TaxTMI 
TaxTMI 
2023 (4) TMI 1026
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..... 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 Laundering Act, 2002 (hereinafter referred to ....
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..... 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. AND OTHERS - 1976 (4) SCC 780; 13. BOOZ ALLEN AND HAMILTON INC. VS. SBI HOME FINANCE LIMITED AND OTHERS - 2011 (5) SCC 5....
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....ned. 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. INDERNATH AND OTHERS VS. STATE OF TAMIL NADU AND OTHERS - (2022) 2 WritLR 614; 7. SRI M. BALAKRISHNA REDDY VS. DIRECTOR OF CENTRAL BUREAU OF INVESTIGATION, NEW DELHI (2008) 4 SCC CASES 409; 8. SRI BASAVA....
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....corded, 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 counsel for the parties, perused the records which reveals it is an admitted fact that the petitioner is sitting MLA and the opposite political party leader. There was raid conducted by the income tax authorities and they seized cash from the house of the petitioner and other places. It is also an admi....
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....ed 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 sanction, the order will be bad for the reason that the discretion of the authority not to sanction was taken away and it was compelled to act mechanically to sanction the prosecution. The another judgment in the case of M.P.Special Police Establishment vs. State of M.P. and Others reported in (2004) 8 SCC 788, i....
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....ate. 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 Supreme Court in the case of M.Balakrishna Reddy vs. Director, CBI, New Delhi reported in (2008) 4 SCC 409 at head note A, paragraph Nos.44 and 71 has held as under: "Head Note A: Police - CBI - Exercise of powers and jurisdiction by CBI in a State - Consent of State Government under S. 6, Delhi Special Police Establishment Ac....
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....al 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 consent and the Central Government can, thereafter exercise its power by accepting the investigation entrusted to it by the State Government. The said process is uninhibited by the high prerogative judicial powers of entrustment of inquiry to CBI. The same is independent and does not have any fetters with regard to whether extraordinary judicial powers are not e....
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...., 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, 1946 is akin to a sanction contemplated under Section 17A or Section 19 of the Prevention of Corruption Act, 1988 or under Section 197 of the Criminal Procedure Code, 1973 ? c) Whether in the facts and circumstances of this case, whether the respondent No. 1 was required to apply its mind ? If yes then whether the respondent No. 1 has applied its mind before granting consent un....