Case: KANWAL TANUJ Vs. THE STATE OF BIHAR &amp; ORS

which reason seeking consent of the State to investigate the same would not arise. In our opinion, the stated proviso will have no application to the offence in question and thus the Delhi special police force/DSPE (CBI) must be held to be competent to register the FIR at Delhi and also to investigate the same without the consent of the State. 23. Even otherwise, the proviso has the effect of differentiating and classifying offenders differently for treatment thereunder, including investigation of offences and prosecution for offences on the basis of being public servant employed in connection with the affairs of the Government of Bihar. The power bestowed on special police force in terms of Sections 2 and 3 of the 1946 Act cannot be undermined by an executive instruction in the form of proviso. Dealing with a similar challenge to a statutory provision - Section 6A of the Act, the Constitution Bench of this Court in Subramanian Swamy (supra) held that sub-Section (1) thereof was invalid and violative of Article 14 of the Constitution. In paragraphs 61 and 68 of the said decision, the Court noted thus:- 61. The essence of police investigation is skillful inquiry and collection of material and evidence in a manner by which the potential culpable individuals are not forewarned. The previous approval from the Government necessarily required under Section 6-A would result in indirectly putting to notice the officers to be investigated before the commencement of investigation. Moreover, if CBI is not even allowed to verify complaints by preliminary enquiry, how can the case move forward? A preliminary enquiry is intended to ascertain whether a prima facie case for investigation is made out or not. If CBI is prevented from holding a preliminary enquiry, at the very threshold, a fetter is put to enable CBI to gather relevant material. As a matter of fact, CBI is not able to collect the material even to move the Government for the purpose of obtaining previous approval from the Central Government. xxx xxx xxx 68. Can it be said that the classification is based on intelligible differentia when one set of bureaucrats of Joint Secretary level and above who are working with the Central Government are offered protection under Section 6-A while the same level of officers who are working in the States do not get protection though both classes of these officers are accused of an offence under the PC Act, 1988 and inquiry/investigation into such allegations is to be carried out. Our answer is in the negative. The provision in Section 6-A, thus, impedes tracking down the corrupt senior bureaucrats as without previous approval of the Central Government, CBI cannot even hold preliminary inquiry much less an investigation into the allegations. The protection in Section 6-A has propensity of shielding the corrupt. The object of Section 6-A, that senior public servants of the level of Joint Secretary and above who take policy decision must not be put to any harassment, sidetracks the fundamental objective of the PC Act, 1988 to deal with corruption and act against senior public servants. CBI is not able to proceed even to collect the material to unearth prima facie substance into the merits of allegations. Thus, the object of Section 6-A itself is discriminatory. That being the position, the discrimination cannot be justified on the ground that there is a reasonable classification because it has rational relation to the object sought to be achieved. (emphasis supplied) The thrust of this exposition is that every person committing the same offence is to be dealt with in the same manner in accordance with law, which is equal in its application to everyone. The discrimination or differentiation must be founded on pertinent and real differences as distinguished from irrelevant and artificial ones. In paragraph 70, the Court went on to observe that every public servant against whom there is a reasonable suspicion of commission of a crime or there are allegations of an offence under the PC Act has to be treated equally and similarly under law. 24. Suffice it to observe that the proviso contained in the stated notification dated 19.2.1996 cannot be the basis to disempower the special police force/DSPE (CBI) from registering the offence committed at Delhi to defraud the Government of India undertaking (BRBCL) and siphoning of its funds and having its registered office at Delhi. Allegedly, the stated offence has been committed at Delhi. If so, the Delhi Courts will have jurisdiction to take cognizance thereof. The State police (State of Bihar) cannot investigate the specified offences committed and accomplished at Delhi, being outside the territory of the State of Bihar. It must follow that the consent of the State of Bihar to investigate such offence is not required in law and for which reason, the special police force would be competent to carry on the investigation thereof even if one of the accused allegedly involved in the commission of stated offence happens to be resident of the State of Bihar or employed in connection with the affairs of the Government of Bihar and allegedly committed associated offences in that capacity. In other words, consent of the State under Section 6 cannot come in the way or constrict the jurisdiction of the special police force constituted under Section 2 to investigate specified offences under Section 3 of the 1946 Act committed within the Union Territories. Indeed, when the Court of competent jurisdiction proceeds to take cognizance of offence and particularly against the appellant, it may consider the question of necessity of a prior sanction of the State of Bihar qua its official(s) as may be required by law. That question can be considered on its own merits in accordance with law. 25. For the view that we have taken, it may not be necessary for us to analyse the decisions relied upon by the parties, which in our opinion, do not pertain to the question under consideration regarding the effect of the proviso contained in the notification dated 19.2.1996.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]18. The High Court, in the present case, after analysing the material on record clearly found that BRBCL was a Government undertaking and the project undertaken by it was funded by the Central Government and that it had its registered office in the Union Territory of Delhi (National Capital Territory of Delhi), where the offence of defrauding the undertaking (BRBCL) and siphoning of its funds was allegedly committed. We see no reason to deviate from the opinion so recorded by the High CourtThis submission overlooks the substratum of the allegations in the FIR, as registered by the CBI against the CEO of BRBCL – Shri C. Sivakumar and the appellant being co- accused (party to the conspiracy) regarding defrauding the Government of India undertaking (BRBCL) having its registered office at Delhi (Union Territory) and siphoning of its funds. The alleged role played by the appellant may be a means to facilitate the commission of crime of defrauding and siphoning of funds. The FIR in that sense is not limited to an offence of manipulation of official records of the State of Bihar as such, but is about the means used by the different actors who were party to the conspiracy in defrauding the Government of India undertaking (BRBCL) and siphoning of its funds20. Indisputably, the registered office of BRBCL is within the jurisdiction of Union Territory of Delhi (National Capital Territory of Delhi) and allegedly the offence has been committed at Delhi, for which reason the Delhi Court will have jurisdiction to take cognizance thereof. To put it differently, the offence in question has been committed outside the State of Bihar. The investigation of the stated offence may incidentally transcend to the territory of State of Bihar because of the acts of commission and omission of the appellant who is resident of that State and employed in connection with the affairs of the State of Bihar. That, however, cannot come in the way of special police force (DSPE) from investigating the offence committed at Delhi and has been so registered by it and is being investigated. Had it been an offence limited to manipulation of official record of the State and involvement of officials of the State of Bihar, it would have been a different matter. It is not the case of the appellant or the State of Bihar that even an offence accomplished at Delhi of defrauding of the Government of India undertaking (having registered office at Delhi) and siphoning of the funds thereof at Delhi can be investigated by the State of Bihar. If the State police has had no jurisdiction to investigate the offence in question, as registered, then, seeking consent of the State in respect of such offence does not arise. Any other approach would render the special provisions of the 1946 Act otiose21. In any case, the respondent-State having granted general consent in terms of Section 6 of the 1946 Act vide notification dated 19.2.1996, it is not open to it to argue to the contrary. The respondent-State cannot be allowed to approbate and reprobate22. Indeed, the said notification contains a proviso, which predicates that if any public servant employed in connection with the affairs of the Government of Bihar is concerned in offences being investigated by the special police force pursuant to the notification, prior consent of the State Government qua him shall be obtained. This proviso must operate limited to cases or offences which have been committed within the territory of the State of Bihar. If the specified offence is committed outside the State of Bihar, as in this case in Delhi, the State police will have no jurisdiction to investigate such offence and for which reason seeking consent of the State to investigate the same would not arise. In our opinion, the stated proviso will have no application to the offence in question and thus the Delhi special police force/DSPE (CBI) must be held to be competent to register the FIR at Delhi and also to investigate the same without the consent of the State23. Even otherwise, the proviso has the effect of differentiating and classifying offenders differently for treatment thereunder, including investigation of offences and prosecution for offences on the basis of being public servant employed in connection with the affairs of the Government of Bihar. The power bestowed on special police force in terms of Sections 2 and 3 of the 1946 Act cannot be undermined by an executive instruction in the form of provisoThe thrust of this exposition is that every person committing the same offence is to be dealt with in the same manner in accordance with law, which is equal in its application to everyone. The discrimination or differentiation must be founded on pertinent and real differences as distinguished from irrelevant and artificial ones. In paragraph 70, the Court went on to observe that every public servant against whom there is a reasonable suspicion of commission of a crime or there are allegations of an offence under the PC Act has to be treated equally and similarly under law24. Suffice it to observe that the proviso contained in the stated notification dated 19.2.1996 cannot be the basis to disempower the special police force/DSPE (CBI) from registering the offence committed at Delhi to defraud the Government of India undertaking (BRBCL) and siphoning of its funds and having its registered office at Delhi. Allegedly, the stated offence has been committed at Delhi. If so, the Delhi Courts will have jurisdiction to take cognizance thereof. The State police (State of Bihar) cannot investigate the specified offences committed and accomplished at Delhi, being outside the territory of the State of Bihar. It must follow that the consent of the State of Bihar to investigate such offence is not required in law and for which reason, the special police force would be competent to carry on the investigation thereof even if one of the accused allegedly involved in the commission of stated offence happens to be resident of the State of Bihar or employed in connection with the affairs of the Government of Bihar and allegedly committed associated offences in that capacity. In other words, consent of the State under Section 6 cannot come in the way or constrict the jurisdiction of the special police force constituted under Section 2 to investigate specified offences under Section 3 of the 1946 Act committed within the Union Territories. Indeed, when the Court of competent jurisdiction proceeds to take cognizance of offence and particularly against the appellant, it may consider the question of necessity of a prior sanction of the State of Bihar qua its official(s) as may be required by law. That question can be considered on its own merits in accordance with law25. For the view that we have taken, it may not be necessary for us to analyse the decisions relied upon by the parties, which in our opinion, do not pertain to the question under consideration regarding the effect of the proviso contained in the notification dated 19.2.1996.