TMI Blog2022 (6) TMI 1387X X X X Extracts X X X X X X X X Extracts X X X X ..... enged on the ground that the nature of allegations made in the complaint is beyond the scope of Section 3 of the Delhi Police Establishment Act and the Society in question is neither financed by the State or Central Government and it is a Society registered under Societies Act. In the present case on hand, A5 is the Deputy/Joint Secretary of Indian Red Cross Society, National Head Quarters, which is situated at India Red Cross Society at No. 1, Red Cross Road, New Delhi-110001, which is well within the jurisdiction of the Delhi Special Police Establishment namely CBI, which is also the contention of the petitioner/A5. Hence, in the logical view, the G.O.(Ms) No. 181, dated 09.04.2020 itself is not mandatory. The attention of this Court was also invited to the Judgment of the Hon'ble Supreme Court in State Vs. N.S. Ghaneswaran, reported in ([ 2013 (1) TMI 966 - SUPREME COURT] ), wherein it is held that CBI can register FIR as per the procedure traceable in CBI Manual 6.10.1. Hence, there is no illegality in CBI registering FIR. With regard to the first contention that the Indian Red Cross Society do not receive any grants from the Government is not correct. Indian Red C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law in motion, except where the statute enacting or creating an offence indicates to the contrary - the third respondent not only being Deputy Secretary of the Governor, even as a commoner, when an offence, coming to his knowledge as per Section 39 of Cr.P.C. has lodged the complaint. Thus, it is seen that the grant of consent under Section 6 of the DSPE Act, 1946, is more in the nature of an administrative Order and does not require enormous rejigging, as the issue is whether to allow the investigation to be done by the CBI or not. This Court finds the contentions raised by the petitioners are unreasonable, not sustainable. Hence, all the Writ Petitions are dismissed. - W.P. Nos. 2007, 2031, 2392, 5729 of 2021, W.M.P. Nos. 2268, 2269, 2698, 2699, 2306, 2307, 6342, 6343, 5750, 5752, 6873, and 6875 of 2021 - - - Dated:- 24-6-2022 - M. Nirmal Kumar, J. For the Appellant : E. Sankar, C. Ashok Kumar, Tamilvanan and Sundarajamukund. For the Respondents : Shanmuga Sundaram, Advocate General, R. Sankar Narayanan, Additional Solicitor General, V. Jayaprakash Narayanan, K. Srinivasan, Special P.P., Hasan Ali Jinnah, State Public Prosecutor, S.M. Deenadayalan and Om Praka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han 600 vehicles. The Branch receives 4.57% from National Headquarters, as monthly grants, for the year 2016-17, it received Rs. 39,600/- only. The learned counsel, therefore, submitted that this Court was privy to the affairs of the Indian Red Cross Society. 5. The learned counsel appearing for the petitioners would further submit that the 3rd respondent has not lodged any complaint to the 1st respondent as well the 6th respondent. On the contrary, the 3rd respondent lodged a complaint, dated 27.03.2020, to the 5th respondent. Hence, the Government of Tamil Nadu viz., respondents 1 and 6, have no role and power to give consent for the alleged offences mentioned in the complaint addressed to the Central Government Investigating Agency viz., the Joint Director of South Zone, CBI, ACB, Chennai-5 in connection with the alleged offences committed by the officials of the Indian Red Cross Society, Tamil Nadu Branch. Therefore, granting of consent under Section 6 of the Delhi Special Police Establishment Act, 1946 by the respondents 1 and 6, is without jurisdiction, exceeded the powers of the State Government provided under the Constitution of India. Therefore, the Government Order in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e year 1920, by a Central Act, passed by Parliament. Hence, appropriate Government is the Central Government. It is not the State Government to give consent under Section 6 of DSPE Act. The State Government has not authority to give consent. The consent is want of jurisdiction, further the 5th respondent never sought any consent. In this case, consent from Tamil Nadu Government not required. Hence, Government Order to be quashed. As per the said Act, Appropriate Government is the Central Government. The 5th respondent never requested any consent under Section 6 of Delhi Special Police Establishment Act, 1946, for investigation under Chapter XII of the Criminal Procedure Code. Hence, on suo motu, the 1st respondent initiated and granted consent, which is nothing but colourable exercise of power by the 1st respondent and unconstitutional. 8. The learned Senior Counsel for the petitioners, in support of his contentions, relied on the following Judgments:- (i) Sarmukh Singh vs. Indian Red Cross Society (ii) State of Kerala, Rep. by the Secretary to the Government, Department of Health and Family Welfare, Secretariat, Thiruvananthapuram and others vs. Sunil C. Kurien, Formerly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld contend that based on the complaint of the 3rd respondent, FIR No. RC0322020A0023, dated 28.12.2020, registered for the offences under sections 120-B and 409 I.P.C., and Sections 13(2) read with 13(1) (a) of the Prevention of Corruption Act, 1988, on the file of the Anti-Corruption Bureau, Chennai, against the petitioners for committing the offences of Criminal Conspiracy, Criminal Breach of Trust and Misconduct by Public Servant to cause pecuniary advantage to themselves and caused wrongful loss to the Indian Red Cross Society from the period 2011 onwards. 11. It is further contended that the Indian Red Cross Society is a statutory body constituted under the Special Act namely the Indian Red Cross Society Act, 1920 incorporated under the Parliament Act XV of 1920. The above Special Act continues to be in the statute books by virtue of Adaptation of Laws (No. 4) Order 1957 and was amended by Act 14 of 1992. The National Head Quarters of this Society is at New Delhi and is governed by the provisions of the said Act. The IRCS receives various grants from the Government. The issue whether Indian Red Cross Society is an instrumentality of the State under Article 12 of the Consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Free Hearse Services (F.H.S.) and Janani Sishu Suraksha Karyakram Project (J.S.S.K.). The complaint given against the Petitioners herein includes the affairs of the National Headquarters and office bearers of the State Branch. In the said context, the complaint is given to the 5th Respondent herein and the same registered after consent and approvals. The State Public Prosecutor further added that in this case it is a case of misappropriation, there was no proper utilisation of funds, and proper audit conducted, further the act of the petitioners squarely applicable, as per Section 2(b), (viii) (xii), the consent under Section 6 of the DSPE Act is only a pre-request before registration of FIR. The citations relied by the petitioners not applicable to the facts of this case. 14. The allegations in the complaint against the petitioners are that of misappropriation, conspiracy and breach of trust, the same are disputed factually by the Petitioners. The petitioners raised disputed questions of fact and the same cannot be gone into in Writ Petitions. The power and jurisdiction of the Special Force can be extended by the Central Government by virtue of Section 5 of the Del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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. The consent of the State Government of Tamil Nadu is accorded vide Home (POL. VII) Department Notification G.O.(Ms). No. 181, dated 09.04.2020, issued Under Section 6 of the D.S.P.E. Act, 1946. As such, there is no infirmity in registration of the present case by SPE: CBI: ACB: Chennai. The accused persons are public servants as defined under Section 2 of the Prevention of Corruption Act, 1988. As required under Section 17A of the Prevention of Corruption Act, 1988 (as amended in 2018), the approval of competent authority-Executive Committee of IRCS, NHQ against accused was conveyed vide letter No. IRCS/NHQ/SG/2020/12 dated 19.12.2020 and the case was registered after the said approval. The requirement under DSPE Act is to receive consent, which is an administrative act, fur which, the petitioners can have no quarrel. 18. On 06.01.2021, in the official and residential premises of accused persons searches were conducted. One Dr. Harish L. Metha in connivance with Manish Choudhary, managed a fraudulent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Bureau of Investigation (CBI). This Government Order is challenged on the ground that the nature of allegations made in the complaint is beyond the scope of Section 3 of the Delhi Police Establishment Act and the Society in question is neither financed by the State or Central Government and it is a Society registered under Societies Act. 22. The specific overt act against the petitioner (A1) in W.P. No. 2031 of 2021 is that A1, who holding the post of Chairman, in connivance with A5, managed, fraudulent election for the Managing Committee and involved in all financial and election irregularities, without following New Uniform Rules, collusion with the petitioner (A5) at the National Headquarters, who facilitated the office became in Tamil Nadu Branch to continue their embezzlement. Likewise, the overt act against the 2nd petitioner (A2) in W.P. No. 2031 of 2021 is that A2, being the Member of the Managing Committee in connivance with A1 and other accused favouring the activities of A1 and his irregularities; the overt act against the petitioner (A3) in W.P. No. 2007 of 2021, who is treasurer and incharge of the funds of the Society, in connivance with A1, created financi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Honorary basis. The statutory auditor audited the Accounts of the society and the same was scrutinized by the independent auditor, appointed by the Hon'ble Governor. The accounts were placed in Annual General Body meeting and unanimously approved in the said meeting. The Government of Tamil Nadu associated with the Society, in two projects namely, Free Hearse Services (F.H.S.) and Janani Sishu Suraksha Karyakram Project (J.S.S.K.) as a private partner by entering into a memorandum of understanding. Tamil Nadu Health Department made payments based on the actual and production of utilization certificates. Thus, no fund is directly provided to the Society under two Projects as alleged. 25. The society is associating with the Health Department of the Government in two projects honorarily, the actual expenditure is paid by the Government after due audit. It is a private body without having any pivotal governmental control and as such, the office bearers cannot be termed as public servants within the meaning of Prevention of Corruption Act. Hence the impugned Government Order proceeds on the basis that they are the public servants is not correct. The impugned G.O. has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... public and the remaining amount has been swindled. The Blood Bank run by the Society should donate the blood at free of cost to the Government Hospital and if surplus available, blood to be given to private entity at a price, however, sold the blood for Rs. 25,00,000/- to private entity and organisations in which A1 involved to promote his self interest. The Social Welfare Schemes viz., Free Hearse and Janani Sishu Suraksha Karyakram are totally funded by the Government and operated by IRCS-TN. As per the definition in clause (xii) of Section 2(c) of the Prevention of Corruption Act, it is clear that IRCS-TN Branch is public Authority. 29. The learned Public Prosecutor invited the attention of this Court to the Judgment of the Calcutta High Court in Ramesh Chandra Singh Vs. CBI, wherein the petitioner there sought to quash the case on the file of CBI for the reason that the Government of West Bengal withdrew the consent granted under Section 6 of the Delhi Special Police Establishment Act. However, since the registered office is situated at New Delhi, the consent under Section 6 is not mandatory, since by default, the CBI has jurisdiction and permitted the CBI to proceed wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e than clear that the Act, inter alia, envisages widening of the scope of the definition of public servant, nevertheless, the mere performance of public duties by the holder of any office cannot bring the incumbent within the meaning of the expression 'public servant' as contained in Section 2(c) of the PC Act. The broad definition of 'public duty' contained in Section 2(b) would be capable of encompassing any duty attached to any office inasmuch as in the contemporary scenario there is hardly any office whose duties cannot, in the last resort, be traced to having a bearing on public interest or the interest of the community at large. Such a wide 2 (1942) AC 561 understanding of the definition of public servant may have the effect of obliterating all distinctions between the holder of a private office or a public office which, in my considered view, ought to be maintained. Therefore, according to me, it would be more reasonable to understand the expression public servant by reference to the office and the duties performed in connection therewith to be of a 'public character'. 32. The primary contentions of the petitioners are on two folds; (i) that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Government Order and the annexures, it is seen that exclusive services entrusted to them. The Government of Tamil Nadu, have given Grants to IRCS pursuant to Memorandum of Understanding entered between the Government of Tamil Nadu and IRCS, on 02.03.2011 and 18.02.2016. The Secretary, IRCS, Tamil Nadu Branch and Program Assistant, IRCS., are nominated as Members for State Level Administrative Committee and District Monitoring Committee. By way of grants, provision in the Budgetary allocation made, which are given to IRCS, which is nothing but receipts of grants from the Government of Tamil Nadu. Further, the transactions of these two services were not initially shown in the Income statement to the Income Tax Department. In fact, they obtained two separate PAN numbers for IRCS and for the two Schemes. Later, on objection, the 2nd PAN number was deleted. Though IRCS state that it was only for the service rendered payments received and Red Cross Society not earned income is not proper, as could be seen from the ledger account of the said two projects. The Health and Family Welfare Department confirms the Grants-in-Aid given to IRCS, Tamil Nadu Branch. 35. Further, from the lett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... word, 'office' and how it has to be understood. Following the same, the Apex Court in the case of Manish Trivedi Vs. State of Rajasthan held that the word, 'office' is of indefinite connotations and, it would mean a position or place to which certain duties are attached and has an existence, which is independent of the persons, who fill it. 38. In this case, the petitioners herein are given privileged status and benefits on the office they held in IRCS. Thus, the position is clear that 'public duty' means, a duty in discharge of which, the State, the public of the community at large has an interest. This Court in the Full Bench Judgment in Crl.R.C.(MD) No. 612 of 2020 had held that a person to be regarded as 'public servant' within the meaning of both Clause (viii) or Clause (ix) of Section 2(c) of Prevention of Corruption Act, are the persons, who have been required to discharge their official duties, when it is found that the person is dealing and discharging his public duty and or the community at large as an interest. In this case, the petitioners involved in various services, that too, in which IRCS given exclusive privilege and right of imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o other areas.--(1) The Central Government may by order extend to any area (including Railway areas), in a State, not being a Union territory the powers and jurisdiction of members of the Delhi Special Police Establishment for the investigation of any offences or classes of offences specified in a notification under section 3. (2) When by an order under sub-section (1) the powers and jurisdiction of members of the said police establishment are extended to any such area, a member thereof may, subject to any orders which the Central Government may make in this behalf, discharge the functions of a police officer in that area and shall, while so discharging such functions, be deemed to be a member of the police force of that area and be vested with the powers, functions and privileges and be subject to the liabilities of a police officer belonging to that police force. (3) Where any such order under sub-section (1) is made relation to any area, then, without prejudice to the provisions of sub-section (2), any member of the Delhi Special Police Establishment of or above the rank of Sub-Inspector may, subject to any orders which the Central Government may make in this behalf, exerc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Sections 120-B and 409 of IPC and under Section 13(2) read with Section 13(1)(a) of the Prevention of Corruption Act. 46. The questioning of locus, of the third respondent is not proper, since it is settled legal proposition that anybody can set the law in motion, except where the statute enacting or creating an offence indicates to the contrary. This is a settled proposition as seen in A.R. Antulay vs. Ramdas Sriniwas Nayak and another reported in 1984 (2) SCC 500. Further, it had also held that punishment of the offender in the interest of the society being one of the objects behind statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait-jacket formula of locus standi. It is pertinent to note that in this case, lodging of complaint by the third respondent cannot be found fault with. As per Section 39 of Cr.P.C., there are certain offences, wherein duty is cast on the public to give information of certain offences, to give information to the nearest Magistrate or the Police Officer, of such commission or intention. Section 39(viii) of Cr.P.C. reads as follows:- '39. Pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ace 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. 50. The word ''consent'' has been discussed in Sri Shashi Kumar Shivanna vs. The Government of Karnataka, Rep. by Home Secretary, Bengaluru and another [W.P. No. 8316 of 2020, dated 22.07.2020], which reads as follows:- 22. The word consent is phonetically, etymologic ally 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a socialist, secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our preambular vision. Therefore, the duty of the Court is that any anticorruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption. That is to say in a situation where two constructions are eminently reasonable, the Court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it. 55. In view of the above, this Court finds the contentions raised by the petitioners are unreasonable, not sustainable. Hence, all the Writ Petitions are dismissed. Since the investigation has been stalled for the past few years, the Central Bureau of Investigation is directed to give priority and complete the investigatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
