TaxTMI 
TaxTMI 
TaxTMI 
2020 (7) TMI 827
X X X X Extracts X X X X
X X X X Extracts X X X X
....ention of Corruption Act, 1988 (henceforth referred to as '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. 3. The writ petition sets out that the petitioner is employed as a Chief Manager at Hindustan Aeronautics Limited and is drawing a salary of Rs. 2,50,000/- per month. The petitioner claimed that his father was a Joint Director of Health Services, Government of Karnataka, and had earned considerable properties during his tenure. The petitioner claims that he had succeeded to the properties of his father and had led a honest and meaningful life. He claimed that the premises of Mr. D.K. Shivakumar was raided during August 2017 and the Income Tax department had filed four complaints before the Metropolitan Magistrate, Bengaluru, which were transferred to the Special Court. The petitioner claimed that he was not arraigned as an accused in any of those cases. He further claimed that the accused in three cases were discharged while the fourth complaint in Spl. C.C. No. 759/2018 was stayed by this Court. It is stated th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ourt of Jharkhand in Ajay Kumar Mishra vs. State of Jharkhand and others (WP (S) No. 864 of 2004 disposed of on 21.06.2004) in support of this contention. (b) That the impugned order does not bear out any reason for granting sanction to prosecute the concerned persons. (c) That on a vague allegation, there cannot be a sanction to prosecute. (d) That a person cannot be hounded by the Police or CBI merely to find out if he has committed any offence. That any order which has the flare of civil consequences can be passed only after hearing the person affected. The learned Senior Counsel relied upon the Judgment of the Apex Court in Common Cause, a Registered Society vs. Union of India and Others reported in - 1999 (6) SCC 667 in support of this contention. (e) That failure to produce all the relevant materials before the authority granting sanction, and the sanction merely based on a report of the Investigating Agency, would vitiate the sanction. He relied upon the Judgment of the Apex Court in State of T.N. vs. M.M. Rajendran reported in - 1998 (9) SCC 268. (f) That the CBI had not sought for any request for sanction and on the other hand, the Government of Karnataka on its ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ioning a copy of the opinion of the Advocate General. A copy of the letter dated 21-12-2019 addressed by the Department of Home, Government of Karnataka enclosing therewith a copy of the opinion of the Advocate General, is also placed on record. He also relied upon the Judgment of the Apex Court in the case of Magraj Patodia vs. R.K. Birla and Others reported in AIR 1971 SC 1295 to contend that there is no bar for admissibility of the document on the ground that such a document was procured illegally. The learned Senior Counsel also submitted that even if the impugned order is administrative in nature, then too the respondent Nos. 1 and 2 are bound to disclose reasons and the absence of reasons would vitiate the order and he relied upon the Judgment of the Apex Court in M.P. Special Police Establishment vs. State of M.P. and Others reported in 2004 (8) SCC 788. The learned Senior Counsel also relied upon the Judgment of the Apex Court in the case of Assistant Commissioner, Commercial Tax Department, Works Contract and Leasing, Kota v. M/s. Shukla and Brothers reported in -2010 (4) SCC 785. 10. Before adverting to the contentions urged, it is necessary to capture the bare facts sho....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d on the information received by it and thus accorded consent to the respondent No. 3 - CBI to: i) Inquire/investigate into all purported violations of the provisions of the Prevention of Corruption Act, 1988 by Sri. D.K. Shivakumar and other officials of Government of Karnataka in connection with the above matter. ii) Identification and investigation of person/s involved in connection with alleged violation of provisions of the Prevention of Corruption Act, 1988, in the above matter. The respondent No. 1 directed the concerned department officers/officials/others to hand over data/information/records as and when required by the CBI and cooperate in the inquiry/investigation. It is the aforesaid consent granted by the respondent No. 1 that is challenged in this writ petition. 13. Having heard the learned Senior Counsel representing the petitioner and the learned Advocate General and the learned counsel for the respondent No. 3, the following points would arise for determination: a) Whether the petitioner has the locus standi to challenge the consent granted by the respondent No. 1 under Section 6 of the DSPE Act, 1946? b) Whether consent granted under Section 6 of the DSP....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tandi of the petitioner to question the impugned Order, the learned Senior Counsel for the petitioner contended that the name of the petitioner was taken in the report sent by the Enforcement Directorate to the respondent No. 1 and that the impugned Order passed by the respondent No. 1, bore a reference to the name of the petitioner. The petitioner therefore contends that he has the locus standi to challenge the impugned Order granting consent. 17. De Smith in his book "Judicial Review of Administrative Action" observed, locus standi is understood to mean legal capacity to challenge an act or decision. Garner and Jones in their treatise on Administrative Law are of the view that locus standi is a threshold question in the simplest or clearest cases of lack of standing. The Apex Court has elucidated the attributes of locus standi in the case of Fertilizer Corporation Kamagar Union (Regd.), Sindri and others vs. Union of India and others reported in AIR 1981 SC 344 in the following words: "The question whether a person has the locus to file a proceeding depends mostly and often on whether he possesses a legal right and that right is violated." 18. A perusal of the impugned Order ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 (49 of 1988) except with the previous approval of the Central Government where such allegation relates to.:- a) the employees of the Central Government of the level of Joint Secretary and above; and b) such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government." 20. The petitioner claims to be an officer employed with the Hindustan Aeronautics Limited which is a Company established by the Central Government. Thus, the petitioner may probably have a right to question any inquiry or investigation if it is commenced by the respondent No. 3 without the approval of the Central Government but certainly, he has no locus standi to challenge the impugned Order of consent granted by the respondent No. 1 under Section 6 of the DSPE Act, 1946. 21. In so far as the second point for consideration is concerned, the Apex Court in State of T.N. vs. Sivarasan alias Raghu alias Sivarasa and others reported in 1997 (1) SCC 682 has observed as fo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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. On the other hand, the word "sanction" found in Sections 17A and 19 of the PC Act, 1988, Section 197 in the Criminal Procedure Code inheres a thoughtful application of mind to ascertain whether the record placed before the Authority bears out enough material to proceed to prosecute. The requirement of application of mind while granting "sanction" is intended to avoid frivolous or vexatious proceedings being adopted, particularly against public servants in the discharge of their official duties. The Judgments relied upon by the learned Senior Counsel appearing for the petitioner primarily relate to non-application of mind in the matter of granting sanction either under Section 197 of the CrPC or under Article 163 of....