Andhra Pradesh High Court - Amravati
O.Srinivasa Rao vs State Of Ap on 18 December, 2019
1
HON'BLE SRI JUSTICE D.V.S.S. SOMAYAJULU
CRIMINAL PETITION Nos.2906, 2932 and 2950 of 2019
COMMON ORDER:
All these three criminal petitions are taken up for hearing jointly with the consent of both the parties.
The petitioner in Crl.P.No.2906 of 2019, is Accused No.4 in FIR No. 4 of 2019, dt.15.03.2019, filed by the Anti- Corruption Bureau Police Station, Visakhapatnam, arising out of RC.No.01(A)/2019 of the CBI Police Station, Visakhapatnam.
The petitioner in Crl.P.No.2932 of 2019, is Accused No.2 in FIR No. 4 of 2019, dt.15.03.2019 filed by the filed by the Anti-Corruption Bureau Police Station, Visakhapatnam, arising out of RC.No.01(A)/2019 of the CBI Police Station, Visakhapatnam.
Lastly, the petitioner in Crl.P.No.2950 of 2019, is Accused No.3 in FIR No. 4 of 2019, dt.15.03.2019 filed by the filed by the Anti-Corruption Bureau Police Station, Visakhapatnam, arising out of RC.No.01(A)/2019 of the CBI Police Station, Visakhapatnam.
Initially, an interim stay was granted by this Court on 30.04.2019. The matters were being adjourned from time to time. Learned Special Public Prosecutor for CBI raised an objection for extension of the interim orders and ultimately by orders dated 25.07.2019 all the three matters were directed to be posted together and thereafter the interim order was being 2 extended since the matters are being listed finally. In view of the vehement objection of the learned Special Public Prosecutor the hearing was commenced on 21.11.2019 and was concluded thereafter.
This court has heard Sri P.S.Rajasekhar, Sri V.R. Machavaram, Sivaraju Srinivas, learned counsels for the petitioners and the learned Special Public Prosecutor appearing for the CBI and the Special Public Prosecutor for the ACB.
Initially, the CBI registered a case and laid the trap. Thereafter, the matter was transferred to the ACB, State of Andhra Pradesh. This is the reason why the learned Special Public Prosecutor representing these two branches appeared and argued the matter.
A few facts, which are necessary to be set out at the beginning are - against AccusedOfficer No.1, on 14.03.2019, a report was given to the Superintendent of Police, CBI by a contractor.In view of the urgency, on 14.03.2019 itself a trap was laid and executed. The FIR was registered on 14.03.2019 as Rc.No.01(A)/2019 and the pre-trap proceedings, post-trap proceedings were reduced to writing. The post-trap proceedings dated 14.03.2019 are also filed as the material document. Thereafter, in view of the fact that there was no sanction with the CBI, which functions under Delhi Special Police Establishment Act (in short "the DSPE Act") the case was transferred to ACB, which registered FIR No.4 of 2019. In the said FIR itself it is mentioned that as the Government 3 of A.P. did not give consent to the CBI for proceeding in that matter, the information was shared with ACB for further necessary action.
The above factual background is not in dispute, but arising out this is the essential ground that is urged by all the three learned counsels, who have appeared for the petitioners. It is their contention that the entire proceedings conducted by the CBI upto the trap and thereafter also are nonest in the eye of law. According to them, the Government of Andhra Pradesh has issued G.O.Ms.No. 176 (Home) on 08.11.2018 withdrawing the consent for the CBI to function in the State of Andhra Pradesh as required under Section 6 of the DSPE Act. Therefore, they urged that the registration of the FIR, the pre-trap and post-trap proceedings dated 14.03.2019 are all contrary to law and nonest.
Since the matters were heard together as this is the crux of the entire issue and as the argumentsadvanced by all the three learned counsel are in line with each other, they are not being reproduced separately. The case laws cited for the petitionersare as follows:
Central Bureau of Investigation v State of Rajasthan and Others1 KaziLhendupDorjiv Central Bureau of Investigation and Others2 M.Balakrishna Reddy v Director, Central Bureau of Investigation, New Delhi3 1 (1996) 9 Supreme Court Cases 735 2 1994 Supp (2) SCC 116 4 Ms. Mayawativ Union of India and Others4 The order in Criminal Revision Petition Nos. 3156-
3158 of 2016.
Central Bureau of Investigation v Ravi Shankar Srivastava, IAS and Another5 M. Balakrishna Reddy v Director, Central Bureau of Investigation, New Delhi6 State of Haryana and Others v Bhajan Lal and Others7 The essence of the arguments as mentioned earlier is that the Delhi Special Police Establishment Act, 1946 mandates that the State Government should give permission for the CBI to function and operate within the State. It is the contention of the learned counsel that a reading of Sections 5 and 6 of the DSPE Act make it very clear that the CBI cannot exercise any power or jurisdiction without the express consent of the State. Only the offences, which are specified only can be investigated by the Special Police Establishment. Thisis the sum and substance of the submissionsmade by all the learnedcounsel. By a conjoint reading of Section 5 and 6 of the DSPE Act they state that only if an order is passed extending the area of operation, the CBI can act outside the Union Territory. They argued that as per Section 5 (2) of the DSPE Act after the order is passed under Section 5(1)of the DSPE Act, the powers and jurisdictionof the members of the CBI would extend beyond the Union Territory of Delhi or 3 (2008) 4 SCC 409 4 (2012) 8 SCC 106 5 (2006) 7 SCC 188 6 (2008) 4 SCC 409 7 1992 Supp (1) SCC 335 5 other Union Territories. In addition, they state that notwithstanding anything contained in Section 5 of the DSPE Act, the member of the Delhi Special Police Establishment can exercise powers in a State only if the Government of that State consents for the same as per Section 6 of the DSPE Act. All the learned counselsrelied on the plain language of the interpretation of these two sections,filed the case law and argued that an express consent of the State Government is necessary. As per them, Section 6 of the DSPE Act starts with non-obstanteclause and states as follows:
"Nothing contained in Section 5 shall be deemed to enable any member of the Delhi Special 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."
Therefore, it is their contention that the entire proceedings are nonest in the eye of the law. They also press into service the order passed by a learned single Judge of this Court in Crl.R.C.No.3156-3158 of 2016, which is filed as a material papers also.
In reply to this learned Special Public Prosecutor relies upon the definition of a police officer, and the judgment of the Hon'ble Supreme Court of India in the case of LalitaKumariv Government of U.P. and Others8which states that once a cognizable offence is committed, the police are bound to register a crime and investigate the matter. It is his contention that the registration of FIR is mandatory under 8 AIR 2014 SC 187 6 Section 152 of Cr.P.C. if the information discloses that a commission of cognizable offence. He also argues that the Superintendent of Police, CBI is also incharge of a Police Station interms of Section 2(o) of Cr.P.C. He relies upon Sections 4 (2) and 5 (2) of the DSPE Act to argue that Superintendent of Police, CBI shall discharge duties in that area and that therefore registration of a crime, particularly when a preliminary investigation is not possible is actually in line with the five Judge decision of the Hon'ble Supreme Court of India in LalitaKumari case (8 supra), which is judgment of the five judges. Apart from that relying on the judgment of the Karnataka High Court reported in Central Bureau of Investigation Vs C.H.Wadgere and Ors.,9,learned counsel argues that the consent is not a condition precedent for commencement of the investigation. He argues that police cannot be expected to wait till the consent is obtained and that in certain emergent situations trap proceedings will have to be carried out immediately. In the case on hand, learned Public Prosecutor points out that the complaint was given on 14.03.2019 mentioning that by noon / mid-day the bribe shall be given. He states that the demand made by the accused had to be fulfilled before the noon day of the same day and therefore as there was no time the proceedings had to be carried forward. Relying upon the trap proceedings, learned Special Public Prosecutor argues that the trap was executed correctly and that pre and post trap proceedings reveal that the same was carried out as per law. He pointsout 9 MANU/KA/7476/2007 7 that the CBI acted according to the Act and that a purposive interpretation must therefore be given in order to achieve the purpose of the Act, which is to punish wrong doers/bribe takers. The sheet anchor of the Public Prosecutor's case is this decision in C.H. Wadigerecase (9 supra). In addition, he also filed compilation of six other cases viz., D. Kasaiahv SunkaraSrinivasulu and Ors.,10,Nar Bahadur Bhandari etc., v State etc.,11, State of Rajasthan v Shambhoogiri12, Sakshi and Ors., v Union of India (UOI) and Ors.,13andLhendupDhorjiv Central Bureau of Investigation and Ors.,14,which are detailed herein, learned Special Public Prosecutor passionately argued and stated that on the ground of an alleged technical defect a well-executed trap should not be scuttled. It is his passionate argument that a purposive interpretation should be given and that the functions of CBI and of the courts are to elicit the truth and to punish the corrupt. Therefore, he urges that this is a matter, which should not be quashed at this stage.
Learned Special Public Prosecutor for ACB also supported the case argued by the learned Special Public Prosecutor for the CBI. She also relied upon the case of C.H. Wadigere case (9 supra), which is reproduced earlier and submitted that emergent situation would require quick action. She argued on the same lines.
10 2013 (1) ALD (Crl.) 685 11 2003 CrlJ 2799 12 (2004) 8 SCC 169 13 (2004) 5 SCC 518 14 1994 Supp (2) SCC 116 8 Both the learned Public Prosecutors relied upon the counters that were filed in all the three cases. They pointout from a reading of the facts that in view of the very short time that was available between 9.20 a.m. and 12 noon, on 14.03.2019, the entire actionhad to be taken. It is their contention that urgency is justified in the circumstances. They pointed out that immediately after the trap was laid, executed and the accused were caught the subsequent proceedings were taken to transfer the case to the ACB. COURT:
This court after hearing both the learned counsel for the petitioners and the learned Special Public Prosecutors for CBI and ACB notices that -
a) The general consent given by the state of Andhra Pradesh for the CBI to function in the state of Andhra Pradesh was withdrawn on 08.11.2018 by issuing G.O.Ms.No.176 (Home). From that date till 06.06.2019, when the new government came into power and withdrew the orders dated 08.11.2018 the CBI /DSPE did not have the consent of the State Government to function within the State of Andhra Pradesh. The order of cancellation was issued on 06.06.2019. Therefore, from 08.11.2018 till 06.06.2019 CBI did not have the consent to function in the State of A.P. The FIR in this case and the trap were laid on 14.03.2019. 9
b) The important sections of the DSPEAct which have a bearing are Sections 5, 6, and 6a. The same are reproduced herein -
5. Extension of powers and jurisdiction of special police establishment to 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 thesaid 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, exercise the powers of the officer in charge of a police station in that area and when so exercising such powers, shall be deemed to be an officer in charge of a police station discharging the functions of such an officer within the limits of his station.
6. Consent of State Government to exercise of powers and jurisdiction.--Nothing contained in section 5 shall be deemed to enable any member of the Delhi Special 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. 6A.Approval of Central Government to conduct, inquiry or investigation.--(1)The Delhi SpecialPolice Establishment shall not conduct any inquiry or investigation into any offence alleged to have been committed under the Prevention of 10 Corruption Act, 1988(49of1988)except with the previous approval of the Central Government where such allegation relates to--
(a) the employees of the Central Government of the level of Joint Secretary and above; and
(b) such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government.
(2)Notwithstanding anything contained in sub-section (1),no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any gratification other than legal remuneration referred to in clause (c)of the Explanation to section 7 ofthe Prevention of Corruption Act, 1988(49 of 1988).
c) The DSPE Act came into force in 1946, later by the Adoption of Laws (No.3) Order, 1956, the preamble to the Act was modified and it now reads as follows:
"An Act to make provision for the constitution of a Special Police Force in Delhi for the investigation of certain offences in the Union Territories...."
d) Therefore, it is clear that the Act was promulgated for the purpose of constitution of a special police force for investigation of certain offences in Delhi and in the Union Territories.
e) Section 5 of the DSPE Act states that the Central Government may by an order extend the area of operation, functioning by the members of the DSPE for investigation of certain offences, which are specified in Section 5(1) of the DSPE Act. After the order is issued under Section 5 (1) the member of the DSPE can discharge the functions of a police 11 officer. Section 6 of the DSPE Act further states that nothing contained in Section 5 of the DSPE Act shall enable the officer or member of the DSPE to exercise powers or jurisdictionwithout the consent of the Government of that State. (emphasis is supplied).
f) Therefore, reading of these sections in line with preamble and purpose of the Act would show that DSPE / CBI is created for acertain specific purpose for certain specific offences and its area of operation is also circumscribed. The manner in which they can function is specified and regulated by Sections 5 and 6 of the DSPE Act. Section 5 of DSPE Act states that their powers can be extended by an order of the Central Government. When such an order is given the member of the DSPE can discharge the functions of the police officer in that area. Section 6of the DSPE Act starts with non-obstante clause that says nothing contained in section 5 shall be deemed to enable any member to exercise the power in a State except with the consent of the State Government. Therefore, by following the fundamental principle of statutory interpretation viz., a plain language interpretation of a statue, it is clear that Section 6 of the DSPE Act is in the nature of overriding clause, which clearly states that nothing contained in Section 5 of the DSPE Act shall enable a member of the DSPE to function in State without the consent of the said State Government. Learned Public Prosecutor appearing for the CBI sought to justify the action on the ground that Section 5 (2) and (3) of DSPE Act enable the Superintendent 12 of Police, CBI to function as a Police Officer and that the said power has not been taken away. Basing on the land mark decision of Lalitkumari case(8 supra) he argues that once the commission of cognizable offence is brought to the notice of the police officer, he has no option but to register the FIR forthwith. Therefore, learned Special Public Prosecutor justifies a registration of the FIR. He also argues that the trap was clearly laid and that in view of the decision of the learned single Judge of the Karnataka High Court in the case of C.H. Wadigere (9 supra), thisCourt should allow the proceedings to continue. Relying on the other cases cited, he would also argue that by and large the courts have been supporting the action and that once the criminal law is set into motion and there is more than a prima facie case, particularly, in such cases of white collar crimes the Court should take a view which would further the purpose for which action was taken and it should not quash the proceedings on technical grounds. The Special Public Prosecutor for ACB also supplemented the arguments in the same lines.
g) This Court is also confronted with two judgments (1) learned single Judge of the Karnataka High Court and other judgments of the learned single Judge of High Court of Jurisdiction for the State of Telangana and the State of Andhra Pradesh in Criminal Revision Petition Nos. 3156-3158 of 2016.
h) Learned single Judge of the High Court of AP and TS held that when the issue is one of total lack of jurisdiction 13 or the lack of authority to investigate, it goes to the root of the matte and vitiates the whole exercise. In the case before the learned single Judge also the proceedings were launched without obtaining the permission of the State Government. The accused in that case questioning the registering of the FIR and also filing of the charge sheet before the special Court. In such situation the learned single Judge held that this is matter, which is going to the very root of the case. Learned single Judge also relied upon the judgment of the Hon'ble Supreme Court of India in the case of Mayawathi(4 supra), wherein Supreme Court of India quashed certain proceedings. A direction that was given by the Supreme Court of India was with regard to the irregularities in the Taj Corridor Project alone. But the CBI also registered a case of disproportionate assets. The Hon'ble Supreme Court of India clearly held that the initial order was only with regard to investigating thematter in the Taj Corridor Project case and that there isno direction given to the CBI to investigate the disproportionate assets of the petitioner.
i) This Court is of the opinion that when an issue arises about the very lack of authority or jurisdiction to investigate a case, a lenient view cannot be taken as advocated by the learned Special Public Prosecutor, particularly as this goes to the root of the matter. The very power and authority of the officers of the DSPE to function is an issue that is raised. Apart from the law of precedent, this court is also of the opinion that the reasoning adopted by the 14 learned singleJudge of this court is more appropriate than what is stated by the learned single Judge of the Karnataka High Court in C.H. Wadigere case (9 supra). The respondent CBI in this case was aware of the fact that from 08.11.2018 itself the consent was withdrawn by the State of Andhra Pradesh. Therefore, when a complaint was received on 14.03.2019 they have the option of immediately involving the ACB in this case. Instead of doing so they decided to proceed on their own, registered the FIR and thereafter laid the trap.
j) The well-known principle of Taylor vs Taylor, was accepted by the Indian Courts including the Hon'ble Supreme Court of India. In a decision reported in State of Uttar Pradesh vs. Singhara Singh and Ors15and BabuVerghese&Ors. vs. Bar Council of Kerala &Ors.16, it was held that if the statue prescribes that a particular action should be taken in a particular manner, it should be done in that manner or not at all. Section 6 of the DSPE Act which starts with a non-obstante clause which states clearly that without consent of the State Government no action should be taken. In the opinion of this Court without the consent of the State government a Member of the CBI/DSPE cannot exercise any power nor does he have any jurisdiction in that area. Hence, this Court is of the opinion that the action of the respondent-CBI in the facts and circumstances of the case cannot be said to be justified. Even though learned special Public Prosecutor made a very passionate appeal for the 15 AIR 1964 SC 358 16 (1999) 3 SCC 422 15 action to be upheld and his alternative argument that merely on the ground of procedural lapses the action should not be struck down, is appealing to the ear, but in view of the settled law, procedural laws are also the law and that they cannot be brushed aside. This Court cannot ignore the express provisions of Section 6 of the DSPE Act. The question involved is not merely the action ofthe State but also the issue of individual right to question the action of the State. This Court also has a duty to look into the grievance raised by the individual, particularly when he urges that a mandatory provision of law has not been followed. This by itself is prejudice. As rightly held by the Hon'ble Supreme Court of India in Raghunath Rai Bareja and Anr. vs. Punjab National Bank and Ors.17,the law is hard but it is the law. This court is bound to follow the law. Even if in Mayawathi case(4 supra) is considered despite the state stating that it has found disproportionate assets, the Supreme Court struck down the FIR which was registered. The Supreme Court of India clearly held that the CBI exceeded its jurisdiction. Learnedcounsel for the petitioner also relies upon the leading case on the subject in Bhajanlalscase (7 supra), wherein the Hon'ble Supreme Court of India classified the grounds or laid down the para meters for exercise of the power underSection 482 Cr.P.C. In the opinion of this court, this case falls within the sub-para-6 of paragraph 102, wherein Hon'ble Supreme Court of India held that if there is a bar in the concerned Act to the institution and continuation of the proceedings the 17 (2007) 2 SCC 230 16 Court should quash further proceedings. The note of caution sounded by the Hon'ble Supreme Court of India is also in this Court's notice i.e., that the power which should be sparingly used. This Court is of the opinion that the case on hand would come within the exceptions mentioned by the Supreme Court of India. The petitioners have raised an issue which cannot be overlooked or brushed aside. The right to raise every legal defense is a right available to the accused under our jurisprudential system. In the case on hand this Court is of the opinion that the issue raised by the petitioners goes to the very root of the matter viz., right of the CBI to lodge the FIR and to lay the trap. Inherent lack of jurisdictionis writ large in this case. Therefore, this court is bound to quash the proceedings. While placing on record this Court appreciation to the learned Special Public Prosecutorand the passionate arguments advanced, this Court which is also duty bound to protect the rights of an individual, has no choice but to quash the proceedings. Hence with reluctance but in obedience to the letter and spirt of the law, all these three criminal petitions are allowed and all further proceedings in FIR No. 4 of 2019, dt.15.03.2019, filed by the Anti-Corruption Bureau Police Station, Visakhapatnam, arising out of RC.No.01(A)/2019 of the CBI Police Station, Visakhapatnam, against the petitioners-Accused Nos.2, 3 and 4,are quashed.
Miscellaneous petitions, if any, pending shall stand closed.
__________________________ 17 D.V.S.S. SOMAYAJULU, J Date:18.12.2019.
Note: LR Copy to be marked.
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