Madhya Pradesh High Court
Shri Arun Kumar Jain vs Central Bureau Of Investigation Anti ... on 14 November, 2024
1 MCRC-48569-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
MCRC No. 48569 of 2024
(SHRI ARUN KUMAR JAIN Vs CENTRAL BUREAU OF INVESTIGATION ANTI CORRUPTION BRANCH
BHOPAL )
Dated : 14-11-2024
Ms. Nivedita Chauhan - Advocate for petitioner.
Petitioner has filed this petition under Section 528 of the Bhartiya
Nagrik Suraksha Sanhita, 2023 seeking the following reliefs:-
"A. Allow the present petition.
B. Stay the effect and operation of the Chargesheet bearing No.51/2023
dated 29.12.2023 filed by the Respondent (CBI) against the Petitioners for
the alleged offenses u/s 120B r/w 406 & 420 of IPC, 1860 before the Ld. Special Magistrate, CBI & EOW, Indore and cognizance taken in pursuant to the same.
C. Stay the consequential proceedings pending in the form of Special Case bearing No. 04/2024 titled as CBI vs M/s Arihant Coal Sales India Pvt. Ltd. & Ors. before the Ld. Special Magistrate, CBI & EOW, Indore initiated by the Respondent.
D. Quash the F.I.R. bearing RC No. 2222022A0002 dated 28.02.2022 registered by the Respondent u/s 120B, 406, 420, 467, 468, 471 of IPC, 1860 r/w 13(2) and 13(1)(d) of the PC Act, 1988.
E. Quash the consequential Chargesheet bearing No. 51/2023 dated 29.12.2023 filed by the Respondent u/s 120B r/w 406 & 420 of IPC, 1860. F. Quash the consequential proceedings pending in form of SC No. 04/2024 titled as CBI vs M/s Arihant Coal Sales India Pvt. Ltd. & Ors. before the Ld. Special Magistrate CBI & EOW Indore. Initiated by the Respondent. G. Allow the Petitioner to place on record such additional documents as may be deemed necessary by this Hon'ble Court.
H. Pass any other order(s) that this Hon'ble Court may deem fit in the interest of justice, equity and good conscience."
Learned counsel appearing on behalf of petitioner submits that the issue raised in the present petition has already been adjudicated by this Court vide order dated 08.08.2024 passed in MCRC No.30530/2024 (M/s Narayan Niryat India Pvt. Ltd. Through its Director Kailash Chandra Garg and others vs. Central Bureau of Investigation) wherein it is observed and held as Signature Not Verified Signed by: PREMSHANKAR MISHRA Signing time: 14-11-2024 17:07:18 2 MCRC-48569-2024 follows:-
"34. Hon'ble High Court of Meghalaya in T. Pathaw Vs. CBI 2023 SCC Online Megh 33, has held as hereunder:
"25. However, under Section 6 of the said DSPE Act, if the CBI is to operate in any of the States, consent of such State Government for exercise of its powers and jurisdiction is required. By now, it is well settled that CBI can investigate into cases involving offences under the PC Act, however, when it comes to offences under the IPC which are generally taken up and investigated into by the State or local police, if a particular case involves provisions of offences under the PC Act as well as IPC then the CBI would be well within its right to investigate into such cases, but if, as in the present case, though initially the offences involves provisions under the PC Act along with those under the IPC, which was rightfully investigated into by the CBI, after the filing of the charge sheet wherein only the provisions under the IPC remains, while the offences under the provisions of the PC Act were dropped, including release of liabilities of the public servants implicated therein, it stands to reason that the jurisdiction of the CBI would ceased as on the date of filing of the charge sheet. At this juncture, if the CBI is to continue prosecution, the specific consent of the State is required. Admittedly, nothing is on record as to whether such consent was given or not or whether the same was requested or not.
In view thereof, as submitted by the learned counsel for the petitioner, that the charge sheet was forwarded by the CBI in the court of the Chief Judicial Magistrate, the same was without jurisdiction. On this ground alone, the entire proceedings against the petitioner are vitiated."
37. Thus, in the considered opinion of this court, in light of the aforesaid notifications and judgments, the Non-Public Servants, who have been alleged to have committed offence other than of Prevention of Corruption Act, 1988 or offences falling under the Indian Penal Code, can't be investigated, tried and prosecuted in absence of consent. Admittedly, prior to registration of FIR or filing of chargesheet, no consent under Section 6 of DSPE Act was obtained by Respondent for investigating and prosecuting petitioners who are private company and individuals. Such consent was mandatory especially when in the case at hand, in the complaint on the basis of FIR nowhere alleged involvement of public servants nor there existed any allegation under Prevention of Corruption Act. Such action of the Respondent violates the Constitutional provisions, the DSPE Act, and derogates from the doctrine of federalism. In the considered opinion of this court, CBI cannot be permitted to undertake investigation by simply including Sections from Prevention of Corruption Act in the FIR without there being any ingredient of the offence under the said act in the complaint made by complainant, as if such an action is allowed to be continued the same would render the provisions under Section 6 of the DSPE Act nugatory which cannot be allowed by this court.
38. It is a settled legal proposition of law that if initial action is not in consonance with law, all subsequent and consequential proceedings would fall through for the reason that illegality strikes at the root of the order. In such a fact-situation, the legal maxim "sublato fundamento cadit opus" meaning thereby that foundation being removed, structure/work falls, comes into play and applies on all scores in the present case. Also, Once the basis of a proceeding is gone, all consequential acts, actions, orders would fall to the ground automatically and this principle is applicable to judicial, quasi-judicial and administrative proceedings equally. It is also a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any Signature Not Verified Signed by: PREMSHANKAR MISHRA Signing time: 14-11-2024 17:07:18 3 MCRC-48569-2024 authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin. (Vide State of Punjab Vs, Debender Pal Singh 2011 (14) S.C.C 770, Badrinath v. State of Tamil Nadu & Ors., AIR 2000 SC 3243; State of Kerala v. Puthenkavu N.S.S. Karayogam & Anr., (2001) 10 SCC 191 and State of Orissa & Others Vs. Mamata Mohanty, (2011) 3 SCC 456.)"
Issue notice.
On taking steps, let notice be served upon the respondent by all modes. On receipt of the notice, the respondent is directed to file counter affidavit within four weeks. Rejoinder thereto, if any, be filed within two weeks thereafter.
Re-notify after six weeks.
Till further orders, the proceedings in Special Case No.04/2024 pending before Special Magistrate, CBI & EOW, Indore, shall remain stayed.
(SURESH KUMAR KAIT) (SUSHRUT ARVIND DHARMADHIKARI)
CHIEF JUSTICE JUDGE
psm
Signature Not Verified
Signed by: PREMSHANKAR
MISHRA
Signing time: 14-11-2024
17:07:18