TMI Blog2020 (7) TMI 827X X X X Extracts X X X X X X X X Extracts X X X X ..... ner failed to establish as to how any of his rights were infringed or violated by the consent granted by the respondent No. 1 or as to how he was aggrieved by the consent granted under Section 6 of the DSPE Act, 1946. It is not the case of the petitioner that the respondent No. 1 could not itself investigate the offences committed by Mr. D.K. Shivakumar and other officials of the Government under the PC Act, 1988, based on the documents/information provided by the Enforcement Directorate - The word sanction found in the impugned Order is wrongly employed as what is contemplated under Section 6 of the DSPE Act, 1946 is only a consent to enable the respondent No. 3 to investigate the offences. The word consent is phonetically, etymologically and textually different from the word sanction and a world of difference pervades between the two and can never be used interchangeably. Though the respondent No. 1 has termed it as sanction under Section 6 of the DSPE Act, 1946 in the impugned order, yet what can be granted is only a consent and nothing more. The word consent admits of myriad definitions as per its use in various legislations such as consent in contractual matters, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tness of the consent accorded by the respondent No. 1 under Section 6 of the Delhi Special Police Establishment Act, 1946 (henceforth referred as 'DSPE Act, 1946') permitting the respondent No. 3 to investigate all purported violations of the provisions of the Prevention of Corruption Act, 1988 (henceforth referred to as 'PC Act, 1988'), by Mr. D.K. Shivakumar and other officials of the Government of Karnataka and to identify and investigate all persons involved in the alleged violation of the provisions of the PC Act, 1988. 3. The writ petition sets out that the petitioner is employed as a Chief Manager at Hindustan Aeronautics Limited and is drawing a salary of Rs. 2,50,000/- per month. The petitioner claimed that his father was a Joint Director of Health Services, Government of Karnataka, and had earned considerable properties during his tenure. The petitioner claims that he had succeeded to the properties of his father and had led a honest and meaningful life. He claimed that the premises of Mr. D.K. Shivakumar was raided during August 2017 and the Income Tax department had filed four complaints before the Metropolitan Magistrate, Bengaluru, which were transf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments of the: Apex Court in Mansukhlal Vithaldas Chauhan vs. State of Gujarat reported in - 1997 (7) SCC 622; High Court of Rajasthan in Subhash Bhatia and others vs. State of Rajasthan and others (S.B. Civil Writ Petition No. 590 of 2010 disposed of on 10.12.2010) and the High Court of Jharkhand in Ajay Kumar Mishra vs. State of Jharkhand and others (WP (S) No. 864 of 2004 disposed of on 21.06.2004) in support of this contention. (b) That the impugned order does not bear out any reason for granting sanction to prosecute the concerned persons. (c) That on a vague allegation, there cannot be a sanction to prosecute. (d) That a person cannot be hounded by the Police or CBI merely to find out if he has committed any offence. That any order which has the flare of civil consequences can be passed only after hearing the person affected. The learned Senior Counsel relied upon the Judgment of the Apex Court in Common Cause, a Registered Society vs. Union of India and Others reported in - 1999 (6) SCC 667 in support of this contention. (e) That failure to produce all the relevant materials before the authority granting sanction, and the sanction merely based on a report of the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC (Cri.) 391. 9. In reply, the learned Senior Counsel for the petitioner submitted that a copy of the opinion of the Advocate General was obtained by Mr. D.K. Shivakumar through the proper channel. He has placed on record a letter dated 25-11-2019 addressed by Mr. D.K. Shivakumar requisitioning a copy of the opinion of the Advocate General. A copy of the letter dated 21-12-2019 addressed by the Department of Home, Government of Karnataka enclosing therewith a copy of the opinion of the Advocate General, is also placed on record. He also relied upon the Judgment of the Apex Court in the case of Magraj Patodia vs. R.K. Birla and Others reported in AIR 1971 SC 1295 to contend that there is no bar for admissibility of the document on the ground that such a document was procured illegally. The learned Senior Counsel also submitted that even if the impugned order is administrative in nature, then too the respondent Nos. 1 and 2 are bound to disclose reasons and the absence of reasons would vitiate the order and he relied upon the Judgment of the Apex Court in M.P. Special Police Establishment vs. State of M.P. and Others reported in 2004 (8) SCC 788. The learned Senior Counsel also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed to it by the Enforcement Directorate noticed the findings of investigation by the Enforcement Directorate and the fact that the Enforcement Directorate indicated that the persons investigated appeared to have violated the provisions of the PC Act, 1988 and thus decided to inquire/investigate based on the information received by it and thus accorded consent to the respondent No. 3 - CBI to: i) Inquire/investigate into all purported violations of the provisions of the Prevention of Corruption Act, 1988 by Sri. D.K. Shivakumar and other officials of Government of Karnataka in connection with the above matter. ii) Identification and investigation of person/s involved in connection with alleged violation of provisions of the Prevention of Corruption Act, 1988, in the above matter. The respondent No. 1 directed the concerned department officers/officials/others to hand over data/information/records as and when required by the CBI and cooperate in the inquiry/investigation. It is the aforesaid consent granted by the respondent No. 1 that is challenged in this writ petition. 13. Having heard the learned Senior Counsel representing the petitioner and the learned Advocate Gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as already observed, investigation of anti corruption cases, economic offences and ordinary crimes of special importance have come to be vested in CBI which exercises its jurisdiction in the territory of all states and Union Territories with the consent of the State Governments. 16. In order to sustain the locus standi of the petitioner to question the impugned Order, the learned Senior Counsel for the petitioner contended that the name of the petitioner was taken in the report sent by the Enforcement Directorate to the respondent No. 1 and that the impugned Order passed by the respondent No. 1, bore a reference to the name of the petitioner. The petitioner therefore contends that he has the locus standi to challenge the impugned Order granting consent. 17. De Smith in his book Judicial Review of Administrative Action observed, locus standi is understood to mean legal capacity to challenge an act or decision. Garner and Jones in their treatise on Administrative Law are of the view that locus standi is a threshold question in the simplest or clearest cases of lack of standing. The Apex Court has elucidated the attributes of locus standi in the case of Fertilizer Corporati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Central Government before enquiring or investigating any offence under the PC Act, 1988 against any officer employed in any of its undertakings and is extracted below: 6-A. Approval of Central Government to conduct inquiry or investigation.-(1) The Delhi Special Police Establishment shall not conduct any inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 (49 of 1988) except with the previous approval of the Central Government where such allegation relates to.:- a) the employees of the Central Government of the level of Joint Secretary and above; and b) such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government. 20. The petitioner claims to be an officer employed with the Hindustan Aeronautics Limited which is a Company established by the Central Government. Thus, the petitioner may probably have a right to question any inquiry or investigation if it is commenced by the respondent No. 3 without the approval of the Central Government but certainly, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor was quite legal and valid. (emphasis supplied) 22. The word consent is phonetically, etymologically and textually different from the word sanction and a world of difference pervades between the two and can never be used interchangeably. Though the respondent No. 1 has termed it as sanction under Section 6 of the DSPE Act, 1946 in the impugned order, yet what can be granted is only a consent and nothing more. The word consent admits of myriad definitions as per its use in various legislations such as consent in contractual matters, consent in offences relating to human body, consent for establishment under the Environmental laws. In so far as the word consent found in Section 6 of the DSPE Act, 1946, it only means a permission of the concerned State in the Constitutional scheme of things. On the other hand, the word sanction found in Sections 17A and 19 of the PC Act, 1988, Section 197 in the Criminal Procedure Code inheres a thoughtful application of mind to ascertain whether the record placed before the Authority bears out enough material to proceed to prosecute. The requirement of application of mind while granting sanction is intended to avoid frivolo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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