2022 (6) TMI 1387 - HC - Indian Laws

Court upholds Government Order, grants consent under DSPE Act, classifies IRCS office bearers as public servants, validates FIR.

C. Indernath Versus State of Tamil Nadu and Ors. And Harish L. Mehta Versus State of Tamil Nadu and Ors. And M.S.M. Nasruddin Versus State of Tamil Nadu and Ors. And Senthilnathan Versus State of Tamil Nadu and Ors. And Manish Choudhary Versus State of Tamil Nadu and Ors.

The court dismissed the writ petitions, upholding the legality of the Government Order in G.O.Ms. 181, the State Government's authority to grant consent ... Validity of Government Order in G.O.Ms. 181, dated 09.04.2020, passed by the 1st respondent and the consequential Gazette Notification, issued by the 2nd respondent in S.O. No. 46, dated 14.06.2020 - investigation of the complaint made by the 3rd respondent - misappropriation - conspiracy - breach of trust - Jurisdiction of Delhi Special Police Establishment namely CBI - HELD THAT:- The petitioners are the office bearers of Indian Red Cross Society. The third respondent seems to have given a complaint on 27.03.2020, addressed to the fifth respondent, making certain allegations with regard to the affairs of the Indian Red Cross Society. Pursuant to which, the said Government Order has been passed by the first respondent granting consent of the State Government for investigation to be conducted by Central Bureau of Investigation (CBI). This Government Order is challenged on the ground that the nature of allegations made in the complaint is beyond the scope of Section 3 of the Delhi Police Establishment Act and the Society in question is neither financed by the State or Central Government and it is a Society registered under Societies Act. In the present case on hand, A5 is the Deputy/Joint Secretary of Indian Red Cross Society, National Head Quarters, which is situated at India Red Cross Society at No. 1, Red Cross Road, New Delhi-110001, which is well within the jurisdiction of the Delhi Special Police Establishment namely CBI, which is also the contention of the petitioner/A5. Hence, in the logical view, the G.O.(Ms) No. 181, dated 09.04.2020 itself is not mandatory. The attention of this Court was also invited to the Judgment of the Hon'ble Supreme Court in State Vs. N.S. Ghaneswaran, reported in ([2013 (1) TMI 966 - SUPREME COURT]), wherein it is held that CBI can register FIR as per the procedure traceable in CBI Manual 6.10.1. Hence, there is no illegality in CBI registering FIR. With regard to the first contention that the Indian Red Cross Society do not receive any grants from the Government is not correct. Indian Red Cross Society has been formed on the corpus available from public donation, as could be seen from the Act. Further, prime properties have been allotted by the Central Government as well as respective Governments for the Headquarters and its branches throughout India on concessional charge recognizing the public service rendered by the IRCS. This is the special privilege given to IRCS - Though IRCS state that it was only for the service rendered payments received and Red Cross Society not earned income is not proper, as could be seen from the ledger account of the said two projects. The Health and Family Welfare Department confirms the Grants-in-Aid given to IRCS, Tamil Nadu Branch. In this case, the petitioners herein are given privileged status and benefits on the office they held in IRCS. Thus, the position is clear that 'public duty' means, a duty in discharge of which, the State, the public of the community at large has an interest - the petitioners discharging the public duty is not in dispute. Hence, the case against the petitioners under the Prevention of Corruption Act can proceeded. As regards the second contention is concerned, issuance of G.O.(Ms) No. 181, dated 09.04.2020, for fraudulent activities by issuing Notification under Section 6 of the Delhi Special Police Establishment Act is a colourable exercise, non-est and cannot be revisited - In this case, on the complaint of the third respondent, finding no involvement of State Government Officials and also finding seriousness of the offence and the involvement of Headquarters Officials and others, found it appropriate, for CBI to conduct investigation, hence the case was transferred. It is seen that Section 6 of the DSPE Act only stresses that consent has to be obtained only from the State. It is seen, that in this case, under Section 6 of the DSPE Act, the CBI obtained consent. The second respondent issued a Notification under Section 5 of the DSPE Act on 12.06.2020. Thereafter, 17-A approval under the Prevention of Corruption Act was obtained on 19.12.2020 from seventh respondent, thereafter, FIR registered on 28.12.2020. Consent obtained to avoid any future complication, in abundant caution. Nothing more. Locus of the third respondent - HELD THAT:- The questioning of locus, of the third respondent is not proper, since it is settled legal proposition that anybody can set the law in motion, except where the statute enacting or creating an offence indicates to the contrary - the third respondent not only being Deputy Secretary of the Governor, even as a commoner, when an offence, coming to his knowledge as per Section 39 of Cr.P.C. has lodged the complaint. Thus, it is seen that the 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. This Court finds the contentions raised by the petitioners are unreasonable, not sustainable. Hence, all the Writ Petitions are dismissed. Issues Involved:1. Legality of the Government Order in G.O.Ms. 181, dated 09.04.2020.2. Jurisdiction and authority of the State Government to grant consent under Section 6 of the Delhi Special Police Establishment Act, 1946.3. Whether the Indian Red Cross Society (IRCS) and its office bearers can be classified as public servants under the Prevention of Corruption Act, 1988.4. Validity of the FIR and subsequent investigation by the Central Bureau of Investigation (CBI).Issue-Wise Detailed Analysis:1. Legality of the Government Order in G.O.Ms. 181, dated 09.04.2020:The petitioners challenged the Government Order on the grounds that the allegations in the complaint were beyond the scope of Section 3 of the Delhi Police Establishment Act and that the IRCS is neither financed by the State nor Central Government. The court noted that the Government Order was issued following a complaint about the affairs of the IRCS, and the consent for CBI investigation was granted based on the seriousness of the allegations. The court held that the Government Order was legally sustainable as it followed the due procedure under Sections 3, 5, and 6 of the Delhi Special Police Establishment Act, 1946.2. Jurisdiction and Authority of the State Government to Grant Consent:The petitioners argued that the State Government of Tamil Nadu had no jurisdiction to grant consent under Section 6 of the DSPE Act, as the IRCS is a Central Act entity. The court observed that the IRCS is a statutory body constituted under the Indian Red Cross Society Act, 1920, a Central Act. However, the court found that the consent granted by the State Government was valid as it was necessary to enable the CBI to exercise its powers within the State. The court cited relevant sections of the DSPE Act and previous judgments to support this conclusion.3. Classification of IRCS Office Bearers as Public Servants:The petitioners contended that the IRCS is an autonomous body and its office bearers are not public servants under the Prevention of Corruption Act. The court disagreed, noting that the IRCS performs public duties and receives grants from the government. The court referred to the definition of 'public servant' under Section 2(c) of the Prevention of Corruption Act and concluded that the office bearers of the IRCS fall within this definition due to their public duties and the grants received from the government.4. Validity of the FIR and Subsequent Investigation by the CBI:The petitioners questioned the validity of the FIR and the investigation by the CBI, arguing that no complaint was pending with the State Police and that the consent was granted without jurisdiction. The court held that the FIR was valid as it was registered following the proper procedure, including obtaining consent under Section 6 of the DSPE Act and approval under Section 17A of the Prevention of Corruption Act. The court emphasized that the investigation was in its initial stages and that the petitioners' contentions could not be appreciated at this stage.Conclusion:The court dismissed the writ petitions, finding that the Government Order, the consent granted under the DSPE Act, and the FIR were all valid and legally sustainable. The court directed the CBI to prioritize and complete the investigation expeditiously.