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

3. The principal ground canvassed by the appellant before the High Court was that he being an officer of the Indian Administrative Service (IAS) employed in connection with the affairs of the Government of Bihar as District Magistrate at Aurangabad District (State of Bihar) could not be subjected to investigation by the CBI without the prior consent of the State4. The appellant has been named as an accused alongwith one Shri C. Sivakumar, CEO, Bhartiya Rail Bijli Company Limited (for short, BRBCL), Nabinagar, District Aurangabad, Bihar on the basis of FIR registered by the CBI pursuant to information received from a reliable source alleging as follows: -A reliable source information has been received that Bhartiya Rail Bijlee Company Limited (BRBCL), a subsidiary of NTPC Ltd. is constructing four units of 250 MW at Nabinagar in Aurangabad District (Bihar). The joint venture project has been developed by Bhartiya Rail Bijlee Company Limited (BRBCL) with NTPC having 74 percent share, while the Ministry of Railways with the remaining 26 percent. Indian Railways would get 90 percent and the state of Bihar would get ten percent of the power generated from BRBCLs plants. The construction work of BRBCL was proposed in the 2005-06 Union Budget and the Central Govt. approved the company in February 2007 but work on the plant was delayed due to land acquisition problems at Nabinagar. Actual work on BRBCL power plants started in 2008-09. The four units of BRBCL plant are proposed to be constructed on around 1,500 acres of land at Nabinagar and all of them are to be completed at a revised cost of around Rs.8,100 crore2. Information further revealed that large scale corruption and siphoning of government funds has taken place in the land acquisition for the plant of Bhartiya Rail Bijlee Company Limited (BRBCL) by the BRBCL officials in criminat connivance with Local District Administration. A specific instance has been formed by source in this regard pertaining to acquisition of tL.57 acre land of Khata No.12, plot No.1, of Mauja Kajrine for the Thermal Power Project at Nabinagar in the District of Aurangabad (Bihar). The proposal to acquire land has already been approved by the State Government of Bihar along with the compensation amount payable to the owner of the acquired lands3. Information also revealed that initially vide letter No.452, dated 22.06.2015, Circle Officer, Nabinagar informed Chief Executive Officer, BRBCL, Nabinagar that there was no claimant for land 7.09 acre pertaining to Khata No.12, plot No.1 of Mauja Kajrine. In this regard BRBCL issued a letter to Circle Officer, Nabinagar on 15.01.2016 that company had no objection if aforesaid left out land was transferred to company (BRBCL)4. It has been further revealed by a source that Shri C. Shiv Kumar, CEO, BRBCL, Nabinagar entered into a criminal conspiracy with Shri Kanwal Tanuj, District Magistrate, Aurangabad District (Bihar), other unknown officers/officials of BRBCL, local District Administration and Shri Gopal prasad singh (now deceased). In furtherance of the said criminal conspiracy, Shri Kanwal Tanuj, District Magistrate, Aurangabad District (Bihar) got false documents of Khata No.12, plot No.1 of Mauja Kajrine prepared in respect of one shri Gopal prasad singh (now deceased) s/o Late Kesho Prasad singh, R/o- Nabinagar District- Aurangabad (Bihar). Some false receipts of Lagan for the period 1988-89 to 2016-17, some other related papers/returns of above land shown to be purchased from Shri Mukund Lal (Jamindar), who was never jamindar (Land lord) of the area were prepared and submitted for claim/compensation in the name of Gopal Prasad Singh (now deceased)5. It was then fraudulently directed by Shri Kanwal Tanuj, DM, Aurangabad that 7.45 acre land in Khata No.12, Plot No.1 of Mauja Kajrine be recorded in the name of Shri Gopal Prasad Singh (now deceased) and the matter may be further processed accordingly. Circle Officer, Nabinagar sent a letter No.74, dated 11.03.2017 to Chief- Executive officer BRBCL for purchasing of the land from the owner Shri Gopal Prasad Singh (now deceased), Circle Officer, Nabinagar thereafter issued another letter dated 25.03.2017 to BRBCL recalling his previous letter dated 22.06.2015 and informed that 7.45 acres out of the total land in Khata No.12, plot No.1 of Mauja Kajrine has been registered in name of Shri Gopal Prasad Singh. The circle officer further informed BRBCL that 6.545 acres falling in the Ash Dyke area in the above mentioned plot was being earmarked/acquired for the BRBCL and directed the BRBCL to purchase the said land from the owner Shri Gopal Prasad Singh and 0.905 acres from the Govt. Land was being transferred to BRBCL for the purpose of the plant6. Source information also revealed that as per procedure possession of land is taken in the presence of land owners after identification of their land but when BRBCL officers along with other officers visited the site on 11 & 12.04.2017 for possession of the aforesaid land, the claimant Gopal prasad singh (now deceased) allegedly could not identify his own land and many villagers, who gathered there opposed that the said land was not owned by Shri Gopal Prasad Singh (now deceased). In this regard a video/CD was also prepared at the spot. In furtherance of the conspiracy, vide letter 1707 dated 26.05.2017 Shri Kanwal Tanuj, DM, Aurangabad thereafter directed BRBCL to make payment of compensation for the land (Khata No.12, Plot No.1, of Mauja Kajrine) to Gopal Prasad Singh (now deceased) within 48 hours. Vide letter No.151, dated 12.06.2017 Shri C. Shiv Kumar, CEO, BRBCL, Nabinagar made payment of Rs.2,07,84,583/- to Shri Gopal Prasad Singh (now deceased) despite having the knowledge that Shri Gopal Prasad Singh could not identify the land and many villagers who had gathered there opposed that the said land was not owned by Shri Gopal Prasad Singh (now deceased)7. Source has further informed that an a/c. Payee Cheque No.382774, dated 29.05.2017 for Rs.2,07,84,583/- was issued from account No.30450307785 by Bhartiya Rail Bijlee Co. Ltd. in favour of Shri Gopal Prasad Singh (now deceased) and same was credited in a/c number 6082000100097579 of Shri Gopal Prasad Singh (now deceased) maintained in SBI, Nabinagar branch, District-Aurangabad (Bihar). This amount was transferred via RTGS/SBINR520170529 in this account and subsequently the money was withdrawn. Thus, BRBCL was caused a wrongful loss to the tune of Rs.2,07,84,5831- and corresponding wrongful gain to themselves8. The above facts and circumstances prima-facie disclose commission of offences punishable U/s. 120-B, 420, 467, 468 & 471 IPC and Section 73(2) r/w Section 13 (1) (d) of the P.C. Act, 1988 against Shri C. Shiv Kumar, CEO, BRBCL Nabinagar, Shri Kanwal Tanuj, DM, Aurangabad and other unknown public servants of BRBCL and local administration and other private personsA Regular case is, therefore, registered and entrusted to Shri Pramod Kumar, Dy. Supdt. of police CBI, AC-I, New Delhi Supdt. of Police, CBI/AC-I, New Delhi for investigation and report5. As aforesaid, the appellant filed writ petition for quashing of the said FIR on the ground that it does not disclose any criminal offence against the appellant and for a declaration that it has been lodged against the appellant (a State Government employee), without prior permission of the State Government and was thus in violation of Section 6 of the Delhi Special Police Establishment Act, 1946 (for short, the 1946 Act). In other words, the FIR has been registered without jurisdiction and is void ab initio6. The High Court after considering the grounds of challenge, proceeded to hold that BRBCL is an affiliate or associate in relation to National Thermal Power Company (NTPC) Ltd. and the Railways respectively. The registered office of BRBCL was in the Union Territory of Delhi (National Capital Territory of Delhi) and the allegation regarding defrauding the said undertaking (BRBCL) and siphoning of funds had occurred in the Union Territory of Delhi (National Capital Territory of Delhi). The funds for implementation of the project through BRBCL were provided by the Central Government in terms of the Union Budget proposed in the year 2005-06. The High Court then concluded that criminal conspiracy for committing the offence was thus hatched at Delhi and for all these reasons, the CBI was competent to register FIR at Delhi and to carry on investigation in that regard. Additionally, the High Court referred to the notification dated 19.2.1996 issued by the State Government of Bihar according consent to all members of the Delhi Special Police Establishment (for short, the DSPE) to exercise powers and jurisdiction under the 1946 Act in the whole of the State of Bihar in respect of the stated offences. The said notification reads thus: -Government of BiharHome (Police) DepartmentNotificationO.O. No.____________/- In exercise of the powers conferred by section 6 of the Delhi Special Police Establishment Act. 1945 (Act XXV of 1945), and in supersession of all previous notifications on the subject the Governor of Bihar is pleased to accord his consent to all members of the Delhi Special Police Establishment to exercise powers and jurisdiction under the said Act in whole of the State of Bihar in respect of the investigation of the followings:(a) Offences committed in connection with the affairs of the Govt. of India, Local authority subject to the control of the Government of India or any corporation, company or Bank owned or controlled by the Govt. of India(i) punishable under the prevention of corruption Act, 1947 (Act 2 of 1947);(ii) punishable under Section 403, 406, 407, 408, 409, 411, 412, 413, 414, 417, 418, 419, 420, 465, 466, 467, 468, 471 and 477-A of the Indian Penal Code (45 of 1860); and(iii) attempts, abetments and conspiracies in relation to, or in connection with the offences mentioned in clause (i) and (ii) above any other offence committed in the course of the same transaction arising out of the same facts(b) offences punishable under the Central Acts specified in the Annexure appended hereto,Provided that where public servants employed in connection with the affairs of the Government of Bihar and persons employed in connection with the affairs of any local authority subject to the control of the Government of Bihar or any corporation, company or Bank owned or controlled by the Government of Bihar or any institution receiving or having received any financial aid from the Government of Bihar are concerned in offences referred to in items a(i) to (iii) and (b) above, the prior consent of the State Government shall be obtained for the investigation of any such offence by the Delhi Special Police Establishment(D.P. Maheshwari)Commissioner & SecretaryHome DepartmentThe High Court negatived the argument of the appellant that the proviso in the said notification restricted the general consent accorded by the State. It was urged by the appellant that the purport of the proviso was to make it amply clear that no consent was given by the State Government in terms of Section 6 of the 1946 Act to authorise the members of the DSPE to exercise powers and jurisdiction under the 1946 Act in respect of offences in which public servants employed in connection with the affairs of the Government of Bihar were allegedly involved. Investigation in respect of such cases could be undertaken only after taking prior consent of the State Government of Bihar and not otherwise7. The High Court noted that it was not the case of the appellant that the offences referred to in the subject FIR were not covered by the notification issued by the Central Government in terms of Section 3 of the 1946 Act. The High Court held that the investigation in the present case had begun in respect of affairs of an agent of a public sector undertaking and the Central Government through Ministry of Railways with regard to siphoning of funds by the agent entering into a criminal conspiracy with some persons who incidentally reside outside the Union Territory. Investigation qua them could be proceeded by the CBI without the consent of the concerned State Government where the co-accused resided. The High Court in paragraphs 46 and 48 noted thus: -46. Once the offences or the classes of offences are covered under the notification issued by the Central Government in terms of Section 3 and the offences alleged are said to be in respect of the funds of the government being siphoned through its agent which is a corporate body and a government company through its Chief Executive Officer and the registered office of the said corporate body is in the Union Territory of Delhi, the institution of the FIR as well as the investigation taken up pursuant thereto cannot be stopped and no consent of the government of Bihar would be required to investigate the persons involved in commission of the offence. Such person may be an officer working in connection with the affairs of the State of Bihar, but where the offences alleged are in connection with the funds of the Government of India through its agent a government company having its registered office at Union Territory of Delhi, it would be immaterial that any other person involved in commission of the said offence is working in connection with the affairs of the State Government. In the facts of the present case, this Court is of the considered opinion that no consent of the State Government in terms of Section 6 of the DSPE Act, 1946 would be required48. Even though learned Senior counsel representing the petitioner submits that in the present case the B.R.B.C.L. cannot be said to be a company owned or controlled by the Central Government, this Court is of the considered opinion that first part of the notification dated 19.02.1996 in so far as it states that the consent of the government is in respect of the investigation of the offence committed in connection with the affairs of the Government of India, local authority subject to the control of the Government of India, local authority subject to the control of the Government of India or any Corporation, Company or Bank owned and controlled by the Government of India cannot be given a narrow meaningWhile dealing with the proviso in the subject notification dated 19.2.1996, the High Court in paragraphs 57 and 58 observed thus:-57. The proviso to the notification dated 19.02.1996 issued by the Government of Bihar cannot come to the rescue of the petitioner in the present set of facts and circumstances where the C.B.I. while investigating a case involving a government company who is acting as an agent of the public sector undertaking and Ministry of Railways finds that some more persons including those who are public servants presently working and serving under the Government of Bihar are also involved in the conspiracy which has an ultimate effect of causing unlawful loss to the principal for which the agent is working, no individual consent would be required in terms of Section 6 of the D.S.P.E. Act58. The contention of the learned Senior Counsel based on the proviso part of the notification dated 19.02.1996 could have been worth consideration if it could have been shown to this Court that the entire alleged offence in respect of which the C.B.I. has assumed jurisdiction to investigate relate to an affairs of the State of Bihar. This Court would, therefore, reiterate that in the facts situation of the present case no consent at all would be required from the Government of BiharThe High Court accordingly rejected the challenge put forth by the appellant and dismissed the writ petition being devoid of merit.

Reasoning:
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.