known as “Moga Sex

Scandal” case. The High Court had while ordering transfer of

the investigation found that several police officials, political

11

Page 12 leaders, advocates, municipal counsellors, besides a number

of persons belonging to the general public had been named

in connection with the case. The High Court had while

commending the investigation conducted by DIG and his

team of officials all the same directed transfer of case to CBI

having regard to the nature of the case and those allegedly

involved in the same. The directions issued by the High

Court were affirmed by this Court and the matter allowed to

be investigated by the CBI.

8.More recently, this Court in Advocates Association,

Bangalore, v. Union of India and Ors. (2013) 10 SCC

611 had an occasion to deal with the question of transfer of

an investigation from the State Police to the CBI in the

context of an ugly incident involving advocates, police and

media persons within the Bangalore City Civil Court

Complex. On a complaint filed by the Advocates’ Association,

Bangalore, before the Chief Minister for suitable action

against the alleged police atrocities committed on the

advocates, the Government of Karnataka appointed the

Director General of Police, CID, Special Unit and Economic

12

Page 13 Offences as an Inquiry Officer to conduct an in-house inquiry

into the matter. The Advocates’ Association at the same

time filed a complaint with jurisdictional police station,

naming the policemen involved in the incident. In addition,

the Registrar, City Civil Court also lodged a complaint with

the police for causing damage to the property of City Civil

Court, Bangalore by those indulged in violence. Several writ

petitions were then filed before the High Court, inter alia,

asking for investigation by the CBI. The High Court

constituted a Special Investigation Team (SIT) headed by

Dr. R.K. Raghvan, a retired Director CBI, as its Chairman

and others. The Advocates’ Association was, however,

dissatisfied with that order which was assailed before this

Court primarily on the ground that a fair investigation could

be conducted only by an independent agency like the CBI.

Relying upon the decision of this Court in State of West

Bengal v. Committee for Protection of Democratic

Rights (2010) 2 SCC 571 this Court directed transfer of

investigation to the CBI holding that the nature of the

incident and the delay in setting up of the SIT was sufficient

to warrant such a transfer.

13

Page 14 9.It is unnecessary to multiply decisions on the subject,

for this Court has exercised the power to transfer

investigation from the State Police to the CBI in cases where

such transfer is considered necessary to discover the truth

and to meet the ends of justice or because of the complexity

of the issues arising for examination or where the case

involves national or international ramifications or where

people holding high positions of power and influence or

political clout are involved. What is important is that while

the power to transfer is exercised sparingly and with utmost

care and circumspection this Court has more often than not

directed transfer of cases where the fact situations so

demand.

10.We are in the case at hand dealing with a major

financial scam nicknamed ‘Chit Fund Scam’ affecting lakhs of

depositors across several States in the Eastern parts of this

country. Affidavits and status reports filed in these

proceedings reveal that several companies were engaged in

the business of receiving deposits from the public at large.

The modus operandi of the companies involved in such Ponzi

14

Page 15 Schemes was in no way different from the ordinary except

that they appear to have evolved newer and more ingenious

ways of tantalizing gullible public to make deposits and

thereby fall prey to temptation and the designs of those

promoting such companies. For instance Saradha Group of

Companies which is a major player in the field, had floated

several schemes to allure the depositors to collect from the

market a sizeable amount on the promise of the depositors

getting attractive rewards and returns. These fraudulent

(Ponzi) schemes included land allotment schemes, flat

allotment schemes, and tours and travel schemes. The

group had floated as many as 160 companies although four

out of them were the front runners in this sordid affair. An

interim forensic audit report submitted to the SEBI by

Sarath & Associate, Chartered Accountants on 27

th

February,

2014 sums up in the following words, the background in

which the schemes are floated and the public defrauded :

“The company M/s Saradha Realty India Ltd. was

involved in financial fraud involving in an attempt to

deliberately mislead the general public by

announcing dubious money multiplier schemes. It

15

Page 16 has also indulged in misleading the financial status

of the group companies by incorrect disclosures in

the financial statements in an attempt to deceive

financial statement users and regulatory authorities.

The investors lured to extraordinary returns is

typically attributed to something that sounds

impressive but is intentionally vague, such as hedge

fund in land, resorts, tours and travel plans, high

yield investment programs.

Typical to the Ponzi schemes the investors who are

economically very poor have invested relatively

small amounts such as Rs.100 and wait to see if the

promised returns are paid. After one month the

investor received maturity amounts, so the investor

truly believes s/he has earned the promised return.

What the investor doesn’t realize is that the Rs.100

was a RETURN OF THE INVESTMENT AND NOT A

RETURN ON THE INVESTMENT. In other words, the

Rs.100 return came from the Rs.100 principal

initially invested or from a newly-recruited investor,

rather than from any profits generated by the

investment opportunity. After a second month yields

another Rs.100 payment, the investor is ‘hooked’

and typically will invest larger amounts in the

scheme and will enthusiastically inform friends and

family members about this ‘fantastic’ investment

opportunity.

Since these early investors have actually received

the promised returns, their promotion of the

investment comes across as genuine and instills an

almost irresistible urge in friends and family

members to invest as well.

If pressed by skeptical investors for more detail, the

promoters typically evade answering the question

and instead talk about how recently-recruited

investors have been receiving the promised returns.

16

Page 17 Since little, of the victims’ funds are actually

invested into a legitimate profit-generating activity,

the scheme continued for only as long as the cash

inflows to existing investors. However, as the

number of investors grown rapidly, the pool of new

investors unavoidably shrinks. At one point, the

cash flow situation collapsed resulting in four

possible outcomes: (1) the investment promoters

disappear, taking remaining investment money with

them; (2) the scheme collapsed of its own weight,

and the promoters have problems paying out the

promised returns and, as the word spread, more

people start asking for their money creating a run-

on-the-bank situation; (3) the investment promoters

turn themselves in and confess.”

11.The Report suggests that the investors were promised

very high returns by way of interest rate ranging from 10%

to 18%. The said returns promised to the depositors were,

according to the Report, too good to be true. The Report

also suggests that a very large number of ‘agents base’ was

created by the companies to extend the reach of these

companies. For Saradha Realty India Ltd. itself as many as

2,21,000 agents were working, who were paid an

unreasonably high brokerage of 30% of the instrument

which became the driving force for the agents to go that

extra mile to collect as much as possible. The Report

indicates that investments that matured for payment were

17

Page 18 paid out of the cash collected from new members which was

opposed to the normal business norms in which returns

ought to be paid out of profits earned in the business.

Besides, the cash collections were neither accurately shown

in the books of accounts, nor did the bank accounts reveal

the details of such cash collections. The Report states that

the company had no real intention of doing any legitimate

business activity and the money collected from the public

was spread over 160 companies and spent away or siphoned

off. No major revenue was seen to be generated by any

group company. The companies had opened too many bank

accounts for Round Tripping Transactions for the monies

collected by them. Apart from as many as 218 branches

spread over several States including West Bengal, Odisha,

Bihar, Assam and other States the companies had as many

as 347 bank accounts in 15 banks in the name of the Group

Companies. The bank accounts were opened at the location

of branches enabling deposit of the cash into accounts. The

daily cash collected less expenses was deposited at branch

account and the money pooled and transferred to other

accounts as per CMD’s instructions and utilized to issue the

18

Page 19 cheques. The Report also points out violation of the

Securities and Exchange Board of India Act, 1992, the

Companies Act, 1956, The Reserve Bank of India Act, 1934

and the Income-Tax Act, 1961. It also points out fraudulent

certification, non-compliance of accounting standards,

material mis-statement of facts and gross negligence on the

part of the statutory Auditors. The Interim Report eventually

draws up the following conclusions:

“Saradha Reality India Ltd. and its other 3 group

companies has collected money from the open

market, reaching out to the general public by

employing huge number of agents, in form of

Investment under different Schemes viz., Fixed

Deposits, Monthly Investment Scheme, Recurring

Deposits. The SRIL has in pretext of land developers,

construction of flats, running tours and travels,

travel packages and resorts collected around

Rs.2,459 crores over a period of 5 years.

SRIL has no valid registration under the SEBI Act for

‘collective Investment Scheme’ nor has licenced

under RBI Act for Nidhi/Chit fund/NBFC. Its MOA

also does not permit the company to collect monies

in form of deposits. SEBI had passed a winding up

order in view of the collection of monies under one

of the company’s schemes as Collective Investment

scheme on 23/4/2013.

Company management, with fraudulent intent, has

designed several investment schemes wherein the

depositors invested in expectation of high return. It

has also misrepresented its business in writing to

income Tax department, SEBI, and to its depositors.

19

Page 20 The Depositors are promised fixed interest returns

but management has promised tours, travel

packages, land purchases, flat advances etc. on the

receipts which in realty is not intended to be given to

the depositors.

The SRIL did not comply with the KYC norms while

collecting the deposits, all the deposits are identified

by names and addresses, but the ID or address

proves are not obtained. The authenticity of the

investors is difficult to prove as the deposits are not

KYC complied.

The agents are main part of the entire operations of

the company, in evolving the new schemes,

explaining the public and collecting the deposits. The

agents are operated as a tree (chain) and each

agent in the chain will get commission on each

deposit. These commissions are paid in priority from

the business cash collected (almost 30% of

collections) and the balance money is used for

meeting company expenses and the rest is either

deposited at the bank in the location of the branch

or sent to Head Office. The cheques collected are

directly deposited in the Bank. Other than

Commission the agents are awarded field allowance,

prizes, and performance bonuses forming around

30% of the total deposits collected.

SRIL has expanded rapidly its’ the business,

takeovers in a very short span of five years. The

Company has never utilised money so collected from

investors for carrying out any legitimate business to

earn returns to payback the investors. It has utilized

the monies so collected in these takeovers, and

venturing into new company for running the loss

making businesses like media Channels,

newspapers, Magazines, manufacturing automobiles.

The group has incorporated 160 companies and the

share capital monies, furniture & fixtures, plant and

machines, huge staff salaries, fleet of cars on rent,

buses, 320 branch premises’ rents, daily expenses,

20

Page 21 maintenance are all met through the deposits

collected from the investors.

One of the company – Saradha Exports’ ha

announced as it is expanding to international by

exporting business and opening a branch at Madrid,

SPAIN, on its website.

Al the group companies are debt-free companies;

the loans standing in the Financial Statements are

partly of investors, other group company loans and

advances. The Audited Financial Statements are

misrepresenting the facts and Statutory Auditor is

grossly negligent in discharging his duty to present

the true and fair view of the state of affairs of the

companies. Most of the group company’s Auditor is

common.

Since the deposits collected are not utilized for

generating income, the monies are spent off and the

Company soon has failed to return back the monies

to depositors on their maturity. Cash rotation cycle

of the depositors broke and has severe cash crunch

and let the company to fall off.”

12.The Report estimates the collection made by the

Saradha Group of companies at Rs.2459 crores.

13.Failure of the group companies to refund the deposits

made with them was bound to as it indeed has led to a

public outcry against the scam on account of the huge

amount that was collected by these companies by

21

Page 22 defrauding a very large section of the public majority of

whom appear to be from middle class, lower middle class or

poorer sections of the society. The Government of West

Bengal acted in response to the protests and the public

anguish over a fraud of such colossal magnitude and set up

a Commission of Inquiry headed by Mr. Justice Shyamal

Kumar Sen, retired Chief Justice, Allahabad High Court with

four others to be nominated by the Government to inquire

into the matters set out in a notification dated 24

th

April,

2013 issued in that regard. The Commission was empowered

to receive all individual and public complaints regarding the

Saradha Group of Companies and other similar companies

involved in the scam and to forward such complaints to the

authorities concerned including the Special Investigation

Team for launching prosecution. The Commission was also

authorized to send directives to the Special Investigation

Team, identify the key persons responsible for the present

situation, quantify the estimated amount of money involved

in the alleged transactions, assess the assets and liabilities

of the group of companies and to recommend ways and

means for providing succor to those who had lost their

22

Page 23 savings. The Commission was also authorized to recommend

remedial action and measures to the State Government so

that such situations do not recur.

14.By another notification dated 27

th

August, 2013 the

Government, relying upon the directions issued by the High

Court of Calcutta in Writ Petition No.12163(W) of 2013 and

Writ Petition No.12197(W) of 2013 empowered the

Commission of Inquiry to dispose of all the assets belonging

to the Saradha Group of Companies and/or their agents

and/or their Benamidars and to adopt an appropriate mode

of recovery of debts on behalf of the Saradha Group from its

debtors and add the proceeds to the fund to be created for

that purpose. The Commission was also clothed with the

power to attach the bank accounts belonging to the Saradha

Group of Companies and the personal bank accounts of the

Directors apart from restraining the banks concerned from

allowing anyone to operate such accounts unless authorized

by the Commission. Pursuant to the above notifications the

Commission has received nearly 18 lakhs complaints and

23

Page 24 claim petitions demanding refund of the amount deposited

under such Ponzi Schemes.

15.In the counter-affidavit filed on behalf of the State of

Bihar it is, inter alia, stated that the State Government has

announced a sum of rupees 500 crores for payment to the

aggrieved depositors apart from money that may be raised

from selling off the assets of the companies including the

Saradha Group of Companies. The affidavit further states

that the Commission has passed orders for payment of

compensation to the investors in the Saradha Group of

Companies and that over one lakh beneficiaries have been

paid while another 1,66,456 identified for such payment.

The affidavit also states that as per the directions issued by

the High Court of Calcutta in terms of the notification

mentioned above as many as 224 immovable properties and

54 vehicles have been identified for attachment and possible

sale and recovery of the amount due from the companies.

The affidavit goes on to say that one Kunal Kumar Ghosh,

Member of Parliament, Rajya Sabha, was arrested on 23

rd

November, 2013 in connection with the case registered in

24

Page 25 Bidhannagar South Police Station after being interrogated on

several occasions. The said Kunal Kumar Ghosh was the

media CEO of Saradha Group of Companies. In addition one

Srinjoy Bose, Member of Parliament was also interrogated

by serious Fraud Investigation Office in relation to the

Saradha Group of Companies and that the Special

Investigating Team and the police authorities are extending

full support and cooperation to the Central Agencies like

Enforcement Directorate, Serious Fraud Investigation Office

etc. for effective investigation of the scam. The State has in

that view opposed the prayer of the petitioner for transfer of

the investigation from the State Police to the CBI.

16.When this case came up before us on 4

th

March, 2013

our attention was drawn by Mr. C.S. Vaidyanathan, Senior

counsel appearing for the State of West Bengal to a

statement appearing at page 474 of the said sur-rejoinder

filed by the State which according to the learned counsel

summarized the investments made by the Saradha group of

companies from out of the money collected by it from the

depositors. These details were sketchy and unsatisfactory

25

Page 26 especially when the trail of money collected remained

obscure no matter it was one of the important, if not the

single most important, angle to be investigated for

unraveling facts leading to the scam and identifying those

who had aided and/or abetted the same. Mr. Vaidhyanathan

was, therefore, granted ten days time to file a

comprehensive statement as to the amount collected by the

said group of companies and the expenditure

incurred/investments made over a period of time.

17.An affidavit was accordingly filed by the State of West

Bengal in which the purchase value of the property acquired

by Saradha Group of Companies was estimated at Rs.40

crores only as against a total collection of Rs.2,460 crores

made by the said companies. Mr. Vaidyanathan argued that

the investment in real estate could go upto Rs.110 crores on

the basis of the information gathered from the software that

was seized from the companies concerned. Even if that were

so a significant discrepancy existed between investigation

based estimated purchase value of the properties on the one

hand and what could according to Mr. Vaidyanathan emerge

26

Page 27 from the software seized from the companies. Mr.

Vaidyanathan argued that the discrepancy could be on

account of the fact that a large number of properties

referred to in the affidavit have been acquired by the

companies on the basis of power of attorneys which do not

indicate the value of the property covered by such deeds

and transactions. Be that as it may, a huge gap between the

amount collected and the investments made in real estate

itself calls for effective investigation as to the trail of money

collected by the group of companies. Investigation by the

State Police has not unfortunately made any significant

headway in this regard.

18.More importantly, the question whether the scam was

confined only to those who actively managed and

participated in the affairs of the companies or the same

flourished on account of the support and patronage of others

is an issue that has bothered us all through the hearing of

this case. We had, therefore, directed the State to file a

sample copy of the chargesheets said to have been

submitted before the jurisdictional Courts. A perusal of the

27

Page 28 copies so furnished shows that the same relate only to

individual deposits leaving untouched the larger conspiracy

angle that needs to be addressed. It was argued by Mr.

Bhattacharya that the Investigating Agency was deliberately

avoiding to investigate that vital aspect. Mr. Vaidyanathan,

however, contended that the larger conspiracy angle was

being investigated separately in an FIR registered with

Vidhannagar Police Station. He sought and was given time to

file an affidavit setting out the particulars of the FIR in which

the larger conspiracy angle was being examined and the

progress so far made in that regard.

19.An additional affidavit was accordingly filed by Mr.

Vaidyanathan in which it is, inter alia, stated that the larger

conspiracy angle is being investigated in Crime No.102

registered in Bidhannagar Police Station (North) on 6

th

May,

2013 under Sections 406, 409, 420, 120B IPC. At the

hearing of the case on 9

th

April, 2014 Mr. Vaidyanathan

passed on to us a sealed cover containing a list of persons

who according to the learned counsel need to be questioned

in view of the disclosers made and the evidence collected so

28

Page 29 far by the Investigating Agency. The basis on which the

Investigation Team has named the persons in the list was

not set out in the list or elsewhere. Mr. Vaidyanathan,

therefore, offered to file a synopsis of the evidence on the

basis whereof the names mentioned in the list had been

included in the said list and the evidence which incriminates

them calling for further investigation into their role and

conduct. An affidavit giving the synopsis was pursuant to

the said order filed by Mr. Vaidyanathan indicating briefly

the basis on which the persons named in the list were

sought to be interrogated in connection with the scam. A

perusal of the synopsis furnished and the names included in

the list makes it abundantly clear to us that several

important individuals wielding considerable influence within

the system at the State and the national level have been

identified by the Investigating Agency for interrogation. We

do not consider it necessary to reveal at this stage the

names of the individuals who are included in the list on the

basis of which the Investigating Agency proposes to

interrogate them or the material so far collected to justify

such interrogation. All that we need point out is that

29

Page 30 investigation into the scam is not confined to those directly

involved in the affairs of companies but may extend to

several others who need to be questioned about their role in

the sequence and unfolding of events that has caused

ripples on several fronts.

20.There is yet another aspect to which we must advert at

this stage. This relates to the role of the Regulatory

Authorities. Investigation conducted so far puts a question

mark on the role of regulatory authorities like SEBI,

Registrar of Companies and officials of the RBI within whose

respective jurisdictions and areas of operation the scam not

only took birth but flourished unhindered. The synopsis filed

by Mr. Vaidyanathan names some of the officials belonging

to these authorities and give reasons why their role needs to

be investigated. The synopsis goes to the extent of

suggesting that regular payments towards bribe were paid

through middleman to some of those who were supposed to

keep an eye on such ponzi companies. The Regulatory

Authorities, it is common ground, exercise their powers and

jurisdiction under Central legislations. Possible connivance

30

Page 31 of those who were charged with the duty of preventing the

scams of such nature in breach of the law, therefore, needs

to be closely examined and effectively dealt with.

Investigation into the larger conspiracy angle will, thus,

inevitably bring such statutory regulators also under

scrutiny.

21.It was at one stage argued on behalf of SEBI that

companies involved in the scam were doing chit-fund

business and since chit-funds were not within its jurisdiction

it could not have taken cognizance of the same. Our

attention was, however, drawn to atleast two orders passed

by SEBI directing winding up of such ponzi schemes and

refund of the amounts received by the companies concerned

to the depositors. It was submitted by learned Counsel for

the petitioner that the SEBI having examined the issue,

taken cognizance of the violation, no matter belatedly and

issued directions for winding up of the schemes and refund

of the amount, it was no longer open to it to argue that it

had no role to play in the matter.

31

Page 32 22.We are not in these proceedings required to

authoritatively pronounce upon the question whether SEBI

had the jurisdiction to act in the matter. What is important

is that if upon investigation it is found that SEBI did have

the jurisdiction to act in the matter but failed to do so then

such failure may tantamount to connivance and call for

action against those who failed to act diligently in the

matter. Suffice it to say, that the scam of this magnitude

going on for years unnoticed and unchecked, is suggestive

of a deep rooted apathy if not criminal neglect on the part of

the regulators who ought to do everything necessary to

prevent such fraud and public loot. Depending upon

whether the investigation reveals any criminal conspiracy

among those promoting the companies that flourished at the

cost of the common man and those who were supposed to

prevent such fraud calls for a comprehensive investigation

not only to bring those who were responsible to book but

also to prevent recurrence of such scams in future.

23.There is yet another dimension of the scam which

cannot be neglected. That the ponzi companies operated

32

Page 33 across State borders is evident not only from the pleadings

on record but also from the submissions urged in the course

of the arguments before us. What is significant is that these

companies and such other similar companies indulged in

similar fraudulent activities in the State of Assam and

Tripura also apart from Orissa where the depositors have

suffered. Looking to the nature of the scam and its inter-

State ramifications, cases registered in the State of Tripura

have since been transferred to the CBI for investigation at

the request of the State Government. A similar request has

been made by the Government of Assam which has,

according to Mr. Siddharth Luthra, learned Additional

Solicitor General, been accepted by the Central Government

who is shortly issuing a notification under which cases

concerning the scam registered in the State of Assam shall

stand transferred to the CBI.

24.That leaves us with the State of Odisha where too

Saradha Group of Companies and a host of similar other

companies appear to have indulged in similar activities

giving rise to considerable public resentment against the

33

Page 34 authorities for not preventing such companies from

defrauding the innocent public. Writ Petition (C) Nos.413 of

2013 and 324 of 2014 seek transfer of such cases registered

in the State of Odisha to the CBI on the analogy of what was

done in relation to Tripura and Assam keeping in view the

magnitude of the scam as also those involved, in the same.

25.In Writ Petition (C) No.413 of 2013 we had by our

order dated 26

th

March, 2014 confined the proceedings to 44

companies mentioned in two list one filed by Mr. Alok Jena,

the petitioner in the petition and the other by the Counsel

for the State Government. The involvement of these

companies in the scam had inter-state ramifications besides

the fact that their collections had exceeded over 500 cores

each.

26.It was submitted by counsel for the parties that looking

to the large number of cases that had been registered,

transfer of each and every case may work as an impediment

in the effective investigation of the cases by the CBI. For all

intents and purposes, therefore, proceedings in these two

writ petitions were confined to a prayer for transfer of cases

34

Page 35 registered against 44 companies named in the lists filed by

the counsel for the parties.

27.Since certain aspects of the information considered

relevant for the transfer of the cases was not forthcoming,

we had directed the State Government to file an affidavit

providing the said information. The information related

primarily to the number of companies involved in the scam

in the State of Odisha. The total amount allegedly collected

by 44 companies referred to in the lists furnished by the

State Counsel and Counsel for the petitioner. The total

number of claims made by the depositors before Justice R.K.

Patra Commission set up with the State Government as also

the total number of properties, seized in regard to the 44

companies referred to above. The total amount so far paid

to the investors under the orders or the Commission or

otherwise and the total number of charge-sheets so far filed.

Investments made in real estate or otherwise by the 44

companies were also demanded from the State who was

asked to disclose whether the larger conspiracy angle was

35

Page 36 being investigated and, if so, furnish the particulars of the

FIR in which that was being done.

28.An affidavit has been filed by the State of Odisha

pursuant to the said directions in which the FIRs where the

State Investigating Agency is examining the larger

conspiracy angle, have been identified. A perusal of the

Affidavit, further, shows that 163 companies were involved

in the chit-fund scam in the State of Odisha who have

collected Rs.4565 crores approximately from the public out

of which a sum of Rs.2904 crores has been collected by 43

companies mentioned in the list referred to earlier excluding

M/s Nabadiganta Capital Services Ltd. against which no

criminal case have been registered so far. The affidavit also

states that 7,45,293 envelopes containing claim petitions

have been received from the depositors by Justice R.K. Patra

Commission. The affidavit also gives details of the properties

of the companies seized/sealed in the course of the on-going

investigation. The affidavit also refers to payment of

Rs.24,17,65,866/- allegedly made to 18,596 investors by

M/s Prayag Infotech High Rise Limited, Kolkata and the

36

Page 37 willingness expressed by M/s Rose Valley Hotels and

Entertainment Limited to pay back the investors. Larger

conspiracy angle is according to the affidavit being examined

in three cases. These are (i) CID PS Case No.39 dated

18.07.2012 under Section 420/120-B IPC read with Sections

4, 5 and 6 of Prize Chits and Money Circulation Schemes

(Banning) Act, 1978 registered against M/s Seashore Group

of Companies, (ii) Case No.44 dated 07.02.2013 under the

same provisions registered in Kharavelnagar Police Station

(Bhubaneswar Urban Police District) against M/s Artha Tatwa

Group of Companies and (iii) EOW PS Case No.19 dated

06.06.2013 registered against M/s Astha International Ltd.

It was submitted that while charge sheets have been

submitted in three cases mentioned above within the period

of limitation, investigation has been kept open under Section

173 (8) of the Cr.P.C. to investigate the larger conspiracy

angle. The affidavit also refers to certain legislations enacted

in the State of Odisha to protect the interest of depositors.

It also refers to certain interim orders passed by the

Government for attachment of the properties of the

defaulting companies.

37

Page 38 29.Appearing for the State of Odisha, Mr. Gopal

Subramanium, learned Senior Counsel argued that while this

Court may transfer for further investigation into the cases

registered against 44 companies referred to above, any such

transfer should not hamper the attachment or recovery

process otherwise initiated by the State in terms of the

measures taken by it. It was also contended by Mr.

Subramanium that public prosecutors appointed by the CBI

would be assisted by the State Police Officials so that the

efficacy of the investigation and prosecution are both taken

care of by the joint efforts that the Central and the State

police authorities may make.

30.The factual narrative given in the foregoing paragraphs

clearly establish the following:

1.That financial scam nicknamed chit-fund scam that

has hit the States of West Bengal, Tripura, Assam

and Odisha involves collection of nearly 10,000

crores (approx.)from the general public especially

the weaker sections of the society which have fallen

prey to the temptations of handsome returns on such

38

Page 39 deposits extended by the companies involved in the

scam.

2.That investigation so far conducted suggests that the

collection of money from the depositors was neither

legally permissible nor were such collections/deposits

invested in any meaningful business activity that

could generate the high returns/promised to the

depositors.

3.That more than 25 lac claims have so far been

received by the Commissions of Enquiries set up in

the States of Odisha and West Bengal which is

indicative of the magnitude of scam in terms of

number of citizens that have been defrauded by the

ponzi companies.

4.That the companies indulge in ponzi schemes have

their tentacles in different States giving the scam

inter-state ramifications. That such huge collections

could have international money laundering

dimensions cannot be ruled out and needs to be

effectively investigated.

39

Page 40 5.That Investigation so far conducted reveals

involvement of several political and other influential

personalities wielding considerable clout and

influence.

6.That the role of regulators like SEBI, authorities

under the Companies Act and the Reserve Bank of

India is also under investigation by the State Police

Agency which may have to be taken to its logical

conclusion by an effective and independent

investigation.

31.The question is whether the above features call for

transfer of the ongoing investigation from the State Police to

the CBI. Our answer is in the affirmative. Each one of the

aspects set out above in our view calls for investigation by

an independent agency like the Central Bureau of

Investigation (CBI). That is because apart from the

sensitivity of the issues involved especially inter-state

ramifications of the scam under investigation, transfer of

cases from the State police have been ordered by this Court

40

Page 41 also with a view to ensure credibility of such investigation in

the public perception. Transfers have been ordered by this

Court even in cases where the family members of victim

killed in a firing incident had expressed apprehensions about

the fairness of the investigation and prayed for entrusting

the matter to a credible and effective agency like the CBI.

Investigation by the State Police in a scam that involves

thousands of crores collected from the public allegedly

because of the patronage of people occupying high positions

in the system will hardly carry conviction especially when

even the regulators who were expected to prevent or check

such a scam appear to have turned a blind eye to what was

going on. The State Police Agency has done well in making

seizures, in registering cases, in completing investigation in

most of the cases and filing charge-sheets and bringing

those who are responsible to book. The question, however,

is not whether the State police has faltered. The question is

whether what is done by the State police is sufficient to

inspire confidence of those who are aggrieved. While we do

not consider it necessary to go into the question whether the

State police have done all that it ought to have done, we

41

Page 42 need to point out that money trail has not yet been traced.

The collections made from the public far exceed the visible

investment that the investigating agencies have till now

identified. So also the larger conspiracy angle in the States

of Assam, Odisha and West Bengal although under

investigation has not made much headway partly because of

the inter-state ramifications, which the Investigating

Agencies need to examine but are handicapped in

examining.

32.M/s Vaidyanathan and Gopal Subramanium, learned

counsel for the States of West Bengal and Odisha

respectively argued that the CBI itself has in a great

measure lost its credibility and is no longer as effective and

independent as it may have been in the past. Similar

sentiments were expressed by Mr. P.V. Shetty appearing on

behalf of some of the investors and some other intervenors,

who followed suit to pursue a similar line of argument.

33.There is, in our opinion, no basis of the apprehension

expressed by the State Governments. It is true that a lot

can be said about the independence of CBI as a premier

42

Page 43 Investigating Agency but so long as there is nothing

substantial affecting its credibility it remains a premier

Investigating Agency. Those not satisfied with the

performance of the State Police more often than not demand

investigation by the CBI for it inspires their confidence. We

cannot, therefore, decline transfer of the cases only because

of certain stray observations or misplaced apprehensions

expressed by those connected with the scam or those likely

to be affected by the investigation. We may in this regard

gainfully extract the following passage from the decision of

this Court in Sanjiv Kumar v. State of Haryana and

Others (2005) 5 SCC 517, where this Court has lauded

the CBI as an independent agency that is not only capable of

but actually shows results:

“15. In the peculiar facts and circumstances of the

case, looking at the nature of the allegations made

and the mighty people who are alleged to be

involved, we are of the opinion, that the better

option of the two is to entrust the matter to

investigation by CBI. We are well aware, as was also

told to us during the course of hearing, that the

hands of CBI are full and the present one would be

an additional load on their head to carry. Yet, the

fact remains that CBI as a Central investigating

agency enjoys independence and confidence of the

people. It can fix its priorities and programme the

progress of investigation suitably so as to see that

any inevitable delay does not prejudice the

43

Page 44 investigation of the present case. They can think of

acting fast for the purpose of collecting such vital

evidence, oral and documentary, which runs the risk

of being obliterated by lapse of time. The rest can

afford to wait for a while. We hope that the

investigation would be entrusted by the Director, CBI

to an officer of unquestioned independence and then

monitored so as to reach a successful conclusion;

the truth is discovered and the guilty dragged into

the net of law. Little people of this country, have

high hopes from CBI, the prime investigating agency

which works and gives results. We hope and trust

the sentinels in CBI would justify the confidence of

the people and this Court reposed in them.”

34.In the circumstances, we are inclined to allow all these

petitions and direct transfer of the following cases registered

in different police stations in the State of West Bengal and

Odisha from the State Police Agency to the Central Bureau

of Investigation (CBI):

A. State of West Bengal:

1.All cases registered in different police stations of the

State against Saradha Group of Companies including

Crime No.102 registered in the Bidhannagar Police

Station, Kolkata (North) on 6

th

May, 2013 for

44

Page 45 offences punishable under Sections 406, 409, 420

and 120B of the IPC.

2.All cases in which the investigation is yet to be

completed registered against any other company

upto the date of this order.

3.The CBI shall be free to conduct further investigation

in terms of Section 173 (8) of the Cr.P.C. in relation

to any case where a charge-sheet has already been

presented before the jurisdictional court against the

companies involved in any chit-fund scam.

B. State of Odisha :

All cases registered against 44 companies mentioned in

our order dated 26

th

March, 2014 passed in Writ

Petition (C) No.413 of 2013. The CBI is also permitted

to conduct further investigations into all such cases in

which chargesheets have already been filed.

35.We reserve liberty for the Joint Director CBI, Incharge

of the States of West Bengal and Odisha to seek further

directions in relation to transfer of any other case or cases

45

Page 46 that may require to be transferred for investigation to CBI

for a full and effective investigation into the scam.

36.Transfer of investigation to the Central Bureau of

Investigation (CBI) in terms of this order shall not, however,

affect the proceedings pending before the Commissions of

Enquiry established by the State Government or stall any

action that is legally permissible for recovery of the amount

for payment to the depositors. Needless to say that the

State Police Agencies currently investigating the cases shall

provide the fullest cooperation to the CBI including

assistance in terms of men and material to enable the latter

to conduct and complete the investigation expeditiously.

37.The Enforcement Directorate shall, in the meantime,

expedite the investigation initiated by it into the scam and

institute appropriate proceedings based on the same in

accordance with law.

38.We make it clear that nothing said in this order, shall

be taken as a final opinion as to the complicity of those

being investigated or others who may be investigated,

questioned or interrogated in relation to the scam.

46

Page 47 39.We do not for the present consider it necessary to

constitute a Monitoring Team to monitor the progress of the

investigation into the scam. But, we leave the exercise of

that option open for the future.

40.The Writ Petitions and T.P.(C) No. 445 of 2014 are

disposed of in terms of the above directions. No costs.

………………………………….…..…J.

(T.S. THAKUR)

………………………… ..……………..J.

New Delhi, (C. NAGAPPAN)

May 9, 2014

47