Andhra Pradesh High Court - Amravati
A.S. Chandra Sekhar Reddy, vs State Of Ap on 20 March, 2020
HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
W.P.No.1999 of 2020
ORDER :
This writ petition is filed claiming the following relief:
"To issue a writ order or direction more particularly a writ in the nature of a writ of Certiorari calling for the records relating to and connected with FIR RC No. 03 (A) 2019 dated 29.04.2019 (39/RCT- VGT/2019) dated 29.04.2019 on the file of the Central Bureau of Investigation Visakhapatnam; FIR No. 03/RCT-ACB- GNT/2019 dated 30.04.2019 on the file of the Anti Corruption Bureau, Guntur and G.O.Ms.No.154 Home (SC.A) Department dated 27.11.2019 and quash or set aside the same by holding them as arbitrary, illegal and violative of the right to life guaranteed to the petitioner under article 21 of the constitution of India apart from being without jurisdiction and non-est in the eye of law."
Petitioner before this Court is an Income Tax Officer. As per the averments in the affidavit, it is stated that the 4th respondent was demanded a bribe by the petitioner. The 4th respondent approached the 3rd respondent, informed him about the demand for bribe and the same was communicated to his superior. Thereafter, F.IR No.3/RCT-ACB-GNT dated 29.04.2019 was registered under Section 7-A of the Prevention of Corruption Act, 1988 (for short 'the Act'). A trap 2 was also laid and executed. Questioning the said actions, the present writ petition is filed.
The sum and substance of the submission of the petitioner is that on 29.04.2019, the CBI did not have the jurisdiction or the authority to function within the State of Andhra Pradesh since the Government of Andhra Pradesh vide G.O.Ms.No.176 Home (SC.A) Department dated 08.11.2018 had withdrawn the general consent given to the members of the Delhi Special Police Establishment (CBI). It is mentioned in the writ petition that as the consent was not there, the case was transferred to respondent No.2, who registered another FIR on 30.04.2019. Lastly, it is submitted that on 27.11.2019, the Government of Andhra Pradesh gave powers to the CBI to act within the State of Andhra Pradesh vide G.O.Ms.No.154 Home (SC.) Department and accordingly the case was transferred back to the CBI.
This Court has heard Sri P.S.Rajasekhar, learned counsel appearing for the petitioner, standing counsel for the Central Bureau of Investigation (CBI) and also the standing counsel for the Anti Corruption Bureau (ACB).
Learned counsel for the petitioner relied upon the land mark decision of State of Haryana v. Bhajanlal1, and the decisions in Kazi Lhendup Dorji v. Central Bureau of 1 1992 Supp. (1) SCC 335 3 Investigation2, Pepsi Foods Ltd. v. Special Judicial Magistrate3, M.Balakrishna Reddy v. Director, Central Bureau of Investigation, New Delhi4 and lastly upon Asian Resurfacing of Road Agency Private Limited v. Central Bureau of Investigation5. Relying on these cases, learned counsel for the petitioner argues that this Court should exercise its power to quash all further proceedings.
He agrees that on the date on which the FIR was registered, respondent No.3 did not have the jurisdiction or the power to act within the boundaries of the State of Andhra Pradesh. Relying upon section 6 of the Delhi Special Police Establishment Act, 1946 (for short 'the DSPE Act") which deals with the consent of a State, learned counsel for the petitioner submits that the Act was enacted for the purpose of conferring jurisdiction on the Officers to certain areas only. Relying upon section 6 of the DSPE Act, he argues that no member of the DSPE can act in a State without the consent of the State. Relying upon the judgments passed by this Court in Crl.R.C.No.3156 and 3158 of 2016 and also Crl.P.Nos.2906, 2932 and 2950 of 2019, the learned counsel argues that the exercise of power itself is inherently flawed 2 1994 Supp. (2) SCC 116 3 1998 (5) SCC 749 4 2008 (4) SCC 409 5 2018 (16) SCC 299 4 and non-est and therefore, as per him this is a fit case to quash all further proceedings.
On behalf of the Anti Corruption Bureau (ACB), learned Public Prosecutor relied upon the counter affidavit filed and argued the case. She contends that the procedure has been followed in spirit and in law. She highlights the facts that there was a demand for a bribe for doing an official favour. She also draws the attention of the Court to Section 19 of the Act and argues that the Court should not interfere or stay any proceedings under the Act except where there is an error etc., in the grant of sanction. Learned standing counsel therefore argues that the registration of the FIR is not correct and proper.
Standing counsel for the CBI vehemently argues that even if there is an withdrawal of the consent by the Government of Andhra Pradesh, the general power available to the DSPE is not lost. It is extended as per him to the various States in 1961 itself. He also argues that as per the decision reported in Kazi Lhendup Dorji (2 supra), the CBI, as Special Police Force can still function. He also points out that this is a clear case of a demand of bribe for doing an official favour and that this Court should not therefore interfere with the prosecution. It is also pointed out that as there was a very short period of time, it was not possible to obtain consent from the Government of Andhra Pradesh. In 5 view of the urgency and the shortage of time, the learned standing counsel argues that they had to lay a trap to catch the accused. Hence, he submits that the registration of the FIR for the purpose of laying the trap is not incorrect and that this Court should come to the aid of the CBI as they caught a person accepting illegal gratification.
Apart from the above, on the question of law, the standing counsel for ACB relies upon Girish Kumar Suneja v. Central Bureau of Investigation6 and argues that section 19(3) (C) of the Act should be given very very restricted interpretation and that the Court should lightly interfere in the procedure and the further prosecution of the case. She argues that the Court should only interfere if there is a failure of justice on account of improper sanction etc. On the legal aspect, the counsel for the CBI argues that the invocation of Jurisdiction under Article 226 of the Constitution of India is unwarranted and that a writ of certiorari can only be issued by a Superior Court to an inferior Court/tribunal which has not acted as per law. Therefore, it is his contention that if there is an adjudication on the rights of the parties by a Court/Tribunal etc., a superior Court may issue a writ of certiorari, but in a case of this nature, as only an FIR is registered, the standing counsel argues that the appropriate forum is the Court exercising power under section 482 6 (2017) 14 SCC 809 6 Cr.P.C. Hence, it is his contention that the writ of certiorari does not lie and that the petitioners have mischievously invoked the jurisdiction of this Court.
In rejoinder, the learned counsel for the petitioner argues that it is the substance of the prayer that matters and not the nomenclature or the cause title given. He points out that the writ petition is filed under Article 226 of the Constitution of India read with section 482 Cr.P.C. He relies upon the judgment of Pepsi Foods Ltd. (3 supra), which was cited. Basing on para 26 which is reproduced hereunder; he argues that it is the sum and substance of what is pleaded that is important rather than the section or the Article quoted.
"26. Nomenclature under which petition is filed is not quite relevant and that does not debar the court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case like the present one the court finds that the appellants could not invoke its jurisdiction under Article 226, the court can certainly treat the petition one under Article 227 or Section 482 of the Code. It may not however, be lost sight of that provisions exist in the Code of revision and appeal but sometime for immediate relief Section 482 of the Code or Article 227 may have to be resorted to for correcting some grave errors that might be committed by the 7 subordinate courts. The present petition though filed in the High Court as one under Articles 226 and 227 could well be treated under Article 227 of the Constitution."
This Court after hearing all the learned counsels notices that there is no dispute about the fact that on the date on which the complaint was given and trap was laid, the CBI did not have the consent to act within the State of Andhra Pradesh. This Court has already in Crl.P.Nos.2906, 2932 and 2950 of 2019 clearly held that the issue of lack of sanction by the State is a matter which goes to the very root of the case. Sections 5 and 6 of the DSPE Act were considered in that judgment. Section 6 of the Act clearly states that "nothing contained" in Section 5 of the Act shall empower the DSPE to exercise powers or jurisdiction without consent of the Government of the State. Therefore, the plain language interpretation makes it very clear that for the CBI/DSPE cannot act in the State of Andhra Pradesh without the consent of the State Government.
In the case on hand, by the date of registration of the FIR on 29.04.2019, the consent was withdrawn. It was only restored on 27.11.1999. As per the law on the subject, including Kazi Lhendup Dorji (2 supra), the order of revocation cannot operate respectively. This is the settled law on the subject. In Crl.R.C.Nos.3156, 3158 of 2016, another learned single Judge of this Court held that the action taken 8 by the CBI without the consent is a matter goes to the very root of the case and that therefore, the FIR was liable to be quashed. This Court is also relying upon the principles which states that if a statute prescribes that particular action should be done in a particular manner, it should be done in that manner or not at all. This is settled law which does not require repetition.
In the case on hand, it is clear that section 6 of the DSPE Act imposes an embargo on the members of the DSPE/CBI to act within the boundaries of a State without the express consent. No reason is forthcoming why on 29.04.2019, the Officials of the CBI did not inform the ACB of the demand for illegal gratification was made. As Officers exercising such power, they should be aware of the fact that the Government had withdrawn its consent long prior to the lodging of the complaint.
The last question that survives for consideration is about the form of the writ and the prayer. This Court finds sufficient strength in the submission of the learned counsel for the petitioner that the power under Section 226 can be exercised by this Court.
Learned counsel points out that in Pepsi Foods's case (3 supra) also, a prayer in the writ petition was to issue a writ of certiorari quashing the proceedings in Case No.699 of 1994 together with the consequential order dated 09.05.1994 and 9 the complaint. The high Court refused to grant relief. Hon'ble Supreme Court ultimately held that the high Court should not have shied away from exercising its jurisdiction in para 26, reproduced above, the Hon'ble Supreme Court clearly held provisions of Article 226 and 227 of the Constitution of India and section 482 Cr.P.C are devised to advance justice. In para 26, the Hon'ble Supreme Court held that the nomenclature under which the petition is filed is not relevant.
Lastly, this Court notices the land mark decision of State of Haryana v. Bhajanlal (1 supra). In the case also, the prayer is for issuance of a writ of certiorari, quashing the FIR and also a writ of prohibition restraining the petitioners from proceeding with the investigation. The Hon'ble Supreme Court laid down the guidelines which should be followed by Courts in para 102 of this judgment. Ultimately, in para 102 (6) the Hon'ble Supreme Court held that one of the grounds to quash the proceedings is:
"6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party."10
In the case on hand, this Court finds that there is a bar under the concerned Act to the institution and the continuation of proceedings, because section 5 r/w section 6 of the DSPE Act make it very very clear that the power of the DSPE within the boundaries of a State can only be exercised with the express consent of the State Government. Admittedly, in this case, on the said date of the trap and the registration of the first FIR, the consent was in fact withdawn. In view of the settled law, the subsequent G.O.154 dated 27.11.2019, will not operate retrospectively.
Therefore, despite the passionate and able arguments of the learned standing counsel for the CBI and the ACB, this Court is constrained to hold that in view of the clear law cited that the DSPE, CBI did not have the jurisdiction to register the case at all, let alone investigate. Apart from that this Court holds that as there is an express bar and a specific provision coming in the way of the respondents 2 and 3, (namely the bar under Section 6 of the DSPE Act), this Court following the dicta in State of Haryana v. Bhajanlal, (1 supra) has no option but to quash all further proceedings in FIR RC.No.03 (A) 2019 dated 29.04.2019 (39/RCT-VGT/2019) dated 29.04.2019 on the file of the Central Bureau of Investigation, Visakhapatnam; and also in FIR.No.03/RCT- ACB-GNT/2019 dated 30.04.2019. Therefore, both the FIRs are quashed.
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The writ petition is, therefore, allowed. No order as to costs. As a sequel, the miscellaneous petitions if any shall stand dismissed.
________________________ D.V.S.S.SOMAYAJULU,J Date : 20.03.2020 KLP