M/S Fertico Marketing And … vs Central Bureau Of Investigation … on 17 November, 2020


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Supreme Court of India

M/S Fertico Marketing And … vs Central Bureau Of Investigation … on 17 November, 2020

Author: B.R. Gavai

Bench: B.R. Gavai, Hrishikesh Roy

                                                                   REPORTABLE
                                      IN THE SUPREME COURT OF INDIA
                                     CRIMINAL APPELLATE JURISDICTION

                                  CRIMINAL APPEAL NOS. 760- 764 OF 2020
                                 [Arising out of SLP(Crl.) Nos. 8342-46 of 2019]

                         M/S FERTICO MARKETING AND
                         INVESTMENT PVT. LTD. AND ORS. ETC.              …Appellant(s)

                                                    VERSUS

                         CENTRAL BUREAU OF INVESTIGATION
                         AND ANOTHER ETC.                              …Respondent(s)

                                                     WITH

                                  CRIMINAL APPEAL NOS. 765-767 OF 2020
                                 [Arising out of SLP(Crl.) Nos. 8314-16 of 2019]

                                  CRIMINAL APPEAL NOS. 768-769 OF 2020
                                 [Arising out of SLP(Crl.) Nos. 8420-21 of 2019]

                                  CRIMINAL APPEAL NOS. 770-774 OF 2020
                                 [Arising out of SLP(Crl.) Nos. 1792-96 of 2020]

                                  CRIMINAL APPEAL NOS. 775-777 OF 2020
                                 [Arising out of SLP(Crl.) Nos. 1789-91 of 2020]

                                  CRIMINAL APPEAL NOS. 778-785 OF 2020
                                 [Arising out of SLP(Crl.) Nos. 1821-28 of 2020]



                                                JUDGMENT

B. R. GAVAI, J.

Signature Not Verified        Leave granted.
Digitally signed by
DEEPAK SINGH
Date: 2020.11.17

2. All these appeals challenge the common judgment and order
17:42:57 IST
Reason:

passed by the learned Single Judge of the Allahabad High Court
1
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 connivance with the unknown government

officials which led to loss of Rs.36.28 crore to the Central

Government. Accordingly, on 13 th 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’),

2
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 31 st 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

3
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?

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

4
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?

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 6 th 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

5
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 17 th 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 31 st October 2015 and 20th

December 2015. The learned Single Judge passed an order on 5 th

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 5 th April 2018, the State

Government filed various affidavits through the Secretary, Home
6
and Principal Secretary, Home. The stand taken by the State

Government in the said affidavits was that the Notification dated 15 th

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

7
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 filed

against the said public servants of the State Government, the

8
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

9
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 Others 1.

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 investigate the matter. It

is submitted, that the Post-Facto sanction granted on 7 th September

2018, would not cure the defect of obtaining the prior consent. Both

1(2012) 8 SCC 106

10
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 7 th 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

11
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 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

12
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 15 th 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
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

13
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

14
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, 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

15
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 Delhi 2, 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 of the
evidence. This distinction may have a bearing on the

2 [1955] 1 SCR 1150

16
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
3 (1987) 2 SCC 74

17
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 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.

18

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 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.

4 (2003) 6 SCC 195
5 [1955] 1 SCR 1150

19

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 Others 6. 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 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

6 2020 SCC OnLine SC 395

20
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.

7 (2012) 8 SCC 106

21

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,

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.

……………………………J.

[A.M. KHANWILKAR]

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………………………….J.

[B. R. GAVAI]

NEW DELHI;

NOVEMBER 17, 2020.

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