M/S. FERTICO MARKETING AND INVESTMENT PVT. LTD AND ORS. ETC. versus CENTRAL BUREAU OF INVESTIGATION AND ANOTHER ETC.
[2020] 12 S.C.R. 956, Supreme Court of India, 2020
Outcome: Disposed off
Segment: Ratio
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M/S. FERTICO MARKETING AND
INVESTMENT PVT. LTD AND ORS. ETC.
v.
CENTRAL BUREAU OF INVESTIGATION
AND ANOTHER ETC.
(Criminal Appeal Nos. 760-764 of 2020 Etc.)
NOVEMBER 17, 2020
[A. M. KHANWILKAR AND B. R. GAVAI, JJ.]
Delhi Special Police Establishment Act, 1946:
s.6 – Consent under – Scope of – FIR by CBI alleging offences
u/ss. 120B and 420 IPC and s. 13(2) r/w. s. 13(1)(d) of Prevention
of Corruption Act, 1988 (PC Act) – Against Director of coal-
purchasing company and unknown public servants – During
investigation two public servants of the State Government were found
to be part of the conspiracy – Charge-sheet filed against the Director
of the coal-purchasing company and against the public servants
after obtaining sanction u/s. 19 of PC Act – Petitions u/s. 482 Cr.
P.C. seeking quashing of the criminal proceedings – Single Judge
of High Court dismissed the petitions holding that post-facto consent
after completion of investigation would be a valid consent u/s. 6 –
Appeal to Supreme Court – Held: As regards private individuals no
consent is required u/s. 6 and hence there was no embargo in
registering FIR against them – As regards public servants, the post-
facto consent u/s. 6 given by the State Government  was valid – The
public servants have also not been able to show any prejudice
caused to them or any miscarriage of justice, in absence of prior
consent u/s. 6 – Matter remitted to High Court to decide other
issues
raised before the High Court – Code of Criminal Procedure, 1973
– s.482.
Disposing of the appeals, the Court
HELD: 1. Though Section 5 of Delhi Special Police
Establishment Act, 1946 (DSPE Act) enables the Central
Government to extend the powers and jurisdiction of Members
of the Delhi Special Police Establishment (DSPE) beyond the
Union Territories to a State, the same is not permissible unless,
[2020] 12 S.C.R. 956
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a State grants its consent for such an extension within the area of
State concerned under Section 6 of the DSPE Act. Obviously the
provisions are in tune with the federal character of the
Constitution, which has been held to be one of the basic structures
of the Constitution. The State of Uttar Pradesh has accorded a
general consent for extension of powers and jurisdiction of the
Members of DSPE, in the whole of State of Uttar Pradesh for
investigation of offences under the Prevention of Corruption Act,
1988 and attempts, abetments and conspiracies in relation to all
or any of the offence or offences committed in the course of the
transaction and arising out of the same facts. The same is however
with a rider, that no such investigation shall be taken up in cases
relating to the public servants, under the control of the State
Government, except with prior permission of the State
Government. [Paras 11, 13][966-E-F; 967-E-F]
2. Insofar as the private individuals are concerned, there
is no embargo with regard to registration of FIR against them
inasmuch as, no specific consent would be required under Section
6 of the DSPE Act. Vide notification dated 15th June 1989, the
State of Uttar Pradesh has accorded a general consent thereby,
enabling the Members of DSPE to exercise powers and
jurisdiction in the entire State of Uttar Pradesh with regard to
investigation of offences under the Prevention of Corruption Act,
1988 and also to all or any of the offence or
offences committed
in the course of the same transaction or arising out of the same
facts. As such, for registration of FIR against the private
individuals for the offences punishable under the Prevention of
Corruption Act and other offences under the IPC, committed in
the course of the same transaction or arising out of the same
facts, the Members of DSPE have all the powers and jurisdiction.
As such, there are no merits in the appeals filed by the private
individuals. [Para 13][967-F-H; 968-A-B]
3.1 Insofar as the two public servants in the present case
are concerned, who have undoubtedly been working under the
State Government, initially, were not named in the FIR. However,
their names surfaced during the course of investigation and thus
sanction was granted for their prosecution under Section 19 of
the Prevention of Corruption Act vide order dated 31st May 2012,
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prior to filing of the charge-sheet. It is also not in dispute that
Post-Facto consent was given by the State Government vide
notification dated 7th September 2018, under Section 6 of the
DSPE Act to the authorities to investigate the public servants.
[Para 14][968-B-C]
3.2 In the present case, there are no pleadings by the public
servants with regard to the prejudice caused to them on account
of non-obtaining of prior consent under Section 6 of the DSPE
Act qua them specifically in addition to the general consent in
force, nor with regard to miscarriage of justice. There is no reason
to interfere with the finding of the High Court with regard to not
obtaining prior consent of the State Government under Section 6
of the DSPE Act. [Paras 19, 21][972-B-C; E-F]
H. N. Rishbud and Inder Singh v. The State of Delhi
[1955] 1 SCR 1150; State of Karnataka v. Kuppuswamy
Gownder and Others (1987) 2 SCC 74 : [1987] 2 SCR
295; Union of India v. Prakash P. Hinduja and Another
(2003) 6 SCC 195 : [2003] 1 Suppl. SCR 307; Kanwal
Tanuj v. State of Bihar and Others (2020) SCC OnLine
SC 395 – relied on.
Ms. Mayawati v. Union of India and Others (2012) 8
SCC 106 : [2012] 7 SCR 33 – referred to.
4. The Single Judge while referring two questions to the
Division Bench, had observed that the question Nos. 2, 3 and 4
can be decided only after the question No. 1 was answered. After
the matter was returned to the Single Judge by the Division
Bench, the Single Judge was bound to answer question Nos. 2, 3
and 4. The Single Judge, in the impugned order, has not at all
dealt with question Nos. 2, 3 and 4. Therefore, the matter is
remitted to the Single Judge for deciding the question Nos. 2, 3
and 4 on its own merits. The merits of the matter have not been
considered and all questions available to both the parties are
kept open. [Paras 22, 23][972-F-H; 973-A]
CASE LAW REFERENCE
[2012] 7 SCR 33
referred to
Para 8
[1955] 1 SCR 1150
relied on
Para 15
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[1987] 2 SCR 295
relied on
Para 16
[2003] 1 Suppl. SCR 307
relied on
Para 17
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 760-764 of 2020.
From the Judgment and Order dated 14.08.2019 of the High Court
of Judicature at Allahabad, Lucknow Bench, Lucknow in Criminal Misc.
Case No. 4253, 4251, 4252, 4250 and 4446 of 2012.
With
Criminal Appeal Nos. 765-767, 768-769, 770-774, 775-777, 778-
785 Of 2020.
S. V. Raju, ASG, Ajit Kumar Sinha, Sr. Adv., Ashwarya Sinha,
Srijan Sinha, Niraj Sharma, Ambhoj Kumar Sinha, Amit Anand Tiwari,
Ms. Shakun Sharma, Ms. Mary Mitzy, Ms. Devyani Gupta, A. K. De,
Anuj Chauhan, Ms. Ananya De, Pramit Saxena, Manan Popli, Kush
Chaturvedi, Divyansh Rathi, Arvind Kumar Sharma, Ashwani Kumar
Dubey, Manish Kumar, Amit Sharma, Dipesh Sinha, Ms. Pallavi Barua,
Advs. for the appearing parties.
The Judgment of the Court was delivered by
B. R. GAVAI, J.
1. Leave granted.
2. All these appeals challenge the common judgment and order
passed by the learned Single Judge of the Allahabad High Court dated
14th August 2019. The facts in brief giving rise to the present appeals
are as under:-
On 18th October 2007, Coal India Limited had introduced a new
policy, whereunder the Fuel Supply Agreement (hereinafter referred to
as ‘FSA’) was required to be entered into by coal companies and
purchasers of coal. In pursuance of the said policy, on 30th April 2008,
an FSA was entered into between the appellants in appeals arising out
of SLP(Crl.) Nos.
8342-46 of 2019 and the Coal India Limited. On
25th March 2011, a joint surprise raid was conducted by the CBI in
factory premises of Fertico Marketing and Investment Private Limited
and it was found that the coal purchased under the FSA was sold in the
black market. It was further found by CBI that this was done in
M/S. FERTICO MARKETING AND INVESTMENT PVT. LTD v.
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connivance with the unknown government officials which led to loss of
Rs.36.28 crore to the Central Government. Accordingly, on 13th April
2011, an FIR came to be registered by CBI for the offences punishable
under Sections 120B and 420 of the IPC and Section 13 (2) read with
Section 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter
referred to as ‘the PC Act’) against Mr. Anil Kumar Agarwal, Director
of said M/s Fertico Marketing and Investment Pvt. Ltd. and unknown
officials of the District Industries Centre (hereinafter referred to as
‘DIC’), District Chandauli, so also unknown officials of Northern
Coalfields Limited, Singrauli, Madhya Pradesh.
3. During the course of investigation, it was found that two officers
namely Ram Ji Singh, the then General Manager, DIC, Chandauli and
Yogendra Nath Pandey, Assistant Manager, DIC, Chandauli were also
part of the conspiracy. Investigation revealed that these two officials
had abused their official positions and fraudulently and dishonestly sent
false status reports regarding working conditions of the accused
companies and thereby, dishonestly induced the Northern Coalfields
Limited to supply coal on subsidized rates, for obtaining pecuniary
advantage.
4. The competent authority granted sanction to prosecute the two
public servants on 31st May 2012, under Section 19 of the PC Act.
Charge-sheet was filed on 31st May 2012, against the appellants under
Section
120B read with Section 420, Sections 467, 468 and 471 of the
IPC. Various petitioners approached the High Court by filing petitions
under Section 482 Cr.P.C. praying for quashing the charge-sheet/
summoning order and consequential proceedings pending before the
Special Judge, Anti-Corruption, CBI. The learned Single Judge of the
High Court vide his order dated 24th February 2015, framed the following
four questions for determination:-
Q.No.1:- Whether the investigation conducted by the CBI in
these bunch of cases are illegal and without jurisdiction for
non-compliance of section 6 of DSPE Act? If so, its effect?
Q.No.2- Whether the cases are overwhelmingly and
predominantingly of civil nature as purely bases on breach
of contract (FSA) and the criminal prosecutions are liable to
be quashed?
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Q.No.3- Whether CBI did not follow doctrine of parity in filing
the criminal prosecutions against the petitioners? If so, its
effect?
Q.No.4- Whether in absence of Officers /official of NCL,
charge of Criminal conspiracy under section 120-B IPC could
be made out?
Having framed the aforesaid questions, the learned Single Judge
has found in the judgment, that another Single Judge of the said High
Court has taken a view, that when the State Government had granted
sanction to prosecute an accused, it is implied that the permission for
investigation was also granted. The learned Single Judge disagreed with
the earlier view taken by another learned Single Judge and was of the
view, that since in the present case, investigation conducted by the CBI
was without the previous permission/consent of the Government of UP
as such, was in breach of the mandatory provisions of Section 6 of the
Delhi Special Police Establishment Act, 1946 (hereinafter referred to as
“DSPE Act”). He was therefore of the view, that the investigation
suffered with incurable defect of lacking inherent jurisdiction. However,
the learned Single Judge found, that since he had disagreed with the
earlier view of learned Single Judge and since there was no binding
precedent on the issue, it was appropriate to refer question Nos.1 and 2
for decision by the Division Bench. The learned Single Judge vide his
detailed order dated 24th February 2015, referred the following two
questions to the Division
Bench:-
1. Whether investigation of such cases having involvement of
Public servant under control of State Government of U.P.
as well as private individuals for offences punishable under
the Prevention of Corruption Act, 1988 (49 of 1988), and
attempts, abetments and conspiracies in relation to all or
any of the offence or offences mentioned above and any
other offence or offences committed in the course of the
transaction and arising out of the same facts under the
G.O. of State Government Dated 15.6.1989 can be
investigated by CBI assuming suo moto jurisdiction under
section 6 of DSPE Act without the previous permission or
consent of State Government?
M/S. FERTICO MARKETING AND INVESTMENT PVT. LTD v.
CENTRAL BUREAU OF INVESTIGATION [B. R. GAVAI, J.]
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2. Whether total non compliance/absence of previous consent
of State Government under section 6 of DSPE Act could be
cured by grant of prosecution sanction under section 197
Cr.P.C. of under section 19 of P.C. Act by State Government
or competent authority ?
5. The Division Bench vide its judgment and order dated 6th July
2015, answered the reference in the following terms:-
“Our answer therefore to question no.1 is that since the
question as framed proceeds on an erroneous premise of facts
available in the case, the same is answered by holding that
the Government Order dated 15.6.l989 permits investigation
and it was not a case of assuming suo motu jurisdiction by
the CBI to investigate on the facts of the present case.
The second question framed by the learned Single Judge
is returned unanswered in view of the fact that the affidavit
of the State Government had not been invited by the learned
Single Judge before proceeding to raise a doubt and frame
the second question to be answered in this reference as
observed above.
With the aforesaid answers to the two questions framed,
let the papers be placed before the concerned court for
proceeding in the matter in accordance with law.”
After the reference was answered, the matter again came up
before the learned Single Judge, who by order dated 17th August 2015,
directed the State Government to file an affidavit. In compliance with
the directions issued by the High Court,
the State Government filed
affidavits dated 31st October 2015 and 20th December 2015.  The learned
Single Judge passed an order on 5th April 2018, to the following effect:-
“Sri P.K. Singh, learned AGA prays for and is granted
ten days time to file an affidavit of the responsible secretary
of the Home Department regarding interpretation and scope
of notification dated 15.06.1983 with regard to Section 6 of
the Delhi Police Special Provisions Act.
Put up this case on 18.04.2018.”
6. In compliance with the order dated 5th April 2018, the State
Government filed various affidavits through the Secretary, Home and
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Principal Secretary, Home. The stand taken by the State Government in
the said affidavits was that the Notification dated 15th June 1989, accorded
consent to the powers and jurisdiction of the Members of Delhi Special
Police Establishment (hereinafter referred to as ‘the DSPE’) in whole
of the State of Uttar Pradesh for investigation of offences under the
Prevention of Corruption Act, with the rider that no such investigation
shall be taken up in cases relating to the public servants, under the control
of the State Government except with the prior permission of the State
Government. It was the stand of the State Government, that restriction
of prior permission of the State Government was limited only in relation
to public servants under the control of the State Government and not to
any private individual. It was further the stand of the Government, that
the notification permits the competent authority under DSPE Act for
investigation of offences as mentioned in the notification in the State of
Uttar Pradesh. However, if any public servant, under the control of the
State Government was named in the First Information Report, prior
permission of the State Government would be required for investigation.
Further stand of the State Government was that, public servant under
the control of the State Government, if not named in the First Information
Report, but if, in the further investigation, is found to be involved in the
said crime, the prior permission of
the State Government would not be
required for investigation. The State Government further stated in the
affidavit, that insofar as two public servants are concerned i.e. Sri Ram
Ji Singh, the then General Manager, DIC, Chandauli and Sri Yogendra
Nath Pandey, Assistant Manager, DIC, Chandauli, the sanction under
Section 6 of the DSPE Act was granted vide notification dated
7th September 2018, in respect of the FIR registered by CBI on
13th April 2011, under Sections 120B and 420 IPC and Section 13 (2)
read with Section 13(1)(d) of the PC Act.
7. The learned Single Judge vide the impugned order found, that
the State Government had granted Post-Facto consent vide  notification
dated 7th September 2018, against the two public servants of the State
Government whose names had figured during the course of investigation.
The learned Single Judge found, that the Post-Facto consent was sufficient
for investigation by the CBI for the offences against the two public
servants, whose names though did not find place in the FIR but were
found in charge-sheet. The learned Single Judge held, that if the names
of the said public servants did not figure in the FIR and their names
came to light during the course of investigation and charge-sheet was
M/S. FERTICO MARKETING AND INVESTMENT PVT. LTD v.
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filed against the said public servants of the State Government, the consent
given after completion of investigation would be a valid consent under
Section 6 of the DSPE Act. The learned Single Judge further found, that
the question of consent can be raised only by the public servants who
have been named in the FIR and not by the private individuals, who had
come before the Court. The learned Single Judge therefore, dismissed
all the petitions.  Being aggrieved thereby, the present appeals.
8. Shri Mukul Rohatgi, learned Senior Counsel appearing on behalf
of the appellants submitted, that in the absence of the consent of the
State Government under Section 6 of the DSPE Act, the DSPE (CBI)
had no powers to conduct investigation in view of the provisions contained
in Section 6 of the DSPE Act. He submitted, that the consent of the
State Government is mandatory as is seen from Section 6 of the DSPE
Act. The learned Senior Counsel would submit, that failure in obtaining
the consent prior to registration of the FIR would go to the root of the
matter and vitiate the entire investigation. He submitted, that the
appellants-private individuals have been charged with the offences
punishable under Sections 120B and 420 of IPC and Section 13(2) read
with Section 13(1)(d) of the Prevention of Corruption Act.  He submitted,
that an offence under the provisions of the Prevention of Corruption Act
can be registered only against
public servant. He submitted, that since
the prosecution had invoked Section 120B of the IPC, the mandatory
requirement is that there has to be a meeting of minds. He submitted,
that an offence under Section 120B of the IPC read with Section 13(1)(d)
of the Prevention of Corruption Act cannot stand unless there is a meeting
of minds between public servant and the private individuals and as such,
an FIR could not be registered. He submitted, that investigation in a
matter which concerns the conspiracy between the private individual
and the public servant, the same would not be permitted unless there is
a valid consent under Section 6 of the DSPE Act. The learned Senior
Counsel strongly relied on the judgment of this Court in the case of
Ms. Mayawati v. Union of India and Others1.
9. Mr. Ajit Kumar Sinha, learned Senior Counsel appearing on
behalf of the accused who are the public servants in appeals arising out
of SLP(Crl.) Nos. 8420-21 of 2019 submitted, that insofar as the
appellants-public servants are concerned, in the absence of a valid
consent, the CBI could not have exercised powers and jurisdiction to
1 (2012) 8 SCC 106
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investigate the matter.  It is submitted, that the Post-Facto sanction granted
on 7th September 2018, would not cure the defect of obtaining the prior
consent.  Both the learned Senior Counsel therefore submitted, that the
proceedings are liable to be quashed and set aside.
10. Shri S.V. Raju, learned Additional Solicitor General would
submit, that the prior consent under Section 6 of the DSPE Act is not
mandatory but directory. He submitted, that in any case unless the
appellants point out that on account of the procedural irregularity of not
obtaining the prior consent, prejudice is caused to the appellants or it has
resulted in miscarriage of justice, the investigation would not be vitiated.
He submitted, that insofar as the appellants-private individuals are
concerned, the grievance of the said appellants is totally unwarranted
inasmuch as the Notification dated 15th June, 1989 vide which a general
consent has been granted to investigate the matters arising out of PC
Act, unless it concerns a public servant under the control of the State
Government. Insofar as the public servants are concerned, the learned
ASG submitted, that in any case, the consent has been granted after
completion of the investigation on 7th September 2018 and as such the
defect, if any, stands cured. He submitted, that in any case, there are no
pleadings by the appellants-public servants with regard to prejudice caused
to them or with regard to miscarriage of justice. He therefore
submitted,
that no interference is warranted with the judgment of the High Court.
11. It will be relevant to refer to Sections 5 and 6 of the DSPE
Act as under:-
5. Extension of powers and jurisdiction of special police
establishment to other areas.— (1) The Central Government
may by order extend to any area (including Railway areas) in
a State, not being a Union territory, the powers and
jurisdiction of members of the Delhi Special Police
Establishment for the investigation of any offences or classes
of offences specified in a notification under section 3.
(2) When by an order under sub-section (1) the powers and
jurisdiction of members of the said police establishment are
extended to any such area, a member thereof may, subject to
any orders which the Central Government may make in this
behalf, discharge the functions of a police officer in that area
and shall, while so discharging such functions, be deemed to
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be a member of the police force of that area and be vested
with the powers, functions and privileges and be subject to
the liabilities of a police officer belonging to that police force.
(3) Where any such order under sub-section (1) is made
relation to any area, then, without prejudice prejudice to the
provisions of sub-section (2), any member of the Delhi Special
Police Establishment of or above the rank of Sub-Inspector
may, subject to any orders which the Central Government may
make in this behalf, exercise the powers of the officer in charge
of a police station in that area and when so exercising such
powers, shall be deemed to be an officer in charge of a police
station discharging the functions of such an officer within
the limits of his station.
6. Consent of State Government to exercise of powers and
jurisdiction.— Nothing contained in section 5 shall be deemed
to enable any member of the Delhi Special Police
Establishment to exercise powers and jurisdiction in any area
in a State, not being a Union territory or railway area],
without the consent of the Government of that State.
It could thus be seen, that though Section 5 enables the Central
Government to extend the powers and jurisdiction of Members of the
DSPE beyond the Union Territories to a State, the same is not permissible
unless, a State grants its consent for such an extension within the area
of State concerned under Section 6 of the DSPE Act.
Obviously, the
provisions are in tune with the federal character of the Constitution,
which has been held to be one of the basic structures of the Constitution.
12. It would be relevant to refer to the notification issued by the
Government of Uttar Pradesh dated 15th June 1989, which reads as
under:-
“Government of Uttar Pradesh
Home(Police) Section-1
No.3442/VIII-1-84/88
Lucknow, dated : June 15, 1989
Notification
In pursuance of the Provisions of Section 6 of the Delhi
Special Police Establishment Act, 1946 ( 25 of 1946) the
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Governor of the State of Uttar Pradesh is pleased to accord
consent to the extension of powers and jurisdiction of the
members of the Delhi Special Police establishment in whole
of the State of Uttar Pradesh, for investigation of offences
punishable under the Prevention of Corruption Act, 1988 (49
of 1988), and attempts, abetments and conspiracies in relation
to all or any of the offence or offences mentioned above and
any other offence or offences committed in the course of the
transaction and arising out of the same facts, subject however
to the condition that no such investigation shall be taken up
in cases relating to the public servants, under the control of
the State Government except with the prior permission of the
State Government.
BY ORDER IN THE NAME OF THE GOVERNOR.
Sd/-
(S.K. TRIPATHI)
HOME SECRETARY TO THE GOVT
OF UTTAR PRADESH”
13. It could thus be seen, that the State of Uttar Pradesh has
accorded a general consent for extension of powers and jurisdiction of
the Members of DSPE, in the whole of State of Uttar Pradesh for
investigation of offences under the Prevention of Corruption Act, 1988
and attempts, abetments and conspiracies in relation to all or any of the
offence or offences committed in the course of the transaction and arising
out of the same facts. The same is however with a rider, that no such
investigation shall be taken up in cases relating to the public servants,
under the control of the State Government, except with prior
permission
of the State Government. As such, insofar as the private individuals are
concerned, there is no embargo with regard to registration of FIR against
them inasmuch as, no specific consent would be required under Section
6 of the DSPE Act. Vide notification dated 15th June 1989, the State of
Uttar Pradesh has accorded a general consent thereby, enabling the
Members of DSPE to exercise powers and jurisdiction in the entire State
of Uttar Pradesh with regard to investigation of offences under the
Prevention of Corruption Act, 1988 and also to all or any of the offence
or offences committed in the course of the same transaction or arising
out of the same facts. As such, for registration of FIR against the private
M/S. FERTICO MARKETING AND INVESTMENT PVT. LTD v.
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individuals for the offences punishable under the Prevention of Corruption
Act and other offences under the IPC, committed in the course of the
same transaction or arising out of the same facts, the Members of DSPE
have all the powers and jurisdiction. As such, we find absolutely no
merits in the appeals filed by the private individuals.
14. Insofar as the two public servants who have been undoubtedly
working under the State Government are concerned, initially, they were
not named in the FIR. However, their names surfaced during the course
of investigation and thus sanction was granted for their prosecution under
Section 19 of the Prevention of Corruption Act vide order dated 31st
May 2012, prior to filing of the charge-sheet. It is also not in dispute that
Post-Facto consent was given by the State Government vide notification
dated 7th September 2018, under Section 6 of the DSPE Act to the
authorities to investigate the public servants.
15. As early as in 1955, the question arose for consideration before
this Court, as to whether an investigation carried out by a police officer
below the rank of Deputy Superintendent of Police, under Section 5(4)
of the Prevention of Corruption Act, 1947, without the order of the
Magistrate of First Class, was mandatory or directory?  While holding
that the provision is mandatory, this Court considered a question as to
whether and to what extent, the trial which follows such
investigation, is
vitiated. The Court, in H.N. Rishbud and Inder Singh v. The State of
Delhi2, observed as under:-
“If, therefore, cognizance is in fact taken, on a police report
vitiated by the breach of a mandatory provision relating to
investigation, there can be no doubt that the result of the trial
which follows it cannot be set aside unless the illegality in the
investigation can be shown to have brought about a
miscarriage of justice. That an illegality committed in the
course of investigation does not affect the competence and
the jurisdiction of the Court for trial is well settled as appears
from the cases in Prabhu v. Emperor AIR 1944 PC 73
and Lumbhardar Zutshi v. The King AIR 1950 PC 26. These
no doubt relate to the illegality of arrest in the course of
investigation while we are concerned in the present cases with
the illegality with reference to the machinery for the collection
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of the evidence. This distinction may have a bearing on the
question of prejudice or miscarriage of justice, but both the
cases clearly show that invalidity of the investigation has no
relation to the competence of the Court. We are, therefore,
clearly, also, of the opinion that where the cognizance of the
case has in fact been taken and the case has proceeded to
termination., the invalidity of the precedent investigation does
not vitiate the result, unless miscarriage of justice has been
caused thereby.”
It could thus be seen, that this Court has held, that the cognizance
and the trial cannot be set aside unless the illegality in the investigation
can be shown to have brought about miscarriage of justice. It has been
held, that the illegality may have a bearing on the question of prejudice
or miscarriage of justice but the invalidity of the investigation has no
relation to the competence of the court.
16. It will also be apposite to note the following observations of
this Court in State of Karnataka v. Kuppuswamy Gownder and
Others3, while considering the provisions of Section 465 of the Cr.P.C.:-
14. The High Court, however, observed that provisions of
Section 465 CrPC cannot be made use of to regularise this
trial. No reasons have been stated for this conclusion. Section
465 CrPC reads as under:
“Finding or sentence when reversible by reason of
error, omission or irregularity.—(1) Subject to the
provisions hereinbefore contained, no finding, sentence
or order passed by a court of competent jurisdiction shall
be reversed or altered by a court of appeal, confirmation
or revision on account of any error, omission or irregularity
in the complaint, summons, warrant, proclamation, order,
judgment or other proceedings before or during trial or in
any inquiry or other proceedings under this Code, or any
error, or irregularity in any sanction for the prosecution,
unless in the opinion of that court, a failure of justice has
in fact been occasioned thereby.
(2) In determining whether any error, omission or
irregularity in any proceeding under this Code, or any
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error, or irregularity in any sanction for the prosecution
has occasioned a failure of justice, the court shall have
regard to the fact whether the objection could and should
have been raised at an earlier stage in the proceedings.”
It is provided that a finding or sentence passed by a court of
competent jurisdiction could not be set aside merely on the
ground of irregularity if no prejudice is caused to the accused.
It is not disputed that this question was neither raised by the
accused at the trial nor any prejudice was pleaded either at
the trial or at the appellate stage and therefore in absence of
any prejudice such a technical objection will not affect the
order or sentence passed by competent court. Apart from
Section 465, Section 462 provides for remedy in cases of trial
in wrong places. Section 462 reads as under:
“462. Proceedings in wrong place.—No finding, sentence
or order of any Criminal Court shall be set aside merely
on the ground that the inquiry, trial or other proceedings
in the course of which it was arrived at or passed, took
place in a wrong Sessions Division, district, sub-division
or other local area, unless it appears that such error has
in fact occasioned a failure of justice.”
This provision even saves a decision if the trial has taken
place in a wrong Sessions Division or sub-division or a district
or other local area and such an error could only be of some
consequence if it results in
failure of justice, otherwise no
finding or sentence could be set aside only on the basis of
such an error.
17. This Court, in the case of Union of India v. Prakash
P. Hinduja and Another4, while relying on the judgment of this Court in
H.N. Rishbud5 (supra), has observed thus:-
“21. …….The Court after referring to Prabhu v. Emperor AIR
1944 SC 73 and Lumbhardar Zutshi v. The King AIR 1950
PC 26 held that if cognizance is in fact taken on a police
report initiated by the breach of a mandatory provision relating
4 (2003) 6 SCC 195
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to investigation, there can be no doubt that the result of the
trial, which follows it cannot be set aside unless the illegality
in the investigation can be shown to have brought about a
miscarriage of justice and that an illegality committed in the
course of investigation does not affect the competence and
the jurisdiction of the Court for trial. This being the legal
position, even assuming for the sake of argument that the
CBI committed an error or irregularity in submitting the charge
sheet without the approval of CVC, the cognizance taken by
the learned Special Judge on the basis of such a charge sheet
could not be set aside nor could further proceedings in
pursuance thereof be quashed. The High Court has clearly
erred in setting aside the order of the learned Special Judge
taking cognizance of the offence and in quashing further
proceedings of the case.”
It could thus be seen, that this Court held that even for the sake of
argument that CBI had committed an error or irregularity in submitting
the charge-sheet without the approval of CVC, the cognizance taken by
the learned Special Judge on the basis of such a charge-sheet, would not
be set aside nor could further proceedings in pursuance thereof be
quashed.
18. Recently, a bench of this Court consisting one of us
(Khanwilkar J.) had an occasion to consider the aforesaid provisions of
DSPE Act, in Kanwal Tanuj v. State of Bihar and Others6. In the said
case, the question arose, as to whether when an
offence was committed
in the Union Territory and one of the accused was residing/employed in
some other State outside the said Union Territory, the Members of DSPE
had power to investigate the same, unless there was a specific consent
given by the concerned State under Section 6 of the DSPE Act. The
contention on behalf of the appellant before the High Court was that
since the appellant was employed in connection with the affairs of the
Government of Bihar, an investigation was not permissible, unless there
was a specific consent of State of Bihar under Section 6 of the DSPE
Act. This Court rejected the said contention holding that if the offence is
committed in Delhi, merely because the investigation of the said offence
incidentally transcends to the Territory of State of Bihar, it cannot be
held that the investigation against an officer employed in the territory of
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Bihar cannot be permitted, unless there was specific consent under
Section 6 of the DSPE Act. While considering the argument on behalf
of the State, that such a consent was necessary for CBI to proceed with
the investigation, this Court held that the respondent-State having granted
general consent in terms of Section 6 of the DSPE Act vide notification
dated 19.02.1996, it was not open to the State to argue to the contrary.
19. In the present case, there are no pleadings by the public
servants with regard to the prejudice caused to them on account of non-
obtaining of prior consent under Section 6 of the DSPE Act qua them
specifically in addition to the general consent in force, nor with regard to
miscarriage of justice.
20. Insofar as the reliance on the judgment of this Court in
Mayawati7 (supra), the only question that fell for consideration before
this Court was, as to whether any of the orders passed by this Court
amounted to issuance of any direction to CBI to conduct a roving inquiry
against the conduct of the petitioner commencing from 1995 to 2003 or
as to whether the directions were restricted to irregularities in the Taj
Corridor matter. The court in the facts found, that there was no such
finding or satisfaction recorded by this Court in the matter of the
disproportionate assets of the petitioner on the basis of the status report
dated 11th September 2003 and as a matter of fact, the petitioner was
not
even a party before this Court.
21. In the result, we find no reason to interfere with the finding of
the High Court with regard to not obtaining prior consent of the State
Government under Section 6 of the DSPE Act.
22. However, it could be noticed that the learned Single Judge
while referring two questions to the Division Bench, had observed that
the question Nos. 2, 3 and 4 can be decided only after the question No.
1 was answered. After the matter was returned to the learned Single
Judge by the Division Bench, the learned Single Judge was bound to
answer question Nos. 2, 3 and 4. The learned Single Judge, in the
impugned order, has not at all dealt with question Nos. 2, 3 and 4.
23. We, therefore, remit the matter to the learned Single Judge
for deciding the question Nos. 2, 3 and 4 on its own merits. We clarify,
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that we have not considered the merits of the matter and all questions
available to both the parties are kept open.
24. The criminal appeals are disposed of in the aforesaid terms.
Accordingly, all pending applications, if any, shall stand disposed of.
Kalpana K. Tripathy
Appeals disposed of.
M/S. FERTICO MARKETING AND INVESTMENT PVT. LTD v.
CENTRAL BUREAU OF INVESTIGATION [B. R. GAVAI, J.]