TMI Blog2018 (10) TMI 1938X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 DSPE Act unworkable - A State Government need not consent only because some other State Government has accorded its consent. Therefore, on the logic of the judgment in Virbhadra Singh (supra), if the consent of eight different States had to be taken and the consent is obtained only of five States, that would mean that the investigation conducted in the remaining three States cannot be considered by the CBI and has to be jettisoned from the charge-sheet. The trial Court, on this reasoning would not be able to look into that part of the evidence. The purpose of the provisions of the DSPE Act is to facilitate the CBI in carrying out its investigations. It would, therefore, be counter-intuitive if the task of the CBI is frustrated beyond the point of practicality. If in every such case the investigation is stalled because of the absence of sanction of a particular State other than the State where the case is registered, then the scheme of Sections 5 and 6 of the DSPE Act and their purpose would be defeated - In the present case, the actions of the Petitioner spoken of in the charge sheet, though performed at Raipur, were pursuant to the criminal conspiracy entered into between so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses in the context of the steps taken by the CBI to investigate a case registered as RC No.217/2107/A0004/CBI/ACU-V in New Delhi on 18th February 2017 under Section 120-B of the Indian Penal Code 1860 (IPC) read with Section 8 of the Prevention of Corruption Act, 1988 ( PC Act ) against Mr. B. L. Agarwal, Mr. Bhagwan Singh, Mr. O.P. Sharma @ O.P. Singh @ Syed Burhanuddin, and some other unknown persons. Background facts 3. The background facts are that earlier two cases were registered by the CBI against Mr. B. L. Agarwal, the then Health Secretary and present Principal Secretary, Higher Education, Government of Chhattisgarh (Respondent No.3). The Petitioner is the brother-in-law of Mr. B. L. Agarwal. The two cases registered against Mr. B. L. Agarwal by the CBI were: a) RC No. 9(A)/2010/CBI/ACB/Bhilai registered at CBI/ACB/Bhilai on 31st December, 2010 in which charge sheet for commission of offences under Section 120-B read with Sections 419, 466 and 477-A of IPC was filed on 17th November, 2011. b) RC No. 1(E)/2010/EOU-VII/Delhi registered on 4th January, 2010 for commission of offences under Section 120-B IPC read with Sections 420, 468, 471, 477A IPC and Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o pay the remaining sum in the form of gold. The two co-accused, in consultation with each other, agreed to receive the gold through a hawala agent. The CBI claims to have intercepted the Petitioner when he delivered two kilograms of gold to one Mr. Sumit Pandey @ Monu on behalf of Mr. B. L. Agarwal on 18th February 2017. The charge sheet 8. This Court has perused the charge-sheet filed in the present case wherein the precise allegations with regard to the present Petitioner read as follows: (v) It is further alleged that Sh. B.L. Agrawal expressed difficulty in arranging cash for paying the balance illegal gratification, and therefore, Sh. Syed Burhanuddin @ O.P. Sharma @ O.P. Singh and Sh. Bhagwan Singh agreed to accept a part of illegal gratification in the form of 2Kgs gold from Sh. B.L. Agrawal. Sh. Syed Burhanuddin @ O.P. Sharma @ O.P. Singh, through Sh. Bhagwan Singh, asked Sh. B.L. Agrawal to deliver the gold to his contact person at Raipur. It is further alleged in the FIR that Sh. B.L. Agrawal asked his brother-in-law Sh. Anand Agrawal to arrange for the delivery of 2Kg Gold and take further action in this regard. It is alleged in the FIR that Sh. B L Agraw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one Sh. Monu Bhai in Raipur and number of a ₹ 100 GC note which he passed on to Sh. Syed over phone through whatsapp or sms. The contact number of Sh. Monu Bhai and number of a 100 rupee GC note, which was recovered from Sh. Anand Agrawal, has been found in the SMS data contained in mobile handset of Sh. Syed, seized from Sh. V S Raju, an employee of Sh. Syed Burhanuddin. This SMS has been forwarded by Sh. Syed Burhanuddin to Sh. Bhagwan Singh. 16.5 Sh. Mohit Aggarwal @ Ayush Kumar Aggarwal, on receiving call from Sh. Dinesh Kumar Goyal @ Titu @ Rambhai had called up Sh. Monu at Raipur, who was known to him, at his land line no. 0771-2539007 on 17.02.2017 and took the number of ₹ 100/- GC note and passed on the same along with the landline number of Sh. Monu to Sh. Titu. 16.6 Sh. Amit Kumar Jain who knew Sh. Anand Agrawal since childhood, on his request had introduced Sh. Anand Agarwal to Sh. Rahul Kochar of M/s Kochar Jewellers. On 03.02.2017, Sh. Anand Agarwal gave an amount of ₹ 29,40,000/- in the denomination of ₹ 2000/- in cash to Sri Rahul Kochar and received One Kg of gold from him in his presence. 9. It is the case of the Petitioner that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supported the Petitioner contending that at no point in time was any consent given by Respondent No.3 under the DSPE Act. Respondent No.3 points out in response to the assertion in the notification dated 25th April 2001 of the central government that Respondent No.3 had conveyed its consent on 3rd February 2001, that the said letter did not merit as a notification since the State never gave any consent. Stand of the CBI 14. The stand of the CBI is that the criminal conspiracy was entered into between Mr. Agarwal and the co-accused in Delhi and it is only pursuant thereto that the other co-accused, including the present Petitioner, acted. It is submitted that as long as the offence is committed in Delhi, and the case was validly registered by the CBI in Delhi, it did not matter if the investigation pursuant to the said offence is carried on in other States without the prior sanction of those States under Section 6 DSPE Act. Mr. Anupam Sharma, learned counsel for the CBI places reliance on the decisions in Hussein Ghadially v. State of Gujarat (2014) 8 SCC 425; State of West Bengal v. The Committee for Protection of Democratic Rights (2010) 3 SCC 571; Vineet Narain v. Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no mention is made of the same in the writ petition and therefore, there was no occasion for the CBI to address it in their reply. Nevertheless, Mr. Anupam Sharma, learned counsel appearing for the CBI, submits that, in terms of Article 22 of the Constitution itself, after excluding the time taken for the journey, a person arrested in Raipur by the CBI pursuant to a case registered in Delhi has to be produced before a Magistrate within 24 hours. It is only if the journey is likely to take more than 24 hours, that the person arrested has to be produced before a local Magistrate and a transit remand obtained. 18. The Court finds that in Article 22 (2), in computing the period of 24 hours the travel time for the arrested person to be produced before the jurisdictional Court is to be excluded. If the arrested person cannot be produced within 24 hours then he has to be produced before the nearest Magistrate. 19. In the present case, admittedly the Petitioner was produced before the Special Judge CBI in New Delhi within 24 hours of his arrest in Raipur. Since the CBI did not anticipate that more than 24 hours after his arrest would be needed to produce the Petitioner before the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 5 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in [a State, not being a Union territory or railway area, without the consent of the Government of that State. 21. At first blush, it would appear that any investigation carried out in a State other than the State where the case is registered would require the CBI to take the prior permission of the State in which the investigation is sought to be carried out. Thus, in the hypothetical situation of a case registered by the CBI in Kolkata, West Bengal requiring investigations to be carried out in four other States, if one went by the contention of the Petitioner then prior permission would have to be sought from the Governments of each of those four States before the CBI proceeds to take any step in any of those respective States by way of investigation. 22.1 Although many decisions have been cited by counsel on both sides, this Court proposes to discuss only those that are directly relevant to the facts of the present case. The decision in Virbhadra Singh (supra) was relied upon by Mr. Sharan in support of his proposition that, in the instant cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was not mandatory for the CBI to seek the consent of the State Government of Himachal Pradesh under Section 6 of the DSPE Act at the time of registration of the FIR/ RC. Thus, the FIR/RC cannot be quashed on the ground of there being no consent under Section 6 of the DSPE Act from the State Government of Himachal Pradesh. It was mandatory for the CBI to obtain the consent of the State of Himachal Pradesh under Section 6 prior to conduct of any part of investigation in the area of State of Himachal Pradesh. The issue whether such consent had been obtained generally, or specifically, as well as the issue as to what is the effect of the investigation conducted, if any, without obtaining the prior consent of the State Government of Himachal Pradesh, cannot be determined in the present proceedings and would fall for consideration, if and when a charge-sheet is filed before the learned Special Judge. The issue whether, investigation carried out de hors the consent of the State of Himachal Pradesh even if it were to be accepted for the sake of arguments that such consent was not available, would have to be considered by the learned Special Judge in the light of the discussion and d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Court in Ramesh Chandra (supra) appears to be more persuasive. There the person under investigation had taken employment in another State and the question was whether the consent of that other State had to be taken. This Court observed in paragraphs 21 to 25 as under: 21. A collective reading of Sections 3, 5, and 6 of the DSPE Act along with the aforementioned notifications indicates that the investigating into cases involving offences arising out of the PC Act and any other offence or offences committed in the course of the same transaction and arising out of the same facts against public servant under the control of the State of UP, cannot be undertaken by the CBI except with the prior permission of the State Government . The contention of the learned Senior Counsel for the Petitioner is that the words powers and jurisdiction in any area in a State occurring in Section 6 DSPE Act includes the powers to arrest, question and investigate the public servant, physically located within the State of UP at the time the CBI seeks to exercise such power and jurisdiction. It is submitted that the petitioner functioned as Professor in the DCE from 23rd November 1987 to 28th Feb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e CBI to have obtained the prior permission of the State of UP for prosecuting the petitioner pursuant to the registration of the aforementioned RC. 26. A similar view has been expressed by another learned Single Judge of the Patna High Court in Kanwal Tanuj (supra). The purpose of the provisions of the DSPE Act is to facilitate the CBI in carrying out its investigations. It would, therefore, be counter-intuitive if the task of the CBI is frustrated beyond the point of practicality. If in every such case the investigation is stalled because of the absence of sanction of a particular State other than the State where the case is registered, then the scheme of Sections 5 and 6 of the DSPE Act and their purpose would be defeated. 27. In the present case, the actions of the Petitioner spoken of in the charge sheet, though performed at Raipur, were pursuant to the criminal conspiracy entered into between some of the accused in New Delhi. According to the CBI, those actions of the Petitioner were in continuation of and, in a sense, a completion of the criminal acts that were planned to be undertaken in that conspiracy. They are inseparable from the main criminal conspiracy itself. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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