TaxTMI 
TaxTMI 
2023 (4) TMI 1026
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....ng for respondents Nos. 1 and 2 and Sri P. Prasanna Kumar, learned Special Counsel appearing for respondent No. 3. 3. The case of the petitioner is that he is the sitting MLA and the President of the Karnataka Pradesh Congress Party and he is said to be doing various business including mining and real estate development. There was a raid conducted by the income tax department officials on 02.08.2017 on the various premises of the petitioner in New Delhi and other places and they collected Rs.8,59,69,100/-. It is alleged that Rs.41.00 lakhs was recovered from the premises of the petitioner. Subsequently, the income tax department officials registered a case by filing a complaint against the petitioner before the Special Court for Economic Offences under the provisions of the Income Tax Act, 1961. Based upon registering the income tax case, the Directorate of Enforcement (hereinafter referred to as 'ED') also registered a case in No.ECIR/04/HQ/2018 and subsequently, the petitioner was arrested on 03.09.2019. Thereafter, the office of the Special Director of ED issued a letter dated 09.09.2019 to the State Government by acting under Section 66(2) of Prevention of Money L....
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....97 (7) SCC 622; 2. M.P. SPECIAL POLICE ESTABLISHMENT VS. STATE OF M.P. AND OTHERS - 2004(8) SCC 788; 3. ASSISTANT COMMISSIONER, COMMERCIAL TAX DEPARTMENT, WORKS CONTRACT AND LEASING, KOTA VS. SHUKLA AND BROTHERS - 2010 (4) SCC 785; 4. KRANTI ASSOCIATES PRIVATE LIMITED AND ANOTHER VS. MASOOD AHMED KHAN AND OTHERS - 2010 (9) SCC 496; 5. STATE OF WEST BENGAL AND OTHERS VS. COMMITTEE FOR PROTECTION OF DEMOCRATIC RIGHTS, WEST BENGAL AND OTHERS - 2010 (3) SCC 571; 6. COMMON CAUSE, A REGISTERED SOCIETY VS. UNION OF INDIA AND OTHERS - 1999 (6) SCC 667; 7. SECRETARY, INOR IRRIGATION AND RURAL ENGINEERING SERVICES, U.P. AND OTHERS. V. SAHNGOO RAM ARYA AND ANOTHER - 2002 (5) SCC 521; 8. PREM CHAND SINGH VS. STATE OF UTTAR PRADESH AND ANOTHER - 2020 (3) SCC 54; 9. T.T. ANTONY VS. STATE OF KERALA AND OTHERS - (2001) 6 SCC 181; 10. SMT. ANDANUR KALAMMA AND OTHERS VS. SMT. GANGAMMA AND OTHERS - 2005 SCC ONLINE KAR 787; 11. ANDANUR KALAMMA AND OTHERS VS. GANGAMMA (DEAD) BY LEGAL REPRESENTATIVES - 2018 (15) SCC 508; 12. SYED MOH. SALIE LABBAI (DEAD) BY L.Rs. AND OTHERS VS. MOHD. HANIFA (DEAD) BY L.Rs.....
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....nd that can be cured under Section 465 of Cr.P.C. It is further contended that unless, it is established that there is failure of justice, the same Cannot be questioned. 9. The learned SPP-II has further contended that provisions of Section 6 of the DSPE Act says about two consents, one is general consent and the other is special consent, and it is specifically expressed therein that the case should be referred to the CBI. Though it is mentioned in the order as sanction, but it is only a consent under Section 6 of DSPE Act. Therefore, the learned SPP-II prayed for dismissing the petition. 10. In support of his contentions, the learned SPP-II for the respondent State has relied upon the various judgments: 1. SRI SHASHIKUMAR SHIVANNA VS. GOVERNMENT OF KARNATAKA AND OTHERS - W.P.NO.8316/2020; 2. SRI SHASHIKUMAR SHIVANNA VS. GOVERNMENT OF KARNATAKA - W.A.NO.444 /2020; 3. SRI C.L. PASHUPATHI VS. ENGINEERING-IN-CHIEF (WRO) AND ANOTHER - 2008 SC ONLINE MADRAS 1518; 4. DARYVO AND OTHERS VS. STATE OF UTTAR PRADESH - 1962 1 SCR 574; 5. CENTRAL BANK OF INDIA AND OTHERS VS. DRAGENDRA SINGH JADON - (2022) 8 SCC CASES 378; 6. SRI C. IND....
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....s an order of sanction, but not the consent. The sanction and consent are synonymous as per Section 470(3) of Cr.P.C. The reasons is the soul of any order either administrative order or other orders. Therefore, without application of mind and without mentioning the reasons, sanction has been accorded, which is not a speaking order and therefore it is not sustainable under law. It is further contended that the State has obtained opinion of the learned Advocate General and, learned Advocate General has not stated anything about the consent and even the State has not obtained any consent of the Speaker while granting permission. Hence, prayed for allowing the petition. It is further contended that the res-judicata does not attract as this petitioner was not a party in the earlier case. Hence it is contended that the order of the co-ordinate bench is 'Judgment In Personem' and not binding on the petitioner. Therefore, it is contended that the petitioner is opposite leader and FIR has been registered based upon the impugned order. Therefore, great prejudice would cause to the petitioner. Hence, prayed for allowing the petition. 14. Having heard the arguments of learned counse....
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....ground that the said order is sanction, which required application of mind, and no principles of res judicata applies in this case. 16. Having heard the arguments of learned counsel for the parties and on perusal of the records, the points that arise for consideration are: (i) Whether the impugned order passed by the State dated 25.09.2019 under Section 6 of the Delhi Special Police Establishment Act, 1946 was sanction or a consent ? (ii) Whether the order passed by the Co-ordinate Bench in W.P.No.8316/2020(S-RES) applies the principles of res judicata ?" 17. The learned Senior counsel for the petitioner has relied upon the judgment of the Hon'ble Supreme Court while arguing the matter that the order under challenge was a sanction order without application of mind. The learned counsel relied upon the judgment of Hon'ble Supreme Court in the case of Mansukhlal Vithaldas Chauhan vs. State of Gujarat reported in (1997) 7 SCC 622, where the Hon'ble Supreme Court has held at paragraph No. 19 that the sanctioning authority was unable to apply its independent mind for any reasons or what so ever or pass an obligation or compulsion or constraint to grant....
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....ovisions are in tune with the federal character of the Constitution, which has been held to be one of the basic structures of the Constitution. As could be seen from Article 226 of the Constitution of India, Schedule VII, List II - State List (1) public order and (2) police are listed, which are within the powers of the State. In this case, admittedly, the first respondent or the sixth respondent have no objection for conducting investigation by the CBI. The petitioners are named accused in RC 0322020A0023, have no say who should investigate the offences against them. The decision to investigate or the decision on the agency does not violate principles of natural justice. Nor is there any provision in law under which, while granting consent or extending the powers or jurisdiction of the Delhi Special Police Establishment to the specified State and to any specified case any reasons are required to be recorded on the face of the notification. It is only a consent. It is seen that, in this case, if at all there is any objection with regard to conduct of investigation, the same has to be raised by the State Government of Tamil Nadu and not the petitioners." 19. The Hon'ble Supre....
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....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." 20. The learned SPP - II has also relied upon the judgment of the Division Bench of this Court in the case of Sri.Basavaraj Shivappa Muttagi vs. State of Karnataka, through Additional Chief Secretary, Home Department reported in 2021 0 Supreme(Kar) 387 and has held at paragraph No. 29 of the judgment which is as under: "129. The parameters for exercise of both the distinct powers of Government and Courts are naturally different and it is always possible and permissible, that even after the constitutional court declines to exercise its extraordinary judicial power holding that the case does not involve circumstances which are rare or exceptional, the State Government can exercise its ordinary executive powers under section 6 of the Delhi Special Police Establishment Act, 1946 in granting consen....
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....be acceptable that there is no application of mind while passing the impugned order. Therefore, on that ground, the impugned order cannot be quashed. 23. Re. point No.2: The order passed by the Co-ordinate Bench is the 'Judgment in Rem' which is binding on all the persons including this Court and principles of res judicata applies. 24. In this regard, the learned SPP - II and the CBI counsel brought to the notice of this Court that the Co-ordinate Bench dealt with the matter in detail by raising three points for consideration and finally dismissed the petition filed by the one Shashikumar Shivanna in W.P.No. 8316/2020. 25. For the convenience, the point raised by the Co-ordinate Bench at paragraph No. 13 of the order is read as under: "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 DSPE Act,....