2020 (11) TMI 1103 - SC - Indian Laws

Criminal Conspiracy - Jurisdiction of investigation conducted - non-compliance of Section 6 of DSPE Act - cases are overwhelmingly and predominantingly of civil nature as purely bases on breach of contract (FSA) and the criminal prosecutions or not - CBI followed the doctrine of parity in filing the criminal prosecutions against the Petitioners - absence of Officers/official of NCL - charge of Criminal conspiracy Under Section 120-B Indian Penal Code could be made out or not. HELD THAT - Though Section 5 enables the Central Government to extend the powers and jurisdiction of Members of the DSPE beyond the Union Territories to a State the same is not permissible unless a State grants its consent for such an extension within the area of State concerned Under Section 6 of the DSPE Act. Obviously the provisions are in tune with the federal character of the Constitution which has been held to be one of the basic structures of the Constitution. It could thus be seen that the State of Uttar Pradesh has accorded a general consent for extension of powers and jurisdiction of the Members of DSPE in the whole of State of Uttar Pradesh for investigation of offences under the Prevention of Corruption Act 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 for registration of FIR against the private individuals for the offences punishable under the Prevention of Corruption Act and other offences under the Indian Penal Code committed in the course of the same transaction or arising out of the same facts the Members of DSPE have all the powers and jurisdiction. As such we find absolutely no merits in the appeals filed by the private individuals. Insofar as the two public servants who have been undoubtedly working under the State Government are concerned initially they were not named in the FIR. However their names surfaced during the course of investigation and thus sanction was granted for their prosecution Under Section 19 of the Prevention of Corruption Act vide order dated 31st May 2012 prior to filing of the charge-sheet. It is also not in dispute that Post-Facto consent was given by the State Government vide notification dated 7th September 2018 Under Section 6 of the DSPE Act to the authorities to investigate the public servants. As early as in 1955 the question arose for consideration before this Court as to whether an investigation carried out by a police officer below the rank of Deputy Superintendent of Police Under Section 5(4) of the Prevention of Corruption Act 1947 without the order of the Magistrate of First Class was mandatory or directory? While holding that the provision is mandatory this Court considered a question as to whether and to what extent the trial which follows such investigation is vitiated. The Court in H.N. Rishbud and Inder Singh v. The State of Delhi 1954 (12) TMI 20 - SUPREME COURT 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. Recently a bench of this Court consisting one of us (Khanwilkar J.) had an occasion to consider the aforesaid provisions of DSPE Act in Kanwal Tanuj v. State of Bihar and Ors 2020 (4) TMI 910 - SUPREME COURT . In the said case the question arose as to whether when an offence was committed in the Union Territory and one of the Accused was residing/employed in some other State outside the said Union Territory the Members of DSPE had power to investigate the same unless there was a specific consent given by the concerned State Under Section 6 of the DSPE Act - While considering the argument on behalf of the State that such a consent was necessary for CBI to proceed with the investigation this Court held that the Respondent-State having granted general consent in terms of Section 6 of the DSPE Act vide notification dated 19.02.1996 it was not open to the State to argue to the contrary. In the present case there are no pleadings by the public servants with regard to the prejudice caused to them on account of non-obtaining of prior consent Under Section 6 of the DSPE Act qua them specifically in addition to the general consent in force nor with regard to miscarriage of justice. There are no reason to interfere with the finding of the High Court with regard to not obtaining prior consent of the State Government Under Section 6 of the DSPE Act - matter remitted to the learned Single Judge for deciding the questions on its own merits - appeal disposed off.

Summary

Issues Involved:
1. Legality of CBI investigation without compliance with Section 6 of DSPE Act.
2. Nature of the cases (civil or criminal) based on breach of contract (FSA).
3. Doctrine of parity in filing criminal prosecutions by CBI.
4. Charge of criminal conspiracy under Section 120-B IPC in the absence of NCL officers.

Issue-Wise Detailed Analysis:

1. Legality of CBI Investigation Without Compliance with Section 6 of DSPE Act:
The primary issue was whether the CBI's investigation was illegal due to non-compliance with Section 6 of the DSPE Act, which mandates state government consent for CBI investigations. The Allahabad High Court's Single Judge initially found the investigation invalid due to lack of prior consent from the Uttar Pradesh Government. However, the Division Bench clarified that the Government Order dated 15th June 1989 provided general consent for CBI investigations under the Prevention of Corruption Act, with a condition that prior permission is needed only for public servants under state control. The Supreme Court noted that the notification allowed CBI to investigate private individuals without specific consent and upheld the investigation's validity against private individuals. For the public servants, post-facto consent obtained on 7th September 2018 was deemed sufficient, and the investigation was not vitiated as no prejudice or miscarriage of justice was shown.

2. Nature of the Cases (Civil or Criminal) Based on Breach of Contract (FSA):
The High Court was to determine whether the cases were predominantly civil in nature due to breach of the Fuel Supply Agreement (FSA) and thus not warranting criminal prosecution. This issue was not resolved in the impugned order, as the Single Judge had deferred it pending the decision on the legality of the investigation.

3. Doctrine of Parity in Filing Criminal Prosecutions by CBI:
The question was whether CBI followed the doctrine of parity in prosecuting the petitioners. This issue was also deferred by the Single Judge and remained unresolved in the impugned order.

4. Charge of Criminal Conspiracy Under Section 120-B IPC in the Absence of NCL Officers:
The High Court was to decide if a charge of criminal conspiracy under Section 120-B IPC could be sustained without the involvement of Northern Coalfields Limited (NCL) officers. This issue too was deferred and not addressed in the impugned order.

Conclusion:
The Supreme Court upheld the High Court's finding that the CBI's investigation was valid despite the initial lack of state consent, as post-facto consent was obtained. The Court remitted the matter to the Single Judge to decide the unresolved issues (questions 2, 3, and 4) on their merits, clarifying that it had not considered the merits of these issues and kept all questions open for both parties. The criminal appeals were disposed of accordingly.