TaxTMI 
TaxTMI 
2020 (11) TMI 1103
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.... as 'FSA') was required to be entered into by coal companies and purchasers of coal. In pursuance of the said policy, on 30th April 2008, an FSA was entered into between the Appellants in appeals arising out of SLP (Crl.) Nos. 8342-46 of 2019 and the Coal India Limited. On 25th March 2011, a joint surprise raid was conducted by the CBI in factory premises of Fertico Marketing and Investment Private Limited and it was found that the coal purchased under the FSA was sold in the black market. It was further found by CBI that this was done in connivance with the unknown government officials which led to loss of Rs. 36.28 crore to the Central Government. Accordingly, on 13th April 2011, an FIR came to be registered by CBI for the offences punishable Under Sections 120B and 420 of the Indian Penal Code and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the PC Act') against Mr. Anil Kumar Agarwal, Director of said M/s. Fertico Marketing and Investment Pvt. Ltd. and unknown officials of the District Industries Centre (hereinafter referred to as 'DIC'), District Chandauli, so also unknown officials of N....
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....se, investigation conducted by the CBI was without the previous permission/consent of the Government of UP as such, was in breach of the mandatory provisions of Section 6 of the Delhi Special Police Establishment Act, 1946 (hereinafter referred to as "DSPE Act"). He was therefore of the view, that the investigation suffered with incurable defect of lacking inherent jurisdiction. However, the learned Single Judge found, that since he had disagreed with the earlier view of learned Single Judge and since there was no binding precedent on the issue, it was appropriate to refer question Nos. 1 and 2 for decision by the Division Bench. The learned Single Judge vide his detailed order dated 24th February 2015, referred the following two questions to the Division Bench: 1. Whether investigation of such cases having involvement of Public servant under control of State Government of U.P. as well as private individuals for offences punishable under the Prevention of Corruption Act, 1988 (49 of 1988), and attempts, abetments and conspiracies in relation to all or any of the offence or offences mentioned above and any other offence or offences committed in the course of the transaction and ar....
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....its was that the Notification dated 15th June 1989, accorded consent to the powers and jurisdiction of the Members of Delhi Special Police Establishment (hereinafter referred to as 'the DSPE') in whole of the State of Uttar Pradesh for investigation of offences under the Prevention of Corruption Act, with the rider that no such investigation shall be taken up in cases relating to the public servants, under the control of the State Government except with the prior permission of the State Government. It was the stand of the State Government, that restriction of prior permission of the State Government was limited only in relation to public servants under the control of the State Government and not to any private individual. It was further the stand of the Government, that the notification permits the competent authority under DSPE Act for investigation of offences as mentioned in the notification in the State of Uttar Pradesh. However, if any public servant, under the control of the State Government was named in the First Information Report, prior permission of the State Government would be required for investigation. Further stand of the State Government was that, public ser....
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....l would submit, that failure in obtaining the consent prior to registration of the FIR would go to the root of the matter and vitiate the entire investigation. He submitted, that the Appellants-private individuals have been charged with the offences punishable Under Sections 120B and 420 of Indian Penal Code and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act. He submitted, that an offence under the provisions of the Prevention of Corruption Act can be registered only against public servant. He submitted, that since the prosecution had invoked Section 120B of the Indian Penal Code, the mandatory requirement is that there has to be a meeting of minds. He submitted, that an offence Under Section 120B of the Indian Penal Code read with Section 13(1)(d) of the Prevention of Corruption Act cannot stand unless there is a meeting of minds between public servant and the private individuals and as such, an FIR could not be registered. He submitted, that investigation in a matter which concerns the conspiracy between the private individual and the public servant, the same would not be permitted unless there is a valid consent Under Section 6 of the DSPE Act. The ....
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....olice Establishment for the investigation of any offences or classes of offences specified in a notification Under Section 3. (2) When by an order Under Sub-section (1) the powers and jurisdiction of members of the said police establishment are extended to any such area, a member thereof may, subject to any orders which the Central Government may make in this behalf, discharge the functions of a police officer in that area and shall, while so discharging such functions, be deemed to be a member of the police force of that area and be vested with the powers, functions and privileges and be subject to the liabilities of a police officer belonging to that police force. (3) Where any such order Under Sub-section (1) is made relation to any area, then, without prejudice prejudice to the provisions of Sub-section (2), any member of the Delhi Special Police Establishment of or above the rank of Sub-Inspector may, subject to any orders which the Central Government may make in this behalf, exercise the powers of the officer in charge of a police station in that area and when so exercising such powers, shall be deemed to be an officer in charge of a police station discharging the functio....
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....ct, 1988 and attempts, abetments and conspiracies in relation to all or any of the offence or offences committed in the course of the transaction and arising out of the same facts. The same is however with a rider, that no such investigation shall be taken up in cases relating to the public servants, under the control of the State Government, except with prior permission of the State Government. As such, insofar as the private individuals are concerned, there is no embargo with regard to registration of FIR against them inasmuch as, no specific consent would be required Under Section 6 of the DSPE Act. Vide notification dated 15th June 1989, the State of Uttar Pradesh has accorded a general consent thereby, enabling the Members of DSPE to exercise powers and jurisdiction in the entire State of Uttar Pradesh with regard to investigation of offences under the Prevention of Corruption Act, 1988 and also to all or any of the offence or offences committed in the course of the same transaction or arising out of the same facts. As such, for registration of FIR against the private individuals for the offences punishable under the Prevention of Corruption Act and other offences under the In....
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....y show that invalidity of the investigation has no relation to the competence of the Court. We are, therefore, clearly, also, of the opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby. It could thus be seen, that this Court has held, that the cognizance and the trial cannot be set aside unless the illegality in the investigation can be shown to have brought about miscarriage of justice. It has been held, that the illegality may have a bearing on the question of prejudice or miscarriage of justice but the invalidity of the investigation has no relation to the competence of the court. 16. It will also be apposite to note the following observations of this Court in State of Karnataka v. Kuppuswamy Gownder and Ors. - (1987) 2 SCC 74, while considering the provisions of Section 465 of the Code of Criminal Procedure: 14. The High Court, however, observed that provisions of Section 465 Code of Criminal Procedure cannot be made use of to regularise this trial. No reasons have been stated for this co....
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....Court, in the case of Union of India v. Prakash P. Hinduja and Anr. - (2003) 6 SCC 195, while relying on the judgment of this Court in H.N. Rishbud - [1955] 1 SCR 1150 (supra), has observed thus: 21. .......The Court after referring to Prabhu v. Emperor AIR 1944 SC 73 and Lumbhardar Zutshi v. The King - AIR 1950 PC 26 held that if cognizance is in fact taken on a police report initiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial, which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice and that an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial. This being the legal position, even assuming for the sake of argument that the CBI committed an error or irregularity in submitting the charge sheet without the approval of CVC, the cognizance taken by the learned Special Judge on the basis of such a charge sheet could not be set aside nor could further proceedings in pursuance thereof be quashed. The High Court has clearly erred in setting aside the order ....