TMI Blog2023 (4) TMI 1026X X X X Extracts X X X X X X X X Extracts X X X X ..... Senior counsel for the petitioner that the Co-ordinate Bench while passing the order in the Writ Petition, though it was stated that it was an administrative order in its order, but it is not an administrative order but it is only a simple executive order and it need not require any detailed order for application of mind and even otherwise, the authority i.e., Under Secretary has considered the letter sent by the Directorate of Enforcement Department and passed the order - Such being the case, the contention of the learned counsel for the petitioner cannot be acceptable that there is no application of mind while passing the impugned order. Therefore, on that ground, the impugned order cannot be quashed. Whether the order passed by the Co-ordinate Bench is the 'Judgment in Rem' which is binding on all the persons including this Court and principles of res judicata applies? - HELD 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 SHASHI KUMAR SHIVANNA VERSUS THE GOVERNMENT OF KARNATAKA AND ORS. [ 2020 (7) TMI 827 - KARNATAKA HIGH COURT] - The Co-ordinate Bench final ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, there is no reason for this Court to distinguish or take divergent opinion in respect of the order passed by the Co-ordinate Bench - Petition dismissed. - WRIT PETITION NO.10479 OF 2020(GM-RES) - - - Dated:- 20-4-2023 - HON BLE MR. JUSTICE K. NATARAJAN For the Petitioner (By Sri Rajendra M S, Advocate) For the Respondents (By Sri Mahesh Shetty, HCGP for R 1 R 2 Served, Unrepresented) ORDER This writ petition filed by the petitioner under Articles 226 and 227 of the Constitution of India praying for issue a writ, in the nature of certiorari or any other appropriate writ or order or direction, quashing the Government Order bearing No. E-HD/40/COD/2019 dated 25.09.2019 issued by the 2nd respondent by according sanction for prosecution to the 3rd respondent-CBI to investigate the alleged offences committed by the petitioner under the provision of Prevention of Corruption Act (hereinafter referred as to 'PC Act'). 2. Heard Sri. Udaya Holla, learned Senior Counsel appearing for the petitioner, learned SPP-II appearing for respondents Nos. 1 and 2 and Sri P. Prasanna Kumar, learned Special Counsel appearing for respondent No. 3. 3. The case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t between the petitioner and the respondent. 5. The learned Senior Counsel has also contended that out of five cases registered against the petitioner by the income tax department officials, the petitioner was discharged in three cases and the same was upheld by the Hon'ble Supreme Court. In one case, the discharge application came to be dismissed, which is stayed by the Hon'ble Supreme Court. This fact has not been considered by the State Government while according sanction. It is also contended that even if it is an administrative order. The State is required to apply its mind while granting any sanction. Except culling out the letter of the ED, there is no application of mind while referring the matter to the CBI. Therefore, the order under challenge, dated 25.09.2019, is not sustainable under law. Hence, prayed for quashing the same. 6. In support of his arguments, the learned Senior counsel for the petitioner, has relied upon the various judgments, which are as follows: 1. MANUSKHLAL VITHALDAS CHAUHAN VS. STATE OF GUJARAT - 1997 (7) SCC 622; 2. M.P. SPECIAL POLICE ESTABLISHMENT VS. STATE OF M.P. AND OTHERS - 2004(8) SCC 788; 3. ASSISTANT COMM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich was challenged by one Shashi Kumar Shivanna in the writ petition referred supra. The Co-ordinate Bench in the aforesaid writ petition has dealt with the matter in detail and passed an order by rejecting the writ petition filed by the said Shashi Kumar Shivanna. Subsequently, the said person filed a writ appeal before the Division Bench, where the writ appeal was also dismissed and the same was not challenged before the Hon'ble Supreme Court and it has attained the finality. The judgment passed by the Co-ordinate Bench by upheld the order passed by the State Government and not against any person. Therefore, the judgment of the Co-ordinate Bench is 'Judgment In Rem' and it is binding on all the persons. Therefore, it cannot be questioned since the principles of res-judicata applies. 8. The learned SPP-II has also contended that even if any error occurs while passing the order of sanction or consent, that cannot be a ground for setting aside the order since there is no prejudice would cause to the petitioner's case and that can be cured under Section 465 of Cr.P.C. It is further contended that unless, it is established that there is failure of justice, the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, which are as under: 1. DELHI SPECIAL POLICE ESTABLISHMENT ACT, 1946 (ACT NO.25 OF 1946)(BARE ACT); 2. KANWAL TANUJ V. STATE OF BIHAR - (2020) 20 SCC 531; 3. CBI AND ANOTHER VS. RAJESH GANDHI AND ANOTHER - (1996) 11 SCC 253 4. M. BALAKRISHNA REDDY VS. CBI, NEW DELHI (2008) 4 SCC 409; 5. NIRMAL SINGH KAHLON V. STATE OF PUNJAB - (2009) 1 SCC 441; 6. NARMADA BAI V. STATE OF GUJARAT - (2011) 5 SCC 79; 7. BASAVARAJ SHIVAPPA MUTTAGI Vs. STATE OF KARNATAKA - WP.NO.51012/2019; 8. SOMASEKAR VS. STATE OF KARNATAKA AND ANOTHER IN SPECIAL LEAVE TO APPEAL (CRIMINAL) NO.9649/2021; 9. S KASI VS. STATE - (2021) 12 SCC 1; 10. STATE OF CHATTISGARH AND ANOTHER VS. AMAN KUMAR SINGH AND OTHERS - SLP(CRL.) NO. 1703-1705/2022; 11. STATE OF HARYANA AND OTHERS VS. BHAJAN LAL AND OTHERS 1992 SUPP(1) SCC 335. 13. The learned Senior Counsel for the petitioner, by way of reply, has contended that the very order passed by the State itself shows that it is an order of sanction, but not the consent. The sanction and consent are synonymous as per Section 470(3) of Cr.P.C. The reasons is the soul of any order either admini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passing of the impugned order by the State Government, the CBI registered an FIR against the petitioner in No.ECIR/04/HQ/2018 which is already challenged before this Court and it is pending for consideration. 15. With these admitted facts, now the contention taken by the respondents, in this case, is mainly on the ground that the Co-ordinate Bench has already dismissed the writ petition referred supra, which was filed challenging the very impugned order and the said order passed in the writ petition was upheld by the Division Bench. Therefore, the judgment has attained finality and the present petition is not maintainable on the ground of principles of res-judicata. This is contended by respondent's counsel that the judgment passed by the Co-ordinate Bench in the aforesaid writ petition is Judgment In Rem binding on all the persons. It is also contended that the order passed by the State Government under Section 6 of DSPE Act is only a consent but not sanction, whereas the petitioner disputed the same on the ground that the said order is sanction, which required application of mind, and no principles of res judicata applies in this case. 16. Having heard the arguments of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er hand, the learned SPP-II has contended that the impugned order of the State was only a simple executive order for giving consent under Section 6 of the DSPE Act. In support of his contention, he has relied upon the judgment of the Madras High Court in the case of Dr. C.Indernath and Others vs. State of Tamil Nadu and Others reported in (2022) 2 WritLR 614, where the Madras High Court while dealing with the similar situation where the matter was referred to the CBI for investigation was held at paragraph No.49 of the judgment as under: 49. The Hon'ble Supreme Court in the case of Fertico Marketing and Investment Private Limited and others vs. Central Bureau of Investigation and another [2021 (2) SCC 525], held that though 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 the State concerned under Section 6 of 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. As could be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat a letter can be a means of granting consent by the State Government under Section 6. 71. A closer scrutiny of the relevant provisions of the Delhi Act also add credence to the view which we are inclined to take. Section 3 refers to notification and requires the Central Government to issue notification specifying offences or class of offences to be investigated by Special Police Establishment. Section 5 uses the term order and enables the Central Government to extend powers and jurisdiction of Special Police Establishment to other areas not covered by the Act. Section 6 which speaks of consent of the State Government for the exercise of powers and jurisdiction of the Special Establishment neither refers to notification nor order . It merely requires consent of the State Government for the application of the Delhi Act. Parliament, in our considered opinion, advisedly and deliberately did not specify the mode, method or manner for granting consent though in two preceding sections such mode was provided. If it intended that such consent should be in a particular form, it would certainly have provided the form as it was aware of different forms of exercise of power. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ple executive order by giving consent to the CBI for investigating the matter as against the petitioner. It is also revealed by the opinion given by the Advocate General that the Advocate General has categorically stated that no sanction is required under Section 17(A) or 19 of the P.C. Act. It is also brought to the notice of the Court by the learned Senior counsel for the petitioner that the Co-ordinate Bench while passing the order in the Writ Petition, though it was stated that it was an administrative order in its order, but it is not an administrative order but it is only a simple executive order and it need not require any detailed order for application of mind and even otherwise, the authority i.e., Under Secretary has considered the letter sent by the Directorate of Enforcement Department and passed the order. Even Section 6 of the DSPE Act says that it is only a consent of the State Government for investigation by the Central Police. Such being the case, the contention of the learned counsel for the petitioner cannot be acceptable that there is no application of mind while passing the impugned order. Therefore, on that ground, the impugned order cannot be quashed. 23. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned order where the application of mind is not required while giving consent under Section 6 of the DSPE Act. Therefore, it cannot be said that the finding of the Co-ordinate Bench is only on the petition filed by the Shashi Kumar Shivanna, but it was on the issue of reference of the case to the CBI for investigation against this petitioner for the provisions of P.C. Act. Therefore, I am of the view that the judgment of the Co-ordinate Bench was 'Judgment In Rem', it was binding on this petitioner and also other persons as the issue of reference under the impugned order has been upheld by the Co-ordinate Bench. Therefore, the contention of the petitioner counsel cannot be acceptable that the judgment should be between the same parties, but it was an identical dispute on the same subject matter which was dealt with by the Co-ordinate Bench. Therefore, the doctrine of the res judicata applies to this case and also the order of the Co-ordinate Bench is binding on this petitioner. Therefore, the judgments relied by the counsel for the petitioner is not applicable to the case on hand in view of my findings at point No. 1. 27. That apart, the CBI after registering the case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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