2020 (7) TMI 827 - HC - Indian Laws

Court dismisses writ petition challenging consent under DSPE Act, clarifies 'consent' vs. 'sanction' laws

Shashi Kumar Shivanna Versus The Government of Karnataka and Ors.

The court dismissed the writ petition, ruling that the petitioner lacked locus standi to challenge the consent granted under Section 6 of the DSPE Act, ... Permitting the respondent No. 3 to investigate all purported violations of the provisions of the Prevention of Corruption Act, 1988 (PC Act, 1988), by Mr. D.K. Shivakumar and other officials of the Government of Karnataka and to identify and investigate all persons involved in the alleged violation of the provisions of the PC Act, 1988 - impugned order bears reason for granting sanction to prosecute the concerned persons or not - petitioner has locus standi to question the impugned order or not - impugned order is a consent or sanction. HELD THAT:- A perusal of the impugned Order indicates that the consent was to enable the respondent No. 3 to investigate the violations of the PC Act, 1988 by Mr. D.K. Shivakumar and other officials of the Government of Karnataka and for identification and investigation of person/s involved in connection with the alleged violation of the provisions of the PC Act, 1988. The reference to the petitioner in the impugned Order was only incidental while recording the findings of the Enforcement Directorate and nothing else. The petitioner failed to establish as to how any of his rights were infringed or violated by the consent granted by the respondent No. 1 or as to how he was aggrieved by the consent granted under Section 6 of the DSPE Act, 1946. It is not the case of the petitioner that the respondent No. 1 could not itself investigate the offences committed by Mr. D.K. Shivakumar and other officials of the Government under the PC Act, 1988, based on the documents/information provided by the Enforcement Directorate - The word 'sanction' found in the impugned Order is wrongly employed as what is contemplated under Section 6 of the DSPE Act, 1946 is only a 'consent' to enable the respondent No. 3 to investigate the offences. The word 'consent' is phonetically, etymologically and textually different from the word 'sanction' and a world of difference pervades between the two and can never be used interchangeably. Though the respondent No. 1 has termed it as sanction under Section 6 of the DSPE Act, 1946 in the impugned order, yet what can be granted is only a consent and nothing more. The word 'consent' admits of myriad definitions as per its use in various legislations such as consent in contractual matters, consent in offences relating to human body, consent for establishment under the Environmental laws. In so far as the word 'consent' found in Section 6 of the DSPE Act, 1946, it only means a 'permission' of the concerned State in the Constitutional scheme of things. Whether grant of consent under Section 6 of the DSPE Act, 1946 is more in the nature of an administrative Order and does not require enormous rejigging as the issue is whether to allow the investigation to be done by the CBI or not? - HELD THAT:- In so far as the present case is concerned, the raid was allegedly conducted by the Department of Income Tax followed by investigation by the Enforcement Directorate into the alleged acts of money laundering, which found violations of the PC Act, 1988. Thus, in the fitness of things, the respondent No. 1 has felt it appropriate that the violations of the PC Act, 1988 be investigated by the respondent No. 3. Even if it is assumed that the respondent No. 1 was required to apply its mind before granting the consent, the opinion of the Advocate General would indicate that the Enforcement Directorate had shared documents pertaining to the said investigation in the form of a complaint filed before the Special Court for Economic Offences, the communication made by the Enforcement Directorate to the Central Bureau of Investigation etc., and the impugned Order itself would indicate the circumstances that compelled it to grant consent. It is thus the subjective satisfaction of the respondent No. 1 which has resulted in a consent under Section 6 of the DSPE Act. The writ petition is dismissed. Issues Involved:1. Locus standi of the petitioner to challenge the consent granted under Section 6 of the DSPE Act, 1946.2. Nature of the consent granted under Section 6 of the DSPE Act, 1946 in comparison to sanction under Section 17A or Section 19 of the Prevention of Corruption Act, 1988 or under Section 197 of the Criminal Procedure Code, 1973.3. Requirement of application of mind by the respondent No. 1 before granting consent under Section 6 of the DSPE Act, 1946.Issue-wise Detailed Analysis:1. Locus Standi of the Petitioner:The petitioner challenged the consent granted by the respondent No. 1 under Section 6 of the DSPE Act, 1946, arguing that his name was mentioned in the Enforcement Directorate's report, thus giving him the locus standi. The court referred to the legal principle of locus standi, which requires a person to have a legal right that is violated. The court found that the petitioner's rights were not infringed by the consent order, as it was directed towards investigating violations of the PC Act, 1988 by Mr. D.K. Shivakumar and other officials of the Government of Karnataka. The reference to the petitioner was incidental. The court concluded that the petitioner did not have the locus standi to challenge the order as he failed to demonstrate any legal right that was violated.2. Nature of the Consent under Section 6 of the DSPE Act, 1946:The court distinguished between 'consent' under Section 6 of the DSPE Act, 1946 and 'sanction' under Sections 17A and 19 of the PC Act, 1988 or Section 197 of the CrPC. The court noted that 'consent' is a permission granted by the State to allow the CBI to investigate within its jurisdiction, whereas 'sanction' involves a detailed application of mind to ascertain if there is enough material to prosecute. The court emphasized that the impugned order used the term 'sanction' incorrectly and what was actually granted was 'consent.' The court cited previous judgments to support the distinction, highlighting that consent under Section 6 is an administrative order and does not require the same level of scrutiny as a sanction.3. Requirement of Application of Mind:The court addressed whether the respondent No. 1 was required to apply its mind before granting consent under Section 6 of the DSPE Act, 1946. The court found that the respondent No. 1 had acted on the findings of the Enforcement Directorate, which indicated violations of the PC Act, 1988. The court noted that the respondent No. 1 had sought and obtained an opinion from the Advocate General, which supported the decision to grant consent. The court concluded that even if the respondent No. 1 was required to apply its mind, the circumstances and the opinion of the Advocate General indicated that it had done so. The court held that the decision to grant consent was based on subjective satisfaction and was justified.Conclusion:The court dismissed the writ petition, finding that the petitioner lacked locus standi, the consent granted under Section 6 of the DSPE Act, 1946 was not akin to a sanction, and the respondent No. 1 had applied its mind before granting consent. The court emphasized that the consent was an administrative order and did not require the same level of scrutiny as a sanction. The petition was dismissed with no costs.