Calcutta High Court (Appellete Side)
Bench vs Central Bureau Of Investigation & Ors.) on 12 October, 2017
Author: Shivakant Prasad
Bench: Shivakant Prasad
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4 12.10.2017 CRR 3402 of 2017
an/ Court No. 6
suman Vacation (Bengal India Global Infrastructure Ltd. & ors.
Bench
vs.
Central Bureau of Investigation & ors.)
Mr. Nitin Sangra
Mr. Meghajit Mukherjee
Mr. Vikas Tiwary
............. for the Petitioner
Mr. K. K. Mukherjee
Mr. Abhirup Mukherjee
............. for the opposite party No. 2
Md. Ashraf Ali
............. for the C.B.I.
Affidavit of service filed today be kept with the record.
The petitioners have preferred this revisional application under Section
482 of the Code of Criminal Procedure with a prayer for quashing of charge sheet
No. 6/2015 dated 28.12.2015 arising out of No. RCBSK2014E0007 dated
14.08.2014 under Sections 120B/420 of the Indian Penal Code, 1860 read with
Sections 13(2)/13(1)(d) of the Prevention of Corruption Act, 1988 pending before the
Court of learned Calcutta 3rd Special Judge, CBI Designated, Calcutta including the
orders dated 2.8.2016 passed in connection therewith inter alia on the grounds that
in the absence of any "consent" of the State of West Bengal as is stipulated under
Section 6 of the DSPE Act, enabling the CBI to investigate offences falling under the
Indian Penal Code within the State of West Bengal, the very registration of the
impugned FIR No. RCBSK2014E0007 dated 14.08.2014 by the CBI, BS & FC,
Kolkata (under Sections 120B, 420, 467,468 and 471 of the Indian Penal Code,
1860) that the investigation and criminal prosecution of the petitioners consequent
thereto is per se illegal and bad in law being without jurisdiction.
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It is pointed out on behalf of the petitioner from the said notification
dated 2.8.1989 that the consent under Section 6 of the DSPE Act is accorded by the
State of West Bengal in respect of the investigation of offences falling under the
provisions of the P.C. Act, attempts, abetments and conspiracies in relation to or in
connection with one or more of the offences mentioned in the said Act and any other
offence or offences committed in the course of the same transaction arising out of
the said facts.
It is further submitted by the petitioner that in view of the statement
and the contentions made before the Hon'ble Supreme Court on behalf of the State
of West Bengal vide order dated 31.08.2016 and order dated 5.7.2017 passed by the
Hon'ble Supreme Court in SLP (Crl) No. 5787/2012, it emerges that there is no
notification under Section 6 of the DSPE Act, by which the consent of the State
Government has been accorded for investigation into the offences under the Indian
Penal Code by the CBI and that such consent as and when sought for is granted on
a case to case basis.
Admittedly, the FIR lodged against the petitioners and others at the
instance of the opposite party No. 3 is for the alleged commission of offences under
the provisions of the Indian Penal Code. The said FIR as also the charge sheet does
not mention that the CBI has obtained the requisite consent under Section 6 of the
DSPE Act authorizing it to investigate the case.
It is pointed out that the offences under the provisions of P.C. Act after
the investigation of the aforesaid FIR do not confer the requisite jurisdiction on the
CBI, which it inherently lacked in the instant case. This is what the submission
made on behalf of the petitioners.
My attention is invited to the order passed by the Hon'ble Apex Court in
SLP (Crl) No. 1866/2014(II-B) and SLP (Crl) No. 4230/2013 (II-B) wherein similar
contentions have been made on behalf of the petitioners wherein the Hon'ble Apex
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Court has observed that "what would be the legal consequence thereof is a question
that has to be answered in these cases. As the issue may be heard with regard to
the investigation of cases by the CBI in the State of West Bengal, it would be proper
to request the learned Attorney General of India to address the Court with the
assistance of the learned Advocate General of the State of the West Bengal and the
matter appears to have been listed for hearing on 7.11.2017".
My attention is further drawn to a decision of a Coordinate Bench of this
Court passed on 30.08.2017 in CRR 2671/2017 (M/s. SPS Steels Rolling Mills Ltd.
& Ors. vs. CBI & Ors.) and another case being CRR 1650/2017 (in Re: Bipin Kumar
Vohra & ors.) passed on 29.08.2017 wherein the stay has been granted by the Court
in respect of further proceedings being the relevant case investigated on behalf of
the CBI and those matters have been fixed for hearing on 21.11.2017 with liberty
given to the CBI to file affidavits enclosing relevant notifications in the matter.
The learned counsel appearing on behalf of the CBI submits that in a
decision reported in (2013) 1 C Cr LR (Cal) 128 [Somnath Guin vs. Monaj Kumar
Senapati & anr.], the Court observed as follows:
"That the second point raised by Mr. Basu is purely technical one but, of
course, important as it questioned the legality and validity of the investigation of the
case itself. In view of Mr. Basu when the Government of India superseded its earlier
notifications [i] No 7/5/55-AVD dated 6.11.1956 [ii] No. 7/1/57 AVD dated 12.2.1957
[iii] No. 7/7/57-AVD dated 21.6.1957 and [iv] No. 7/3/57 dated 27.8.1957 and
issued new notifications under Section (3) & (5) of the Act, the earlier consent given by
the Govt. of West Bengal under Section 6 of the Act became infructuous. The
notification of the Government of West Bengal was related to the earlier notifications
of the Govt. of India, which by virtue of suppression subsequently on 18.2.1963,
became non-est for not being ratified by another notification under Section 6 of the
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Act".
On the other hand, the contention raised by the learned counsel
appearing on behalf of the Central Bank of India is that the cognizance was taken
on 2.8.2016 and there is no urgency warranting the order of stay in the matter.
It is further submitted on behalf of the CBI that in those cases, in which
the matter is pending before the Hon'ble Supreme Court and the CRR in which the
order of stay has been passed, in those cases charge sheet have not been submitted
under the provisions of the Prevention of Corruption Act and those are exclusively
under the Indian Penal Code.
Per contra, the learned counsel appearing on behalf of the petitioner
submitted that those cases were initiated under the provisions of Prevention of
Corruption Act.
It is submitted on behalf of the petitioner that the decision reported in
(2013) 1 C Cr LR (Cal) 128 [Somnath Guin vs. Monaj Kumar Senapati & anr.] is a
matter of sub-judis before the Hon'ble Supreme Court on the selfsame contention as
raised in foregoing paragraphs of the decision that without the consent of the
notification under Section 6 of the DSPE Act by which the consent of the State
Government has to be accorded into offences under the Indian Penal Code by the
CBI, the CBI cannot undertake investigation of offences of this nature in absence
thereof.
It is further submitted on behalf of the petitioner that the cited decision
is also case related to the offences punishable under Sections 120B/420/471 of the
Indian Penal Code read with Sections 13(2)/13(1)(d) of the Prevention of Corruption
Act, 1988 and the matter on that account is pending for hearing before the Hon'ble
Supreme Court.
After having heard the learned counsel for the respective parties, I am of
the view that normally the court should abstain itself from passing any order of stay
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of all proceedings or investigation into a criminal case, but the prohibition can very
well be imposed in a special circumstance where the investigation has been
undertaken by the authority not empowered under the law and the court can
prohibit the continuance of a criminal proceeding at any stage before its conclusion.
Since the matter and the legal position of law and the notification as to the consent
as required under the rule are yet sub-judis before the Hon'ble Supreme Court and
taking cue from the decision of a Coordinate Bench of this Court passed in CRR
2671/2017 (M/s. SPS Steels Rolling Mills Ltd. & Ors. vs. CBI & Ors.) and another
case being CRR 1650/2017 (in Re: Bipin Kumar Vohra & ors.) passed on
29.08.2017, this court is pleased to adjourn this matter for hearing before the Regular Bench alongwith the aforesaid cases for six weeks after the Vacation or till the hearing on 14.11.2017, whichever is earlier. In the meantime, there shall be stay of all further proceedings in connection with the concerned CBI case being charge sheet No. 6/2015 dated 28.12.2015 arising out of No. RCBSK2014E0007 dated 14.08.2014 with liberty to the concerned parties to pray for extension and/or modification of the order upon the notice to the other side.
The opposite parties are at liberty to file the affidavit-in-opposition enclosing relevant notification in their favour showing the consent of the Government of West Bengal to proceed and prosecute the petitioner in connection with the said case, preferably within four weeks from the date of hearing. The petitioners are at liberty to file affidavit-in-reply, if any, thereto.
Let the matter be placed before the Regular Bench for hearing after the Vacation.
Urgent certified photostat copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.
(SHIVAKANT PRASAD, J.) 6