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, 1989Notification
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, for13
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 7417
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]
22
………………………….J.
[B. R. GAVAI]
NEW DELHI;
NOVEMBER 17, 2020.
23