Karnataka High Court
Sri C Raghunathan vs State By Cbi /Acb on 11 June, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 11TH DAY OF JUNE 2012
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL REVISION PETITON NO.1477 OF 2010
BETWEEN:
Sri. C.Raghunathan,
Son of Sri.Channan,
Aged about 47 years,
Deputy Manager (Shop),
Heat Treatment Department,
Foundary and Forge Division,
H.A.L. Bangalore Complex,
Bangalore.
Residing at No.T-12,
14th Cross, H.A.L.Quarters,
CBJ Campus, Marathhalli,
Bangalore - 560 037. ...PETITIONER
(By Shri.Satish M.Doddamani, Advocate for Shri. Nagaraj.D,
Advocate)
AND:
State by C.B.I./A.C.B.
Bangalore.
Represented by Counsel
2
for C.B.I. ...RESPONDENT
(By Shri. Prasanna Kumar, Advocate for Shri. C.H.Jadhav, Advocate)
*****
This Criminal Revision Petition filed under Section 397
Criminal Procedure Code, 1973, by the Advocate for the petitioner
praying that this Hon'ble Court may be pleased to quash the order
dated 13.7.2010 passed by the XXI Additional City Civil and Sessions
Judge and Special Judge for C.B.I. Cases, Bangalore in
Spl.C.C.No.183/2004 and allow the application filed by the petitioner
seeking his discharge and discharge the petitioner in the above case.
This Criminal Revision Petition coming on for Admission, this
day, the court passed the following:
ORDER
Heard the learned Counsel for the petitioner. The petition coming on for admission, the learned counsel is heard regarding maintainability of the present petition.
2. The case of the petitioner is that on the basis of a complaint lodged with the Central Bureau of Investigation (Hereinafter referred to as 'the CBI' for brevity), the Inspector of Police of the CBI, had laid a trap and it is alleged that the petitioner was caught red-handed 3 while receiving illegal gratification. It was alleged that the petitioner, along with two others, had entered into a criminal conspiracy in obtaining such illegal gratification and in issuing a letter of appointment to the complainant. According to the complainant, accused no.2 had contacted the complainant on 3.12.2003 and demanded a bribe of Rs.80,000/-, out of which, Rs.25,000/- was to be paid as advance to accused no.1, the petitioner herein. While at the same time, there is no allegation against the petitioner that he had demanded any bribe amount from the complainant. The respondent - CBI had registered a case in Crime No.RC29(A)/2003 on 13.12.2003 and completed the investigation on 13.8.2004 and a charge-sheet had been submitted on 16.8.2004 before the trial court requesting the court to take cognizance of the offence and issue process to the accused.
After the charge-sheet was filed, the case was entrusted to the Investigation Officer for further investigation and a supplementary charge-sheet was also filed. At that stage, the petitioner had filed an 4 application under Section 227 of the Criminal Procedure Code, 1973 (Hereinafter referred to as the 'Cr.PC' for brevity) seeking his discharge from the case. The application having been dismissed by an order dated 13.7.2010, the petitioner is before this court.
3. The learned counsel for the petitioner would submit that in terms of Section 5 read with Section 6 of the Delhi Special Police Establishment Act, 1946 (Hereinafter referred to as the '1946 Act' for brevity), it is imperative that no member of the Delhi Special Police Establishment, including the CBI could exercise powers and jurisdiction in any area in a State, not being a Union Territory or a Railway area without the consent of the Government of that State. He would point out that though the respondent - CBI had obtained the consent of the State Government as on 8.1.2004, the investigation had been commenced much earlier and had progressed substantially before any such consent of the State Government was sought for and therefore, the entire investigation 5 stood vitiated for want of appropriate consent by the State Government, even before the commencement of the investigation by the CBI. This mandatory requirement under the Section has been completely overlooked by the trial court in rejecting the application, even though the admitted circumstance is that there was no prior consent of the State Government enabling the respondent - CBI to commence and carry on investigation before it could apply and obtain the consent of the State Government, even if such consent has been obtained.
The learned counsel would draw support from a decision of the Allahabad High Court in the case of Dharmendra Deo Mishra vs, Central Bureau of Investigation, 2005 Crl.LJ 180, wherein in identical circumstances, though notifications had been issued under Section 5 of the Act in enabling the CBI to commence investigation, the said authority could not have carried on the investigation within the State Government, without the consent of the State Government 6 under Section 6 of the Act. This has been addressed by the Allahabad High Court and it has opined that any such investigation was defective and illegal and the bar under Section 6 is a complete bar for exercise of powers by the CBI and since it is a statutory provision, violation of the same was impermissible, as it would frustrate the purpose of Section 6. The court has also opined that, if in a given case, when the CBI is permitted to investigate a matter suo motu and there being other investigation agencies in the State, it would then follow that such investigation agencies, if allowed to make suo motu investigations, without authority or consent of the State Government, it would lead to chaos, as there would be many parallel investigations and it is for this reason that the mandate under Section 6 would have to be strictly complied with.
4. While the learned Counsel for the respondent - CBI would submit that though Section 6 does indicate that the consent of the State Government is a must for the CBI or the Delhi Special Police 7 Establishment to carry on the investigation to investigate into any offence or classes of offences and to exercise power and jurisdiction in an area in a State, the Section does not indicate that there should be prior consent in all cases. If prior consent is a pre-condition, it would frustrate the object of investigation in many circumstances. Therefore, if any such investigation is to be frustrated on account of want of consent, the very object of investigation would be taken away and since there is no indication that there should be a prior consent, the consent obtained by the State Government, even after the investigation has been completed, would cure any such want of consent, even though investigation might have been commenced much earlier. In this regard, the learned counsel would submit that the decisions sought to be relied upon, would not apply to the facts and circumstances as in the said case and would therefore, seek to justify the decision, while also bringing to the attention of this court that the question is no longer res integra, as this court has already rendered a decision on this aspect of the matter in an unreported decision in 8 Criminal Revision Petition No.1773/2004 in CBI vs C.H.Wadigeri, disposed of on 12.10.2007. In identical circumstances, this court has opined that the consent is not a condition precedent for the commencement of the investigation. If it was so intended by the Legislature, there would be a specific mention about it, while enacting the law and that the cardinal principle of law and the interpretation of the provisions must be to achieve the object of law and the investigation into a crime and to combat corruption under the provisions of the PC Act, and the procedural and technical requirements of law can never come in the way of administration of justice and therefore, it is opined that the consent of the State Government, even though necessary, is not a condition precedent for the commencement of the investigation and therefore, would submit that in the present case on hand, admittedly, the consent of the State Government has been obtained albeit subsequent to the commencement of the investigation and therefore, any want of consent or defect arising from want of consent stands cured and there 9 can be no objection raised as to any such irregularity at this point of time. Hence, the Counsel seeks dismissal of the petition.
5. In the above facts and circumstances, in view of the admitted fact that investigation had been commenced much prior to obtaining consent of the State Government, which in fact, has been granted, would water down the objection of the petitioner substantially. While this court has already formed an opinion in the above referred decision that though consent is necessary, prior consent is not a condition precedent, is fully endorsed by this bench, while again reiterating that it may not be possible for an investigating agency to readily obtain consent of the State Government, but as already opined by this court, such consent is a must and it must be obtained at the earliest possible point of time. A long lapse of time from the commencement of investigation within the jurisdiction and the area of a State, without obtaining such consent would certainly cause prejudice to the concerned, if other investigating agencies of the State 10 Government were also investigating into the same state of affairs. It is this which ought to be guarded against and the State Government should be aware of any such investigation which is in progress within its area and jurisdiction. Therefore, even if consent of the State Government is obtained at a later point of time, it ought not to be belated and any delay in obtaining such consent may be infused with sufficient reason for not approaching the State Government at the earliest point of time.
The present petition, however, does not merit consideration as the State Government has granted its consent without demur, thereby endorsing that there is no objection to such investigation being carried on by the Central Bureau of Investigation and it would also imply that there are no parallel investigations which are on and therefore it has granted its consent.
With that observation, the petition stands rejected as being without merit. Insofar as the judgment of the Allahabad is concerned, as already pointed out by the learned Counsel for the respondent, there 11 is no indication that the consent of the State Government had been obtained in the facts of that case. That would make all the difference insofar as the present case on hand is concerned.
Sd/-
JUDGE nv