TaxTMI 
TaxTMI 
2020 (4) TMI 910
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.... the Appellant before the High Court was that he being an officer of the Indian Administrative Service (IAS) employed in connection with the affairs of the Government of Bihar as District Magistrate at Aurangabad District (State of Bihar) could not be subjected to investigation by the CBI without the prior consent of the State. 4. The Appellant has been named as an Accused alongwith one Shri C. Sivakumar, CEO, Bhartiya Rail Bijli Company Limited (for short, "BRBCL"), Nabinagar, District Aurangabad, Bihar on the basis of FIR registered by the CBI pursuant to information received from a reliable source alleging as follows: A reliable source information has been received that Bhartiya Rail Bijlee Company Limited (BRBCL), a subsidiary of NTPC Ltd. is constructing four units of 250 MW at Nabinagar in Aurangabad District (Bihar). The joint venture project has been developed by Bhartiya Rail Bijlee Company Limited (BRBCL) with NTPC having 74 percent share, while the Ministry of Railways with the remaining 26 percent. Indian Railways would get 90 percent and the state of Bihar would get ten percent of the power generated from BRBCL's plants. The construction work of BRBCL w....
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....of the area were prepared and submitted for claim/compensation in the name of Gopal Prasad Singh (now deceased). 5. It was then fraudulently directed by Shri Kanwal Tanuj, DM, Aurangabad that 7.45 acre land in Khata No. 12, Plot No. 1 of Mauja Kajrine be recorded in the name of Shri Gopal Prasad Singh (now deceased) and the matter may be further processed accordingly. Circle Officer, Nabinagar sent a letter No. 74, dated 11.03.2017 to Chief-Executive officer BRBCL for purchasing of the land from the owner Shri Gopal Prasad Singh (now deceased), Circle Officer, Nabinagar thereafter issued another letter dated 25.03.2017 to BRBCL recalling his previous letter dated 22.06.2015 and informed that 7.45 acres out of the total land in Khata No. 12, plot No. 1 of Mauja Kajrine has been registered in name of Shri Gopal Prasad Singh. The circle officer further informed BRBCL that 6.545 acres falling in the Ash Dyke area in the above mentioned plot was being earmarked/acquired for the BRBCL and directed the BRBCL to purchase the said land from the owner Shri Gopal Prasad Singh and 0.905 acres from the Govt. Land was being transferred to BRBCL for the purpose of the plant. 6. ....
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....nd report. 5. As aforesaid, the Appellant filed writ petition for quashing of the said FIR on the ground that it does not disclose any criminal offence against the Appellant and for a declaration that it has been lodged against the Appellant (a State Government employee), without prior permission of the State Government and was thus in violation of Section 6 of the Delhi Special Police Establishment Act, 1946 (for short, "the 1946 Act"). In other words, the FIR has been registered without jurisdiction and is void ab initio. 6. The High Court after considering the grounds of challenge, proceeded to hold that BRBCL is an "affiliate" or "associate" in relation to National Thermal Power Company (NTPC) Ltd. and the Railways respectively. The registered office of BRBCL was in the Union Territory of Delhi (National Capital Territory of Delhi) and the allegation regarding defrauding the said undertaking (BRBCL) and siphoning of funds had occurred in the Union Territory of Delhi (National Capital Territory of Delhi). The funds for implementation of the project through BRBCL were provided by the Central Government in terms of the Union Budget proposed in the year 2005-06. The High Cour....
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....cial aid from the Government of Bihar are concerned in offences referred to in items a(i) to (iii) and (b) above, the prior consent of the State Government shall be obtained for the investigation of any such offence by the Delhi Special Police Establishment. File No. 1/Vividh-6019/96) By order of Governor of Bihar Sd/- -- (D.P. Maheshwari) Commissioner & Secretary Home Department The High Court negatived the argument of the Appellant that the proviso in the said notification restricted the general consent accorded by the State. It was urged by the Appellant that the purport of the proviso was to make it amply clear that no consent was given by the State Government in terms of Section 6 of the 1946 Act to authorise the members of the DSPE to exercise powers and jurisdiction under the 1946 Act in respect of offences in which public servants employed in connection with the affairs of the Government of Bihar were allegedly involved. Investigation in respect of such cases could be undertaken only after taking prior consent of the State Government of Bihar and not otherwise. 7. The High Court noted that it was not the case of th....
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....ffence committed in connection with the affairs of the Government of India, local authority subject to the control of the Government of India, local authority subject to the control of the Government of India or any Corporation, Company or Bank owned and controlled by the Government of India cannot be given a narrow meaning. While dealing with the proviso in the subject notification dated 19.2.1996, the High Court in paragraphs 57 and 58 observed thus: 57. The proviso to the notification dated 19.02.1996 issued by the Government of Bihar cannot come to the rescue of the Petitioner in the present set of facts and circumstances where the C.B.I. while investigating a case involving a government company who is acting as an agent of the public sector undertaking and Ministry of Railways finds that some more persons including those who are public servants presently working and serving under the Government of Bihar are also involved in the conspiracy which has an ultimate effect of causing unlawful loss to the principal for which the agent is working, no individual consent would be required in terms of Section 6 of the D.S.P.E. Act. 58. The contention of the learned S....
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.... land bearing Khata No. 12, Plot number 1 of Mauja Kajrain was issued after due evaluation of his claim in the hierarchy of administrative set up right from Anchal Amin upto Additional District Magistrate, which process went on from 1971 as is manifest from the official record. It is thus urged that the alleged act of the Appellant was done in official capacity and was protected by Section 79 of the Indian Penal Code. The CBI ought to have undertaken preliminary enquiry before rushing to register the FIR on the basis of source information. Even for that reason, the action of CBI cannot be countenanced - not being in conformity with the CBI Manual. It is urged that the FIR does not disclose any offence qua the Appellant and that it was registered without offering any explanation for the inordinate delay. Finally, it is urged that the registration of FIR itself was barred by Section 6 of the 1946 Act read with notification dated 19.2.1996. 9. The State of Bihar has supported the claim of the Appellant on the question of law by contending that Policing is a State subject under Entry 2 List II of Schedule VII of the Constitution. Hence, having due regard to the federal structure rec....
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....ed cannot come in the way of DSPE to carry on the investigation in respect of offence of conspiracy to defraud the Government of India undertaking whose registered office is at Delhi and moreso because the siphoning of funds of the undertaking has been committed within the territory of Delhi. The investigation of such a case cannot be regarded as in respect of an offence independently committed by the public servant employed in connection with the affairs of the Government of Bihar as such. As a result, no consent of any State to investigate such an office would be necessary. As a matter of fact, no State would have jurisdiction to enquire into or investigate the offence committed in relation to the Government of India undertaking registered in the territory of Delhi. Similarly, only the Courts in Delhi would have jurisdiction to take cognizance of the stated offence. In such a situation, the occupation or status of the Accused or his residence cannot be the basis to constrict the powers of the investigating agency (DSPE) in any manner. It is urged that if the argument of the Appellant is accepted, that would have serious implications. For, in cases where the DSPE during the course....
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....prima facie truth into the allegations of the specified crime, as every person Accused of committing the same offence is to be dealt with in the same manner in accordance with law, which is equal in its application to everyone. The alleged acts of commission and omission of the Appellant in the State of Bihar would not alter the substratum of the offence or crime in question stated to have been committed to defraud the Government undertaking (BRBCL) and resultantly siphoning of its funds within the Union Territory of Delhi (National Capital Territory of Delhi). 12. Our attention is also invited by the learned Additional Solicitor General to a recent decision of the Delhi High Court in Anand Agarwal v. Union of India and Ors., which has upheld the stand taken by the CBI that requirement of consent of the State is premised on the basis that the specified offence or offences committed and under investigation, have taken place in the State (outside the Union Territory). The Delhi High Court has agreed with the view taken by the High Court of Judicature at Patna in the impugned judgment. It is urged that the appeal be dismissed being devoid of merit. 13. After cogitating over the ....
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.... police force constituted for that purpose. 16. The purport of Section 5 of the 1946 Act is to enable the Central Government to extend the powers and jurisdiction of members of the DSPE for the investigation of any offence or class of offences specified in the notification Under Section 3, in a State not being a Union Territory. Such extension of powers and jurisdiction of members of the special police force becomes necessary in respect of specified offences "committed outside the jurisdiction of the Union Territory" referred to in Sections 2 and 3 of the 1946 Act. However, in keeping with the federal structure of the Constitution which is fundamental to the Constitution, consent of such a State has been made essential, as predicated in Section 6 of the 1946 Act. Sections 5 and 6 of the 1946 Act read thus: 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 ....
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....fence is committed in other State and the Accused involved in the offence is residing in or employed in connection with the affairs of that State. Such interpretation would result in an absurd situation especially when the 1946 Act extends to the whole of India and the special police force has been constituted with a special purpose for investigation of specified offences committed within the Union Territory, in terms of notification issued Under Section 3 of the 1946 Act. 17. This Court in M. Balakrishna Reddy (supra) expounded the purport of Sections 3, 5 and 6 of the 1946 Act and observed in paragraph 19 as under: 19. Plain reading of the above provisions goes to show that for exercise of jurisdiction by CBI in a State (other than Union Territory or Railway area), consent of the State Government is necessary. In other words, before the provisions of the Delhi Act are invoked to exercise power and jurisdiction by Special Police Establishment in any State, the following conditions must be fulfilled: (i) A notification must be issued by the Central Government specifying the offences to be investigated by Delhi Special Police Establishment (Section 3); ....
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....e was provided. If it intended that such consent should be in a particular form, it would certainly have provided the form as it was aware of different forms of exercise of power. It, therefore, depends on the facts of each case whether the consent required by Section 6 of the Delhi Act has or has not been given by the State Government and no Rule of universal application can be laid down. 18. The High Court, in the present case, after analysing the material on record clearly found that BRBCL was a Government undertaking and the project undertaken by it was funded by the Central Government and that it had its registered office in the Union Territory of Delhi (National Capital Territory of Delhi), where the offence of defrauding the undertaking (BRBCL) and siphoning of its funds was allegedly committed. We see no reason to deviate from the opinion so recorded by the High Court. 19. The Appellant, however, would rely on the allegations in the subject FIR to contend that the role of the Appellant at best is in respect of certain official duty in connection with the affairs of the Government of Bihar. This submission overlooks the substratum of the allegations in the FIR, as regi....
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....ontrary. The Respondent-State cannot be allowed to approbate and reprobate. 22. Indeed, the said notification contains a proviso, which predicates that if any public servant employed in connection with the affairs of the Government of Bihar is concerned in offences being investigated by the special police force pursuant to the notification, prior consent of the State Government qua him shall be obtained. This proviso must operate limited to cases or offences which have been committed within the territory of the State of Bihar. If the specified offence is committed outside the State of Bihar, as in this case in Delhi, the State police will have no jurisdiction to investigate such offence and for which reason seeking consent of the State to investigate the same would not arise. In our opinion, the stated proviso will have no application to the offence in question and thus the Delhi special police force/DSPE (CBI) must be held to be competent to register the FIR at Delhi and also to investigate the same without the consent of the State. 23. Even otherwise, the proviso has the effect of differentiating and classifying offenders differently for treatment thereunder, including inve....
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.... 6-A, that senior public servants of the level of Joint Secretary and above who take policy decision must not be put to any harassment, sidetracks the fundamental objective of the PC Act, 1988 to deal with corruption and act against senior public servants. CBI is not able to proceed even to collect the material to unearth prima facie substance into the merits of allegations. Thus, the object of Section 6-A itself is discriminatory. That being the position, the discrimination cannot be justified on the ground that there is a reasonable classification because it has rational relation to the object sought to be achieved. (emphasis supplied) The thrust of this exposition is that every person committing the same offence is to be dealt with in the same manner in accordance with law, which is equal in its application to everyone. The discrimination or differentiation must be founded on pertinent and real differences as distinguished from irrelevant and artificial ones. In paragraph 70, the Court went on to observe that every public servant against whom there is a reasonable suspicion of commission of a crime or there are allegations of an offence under the PC Act has to be tre....