Delhi District Court
Cbi vs . Akhand Pratap Singh & Ors. on 18 July, 2013
IN THE COURT OF SH. DINESH KUMAR SHARMA
SPL. JUDGE (PC ACT), CBI01
SAKET COURTS, NEW DELHI
CC NO.12/13
CBI VS. AKHAND PRATAP SINGH & ORS.
RC NO.2(A)/2005
ORDER
The core question for consideration before this court is whether after refusal of sanction u/S.6 of The Delhi Special Police Establishment Act, 1946 (hereinafter referred to as "DSPE Act") by Govt. of UP in October 2003, CBI could have registered RC No.2(A)/05 on 19.03.2005 u/S.109, 120B, 467, 471 IPC and 13(2) r/w S.13(1)(e) of The Prevention of Corruption Act, 1988 (hereinafter referred to as "POC Act") against the accused and carried out the investigation.
1.0 Shorn of details, facts in brief are that A1 Akhand Pratap Singh joined IAS in the year 1967 and was allotted the cadre of State of UP. He served at various positions in the State of UP and eventually retired as Chief Secretary on 04.12.2003. While A1 Akhand Pratap Singh was in service, Govt. of India sent a communication dated 17.09.03 to State of UP, concerning complaints against him. Vide communication dated 06.10.2003 of Sh. Arun Singhal, Secretary, Govt. of UP to the Secretary, Department of Personnel and Page 1 of 33 Training, Ministry of Personnel, Public Grievance & Pension, Govt. of India, New Delhi, the consent u/S.6 of DSPE Act was declined. It is advantageous to reproduce the concluding part of this communication which is self explanatory:
"Looking into this matter..... Chief Minister also has found no justification for reconsideration of the decision taken by the previous government. I am directed to inform that there is no justification for according consent of State Government for enquiry by CBI under Section 6 DSPE Act in this matter. Kindly inform Hon'ble Minister Shri Harin Pathak accordingly."
It is pertinent to mention here that except certain copy of office notes, which culminated into letter dated 05th / 06th October 2003 of Sh. Arun Singhal and the letter dated 03.10.2003 of Sh. Mulayam Singh Yadav, the then Chief Minister to Sh. L.K. Advani, the then Dy. Prime Minister, no other record has been made available to the court by either of the parties. 1.1 CBI registered RC No.2(A)/2005 on 19.03.05 at Delhi, ACU(V) on the basis of reliable source information, and carried out the investigation. CBI filed the chargesheet u/Ss.109/120B/467/471 IPC and S.13(2) r/w S.13(1)(e) of POC Act, 1988 against A1 alongwith other accused persons including the close members of the family of the accused. It is pertinent to mention here that in RC, it was alleged that accused has amassed assets disproportionate to his known source of income during the period 01.01.78 to 31.05.91. However, during investigation, the check period was fixed from 01.04.82 to 31.03.98 and the investigation conducted by the CBI concluded that the accused had disproportionate assets in the sum of Rs.2,87,96,226/ (Two Crores Eighty Seven Lakhs Ninety Six Thousand Two Hundred Twenty Six). A1 aggrieved of Page 2 of 33 the registration of FIR and investigation conducted pursuant to it, filed a writ petition No.2067 of 2005. The said petition was heard and decided by Hon'ble Division Bench of Hon'ble High Court of Judicature at Allahabad, Lucknow Bench, Lucknow. In the said writ petition, Hon'ble High Court, considered the objections raised by A1 that CBI cannot register and investigate a criminal case against the petitioner unless the State Govt.'s prior sanction u/S.6 of DSPE Act is obtained. The Hon'ble High Court after taking into consideration the entire facts and law, interalia, held that A1 retired / superannuated in December 2003 as a consequence of which, he ceased to be a public servant and once he demitted his office, the protection of DSPE Act would also wither away. Therefore, the provisions of S.6 of DSPE Act were held to be no longer applicable to the case of the petitioner and since the UP Govt. had already allowed extension of powers of DSPE Act throughout the State of UP, the Central Govt.'s power under List I Entry 80 of Schedule VII of The Constitution of India cannot be questioned and with that, the monopoly of State Police by virtue of Entry 2 List II of the schedule VII cannot be claimed for protection.
While the matter rested thus, CBI filed the chargesheet against A1 and other persons on 27.03.2008 and Ld. Spl. Judge took cognizance on 21.07.2008. A1 again filed a writ petition (Crl.) No.1073/2008 before Hon'ble High Court of Delhi at New Delhi. The writ petition was filed to enforce the provisions of S.6 of DSPE Act and for quashing of FIR. The basic grievance of the accused was that CBI was bound to take the consent of the State Govt. as required u/S.6 DSPE Act and since State Govt. had refused consent, CBI had no authority to register the case and conduct the investigation against him. Page 3 of 33 Hon'ble High Court considered the matter threadbare and dismissed the writ petition vide order dated 05.03.2009 and agreed with the view expressed by the Hon'ble Lucknow Bench, Hon'ble High Court of Delhi also held that since accused had retired, he no longer continuous to be the public servant. Accused aggrieved of both the orders challenged the same before the Hon'ble Supreme Court in SLP (Crl.) No.2636 of 2009. Hon'ble Supreme Court vide order dated 31.08.09 allowed the petitioner to withdraw the SLP with the liberty to raise all the questions available to him in law in accordance with the law at the appropriate stage. Armed with the liberty granted by the Hon'ble Supreme Court, A1 Akhand Pratap Singh filed an application for dropping the proceedings on account of lack of jurisdiction of CBI to investigate and file the chargesheet and prosecute the case.
1.3 The application of the accused was dismissed by my Ld. Predecessor vide order dated 24.05.2011, interalia, holding that since A1 had withdrawn the SLP, therefore, the order of Hon'ble High court of Delhi remains binding upon this court and issue regarding the consent of State Govt. as per S.6 of DSPE Act stands settled. Order dated 24.05.2011 was challenged by A1 before the Hon'ble High Court vide Crl. Misc. Main No.3380 of 011, Hon'ble Mr. Justice VK Shali, vide order dated 01.11.2011 was pleased to set aside the order of my Ld. Predecessor and, interalia, held as under :
"The observation passed by the learned Special Judge that the question of grant of consent by the State Government stands settled by the High Court of Delhi and the said finding is binding on him, is erroneous, in the light of the fact that though the Special Leave Petition filed by the petitioner in the Apex Court was Page 4 of 33 withdrawn but what is noticeable is that the Apex Court had given an liberty to the petitioner to raise all such questions available to him in law at an appropriate stage which obviously would include the question of grant or nongrant of consent by the State of UP for registering, prosecuting and filing the challan against the petitioner, though it was to be done by him at an appropriate stage."
It was further held that the stage of framing of charge would have been an appropriate stage for the petitioner to raise the plea for dropping the proceedings against the accused. Hon'ble High Court was pleased to issue the directions to this court to consider the application of the petitioner for dropping the proceedings or to consider the question of discharge of the accused on the ground that there was a lack of consent in terms of S.6 of DSPE Act 1946 at the stage of framing of charge.
Subsequent to the compliance of S.207 Cr.P.C. the case was fixed for arguments for charge on 30.05.2013. In deference to the order of Hon'ble High Court, this court considered the plea of A1 for dropping the proceedings. 1.4 Article 162 of Constitution of India defines the extent of executive power of State. It provides that subject to the provisions of this constitution, the executive power of a State shall extend to the matters with respect to which the legislature of the State has power to make laws. It provides that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof.
Article 246 of the Constitution of India provides subject matter of Page 5 of 33 laws made by Parliament and by the legislatures of State. The bare perusal of this article makes it clear that under the Constitution, there is a threefold distribution of legislative power between the Union and the States, made by the three lists in the Seventh Schedule of the Constitution. Clause (3) of Article 246 empowers the legislature of any State an exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule of Constitution, referred to as "State List".
Article 246 also lays down the principle of federal supermacy viz., that in case of inevitable conflict between the Union and State powers, the Union power as enumerated in List I shall prevail over the State power as enumerated in List II and III, and in case of an overlapping between List II and III, the latter shall prevail. Entry 80 of list I empowers the Union of India for extension of power and jurisdiction of a member of police force belonging to any State to any area outside his State, but not so as to unable the police of one State to exercise power or jurisdiction in any area outside that State without the consent of the Govt. of the State in which such area is situated. Entry 2 of list II specifically provides that police (including railway and village police) falls within the domain of the State Govt.
1.5 The DSPE Act was enacted in the year 1946 primarily for the purpose of offences of bribery and corruption connecting with the department of Central Govt. Section 3 of DSPE Act empowers the Central Govt. to specify the offences, or classes of offences by Notification, which are to be investigated by the CBI. Thus, CBI can investigate only those offences / classes of offences, Page 6 of 33 which have duly been notified u/S.3 of DSPE Act 1946. Section 4(1) provides that the superintendence of DSPE Act insofar as it relates to investigation of offences alleged to have been committed under the POC Act shall vest in Central Vigilance Commission (CVC) and the superintendence in all other matters shall vest in the Central Government.
Section 5 of DSPE Act makes provisions for extension of powers and jurisdiction of special police establishment to other areas for the investigation of any offence or classes of offence specified in the notification u/S.3. However, following the principle of federal structure as laid down in the Constitution of India, Section 6 was introduced in the year 1952 whereby it was made mandatory that consent of State to exercise power and jurisdiction is essential.
Section 6 of DSPE Act reads as under :
"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 are in [a State, not being a Union territory or railway area], without the consent of the Government of that State. The Govt. of UP vide notification dated 15.06.89 accorded consent to the extension of powers and jurisdiction of the members of DSPE Act in whole of the State of UP for investigation of the offences punishable under POC Act subject to the condition that no such investigation shall be taken up in case relating to the public servant under control of State Govt. except prior permission of the State Govt. Thus, Govt. of UP accorded the sanction u/S.6 of DSPE Act with an exception that in the event of the case against public servant Page 7 of 33 under the control of State Govt., the investigation shall be conducted only after the prior permission of State Govt.
Govt. of India in pursuance to the notification of Govt. of UP dated 15.06.89 issued a notification dated 23.08.90, notifying the consent of State Govt. of UP, regarding extension of the power and jurisdiction of the members of DSPE Act to the whole of the State of UP for investigation of offences punishable under POC Act with a proviso that this notification will not be applicable to the public servants under the control of State Govt. except with the prior permission of the State Govt.
1.6 Section 6A of DSPE Act also requires that CBI shall not conduct any inquiry or investigation into any offence alleged to have been committed under POC Act except with the prior approval of the Central Govt. where such allegations relates to the employees of the Central Govt.of the level of Joint Secretary and such officers as are appointed by the Central Govt. in corporations established by or under any Central Act, Government Companies, societies and local authorities owned or controlled by that Govt.
Section 6A(2) makes a proviso that such approval would not be required in case of arrest of the person on the spot on the charge of accepting or attempting to accept any gratification other than legal remuneration. 1.7 CBI though maintained silence in the chargesheet, but during arguments did not dispute that the consent u/S.6 of DSPE Act 1946 was refused by the State of UP in October 2003 and before registration of FIR in the Page 8 of 33 year 2005 consent of the State of UP was not sought in terms of notification dated 23.08.90. It is also not disputed that the CBI had not taken any step for the review or recall of the order of Govt. of UP vide which the consent u/S.6 of DSPE Act was declined. CBI has also not raised any dispute regarding the fact that in terms of S.6 of DSPE Act CBI is required to take the consent of Govt. of UP for investigation for the offence under POC Act, if it relates to public servant under the control of the State Govt. Primarily, the plea taken by the CBI is that after the accused had retired, he ceased to be public servant and therefore, no consent u/S.6 of DSPE Act was required and the consent u/S.6A of DSPE Act is also not required as the accused was not a Central Govt. employee.
Per contra, the plea of the defence is that after the consent u/S.6 of DSPE Act was refused by Govt. of UP, CBI could not have registered the case and carried out the investigation against the accused and therefore, the registration of FIR and the investigation which culminated into filing of chargesheet is totally illegal. The defence has also taken a plea that the accused being member of All India service was a Central Govt. employee under the control of State Govt. therefore, prior approval of the Central Govt. is also required u/S.6A of DSPE Act.
2.0 Sh. UU Lalit, Ld. Sr. Advocate assisted by Ms. Bansuri Swaraj and Sh. HK Sharma, Advocates argued that Section 5 and 6 of DSPE Act find its root in the Constitution of India. Ld. Counsel submitted that Constitution of India is grundnorm and all the laws have essentially to be in conformity in Page 9 of 33 conformity with the same and any act in violation of such law would infact be in violation to the Constitution of India. Thus, any non adherence to such laws would make the act of the executive illegal and void ab initio. Ld. Sr. Advocate submitted that in a federal structure as envisaged by the framers of the Constitution, the subject of law and order is within the domain of the State as is apparent from entry No.79 and 80 of list 1 and entry No.2 of list 2 of the VII Schedule. Section 6 of DSPE Act enforces the federal structure policy. Govt. of India also following the same principle, issued the notification dated 23.08.90 in pursuance to the consent u/S.6 of DSPE Act accorded by Govt. of UP vide notification dated 15.06.89. In the notification dated 23.08.90, the Union Govt. had accepted that the notification will not be applicable to the cases relating to the public servants under the control of the State Govt. except with the prior permission of the State Govt.
A1 Akhand Pratap Singh, IAS, 1967 UP State cadre officer, superannuated in December 2003. Prior to that the permission sought from state Govt. was declined in October 2003. Ld. Sr. Advocate read out the communication sent by the Govt. of UP to the Central Govt., whereby consent u/S.6 of DSPE Act was specifically declined. Sh. UU Lalit, Ld. Sr. Advocate submitted that act of CBI of registration of FIR in March 2005, even after consent was declined by the State Govt. in 2003, is absolutely illegal and in violation of Constitution of India.
In regard to the earlier writ petition filed by A1 before the Hon'ble Allahabad High Court and Hon'ble Delhi High Court, Ld. Sr. Advocate submitted that both the Hon'ble High Courts declined the plea of A1 primarily Page 10 of 33 on the ground that after he ceases to be a public servant, no sanction is required and both the Hon'ble High Courts had based their reasoning upon the interpretation of S.19 of POC Act.
2.1 Sh. UU Lalit, Ld. Sr. Advocate would argue that the ingredients of S.19 of POC Act, are totally different from ingredients of S.6 of DSPE Act. However, the Hon'ble Supreme Court in State of Himachal Pradesh Vs. Nishant Sareen (2010) 14 SCC 527 and Louis Peter Sareen Vs. State of Jharkhand, (2010) 12 SCC 497, interalia, held that sanction once refused cannot be reviewed unless and until there are fresh material or grounds for second opinion. Sh. UU Lalit, Ld. Sr. Advocate emphatically submitted that in the present case, after the consent was declined by the Govt. of UP in October 2003, CBI had not moved for review of such consent, nor did they challenge such refusal before any authority and therefore, even on the analogy of S.19 of POC Act, RC could not have been lodged against A1.
The defence argued that A1 being an IAS stands on different footing and he being a Central Govt. employee under the control of State Govt. is entitled for the consent of the State Govt. under S.6 of DSPE Act and prior approval of Central Govt. u/S.6A of DSPE Act.
2.2 The defence has relied upon the following judgments in support of their case :
1. J. Muthukrishnan and Anr. Vs. The State, 1990 Cri.LJ 2570 Page 11 of 33
2. Kazi Lhendup Dorji Vs. CBI, 1994 Supp. (2) SCC 116
3. Dr. RR Kishore Vs. CBI, 142 (2007) DLT 702
4. Lalu Prasad Yadav Vs. State of Bihar, (2010) 5 SCC 1
5. Louis Peter Surin Vs. State of Jharkhand, (2010) 12 SCC 497
6. State of Himachal Pradesh Vs. Nishant Sareen (2010) 14 SCC 527
7. Mayawati Vs. Union of India (2012) 8 SCC 106
8. Subramanian Swamy Vs. Manmohan Singh (2012) 3 SCC 64. 2.2.1 The reliance was placed upon Dr. RR Kishore's case (supra) to bring home the ground that S.6A of DSPE Act is mandatory and not merely directory and any investigation carried out in violation of the same would be illegal. It has been submitted that as in the present case, the prior approval as required u/S.6A of DSPE Act had not been taken, and therefore, the investigation which culminated into the chargesheet was declared to be illegal and void ab initio.
2.2.2 In Kazi Lhendup Dorji's case (supra), the Govt. of Sikkim had initially conveyed the consent of Govt. u/S.6 DSPE Act on 20.10.76 subsequently, in the year 1984 a case was registered against the accused, who happened to be former Chief Minister of Sikkim on charges of having disproportionate assets. The investigation conducted by CBI found the prima facie case against the former Chief Minister. However, in the meanwhile, Page 12 of 33 accused again became the Chief Minister of Sikkim in March 85 and before CBI could file the chargesheet u/S.173 Cr.P.C. the Govt. of Sikkim vide notification dated 07.01.87 withdrew the consent u/S.6 of DSPE Act. In view of the withdrawal of the consent, CBI suspended further action. Aggrieved of this, the petitioner Kazi Dorji who was former Chief Minister of Sikkim, filed a writ petition by way of PIL for quashing of notification vide which the consent u/S.6 of DSPE Act was withdrawn. The writ petition was allowed and the Apex court, interalia, held that the order revoking consent u/S.6 of the Act can have only prospective operation and would not affect matters in which action has been initiated prior to the issuance of the order of revocation. It was held that the investigation which had been commenced by the CBI had to be completed.
Ld. Sr. counsel submitted that taking analogy from this judgment it is clear that the view taken by the State Govt. is irrevocable. In the present case also, once the consent had been refused, the CBI had not authority to register a case and conduct the investigation.
2.2.3 The defence has also relied heavily upon Nishant Sareen's case (supra). In this case also, accused who was posted as Drug Inspector, Bilaspur was booked for the offence u/S.7, 13(2) of POC Act, 1988. The then Member Secretary vide order dated 27.11.2007 refused the sanction. However, the Vigilance Department again took up the matter with Principal Secretary (Health) for grant of sanction and the competent authority reconsidered the matter and vide order dated 15.03.08 accorded the sanction against the accused. The challenge of the same came up before Hon'ble Supreme Court Page 13 of 33 and Hon'ble Supreme Court, interalia. held as under :
" It is true that the Government in the matter of grant or refusal to grant sanction exercises statutory power and that would not mean that power once exercised cannot be exercised again or at a subsequent stage in the absence of express power of review in no circumstance whatsoever. The power of review, however, is not unbridled or unrestricted. It seems to us sound principle to follow that once the statutory power under Section 19 of the 1988 Act or Section 197 of the Code has been exercised by the Government or the competent authority, as the case may be, it is not permissible for the sanctioning authority to review or reconsider the matter on the same materials again. It is so because unrestricted power of review may not bring finality to such exercise and on change of the 10 Government or change of the person authorised to exercise power of sanction, the matter concerning sanction may be reopened by such authority for the reasons best known to it and a different order may be passed. The opinion on the same materials, thus, may keep on changing and there may not be any end to such statutory exercise. In our opinion, a change of opinion per se on the same materials cannot be a ground for reviewing or reconsidering the earlier order refusing to grant sanction. However, in a case where fresh materials have been collected by the investigating agency subsequent to the earlier order and placed before the sanctioning authority and on that basis, the matter is reconsidered by the sanctioning authority and in light of the fresh materials an opinion is formed that sanction to prosecute the public servant may be granted, there may not be any impediment to adopt such course.
Insofar as the present case is concerned, it is not even the case of the appellant that fresh materials were collected by the investigating agency and placed before the sanctioning authority for reconsideration and/or for review of the earlier order refusing to grant sanction. As a matter of fact, from the perusal of the subsequent order dated March 15, 2008 it is clear that on the same materials, the sanctioning authority has changed its opinion and ordered sanction to prosecute the respondent which, in our opinion, is clearly impermissible."
2.2.4 Similarly, in Louis Peter's case (supra), a case was registered under POC Act against the appellant. The sanction u/S.19 of POC Act was refused by the competent authority vide order dated 02.02.90. The review of the order dated 02.02.90 was again sought which too was rejected on 28.07.92 Page 14 of 33 for the same reasons. The appellant superannuated from service on 01.12.97. CBI taking advantage of the fact that appellant had retired and no sanction was required, filed a chargesheet on 09.11.2001. Ld. Spl. Judge took the cognizance which was challenged and dismissed by the Hon'ble High Court. The matter came up before the Supreme Court and it was agitated that the cognizance was taken by the court after 17 years. The Apex court taking into account that the appellant had already superannuated in the year 1997 and cognizance has been taken by the court after around 17 years, even though the sanction was rejected by the State Govt. on two occasions, held that the initiation of the proceedings against the appellant was not justifiable. 2.2.5 Sh. UU Lalit, Ld. Sr. Advocate argued that after the investigation has been conducted by the CBI in violation of law, the chargesheet which has been culminated on the basis of such illegal investigation has no values in the eyes of law. In support of his contention, Ld. Counsel cited Mayawati's case (supra). In this case, the petitioner who is former Chief Minister of State of UP challenged the registration of FIR against her for disproportionate assets by the CBI on the ground that the same was beyond the scope of direction passed by the Apex court. The Apex court while hearing the writ petition (Civ.) No.13381 of 1984 titled as MC Mehta Vs. UOI & Ors. directed the CBI to conduct an inquiry alleging various irregularities committed by the officers / persons in the Taj Heritage Corridor project and to submit the preliminary report. The Apex court specifically vide order dated 21.08.03 issued certain directions to the CBI Page 15 of 33 to interrogate and verify the assets of the persons concerned with regard to the outflow of Rs.17 crores which was alleged to have been received without proper sanction of the Taj Corridor Project. Pursuant to the orders of the Apex Court, RC No.0062003A0019 dated 05.10.2003 u/S.120B/420/467/468/471 IPC and u/S.13(2) r/w S.13(1)(d) of POC Act was registered against several persons including the petitioner. It is pertinent to mention here that after the investigation of this case, the sanction was refused by the Governor to prosecute against the petitioner. The CBI also registered a case of disproportionate assets against Ms. Mayawati. The Apex Court, interalia, held that there was no direction of the court to register the case for disproportionate assets against the petitioner and therefore, in absence of any specific direction of the court, CBI exceeded its jurisdiction in lodging the FIR and therefore, the impugned FIR is illegal and is liable to be quashed.
Ld. Sr. counsel submitted that therefore, the present RC also being registered in absence of consent u/S.6 of DSPE Act and further investigation conducted by the CBI is illegal and void ab initio. Ld. Counsel has also relied upon Lalu Prasad Yadav's case (supra) and Subramanian Swamy's case (supra) to support his contention.
2.3 Ld. Sr. Advocate has also relied upon J. Muthukrishnan & Anr.'s case (supra) to buttress his point that consent u/S.6 of DSPE Act is quintessential, in which it was, interalia, held as under :
"The first point is relatable to the power and jurisdiction of the Special Police Establishment (CBI). Before construing the amplitude of the power, prudent, it is Page 16 of 33 to mention here that the Central Government is competent to issue a notification under S.3 of the Act, 1946 for the investigation of any offence or process of any offence after obtaining the consent of the relevant state Government under S.6 read with S.5 of the Act, 1946. If there is no such notification if goes without saying that the investigation embarked upon by the Special Police Establishment (CBI) in respect of any offence or of offence is without powers and jurisdiction.
So, it is a question of signal importance as to whether the Government of Tamil Nadu had given its consent for such investigation and notification therefore had been issued. If proof is forthcoming for such a consent having been given and a notification issued, the legal construction of the argument hinging on this point will fall to the ground."
2.4 In regard to the validity of S.6A of DSPE Act and the plea made by CBI that the same is not good piece of law, Ld. Sr. Advocate placed reliance upon an affidavit filed by the Central Govt. in a Crl. Appeal No.377/2007, CBI Vs. RR Kishore, in which Central Govt. has specifically mentioned that S.6A was introduced to provide a screening mechanism to filter out frivolous or motivated investigation that could be initiated against senior officers to protect them from harassment and to enable them to take decisions without fear.
Ld. Sr. Counsel submitted that plea of the CBI that S.6A of DSPE Act is not constitutionally valid and cannot be accepted. 2.5 Sh. UU Lalit, Ld. Sr. Advocate submitted that the court may not be swayed away by the mere allegations made by the CBI. The investigation conducted by the CBI is illegal in absence of the consent u/S.6 of DSPE Act, and therefore, this court is under the duty to correct the mistake / illegality committed by the CBI.
Page 17 of 33 3.0 Sh. ID Vaid, Ld. Spl. PP for CBI and Sh. DK Singh, Ld. PP for CBI submitted that there is no reason for this court to differ with the view taken by Hon'ble Allahabad High court and Hon'ble Delhi High court in earlier writ petitions. It was submitted that since A1 had retired before RC was registered, he ceases to be public servant and therefore, no permission of State of UP was required. No dispute was raised to the fact that S.6 of DSPE Act finds it root from entry No.80 of List 1 and entry No.2 of List 2 of Schedule VII. In respect of S.6A of DSPE Act, CBI submitted that "single directive" which is akin to S.6A of DSPE Act was introduced in 1969, was struck down by Hon'ble Supreme Court in Vineet Narain Vs. Union of India, (1998) 1 SCC 226. Subsequently, Govt. brought another ordinance dated 25.08.98 to review the single directive, but after few months the ordinance was withdrawn on 27.10.98 and therefore, except for a period of few months intervening above said two notifications, single directive lost its entity till 2003, when it was inserted by the act 45 of 2003 wef 01.09.03. The Constitutional validity of S.6A was again challenged befor Supreme Court on the ground of arbitrariness and unreasonableness. In Dr. Subramanian Swamy Vs. Director, CBI, 2005 Cri.L.J. 1413, the full bench of Hon'ble Supreme Court held that in view of the judgments of Hon'ble Supreme Court in Vineet Narain's case (supra) and K. Veera Swamy Vs. UOI, (1991) 3 SCC 655, the matter deserves to be heard by a larger bench. Hence, the matter was referred to a larger bench.
CBI argued that S.6A being parallel to single directive which was struck down in Vineet Narain's case is not a good law as single directive was Page 18 of 33 struck down in Vineet Narain's case and the Vineet Narain's case having not been set aside is still a good law.
3.1 Sh. ID Vaid, Ld. Sp. PP emphasized that IAS officer are under the control of State Govt. and therefore, in any case, consent u/S.6A is not required. Ld. Sr. PP also submitted that cases of Nishant Sareen and Louis Peter are also distinguishable on the facts and circumstances of the case.
CBI in support of its case has relied upon the following judgments :
1. Surinder Singh Ahluwalia Vs. Delhi Special Police Establishment and Ors., 1991 Cri.L.J. 2583
2. Dr. Subramanian Swamy Vs. Director, CBI, 2005 Cri.L.J. 1413 ;
3. PM Singh Vs. CBI, 2008 I AD (Delhi) 438 ;
4. Prof. Ramesh Chandra Vs. CBI, Crl. M.C. 3172/2008 & Crl. M.A. 11721/2008 (stay), decided on 25.03.2009 ;
5. Ashok Sadarangani & Anr. Vs. UOI, WP (Crl) No.26 of 2011 decided on 14.03.2012 ;
6. Pramod Kumar Vs. UOI, WA No.12 of 2013 decided on 29.04.2013 ;
and
7. Dr. Anup Kumar Srivastava Vs. CBI, 2013 [1] JCC 755.
3.1.1 CBI would submit that in Pramod Kumar's case (supra), the question raised as whether the appellant / Insp. General of Police, IPS Officer Page 19 of 33 allotted to Tamil Nadu Cadre is an employee of Central Govt. and level of Joint Secretary, covered by S.6A of DSPE Act mandating prior approval of the Central Govt. Hon'ble High court, interalia, framed the following questions :
1. whether appellant is the employee of Central Govt. in the level of Joint Secretary requiring prior permission u/S.6A of DSPE Act ;
2. whether appellant is right in contending that investigation against the appellant is vitiated in view of violation of mandatory provisions of S.6A of DSPE Act.
Hon'ble High Court took into account relevant rules governing service conditions and Article 312 of the Constitution of India which provides for creation of All India Service and, interalia, held that appellant a member of All India Service serving in connection with the affairs of the State of Tamil Nadu, the State Govt. shall be the appropriate Government in respect of such employee for all practicable purpose. It was noted that All India Service officers are only recruited by Union Public Service Commission, a constitutional body for being borne on several States of the Union. No All India Service Officer is recruited to serve the Central Govt., except on deputation to Central Govt. Central Govt. makes rules with regard to All India Service Officers only to have uniformity in service conditions for such officers. The court negated the contention of the appellant that he is an employee of the Central Govt. while borne on State cadre. It was further held that therefore, prior approval u/S.6A is not required, and both the questions were replied against the petitioner. Page 20 of 33 3.1.2 CBI has also relied upon Ramesh Chandra's case (supra). In this case, a case was registered against Prof. Ramesh Chandra, Head of Department of Applied Chemistry, Delhi College of Engineering (DCE) and posted as Vice Chancellor, Chaudhary Charan Singh University (CCSU), for dishonesty and fraudulently securing appointment / selection to the post of AEE for Smt. Seema in the DPCC as well as the admission of Ashish Goel in the DCE in B.E. (Civil) by abusing their respective official positions as public servants. Petitioner sought his discharge on the ground that mandatory provisions of S.6 and S.6A of DSPE Act were not complied with by the CBI. It was contented that w.e.f. 01.03.2000, the petitioner was appointed as Vice Chancellor of CCSU, which was a State University under the UP State Universities Act, 1973. Petitioner further contended that his status in the DCE was above the rank of the Joint Secretary of the Central Govt. and in terms of S.6 and S.6A of DSPE Act, the prior consent of the State of UP and prior approval of the Central Govt. had to be obtained by the CBI. Hon'ble High Court rejected the contentions of the appellant and, interalia, held that requirement of prior permission as stipulated in notification dated 23.08.90 is premised on the basis that offence or offences committed under POC Act which are subject matter of the investigation have taken place in the State of UP. It was held that in the instant case, all offences have taken place in the Govt. of NCT and therefore, there is no requirement of prior consent of State Govt. Ld. PP argued that in this case also, the case was registered in Delhi and part of the properties constituting disproportionate assets are also situated in Delhi and therefore, consent of the State Govt. is not required. Page 21 of 33 3.1.3 CBI has also relied upon SS Ahluwalia's case (supra) to buttress its plea that the offence alleged against the accused has taken place in Govt. of UP as well as in Delhi and some other places, and therefore, CBI would be competent to conduct investigation against the accused in relation to place in Delhi and such other places.
4.0 Both the parties have also filed detailed written synopsis reiterating their oral submissions.
5.0 This court had the privilege of hearing the arguments advanced by Sh. UU Lalit, Ld. Sr. Advocate and Sh. ID Vaid. Ld. Spl. PP and Sh. D.K. Singh, Ld. PP for CBI. The court must record its sincere appreciation for the assistance rendered by the Ld. Sr. Counsel and Ld. Counsels for CBI, who gave an opportunity to this court to dive and to go deep into sacrosanct provisions of the Constitution of India and an important point of law touching the basis structure of Constitution itself. On the basis of the facts and the legal submissions made by both the parties, the court would consider that there are primarily two points which are required to be answered by this court :
1. Whether A1 Akhand Pratap Singh being an All India Service Officer, is entitled for protection u/S.6A of DSPE Act ;
2. Whether the CBI has exceeded its jurisdiction by registering the FIR and conducting the investigation against A1 after the consent had been refused by the State Govt.
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Question No.1 Whether A1 Akhand Pratap Singh being an All India Service Officer, is entitled for protection u/S.6A of DSPE Act. 5.1 CBI has challenged the validity of S.6A of DSPE Act which has correctly been contradicted by the Ld. Defence counsel. I consider that since Hon'ble Supreme Court is seized of the matter, this court has no jurisdiction to enter into this arena. The law being on a statue book is a good law unless and until struck down by the Apex court or repealed by the legislature. Therefore, this court would not enter into the question regarding the validity of S.6A of DSPE Act.
Now the only question left to be seen is that whether the accused is entitled for the protection u/S.6A of DSPE Act. I consider that in this regard, CBI clinched the issue by citing Pramod Kumar's case (supra), which has been discussed in detail, and has not been repeated herein for the sake of brevity . In this case, upon all the service rules and Constitution of India, it has, interalia, been held that All India Service Officer, once alloted to the State Govt., comes under the control of State Govt. and therefore, cannot claim the benefit of S.6A of DSPE Act. I consider that in view of the judgment in Pramod Kumar's case A1 Akhand Pratap Singh cannot claim benefit of S.6A of DSPE Act, 1946.
Regarding benefit of S.6A of DSPE Act, it is a matter of record that there is nothing on the record to suggest that accused was an employee of Central Govt. of the level of Joint Secretary or above at any point of time, which is subject matter of the investigation and chargesheet. Page 23 of 33
The basic purpose behind enactment of S.6A of DSPE Act was to protect the bonafide actions at the decision making level. The legislature in its wisdom decided that the power of giving prior approval for taking action against a senior officer of the decision making level should be vested with the Central Govt. by making appropriate provision in the act. The object was that the officer who are in serious decision making positions, and have to exercise discretion and take vital decisions could become the target for frivolous complaints and need to be protected.
A1 Akhand Pratap Singh, in the present case, was an IAS officer allotted to the State cadre of UP and there is no material on the record even to assume that accused was in the Central Govt. at a senior position i.e. at the level of decision making and therefore, in absence of any such material, the accused cannot claim protection u/S.6A of DSPE Act.
Question No.2 Whether the CBI has exceeded its jurisdiction by registering the FIR and conducting the investigation against A1 after the consent had been refused thrice by the State Govt.
5.2 Sh. UU Lalit, Ld. Sr. Advocate has made a very lucid presentation regarding the basis structure of the Constitution and argued in detail regarding the power of the Central Govt. and power of State Govt. in regard to the domain of the investigation. The history was also traced regarding the enactment of DSPE Act and creation of CBI. The basic purpose behind consent of State Govt. as required u/S.6 of DSPE Act, was also argued in detail with the Page 24 of 33 background of the provisions of the Constitution of India. I must say that as far as proposition of law as put up by Sh. UU Lalit, Ld. Sr. Advocate, is concerned, there cannot be any other view. Ld. Sr. Advocate has correctly contended that S.6 of DSPE Act is mandatory in nature and any violation of the same would be the violation of the basic provisions of the Constitution of India. It is also pertinent to mention here that the Central Govt. by way of Notification dated 23.08.90 has accepted the conditional consent accorded by Govt. of UP vide their Notification dated 15.06.89. The Central Govt. agreed that Notification will not be applicable to the cases relating to the public servant under the control of State Govt. except the prior permission of State Govt. Thus, in case of the public servant under the control of State Govt., the Central Govt. is under a mandate to seek prior permission of State Govt. It is a matter of record that the Central Govt. had sought the consent of Govt. of UP and as per material available on record the consent u/S.6 of DSPE Act was refused by State of UP in October 2003. The plea of CBI that since accused has superannuated in 2003 and therefore, earlier refusal of consent by State Govt. has no relevance, cannot be accepted as an absolute proposition permitting no exception.
The principle of law laid down by the Apex Court in Nishant Sareen's case (supra) clearly lays down the proposition that once a sanction has been refused, it can be reviewed only if there are fresh material on the record. Hon'ble Supreme Court in Nishant Sareen's case has specifically held that change of opinion per se on the same material, cannot be a ground for reviewing or reconsidering the earlier order refusing to grant the sanction. However, it was, interalia, held that in a case where the fresh materials have Page 25 of 33 been collected subsequent to the earlier order and placed before the sanctioning authority and on that basis the matter can be reconsidered by the sanctioning authority and on the basis of fresh materials an opinion is formed than sanction to prosecute may be granted.
It is also pertinent to mention here that in Louis Peter's case (supra) also Hon'ble Supreme Court took into account that CBI cannot be allowed to sit on a matter for indefinite period and if the sanction had been refused during the service tenure of a employee, subsequently the chargesheet cannot be filed after a lengthy period, only on the ground that no sanction is required u/S.19 of POC Act, 1988 after the public servant has retired. If such a position is allowed to be continued then possibly the requirement of sanction of consent, which is a solemn protection to public servant, would be redundant. CBI in such a situation, where consent has been refused would sit quietly and wait for the retirement of the public servant to file the chargesheet.
I consider that the correct proposition of laws which is culled out from above discussion would be that if a sanction / consent has been refused by the competent authority during the service tenure of a public servant, the CBI cannot register the FIR and file the chargesheet after the public servant stands superannuated. However, this would be the position if the subject matter of the case propped up earlier as also later, remains the same. To put it conversely, the situation could be different, if the CBI proposes to proceed against the retired public servant for an offence based on the set of facts, which were not directly and substantially constituted the subject matter, on which Page 26 of 33 earlier consent was sought. The retirement of an employee would not make any difference, however, provided that consent had been refused u/S.6 of DSPE Act during service tenure of a public servant on the same set of facts constituting that offence alleged against the accused. The contrary approach would be questionable given the federal structure of our polity and the constitutional scheme, wherein investigation of such crime within the territory of a State can only be ordinarily made with the permissions of such State. Therefore, this court has no hesitation in holding that if on a particular material allegedly constituting a specific crime, the consent has been refused by the State Govt. during service tenure of the employee, CBI cannot register the FIR and conduct investigation on the same material for the said offence after the superannuation of such public servant.
Therefore, the moot question which arises in the present case is as to whether State Govt. had refused the sanction u/S.6 of DSPE Act on the set of facts / materials, which were directly and substantially same on the basis of which RC No.2(A)/05 was registered in March 2005.
5.2.1 The only material placed in relating to the refusal of consent before the court are as follows :
1. letter No.433G1/E50322(42)/69 Government of UP, Appointment Section - 5, Lucknow, Date : 5/6 October 2003 S.No 273 of Sh. Arun Singhal, Secretary addressed to Sh. SS Dabra, Secretary, Department of Personnel & Training, Ministry of Personnel, Public Grievance & Pension, Govt. of India, New Delhi Page 27 of 33
2. letter No. Circa 433, G.1/41.5.200322(42)69, Lal Bahadur Shastri Bhawan, Lucknow dated 03 Oct. 2003 of Sh. Mulayam Singh Yadav, the then Chief Minister, Uttar Pradesh addressed to Sh. L.K. Advani, the them Dy. Prime Minister alongwith detailed note of Sh. Arun Singhal, Secretary dated 01.10.2003 and analytical note of Sh. A.B. Shukla, Principal Secretary, Law and Justice dated 03.10.2003.
This court even did not have the privilege to see the communication received from Central Govt. vide which the consent was sought. The earlier two communications relating to seeking consent and its refusal have also not been placed before this court. Therefore, this court is totally not aware that on what facts, the CBI had sought the consent u/S.6 of DSPE Act. If the plea of the defence is to be accepted then this court would have to presume that the consent was sought on the same grounds on which the FIR was lodged and the inquiry was conducted by the State Govt. relating to the same allegations. However, the courts cannot act on the basis of mere assumptions. None of the party has placed before this court the inquiry reports earlier conducted by State Govt. which could have thrown light on the allegations against A1 and the findings of the State Govt.
It is a settled proposition in law that a party who desires any court to accept a plea as to any legal right depending on the existence of facts, which he asserts, is required to prove that such fact exists. This court is conscious of the fact that it is always the primary duty of the prosecution to prove its case beyond reasonable doubt. However, if still the accused wants to prove the Page 28 of 33 existence of certain circumstance, the prima facie burden of proving the same shall be on him. Since A1 was claiming that CBI could not have proceeded against him on the basis that consent has been refused by the State Govt., it was for him atleast to show prima facie at this stage, that the set of facts / material, on which present case was registered, were directly and substantially the same on which the consent was sought by the Centra Govt. and refused by the Govt. of UP. A1 for the reasons best known to him did not even share the inquiry reports, which were decided in his favour, on the allegations conveyed by Govt. of India to the Govt. of UP.
5.2.2 The check period in the present case as per chargesheet is 01.04.82 to 31.03.98, and the case was registered u/Ss.109/120B/467/471 IPC and S.13(2) r/w S.13(1)(e) of POC Act, 1988 and investigated for the misdeeds committed by accused (leading to accumulation of amassing disproportionate assets) during this period. I have carefully perused the communications regarding refusal of consent u/S.6 of DSPE Act. The perusal of these documents reveal that in the communication dated 5th / 6th October 2003 of Sh. Arun Singhal, Secretary, Govt. of UP, vide which the consent had been refused, it has been mentioned that complaint relates to the year 1984. Therefore, it is clear that the complaint on which the consent was sought could not relate to the allegations on which the present FIR was lodged. It cannot be accepted that if once a consent has been refused by Govt. of UP then for all the time, the accused would be exonerated for all the complaints, of whatsoever character or he will acquire immunity for all the time to come. No doubt the CBI Page 29 of 33 cannot register the FIR and investigate the case, on the basis of allegations, which were subject matter on which the consent was sought / refused by the State Govt. If it is accepted that consent once refused would stop all further prosecutions of any nature or any offence whatsoever, it would only defeat the basic purpose and object of the law. For example, if during the service tenure Central Govt. has sought consent against public servant for some misconduct to be prosecuted u/S.13(1)(d) of POC Act and such consent has been refused by the State Govt., it would not mean that in future after superannuation the Central Govt. cannot prosecute the public servant u/S.13(1)(e) of POC Act. Refusal of the consent by State Govt. in such a case was for the offence u/S. 13(1)(d) of POC Act and since it was not refusal for the offence u/S.13(1)(e) of POC Act and therefore, the earlier refusal of consent would not come into the way of the registration of RC and filing of chargesheet against the accused for the offence u/S.13(1)(e) of POC Act. However, naturally the CBI would be debarred from registering the case u/S.13(1)(d) of POC Act in view of refusal of consent.
The above said discussion makes it clear that if a consent has been refused during the service tenure of a public servant, CBI cannot register the FIR and conduct the investigation after superannuation unless and until either
a) earlier order regarding refusal has been reviewed on the basis of fresh material or,
b) the CBI has got the consent of the State Govt. subsequently or, Page 30 of 33
c) the CBI has registered the FIR and conducted the investigation on the facts which were not the directly and substantially the same or the subject matter of earlier move for consent.
Notwithstanding above further question which arises is that whether after retirement of A1 Akhand Pratap Singh, still the CBI was under
the duty to seek consent of State Govt. u/S.6 of DSPE Act. For this, we revert back to the Notification of Govt. of UP dated 15.06.89 and Notification of Govt. of India dated 23.08.90. Both the notifications specifically put the condition regarding "cases relating to public servants under the control of Central Govt.". The question would be whether the public servant after retirement continuous to be under the control of State Govt. In this regard, I would refer to S.2(c) of POC Act and S.21 of IPC which defines the public servant, and have not been reproduced herein for the sake of brevity. I consider that bare perusal of the definition of public servant in POC Act and in IPC makes it clear that a retired person cannot come within the definition of public servant. Merely because a person is receiving pension will not bring him within the ambit of public servant. An employee remains under the control of his employer only during his service tenure and after his superannuation, for all practical purpose, public servant ceases to be under the control of his employer.
In the common parlance, a person receiving remuneration from Govt. of India for the service rendered by him towards his duty come within the purview of public servant. It may not be incorrect to say that a person to be public servant must fulfill two conditions :
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1. that he holds a office ; and
2. by virtue of that office he is authorized to perform any public duty.
It is a matter of record that the accused was not performing any public duty nor was he holding any office at the time when the case was registered against him. If we peruse the notification dated 15.06.89 of Govt. of UP and dated 23.08.90 of Govt. of India, it specifically carves out an exception relating to public servant under the control of State Govt. Therefore, intention of Govt. of UP was only to give an umbrella of protection to the public servant who were actually working under their control. Possibly this was to block any intrusion by the Govt. of India in the administration or the functioning of State Govt. None stopped Govt. of UP to particularly specify that the retired public servant would also be having similar protection.
5.2.3 It is a settled proposition that each and every person who holds an office by virtue of which he is required to perform any public duty in the discharge of which, the State, the public or the community at large is interested would be deemed to be a public servant. Reference can be made to LK Advani Vs. CBI, 1997 Cri.L.J. 2559 . Therefore, once the A1 ceases to be public servant, he comes out of the exception carved out in Notification of Govt. of UP dated 15.06.89 and Notification of Govt. of India dated 25.08.90 and therefore, CBI was well within its right to register the case and conduct the investigation accordingly.
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6.0 Therefore, in view of the discussions made herein above , it is held as under :
1. A1 Akhand Pratap Singh is not entitled for protection u/S.6A of DSPE Act, because he did not fall within the ambit of provision of S.6A of DSPE Act ;
2. The refusal of consent by State Govt. in the year 2003 was not a hurdle for the CBI for registering case against the accused in 2005, as there is nothing on the record to suggest that consent was refused by the State Govt. on the set of facts / material which were directly and substantially the same on which RC No.2(A)/05 was registered ; and
3. CBI was not required to take fresh consent before the registration of RC No.2(A)/05 as by that time A1 Akhand Pratap Singh superannuated and ceased to be a public servant.
With these observations, application stands dismissed.
Announced in the open court (Dinesh Kumar Sharma)
today i.e. on 18.07.2013 Spl. Judge (PC Act), CBI 01
Saket Court : New Delhi
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