M/S. FERTICO MARKETING AND INVESTMENT PVT. LTD AND ORS. ETC. versus CENTRAL BUREAU OF INVESTIGATION AND ANOTHER ETC. on 17 November 2020

956

SUPREME COURT REPORTS

[2020] 12 S.C.R.

AM/S. FERTICO MARKETING ANDINVESTMENT PVT. LTD AND ORS. ETC.

v.

CENTRAL BUREAU OF INVESTIGATIONAND ANOTHER ETC.

B

(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:C

s.6 – Consent under – Scope of – FIR by CBI alleging offencesu/ss. 120B and 420 IPC and s. 13(2) r/w. s. 13(1)(d) of Preventionof Corruption Act, 1988 (PC Act) – Against Director of coal-purchasing company and unknown public servants – Duringinvestigation two public servants of the State Government were foundDto be part of the conspiracy – Charge-sheet filed against the Directorof the coal-purchasing company and against the public servantsafter obtaining sanction u/s. 19 of PC Act – Petitions u/s. 482 Cr.P.C. seeking quashing of the criminal proceedings – Single Judgeof High Court dismissed the petitions holding that post-facto consentEafter completion of investigation would be a valid consent u/s. 6 –Appeal to Supreme Court – Held: As regards private individuals noconsent is required u/s. 6 and hence there was no embargo inregistering FIR against them – As regards public servants, the post-facto consent u/s. 6 given by the State Government was valid – Thepublic servants have also not been able to show any prejudiceFcaused to them or any miscarriage of justice, in absence of priorconsent u/s. 6 – Matter remitted to High Court to decide other issuesraised before the High Court – Code of Criminal Procedure, 1973– s.482.

Disposing of the appeals, the CourtG

HELD: 1. Though Section 5 of Delhi Special PoliceEstablishment Act, 1946 (DSPE Act) enables the CentralGovernment to extend the powers and jurisdiction of Membersof the Delhi Special Police Establishment (DSPE) beyond theUnion Territories to a State, the same is not permissible unless,H

a State grants its consent for such an extension within the area ofState concerned under Section 6 of the DSPE Act. Obviously theprovisions are in tune with the federal character of theConstitution, which has been held to be one of the basic structuresof the Constitution. The State of Uttar Pradesh has accorded ageneral consent for extension of powers and jurisdiction of theMembers of DSPE, in the whole of State of Uttar Pradesh forinvestigation of offences under the Prevention of Corruption Act,1988 and attempts, abetments and conspiracies in relation to allor any of the offence or offences committed in the course of thetransaction and arising out of the same facts. The same is howeverwith a rider, that no such investigation shall be taken up in casesrelating to the public servants, under the control of the StateGovernment, except with prior permission of the StateGovernment. [Paras 11, 13][966-E-F; 967-E-F]

2. Insofar as the private individuals are concerned, thereis no embargo with regard to registration of FIR against theminasmuch as, no specific consent would be required under Section6 of the DSPE Act. Vide notification dated 15[th] June 1989, theState of Uttar Pradesh has accorded a general consent thereby,enabling the Members of DSPE to exercise powers andjurisdiction in the entire State of Uttar Pradesh with regard toinvestigation of offences under the Prevention of Corruption Act,1988 and also to all or any of the offence or offences committedin the course of the same transaction or arising out of the samefacts. As such, for registration of FIR against the privateindividuals for the offences punishable under the Prevention ofCorruption Act and other offences under the IPC, committed inthe course of the same transaction or arising out of the samefacts, the Members of DSPE have all the powers and jurisdiction.As such, there are no merits in the appeals filed by the privateindividuals. [Para 13][967-F-H; 968-A-B]

3.1 Insofar as the two public servants in the present caseare concerned, who have undoubtedly been working under theState Government, initially, were not named in the FIR. However,their names surfaced during the course of investigation and thussanction was granted for their prosecution under Section 19 ofthe Prevention of Corruption Act vide order dated 31[st] May 2012, AB

C

D

E

F

G

H

Aprior to filing of the charge-sheet. It is also not in dispute thatPost-Facto consent was given by the State Government videnotification dated 7[th] September 2018, under Section 6 of theDSPE Act to the authorities to investigate the public servants.[Para 14][968-B-C]

B3.2 In the present case, there are no pleadings by the publicservants with regard to the prejudice caused to them on accountof non-obtaining of prior consent under Section 6 of the DSPEAct qua them specifically in addition to the general consent inforce, nor with regard to miscarriage of justice. There is no reasonto interfere with the finding of the High Court with regard to notCobtaining prior consent of the State Government under Section 6of 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. KuppuswamyGownder and Others (1987) 2 SCC 74 : [1987] 2 SCRD295; Union of India v. Prakash P. Hinduja and Another(2003) 6 SCC 195 : [2003] 1 Suppl. SCR 307; KanwalTanuj v. State of Bihar and Others (2020) SCC OnLineSC 395 – relied on.

Ms. Mayawati v. Union of India and Others (2012) 8ESCC 106 : [2012] 7 SCR 33 – referred to.

4. The Single Judge while referring two questions to theDivision Bench, had observed that the question Nos. 2, 3 and 4can be decided only after the question No. 1 was answered. Afterthe matter was returned to the Single Judge by the DivisionFBench, the Single Judge was bound to answer question Nos. 2, 3and 4. The Single Judge, in the impugned order, has not at alldealt with question Nos. 2, 3 and 4. Therefore, the matter isremitted to the Single Judge for deciding the question Nos. 2, 3and 4 on its own merits. The merits of the matter have not beenGconsidered and all questions available to both the parties arekept open. [Paras 22, 23][972-F-H; 973-A]

CASE LAW REFERENCE

[2012] 7 SCR 33

referred toPara 8relied onPara 15

[1955] 1 SCR 1150H

[1987] 2 SCR 295relied onPara 16A[2003] 1 Suppl. SCR 307relied onPara 17

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 760-764 of 2020.

From the Judgment and Order dated 14.08.2019 of the High Courtof Judicature at Allahabad, Lucknow Bench, Lucknow in Criminal Misc.Case No. 4253, 4251, 4252, 4250 and 4446 of 2012.

B

With

Criminal Appeal Nos. 765-767, 768-769, 770-774, 775-777, 778-785 Of 2020.

C

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, KushChaturvedi, Divyansh Rathi, Arvind Kumar Sharma, Ashwani KumarDubey, Manish Kumar, Amit Sharma, Dipesh Sinha, Ms. Pallavi Barua,Advs. for the appearing parties.

D

The Judgment of the Court was delivered by

B. R. GAVAI, J.

E

1. Leave granted.

2. All these appeals challenge the common judgment and orderpassed by the learned Single Judge of the Allahabad High Court dated14[th] August 2019. The facts in brief giving rise to the present appealsare as under:- F

On 18[th] October 2007, Coal India Limited had introduced a newpolicy, whereunder the Fuel Supply Agreement (hereinafter referred toas ‘FSA’) was required to be entered into by coal companies andpurchasers of coal. In pursuance of the said policy, on 30[th] April 2008,an FSA was entered into between the appellants in appeals arising outof SLP(Crl.) Nos. 8342-46 of 2019 and the Coal India Limited. On25[th] March 2011, a joint surprise raid was conducted by the CBI infactory premises of Fertico Marketing and Investment Private Limitedand it was found that the coal purchased under the FSA was sold in theblack market. It was further found by CBI that this was done in G

H

Aconnivance with the unknown government officials which led to loss ofRs.36.28 crore to the Central Government. Accordingly, on 13[th] April2011, an FIR came to be registered by CBI for the offences punishableunder Sections 120B and 420 of the IPC and Section 13 (2) read withSection 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafterreferred to as ‘the PC Act’) against Mr. Anil Kumar Agarwal, DirectorBof said M/s Fertico Marketing and Investment Pvt. Ltd. and unknownofficials of the District Industries Centre (hereinafter referred to as‘DIC’), District Chandauli, so also unknown officials of NorthernCoalfields Limited, Singrauli, Madhya Pradesh.

3. During the course of investigation, it was found that two officersCnamely Ram Ji Singh, the then General Manager, DIC, Chandauli andYogendra Nath Pandey, Assistant Manager, DIC, Chandauli were alsopart of the conspiracy. Investigation revealed that these two officialshad abused their official positions and fraudulently and dishonestly sentfalse status reports regarding working conditions of the accusedDcompanies and thereby, dishonestly induced the Northern CoalfieldsLimited to supply coal on subsidized rates, for obtaining pecuniaryadvantage.

4. The competent authority granted sanction to prosecute the twopublic servants on 31[st] May 2012, under Section 19 of the PC Act.ECharge-sheet was filed on 31[st] May 2012, against the appellants underSection 120B read with Section 420, Sections 467, 468 and 471 of theIPC. Various petitioners approached the High Court by filing petitionsunder Section 482 Cr.P.C. praying for quashing the charge-sheet/summoning order and consequential proceedings pending before theSpecial Judge, Anti-Corruption, CBI. The learned Single Judge of theFHigh Court vide his order dated 24[th] February 2015, framed the followingfour questions for determination:- Q.No.1:- Whether the investigation conducted by the CBI inthese bunch of cases are illegal and without jurisdiction fornon-compliance of section 6 of DSPE Act? If so, its effect?

G

Q.No.2- Whether the cases are overwhelmingly andpredominantingly of civil nature as purely bases on breachof contract (FSA) and the criminal prosecutions are liable tobe quashed?

H

Q.No.3- Whether CBI did not follow doctrine of parity in filingthe criminal prosecutions against the petitioners? If so, itseffect?

Q.No.4- Whether in absence of Officers /official of NCL,charge of Criminal conspiracy under section 120-B IPC couldbe made out?

Having framed the aforesaid questions, the learned Single Judgehas found in the judgment, that another Single Judge of the said HighCourt has taken a view, that when the State Government had grantedsanction to prosecute an accused, it is implied that the permission forinvestigation was also granted. The learned Single Judge disagreed withthe earlier view taken by another learned Single Judge and was of theview, that since in the present case, investigation conducted by the CBIwas without the previous permission/consent of the Government of UPas such, was in breach of the mandatory provisions of Section 6 of theDelhi Special Police Establishment Act, 1946 (hereinafter referred to as“DSPE Act”). He was therefore of the view, that the investigationsuffered with incurable defect of lacking inherent jurisdiction. However,the learned Single Judge found, that since he had disagreed with theearlier view of learned Single Judge and since there was no bindingprecedent on the issue, it was appropriate to refer question Nos.1 and 2for decision by the Division Bench. The learned Single Judge vide hisdetailed order dated 24[th] February 2015, referred the following twoquestions to the Division Bench:-

1. Whether investigation of such cases having involvement ofPublic servant under control of State Government of U.P.as well as private individuals for offences punishable underthe Prevention of Corruption Act, 1988 (49 of 1988), andattempts, abetments and conspiracies in relation to all orany of the offence or offences mentioned above and anyother offence or offences committed in the course of thetransaction and arising out of the same facts under theG.O. of State Government Dated 15.6.1989 can beinvestigated by CBI assuming suo moto jurisdiction undersection 6 of DSPE Act without the previous permission orconsent of State Government?

ABC

DEF

G

H

A2. Whether total non compliance/absence of previous consentof State Government under section 6 of DSPE Act could becured by grant of prosecution sanction under section 197Cr.P.C. of under section 19 of P.C. Act by State Governmentor competent authority ?

B5. The Division Bench vide its judgment and order dated 6[th] July2015, answered the reference in the following terms:- “Our answer therefore to question no.1 is that since thequestion as framed proceeds on an erroneous premise of factsavailable in the case, the same is answered by holding thatCthe Government Order dated 15.6.l989 permits investigationand it was not a case of assuming suo motu jurisdiction bythe CBI to investigate on the facts of the present case.

The second question framed by the learned Single Judgeis returned unanswered in view of the fact that the affidavitDof the State Government had not been invited by the learnedSingle Judge before proceeding to raise a doubt and framethe second question to be answered in this reference asobserved above.

With the aforesaid answers to the two questions framed,Elet the papers be placed before the concerned court forproceeding in the matter in accordance with law.”

After the reference was answered, the matter again came upbefore the learned Single Judge, who by order dated 17[th] August 2015,directed the State Government to file an affidavit. In compliance withFthe directions issued by the High Court, the State Government filedaffidavits dated 31[st] October 2015 and 20[th] December 2015. The learnedSingle Judge passed an order on 5[th] April 2018, to the following effect:-

“Sri P.K. Singh, learned AGA prays for and is grantedten days time to file an affidavit of the responsible secretaryof the Home Department regarding interpretation and scopeGof notification dated 15.06.1983 with regard to Section 6 ofthe 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 StateHGovernment filed various affidavits through the Secretary, Home and Principal Secretary, Home. The stand taken by the State Government inthe said affidavits was that the Notification dated 15[th] June 1989, accordedconsent to the powers and jurisdiction of the Members of Delhi SpecialPolice Establishment (hereinafter referred to as ‘the DSPE’) in wholeof the State of Uttar Pradesh for investigation of offences under thePrevention of Corruption Act, with the rider that no such investigationshall be taken up in cases relating to the public servants, under the controlof the State Government except with the prior permission of the StateGovernment. It was the stand of the State Government, that restrictionof prior permission of the State Government was limited only in relationto public servants under the control of the State Government and not toany private individual. It was further the stand of the Government, thatthe notification permits the competent authority under DSPE Act forinvestigation of offences as mentioned in the notification in the State ofUttar Pradesh. However, if any public servant, under the control of theState Government was named in the First Information Report, priorpermission of the State Government would be required for investigation.Further stand of the State Government was that, public servant underthe control of the State Government, if not named in the First InformationReport, but if, in the further investigation, is found to be involved in thesaid crime, the prior permission of the State Government would not berequired for investigation. The State Government further stated in theaffidavit, that insofar as two public servants are concerned i.e. Sri RamJi Singh, the then General Manager, DIC, Chandauli and Sri YogendraNath Pandey, Assistant Manager, DIC, Chandauli, the sanction underSection 6 of the DSPE Act was granted vide notification dated7[th ]September 2018, in respect of the FIR registered by CBI on13[th] 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, thatthe State Government had granted Post-Facto consent vide notificationdated 7[th] September 2018, against the two public servants of the StateGovernment whose names had figured during the course of investigation.The learned Single Judge found, that the Post-Facto consent was sufficientfor investigation by the CBI for the offences against the two publicservants, whose names though did not find place in the FIR but werefound in charge-sheet. The learned Single Judge held, that if the namesof the said public servants did not figure in the FIR and their namescame to light during the course of investigation and charge-sheet was A

B

C

DEF

G

H

Afiled against the said public servants of the State Government, the consentgiven after completion of investigation would be a valid consent underSection 6 of the DSPE Act. The learned Single Judge further found, thatthe question of consent can be raised only by the public servants whohave been named in the FIR and not by the private individuals, who hadcome before the Court. The learned Single Judge therefore, dismissedBall the petitions. Being aggrieved thereby, the present appeals.

8. Shri Mukul Rohatgi, learned Senior Counsel appearing on behalfof the appellants submitted, that in the absence of the consent of theState Government under Section 6 of the DSPE Act, the DSPE (CBI)had no powers to conduct investigation in view of the provisions containedCin Section 6 of the DSPE Act. He submitted, that the consent of theState Government is mandatory as is seen from Section 6 of the DSPEAct. The learned Senior Counsel would submit, that failure in obtainingthe consent prior to registration of the FIR would go to the root of thematter and vitiate the entire investigation. He submitted, that theDappellants-private individuals have been charged with the offencespunishable under Sections 120B and 420 of IPC and Section 13(2) readwith Section 13(1)(d) of the Prevention of Corruption Act. He submitted,that an offence under the provisions of the Prevention of Corruption Actcan be registered only against public servant. He submitted, that sincethe prosecution had invoked Section 120B of the IPC, the mandatoryErequirement 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 meetingof minds between public servant and the private individuals and as such,an FIR could not be registered. He submitted, that investigation in a Fmatter which concerns the conspiracy between the private individualand the public servant, the same would not be permitted unless there isa valid consent under Section 6 of the DSPE Act. The learned SeniorCounsel strongly relied on the judgment of this Court in the case ofMs. Mayawati v. Union of India and Others[1].G9. Mr. Ajit Kumar Sinha, learned Senior Counsel appearing onbehalf of the accused who are the public servants in appeals arising outof SLP(Crl.) Nos. 8420-21 of 2019 submitted, that insofar as theappellants-public servants are concerned, in the absence of a validconsent, the CBI could not have exercised powers and jurisdiction to H1 (2012) 8 SCC 106

investigate the matter. It is submitted, that the Post-Facto sanction grantedon 7[th] September 2018, would not cure the defect of obtaining the priorconsent. Both the learned Senior Counsel therefore submitted, that theproceedings are liable to be quashed and set aside.

10. Shri S.V. Raju, learned Additional Solicitor General wouldsubmit, that the prior consent under Section 6 of the DSPE Act is notmandatory but directory. He submitted, that in any case unless theappellants point out that on account of the procedural irregularity of notobtaining the prior consent, prejudice is caused to the appellants or it hasresulted in miscarriage of justice, the investigation would not be vitiated.He submitted, that insofar as the appellants-private individuals areconcerned, the grievance of the said appellants is totally unwarrantedinasmuch as the Notification dated 15[th] June, 1989 vide which a generalconsent has been granted to investigate the matters arising out of PCAct, unless it concerns a public servant under the control of the StateGovernment. Insofar as the public servants are concerned, the learnedASG submitted, that in any case, the consent has been granted aftercompletion of the investigation on 7[th] September 2018 and as such thedefect, if any, stands cured. He submitted, that in any case, there are nopleadings by the appellants-public servants with regard to prejudice causedto 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 DSPEAct as under:-

5. Extension of powers and jurisdiction of special policeestablishment to other areas.— (1) The Central Governmentmay by order extend to any area (including Railway areas) ina State, not being a Union territory, the powers andjurisdiction of members of the Delhi Special PoliceEstablishment for the investigation of any offences or classesof offences specified in a notification under section 3.

(2) When by an order under sub-section (1) the powers andjurisdiction of members of the said police establishment areextended to any such area, a member thereof may, subject toany orders which the Central Government may make in thisbehalf, discharge the functions of a police officer in that areaand shall, while so discharging such functions, be deemed to A

B

C

D

E

F

G

H

A

be a member of the police force of that area and be vestedwith the powers, functions and privileges and be subject tothe liabilities of a police officer belonging to that police force.

(3) Where any such order under sub-section (1) is maderelation to any area, then, without prejudice prejudice to theBprovisions of sub-section (2), any member of the Delhi SpecialPolice Establishment of or above the rank of Sub-Inspectormay, subject to any orders which the Central Government maymake in this behalf, exercise the powers of the officer in chargeof a police station in that area and when so exercising suchpowers, shall be deemed to be an officer in charge of a policeCstation discharging the functions of such an officer withinthe limits of his station.

6. Consent of State Government to exercise of powers andjurisdiction.— Nothing contained in section 5 shall be deemedto enable any member of the Delhi Special PoliceDEstablishment to exercise powers and jurisdiction in any areain 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 CentralGovernment to extend the powers and jurisdiction of Members of theEDSPE beyond the Union Territories to a State, the same is not permissibleunless, a State grants its consent for such an extension within the areaof State concerned under Section 6 of the DSPE Act. Obviously, theprovisions are in tune with the federal character of the Constitution,which has been held to be one of the basic structures of the Constitution.F12. It would be relevant to refer to the notification issued by theGovernment of Uttar Pradesh dated 15[th] June 1989, which reads asunder:- “Government of Uttar PradeshHome(Police) Section-1GNo.3442/VIII-1-84/88Lucknow, dated : June 15, 1989

Notification

In pursuance of the Provisions of Section 6 of the DelhiSpecial Police Establishment Act, 1946 ( 25 of 1946) theH

Governor of the State of Uttar Pradesh is pleased to accordconsent to the extension of powers and jurisdiction of themembers of the Delhi Special Police establishment in wholeof the State of Uttar Pradesh, for investigation of offencespunishable under the Prevention of Corruption Act, 1988 (49of 1988), and attempts, abetments and conspiracies in relationto all or any of the offence or offences mentioned above andany other offence or offences committed in the course of thetransaction and arising out of the same facts, subject howeverto the condition that no such investigation shall be taken upin cases relating to the public servants, under the control ofthe State Government except with the prior permission of theState Government.

BY ORDER IN THE NAME OF THE GOVERNOR.

Sd/-

(S.K. TRIPATHI)HOME SECRETARY TO THE GOVTOF UTTAR PRADESH”

13. It could thus be seen, that the State of Uttar Pradesh hasaccorded a general consent for extension of powers and jurisdiction ofthe Members of DSPE, in the whole of State of Uttar Pradesh forinvestigation of offences under the Prevention of Corruption Act, 1988and attempts, abetments and conspiracies in relation to all or any of theoffence or offences committed in the course of the transaction and arisingout of the same facts. The same is however with a rider, that no suchinvestigation shall be taken up in cases relating to the public servants,under the control of the State Government, except with prior permissionof the State Government. As such, insofar as the private individuals areconcerned, there is no embargo with regard to registration of FIR againstthem inasmuch as, no specific consent would be required under Section6 of the DSPE Act. Vide notification dated 15[th] June 1989, the State ofUttar Pradesh has accorded a general consent thereby, enabling theMembers of DSPE to exercise powers and jurisdiction in the entire Stateof Uttar Pradesh with regard to investigation of offences under thePrevention of Corruption Act, 1988 and also to all or any of the offenceor offences committed in the course of the same transaction or arisingout of the same facts. As such, for registration of FIR against the private A

BC

D

EF

G

H

Aindividuals for the offences punishable under the Prevention of CorruptionAct and other offences under the IPC, committed in the course of thesame transaction or arising out of the same facts, the Members of DSPEhave all the powers and jurisdiction. As such, we find absolutely nomerits in the appeals filed by the private individuals.

B14. Insofar as the two public servants who have been undoubtedlyworking under the State Government are concerned, initially, they werenot named in the FIR. However, their names surfaced during the courseof investigation and thus sanction was granted for their prosecution underSection 19 of the Prevention of Corruption Act vide order dated 31[st]May 2012, prior to filing of the charge-sheet. It is also not in dispute thatCPost-Facto consent was given by the State Government vide notificationdated 7[th] September 2018, under Section 6 of the DSPE Act to theauthorities to investigate the public servants.

15. As early as in 1955, the question arose for consideration beforethis Court, as to whether an investigation carried out by a police officerDbelow the rank of Deputy Superintendent of Police, under Section 5(4)of the Prevention of Corruption Act, 1947, without the order of theMagistrate of First Class, was mandatory or directory? While holdingthat the provision is mandatory, this Court considered a question as towhether and to what extent, the trial which follows such investigation, isEvitiated. The Court, in H.N. Rishbud and Inder Singh v. The State ofDelhi[2], observed as under:- “If, therefore, cognizance is in fact taken, on a police reportvitiated by the breach of a mandatory provision relating toinvestigation, there can be no doubt that the result of the trialFwhich follows it cannot be set aside unless the illegality in theinvestigation can be shown to have brought about amiscarriage of justice. That an illegality committed in thecourse of investigation does not affect the competence andthe jurisdiction of the Court for trial is well settled as appearsfrom the cases in Prabhu v. EmperorAIR 1944 PC 73Gand Lumbhardar Zutshi v. The KingAIR 1950 PC 26. Theseno doubt relate to the illegality of arrest in the course ofinvestigation while we are concerned in the present cases withthe illegality with reference to the machinery for the collection

of the evidence. This distinction may have a bearing on thequestion of prejudice or miscarriage of justice, but both thecases clearly show that invalidity of the investigation has norelation to the competence of the Court. We are, therefore,clearly, also, of the opinion that where the cognizance of thecase has in fact been taken and the case has proceeded totermination., the invalidity of the precedent investigation doesnot vitiate the result, unless miscarriage of justice has beencaused thereby.”

It could thus be seen, that this Court has held, that the cognizanceand the trial cannot be set aside unless the illegality in the investigationcan be shown to have brought about miscarriage of justice. It has beenheld, that the illegality may have a bearing on the question of prejudiceor miscarriage of justice but the invalidity of the investigation has norelation to the competence of the court.

16. It will also be apposite to note the following observations ofthis Court in State of Karnataka v. Kuppuswamy Gownder andOthers[3], while considering the provisions of Section 465 of the Cr.P.C.:-

14. The High Court, however, observed that provisions ofSection 465 CrPC cannot be made use of to regularise thistrial. No reasons have been stated for this conclusion. Section465 CrPC reads as under:

“Finding or sentence when reversible by reason oferror, omission or irregularity.—(1) Subject to theprovisions hereinbefore contained, no finding, sentenceor order passed by a court of competent jurisdiction shallbe reversed or altered by a court of appeal, confirmationor revision on account of any error, omission or irregularityin the complaint, summons, warrant, proclamation, order,judgment or other proceedings before or during trial or inany inquiry or other proceedings under this Code, or anyerror, or irregularity in any sanction for the prosecution,unless in the opinion of that court, a failure of justice hasin fact been occasioned thereby.

(2) In determining whether any error, omission orirregularity in any proceeding under this Code, or any 3 (1987) 2 SCC 74

AB

C

DE

F

G

H

A

error, or irregularity in any sanction for the prosecutionhas occasioned a failure of justice, the court shall haveregard to the fact whether the objection could and shouldhave been raised at an earlier stage in the proceedings.”

It is provided that a finding or sentence passed by a court ofBcompetent jurisdiction could not be set aside merely on theground of irregularity if no prejudice is caused to the accused.It is not disputed that this question was neither raised by theaccused at the trial nor any prejudice was pleaded either atthe trial or at the appellate stage and therefore in absence ofany prejudice such a technical objection will not affect theCorder or sentence passed by competent court. Apart fromSection 465, Section 462 provides for remedy in cases of trialin wrong places. Section 462 reads as under:

“462. Proceedings in wrong place.—No finding, sentenceor order of any Criminal Court shall be set aside merelyDon the ground that the inquiry, trial or other proceedingsin the course of which it was arrived at or passed, tookplace in a wrong Sessions Division, district, sub-divisionor other local area, unless it appears that such error hasin fact occasioned a failure of justice.”EThis provision even saves a decision if the trial has takenplace in a wrong Sessions Division or sub-division or a districtor other local area and such an error could only be of someconsequence if it results in failure of justice, otherwise nofinding or sentence could be set aside only on the basis ofsuch an error.F

17. This Court, in the case of Union of India v. PrakashP. Hinduja and Another[4], while relying on the judgment of this Court inH.N. Rishbud[5] (supra), has observed thus:- “21. …….The Court after referring to Prabhu v. EmperorAIRG1944 SC 73 and Lumbhardar Zutshi v. The KingAIR 1950PC 26 held that if cognizance is in fact taken on a policereport initiated by the breach of a mandatory provision relating 4 (2003) 6 SCC 1955 [1955] 1 SCR 1150H

to investigation, there can be no doubt that the result of thetrial, which follows it cannot be set aside unless the illegalityin the investigation can be shown to have brought about amiscarriage of justice and that an illegality committed in thecourse of investigation does not affect the competence andthe jurisdiction of the Court for trial. This being the legalposition, even assuming for the sake of argument that theCBI committed an error or irregularity in submitting the chargesheet without the approval of CVC, the cognizance taken bythe learned Special Judge on the basis of such a charge sheetcould not be set aside nor could further proceedings inpursuance thereof be quashed. The High Court has clearlyerred in setting aside the order of the learned Special Judgetaking cognizance of the offence and in quashing furtherproceedings of the case.”

It could thus be seen, that this Court held that even for the sake ofargument that CBI had committed an error or irregularity in submittingthe charge-sheet without the approval of CVC, the cognizance taken bythe learned Special Judge on the basis of such a charge-sheet, would notbe set aside nor could further proceedings in pursuance thereof bequashed.

18. Recently, a bench of this Court consisting one of us(Khanwilkar J.) had an occasion to consider the aforesaid provisions ofDSPE Act, in Kanwal Tanuj v. State of Bihar and Others[6]. In the saidcase, the question arose, as to whether when an offence was committedin the Union Territory and one of the accused was residing/employed insome other State outside the said Union Territory, the Members of DSPEhad power to investigate the same, unless there was a specific consentgiven by the concerned State under Section 6 of the DSPE Act. Thecontention on behalf of the appellant before the High Court was thatsince the appellant was employed in connection with the affairs of theGovernment of Bihar, an investigation was not permissible, unless therewas a specific consent of State of Bihar under Section 6 of the DSPEAct. This Court rejected the said contention holding that if the offence iscommitted in Delhi, merely because the investigation of the said offenceincidentally transcends to the Territory of State of Bihar, it cannot beheld that the investigation against an officer employed in the territory of ABC

D

EF

G

H

ABihar cannot be permitted, unless there was specific consent underSection 6 of the DSPE Act. While considering the argument on behalfof the State, that such a consent was necessary for CBI to proceed withthe investigation, this Court held that the respondent-State having grantedgeneral consent in terms of Section 6 of the DSPE Act vide notificationdated 19.02.1996, it was not open to the State to argue to the contrary.B

19. In the present case, there are no pleadings by the publicservants with regard to the prejudice caused to them on account of non-obtaining of prior consent under Section 6 of the DSPE Act qua themspecifically in addition to the general consent in force, nor with regard tomiscarriage of justice.C

20. Insofar as the reliance on the judgment of this Court inMayawati[7 ](supra), the only question that fell for consideration beforethis Court was, as to whether any of the orders passed by this Courtamounted to issuance of any direction to CBI to conduct a roving inquiryagainst the conduct of the petitioner commencing from 1995 to 2003 orDas to whether the directions were restricted to irregularities in the TajCorridor matter. The court in the facts found, that there was no suchfinding or satisfaction recorded by this Court in the matter of thedisproportionate assets of the petitioner on the basis of the status reportdated 11[th] September 2003 and as a matter of fact, the petitioner wasEnot even a party before this Court.

21. In the result, we find no reason to interfere with the finding ofthe High Court with regard to not obtaining prior consent of the StateGovernment under Section 6 of the DSPE Act.

22. However, it could be noticed that the learned Single JudgeFwhile referring two questions to the Division Bench, had observed thatthe 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 SingleJudge by the Division Bench, the learned Single Judge was bound toanswer question Nos. 2, 3 and 4. The learned Single Judge, in theGimpugned order, has not at all dealt with question Nos. 2, 3 and 4.

23. We, therefore, remit the matter to the learned Single Judgefor 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 questionsavailable 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.

A

B

C

D

E

F

G

H