Madras High Court
Dr. C.Indernath vs State Of Tamil Nadu on 24 June, 2022
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
W.P.Nos.2007, 2031, 2392 & 5729 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 06.09.2021
PRONOUNCED ON : 24.06.2022
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
W.P.Nos.2007, 2031, 2392 & 5729 of 2021
and
W.M.P.Nos.2268, 2269, 2698, 2699,
2306, 2307,
6342, 6343, 5750, 5752, 6873,
and 6875 of 2021
1.Dr. C.Indernath ... Petitioner in W.P.2007 of 2021
2.Dr.Harish L Mehta
3.M.S.M.Nasruddin ... Petitioners in W.P.2031 of 2021
4.Senthilnathan ... Petitioner in W.P.2392 of 2021
5.Manish Choudhary ... Petitioner in W.P.5729 of 2021
Vs.
1.State of Tamil Nadu,
Represented by its Secretary
Home Department (POL VII),
Fort St.George,
Chennai.
2.Union of India
Represented by its Secretary,
Ministry of Personnel,
Public Grievance and Pension,
North Block, New Delhi 110 001
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W.P.Nos.2007, 2031, 2392 & 5729 of 2021
3.The Deputy Secretary to Governor,
Office of the Hon'ble Governor,
Raj Bhavan, Guindy,
Chennai – 600 022.
4.The Director,
Central Bureau of Investigation,
Plot 5-B, C.G.O.Complex,
Lodhi Road, New Delhi – 110 003.
5.The Joint Director of South Zone,
Central Bureau of Investigation,
Anti Corruption Branch, Chennai
III floor, Shastri Bhavan,
No.26, Haddows Road,
Nungambakkam,
Chennai – 600 006.
6.The Director General of Police,
Tamil Nadu,
Chennai – 600 004.
7.Indian Red Cross Society,
By its General Secretary,
National Headquarters,
Red Cross Road,
New Delhi 110 003.
8.Shankar Naganathan ... Respondents in all W.Ps.
COMMON PRAYER: Writ Petitions filed under Article 226 of the
Constitution of India, praying for issuance of Writ of Certiorari,
calling for the records leading to pass the impugned Government
Order of the 1st respondent in G.O.Ms.181, dated 09.04.2020 and
the consequential gazette notification issued by the 2nd respondent
in S.O.No.46, dated 14.06.2020 and quash the same.
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W.P.Nos.2007, 2031, 2392 & 5729 of 2021
For Petitioner in : Mr.E.Sankar
W.P.No.2007/2021
For Petitioners in: Mr.C.Ashok Kumar
W.P.No.2031/2021
For Petitioner in : Mr.Tamilvanan
W.P.No.2392/2021
For Petitioner in : Mr.Sundarajamukund
W.P.No.5729/2021
For R1 : Mr.Shanmuga Sundaram,
Advocate General
For R2 : Mr.Mr.R.Sankar Narayanan
Additional Solicitor General
For R3 : Mr.V.Jayaprakash Narayanan
For R4 & R5 : Mr.K.Srinivasan
Special P.P.(CBI Cases)
For R6 Mr.Hasan Ali Jinnah,
State Public Prosecutor
For R7 : Mr.S.M.Deenadayalan
For R8 : Mr.Om.Prakash, Senior Counsel
for M/s.Ramalingam & Associates
Assisted by Mr.P.Ilayaraj
COMMON ORDER
The above Writ Petitions have been filed in the nature of Writ of Certiorari, to quash the impugned Government Order in 3/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021 G.O.Ms.181, dated 09.04.2020, passed by the 1st respondent and the consequential Gazette Notification, issued by the 2nd respondent in S.O.No.46, dated 14.06.2020.
2. The petitioner/A3 in W.P.No.2007 of 2021 is the former Treasurer, the 1st petitioner/A1 in W.P.No.2031 of 2021 is the Chairman and the 2nd petitioner /A2 is the General Secretary; the petitioner/A4 in W.P.No.2392 of 2021 is the former Treasurer and the petitioner / A5 in W.P.No.5729 of 2021 is the Deputy Secretary of the Indian Red Cross Society, Headquarters, New Delhi.
3. The petitioners/A1 to A5, in Crime No. RCO322020A0023, dated 2812.2020, have challenged the Government Order in G.O.(Ms).No. 181, dated 09.04.2020, passed by the 1st respondent herein, issuing Notification under Section 6 of Delhi Special Police Establishment Act, 1946, to investigate the complaint made by the 3rd respondent herein and the consequential Gazette Notification, dated 14.06.2020, issued by the 2nd respondent.
4. The learned Senior Counsel appearing for the Petitioners would submit that the petitioners are the office bearers of Indian 4/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021 Red Cross Society. The third respondent given a complaint on 27.03.2020, to the fifth respondent, making certain allegations with regard to the affairs of the Indian Red Cross Society, no complaint given to any jurisdictional Police within the State of Tamil Nadu and no investigation was pending before any of the Police Station, being so, impugned Government Order passed by the first respondent granting consent of the State Government for investigation to be conducted by Central Bureau of Investigation (CBI). The Government Order in G.O.(Ms).No. 181, dated 09.04.2020, passed by the 1st respondent is challenged on grounds that nature of allegations made in the complaint is beyond the scope of Section 3 of the Delhi Police Establishment Act and the Society in question is neither financed by the State or Central Government and it is a Society registered under the Societies Registration Act. Mr.Ragavachari, learned counsel for the petitioners concluded by stating that Tamil Nadu Branch IRCS is running the Ambulance Service with more than 600 vehicles. The Branch receives 4.57% from National Headquarters, as monthly grants, for the year 2016-17, it received Rs.39,600/- only. The learned counsel, therefore, submitted that this Court was privy to the affairs of the Indian Red Cross Society. 5/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021
5.The learned counsel appearing for the petitioners would further submit that the 3rd respondent has not lodged any complaint to the 1st respondent as well the 6th respondent. On the contrary, the 3rd respondent lodged a complaint, dated 27.03.2020, to the 5th respondent. Hence, the Government of Tamil Nadu viz., respondents 1 and 6, have no role and power to give consent for the alleged offences mentioned in the complaint addressed to the Central Government Investigating Agency viz., the Joint Director of South Zone, CBI, ACB, Chennai -5 in connection with the alleged offences committed by the officials of the Indian Red Cross Society, Tamil Nadu Branch. Therefore, granting of consent under Section 6 of the Delhi Special Police Establishment Act, 1946 by the respondents 1 and 6, is without jurisdiction, exceeded the powers of the State Government provided under the Constitution of India. Therefore, the Government Order in G.O.(Ms)No.181, dated 09.04.2020, issued by the 1st respondent is void abinitio and ex- facie illegal. Consequently, publishing a impugned Gazette Notification, dated 12.06.2020, by the 2nd respondent, based on the Government Order in G.O.(Ms)No.181, dated 09.04.2020 is non-est in law. Based on the aforesaid two documents, an approval dated 19.12.2020 accorded under Section 17A of the Prevention of 6/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021 Corruption (Amendment) Act, 2018 (hereafter the PC Amendment Act, 2018), by the 4th respondent is also non-est in law. Consequently, registration of FIR, dated 28.12.2020 in RC0322020A0023 registered by the SP:CBI, ACB, Chennai, is non- est in law. All the four illegal acts are interlinked, inseparable and not curable illegalities. Hence, all the above four acts originated from G.O.(Ms)No.181, dated 09.04.2020 passed by the 1st respondent is without jurisdiction, to be quashed.
6. The Indian Red Cross Society Act, 1920 (in short, the Act) and subsequent amendments were passed by the Parliament of India and therefore, the Act is a Central Act, which comes under Seventh Schedule, List I- Union List of the Constitution of India. Hence, the Appropriate Government is the Central Government and therefore, granting consent under Section 6 of the Delhi Special Police Establishment Act, 1946 by the State Government of Tamil Nadu, is without jurisdiction and gross violation of Article 246 of Constitution of India. The Indian Red Cross Society, its composition and functions are not vested within the powers / jurisdiction of the State Government of Tamil Nadu. As per Section 7 of the IRCS Act, the object of the Society clearly mentioned in the First Schedule of the Act. The impugned G.O(Ms)No.181, 7/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021 dated 09.04.2020, there is nothing to infer, there was no application of mind, arrived after subjective satisfaction, the order passed mechanically. The complaint itself a motivated one with malafide.
7. As per Section 4A of the IRCS Act, the President of India shall be President of the Indian Red Cross Society and Section 4E of the Act grant powers to the President of India to supersede the Managing Body. Mr.G.Ravikumar the learned counsel for the Deputy Secretary, National Headquarters, in W.P.No.5729 of 2021 further added that the petitioner is shown as A5 in the FIR. The petitioner is stationed in Headquarters of IRCS, New Delhi. IRCS registered as Society in the year 1920, by a Central Act, passed by Parliament. Hence, appropriate Government is the Central Government. It is not the State Government to give consent under Section 6 of DSPE Act. The State Government has not authority to give consent. The consent is want of jurisdiction, further the 5 th respondent never sought any consent. In this case, consent from Tamil Nadu Government not required. Hence, Government Order to be quashed. As per the said Act, Appropriate Government is the Central Government. The 5th respondent never requested any consent under Section 6 of Delhi Special Police Establishment Act, 8/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021 1946, for investigation under Chapter XII of the Criminal Procedure Code. Hence, on suo motu, the 1st respondent initiated and granted consent, which is nothing but colourable exercise of power by the 1st respondent and unconstitutional.
8. The learned Senior Counsel for the petitioners, in support of his contentions, relied on the following Judgments:-
(i) Sarmukh Singh vs. Indian Red Cross Society [1985 SC Online Del 542]
(ii) State of Kerala, Rep. by the Secretary to the Government, Department of Health and Family Welfare, Secretariat, Thiruvananthapuram and others vs. Sunil C.Kurien, Formerly Chairman, State Branch, Indian Red Cross Society, Thiruvananthapuram [2017 SC Online Ker 1345]
(iii) Sunil C.Kurien, Chairman, State Branch, Indian Red Cross Society, Thiruvananthapuram [2016 SCC Online Ker 21542]
(iv) Manoj Ambaram Kahar vs. Indian Red Cross Society and others [2016 SCC Online Guj 7916]
(v) The State of Gujarat vs. SH.9/51
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(vi) Govt. of Andhra Pradesh and others vs. General Manager, District Co-operative Central Bank Ltd. [2002 (7) SCC 631]
(vii) K.K.Saksena vs. International Commission on Irrigation and Drainage and others [2015 (4) SCC 670]
(viii) Pradeep Kumar Biwas vs. Indian Institute of Chemical Biology and others [2002 (5) SCC 111]
(ix) Federal Bank Ltd., vs. Sagar Thomas and others [2003 (10) SCC 733]
(x) Thalappalam Service Cooperative Bank Limited and others vs. State of Kerala and others [2013 (16) SCC 82]
(xi) State of Punjab vs. Nirmal Kaur [2009 (13) SCC 418]
(xii) S.S.Rana vs. Registrar, Coop.
Societies and another [2006 (11) SCC 634]
(xiii) M.Kumar vs. The State, Rep. by the Superintendent of Police, Villupuram District, Villupuram and others [2016 SCC Online Mad 27485]
(xiv) M.Roshan Halima vs. The Government of Tamil Nadu, Rep. by its Director General of Police, Dr.Radharkishnan, Chennai and others [2016 SCC Online Mad 10/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021 14483]
(xv) United India Insurance Co. Ltd., Rep. by its Deputy Manager, Mr.R.Swaminathan, Vellore, vs. The Superintendent of Police, CBCID, Manthoppu Street, Thiruvannamalai [2016 SCC Online Mad 20214] (xvi) P.Sathish Kumar, Chennai vs. State of Tamil Nadu, Rep. by the Inspector of Police Team-II, CCB Chennai [2014 (2) CTC 60]
9. Stressing the points that;
“None of the objects of the Society can be said to be closely related to Government functions” “Indian Red Cross Society cannot be held to be an authority under Article 12 of the Constitution” “The Scheme of the Act and Regulations does not even remotely suggest that the State Government has any role to play” “The base requirement of C1 (viii) of Section 2(c) is applicable only when a public servant holds an office by which he is authorised or required to perform any public duty” 11/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021 “Under Section 154 of Cr.P.C., a complaint has to be given in person before the jurisdictional police for appropriate action and not to the Director General of Police straightway, bypassing the authority concerned.”
10. The learned Advocate General appearing for the respondents 1 and 5 by filing a joint counter affidavit would contend that based on the complaint of the 3rd respondent, FIR No.RC0322020A0023, dated 28.12.2020, registered for the offences under sections 120-B and 409 I.P.C., and Sections 13(2) read with 13(1) (a) of the Prevention of Corruption Act, 1988, on the file of the Anti-Corruption Bureau, Chennai, against the petitioners for committing the offences of Criminal Conspiracy, Criminal Breach of Trust and Misconduct by Public Servant to cause pecuniary advantage to themselves and caused wrongful loss to the Indian Red Cross Society from the period 2011 onwards.
11. It is further contended that the Indian Red Cross Society is a statutory body constituted under the Special Act namely the Indian Red Cross Society Act, 1920 incorporated under the 12/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021 Parliament Act XV of 1920. The above Special Act continues to be in the statute books by virtue of Adaptation of Laws (No.4) Order 1957 and was amended by Act 14 of 1992. The National Head Quarters of this Society is at New Delhi and is governed by the provisions of the said Act. The IRCS receives various grants from the Government. The issue whether Indian Red Cross Society is an instrumentality of the State under Article 12 of the Constitution of India becomes secondary, since, for the purpose of launching a criminal prosecution under the Prevention of Corruption Act, it is sufficient that, the person against whom proceedings are initiated, is a public servant or discharges public duty. The cases under the Prevention of Corruption Act are within the ambit of section 3 of the Delhi Special Police Establishment Act, 1946 and hence, the impugned Government Order is legally sustainable.
12. Insofar as the ground locus standi raised by the petitioners with regard to the criminal complaint of the 3rd respondent, against the governing body of the Indian Red Cross Society, is concerned, the concept of locus standii is alien to criminal jurisprudence, criminal action can be taken up based on the complaint of any person, who informs of the commission of a cognizable offence. In the present case, before registration of case 13/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021 under Prevention of Corruption Act and IPC offence, the procedure under Sections 3, 5 and 6 of the Delhi Special Police Establishment Act, 1946 are complied. CBI can investigate as per Section 10(i) of the Manual, Section 17(A) under provision of Prevention of Corruption Act, is the starting point of investigation, public funds are involved, whether benefited or not from public funds investigation will reveal. The investigation now at the starting point. Protection under Section 19 of the Prevention of Corruption Act available. State Police handing over investigation is the State call, which petitioners cannot question.
13. The Indian Red Cross Society-Tamil Nadu Branch is one of the State Branches, constituted under Section 8 of the Indian Red Cross Society Act, 1920, as a Branch Committee. The affairs of Indian Red Cross Society Tamil Nadu branch are regulated by the Rules framed for the said purpose. The Indian Red Cross Society Act, 1920 provides for percentage of claim by the States from the income of the revenue from the National Headquarters. State of Tamil Nadu is entitled for 4.52 % from the income from the National Body. Apart from that, Indian Red Cross Society-Tamil Nadu Branch has access to funds in the nature of Corpus maintained; Designated Funds by way of other donations, grants, etc., Endowment Funds; Income generated from properties owned; 14/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021 Grants to the Society; Collections from the public and students, etc. dedicated service entrusted by Tamil Nadu Government under “Free Hearse Services” (F.H.S) and “Janani Sishu Suraksha Karyakram” Project (J.S.S.K). The complaint given against the Petitioners herein includes the affairs of the National Headquarters and office bearers of the State Branch. In the said context, the complaint is given to the 5th Respondent herein and the same registered after consent and approvals. The State Public Prosecutor further added that in this case it is a case of misappropriation, there was no proper utilisation of funds, and proper audit conducted, further the act of the petitioners squarely applicable, as per Section 2(b), (viii) & (xii), the consent under Section 6 of the DSPE Act is only a pre-request before registration of FIR. The citations relied by the petitioners not applicable to the facts of this case.
14. The allegations in the complaint against the petitioners are that of misappropriation, conspiracy and breach of trust, the same are disputed factually by the Petitioners. The petitioners raised disputed questions of fact and the same cannot be gone into in Writ Petitions. The power and jurisdiction of the Special Force can be extended by the Central Government by virtue of Section 5 of the Delhi Special Police Establishment Act, 1946 with the 15/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021 consent of the Government of that State.
15. The learned Advocate General and State Public Prosecutor would further contend that the Indian Red Cross Society perform public duty in as much as its duties, inter alia, revolve around Maternity and Child Welfare, Nursing and Ambulance Work, mitigation of suffering caused by epidemics, earthquakes, famines, floods and other disasters. These duties are duties in discharge of which the State, the public and the community at large has an interest. Section 7 of the Indian Red Cross Society Act, 1920 read with the 1st Schedule to the said Act stipulates the objects towards which the funds of the Indian Red Cross Society can be applied. As per Section 4 of the Act of 1920, the Indian Red Cross Society is a body corporate and it has perpetual succession which is a characteristic feature of the-word "office" used in the Prevention of Corruption Act. The members of the Indian Red Cross Society are public servants and the Prevention of Corruption Act applies to them, in view of Sections 2
(b) and 2 (c) (viii) of the said Act.
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16. Mr.Sankaranarayanan, the learned Additional Solicitor General, and Special Public Prosecutor for CBI Cases filed a counter affidavit on behalf of respondents 2, 4 and 5 would submit that the CBI, ACB, Chennai registered a Regular Case in RC 032 2020A0023, on 28.12.2020, under Sections 120-B and 409 of IPC and under Section 13(2) r/w Sec. 13(1)(a) of Prevention of Corruption Act (as amended in 2018) against the petitioners. Section 3 of the Delhi Special Police Establishment Act (hereinafter referred to as the D.S.P.E. Act) by Notification, the Central Government by Notification in the Official Gazette, specify the offences or classes of offences, which are to be investigated by the Delhi Special Police Establishment. CBI registered a case under Sections 120-B and 409 of IPC and Section 13(2) r/w Section 13(1)(a) of Prevention of Corruption Act (as amended in 2018). As such, SPE : CBI : ACB : Chennai is empowered to investigate the complaint, dated March 27, 2020 of Shri T. Sengottaiyan, Deputy Secretary to the Governor and Comptroller, Office of the Hon'ble Governor, Raj Bhavan, Chennai, Tamil Nadu.
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17. Further, Section 6 of the D.S.P.E. Act provides that 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. The consent of the State Government of Tamil Nadu is accorded vide Home (POL. VII) Department Notification G.O.(Ms).No.181, dated 09.04.2020, issued Under Section 6 of the D.S.P.E. Act, 1946. As such, there is no infirmity in registration of the present case by SPE :
CBI : ACB : Chennai. The accused persons are public servants as defined under Section 2 of the Prevention of Corruption Act, 1988. As required under Section 17A of the Prevention of Corruption Act, 1988 (as amended in 2018), the approval of competent authority - Executive Committee of IRCS, NHQ against accused was conveyed vide letter No. IRCS/NHQ/SG/2020/12 dated 19.12.2020 and the case was registered after the said approval. The requirement under DSPE Act is to receive consent, which is an administrative act, fur which, the petitioners can have no quarrel.18/51
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18. On 06.01.2021, in the official and residential premises of accused persons searches were conducted. One Dr.Harish L.Metha in connivance with Manish Choudhary, managed a fraudulent election to the Managing Committee, without any elected representatives from districts by violating Uniform Rules to ensure the continuation of Dr.Harish L Metha as Chairman, who is continuing since 2011. The said Manish Choudhary consented for a bribe of Rs.2,00,000/-. As such, Manish Choudhary is accused in this case. The investigation is at initial stage and the contentions of the petitioners with respect to allegations made in the complaint will be looked into during the course of investigation. So, the averments made by the petitioners cannot be appreciated at this stage. They relied on the following decisions of the Hon'ble Apex Court, in support of their contentions.
1. M.Balakrishna Reddy Vs. Director, CBI, New Delhi reported in (2008(4) SCC 409).
2. The Central Bureau of Investigation, Bank Securities and Fraud Cell Vs. Ramesh Gelli and Others reported in (2016 (3) SCC 788)
19. Mr.Om.Prakash, the learned counsel appearing for the 8th 19/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021 respondent by filing a counter would submit that the 8th respondent is not a necessary party to the Writ Petitions. He is a retired person, carrying on honorary social activities and do not have any means to fight these litigations. He has been impleaded to show an illusory cause, as if the prosecution of the petitioners by the Central Bureau of Investigation (CBI) based on the consent of the State and Central Governments is because of the statements made by him. Mr.S.M.Deenadhayalan, the learned counsel for R7, National Headquarters of IRCS, submitted that after getting legal opinion, approval under Section 17(A) of PC Act given. The investigation will reveal the truth, black moles in the Society can be identified, and appropriate action administratively will be taken. The said contentions are frivolous, nothing but diversity tactics being adopted by the petitioners.
20. I have heard the learned counsels appearing on either side and perused the materials available on record.
21. The petitioners are the office bearers of Indian Red Cross Society. The third respondent seems to have given a complaint on 27.03.2020, addressed to the fifth respondent, making certain allegations with regard to the affairs of the Indian 20/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021 Red Cross Society. Pursuant to which, the said Government Order has been passed by the first respondent granting consent of the State Government for investigation to be conducted by Central Bureau of Investigation (CBI). This Government Order is challenged on the ground that the nature of allegations made in the complaint is beyond the scope of Section 3 of the Delhi Police Establishment Act and the Society in question is neither financed by the State or Central Government and it is a Society registered under Societies Act.
22. The specific overt act against the petitioner(A1) in W.P.No.2031 of 2021 is that A1, who holding the post of Chairman, in connivance with A5, managed, fraudulent election for the Managing Committee and involved in all financial and election irregularities, without following New Uniform Rules, collusion with the petitioner(A5) at the National Headquarters, who facilitated the office became in Tamil Nadu Branch to continue their embezzlement. Likewise, the overt act against the 2nd petitioner(A2) in W.P.No.2031 of 2021 is that A2, being the Member of the Managing Committee in connivance with A1 and other accused favouring the activities of A1 and his irregularities; the overtact against the petitioner(A3) in W.P.No.2007 of 2021, 21/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021 who is treasurer and incharge of the funds of the Society, in connivance with A1, created financial irregularities to the Society; the overt act against the petitioner(A4) / Former Treasurer, in W.P.No.2392 of 2021 is that A4 transferred a sum of Rs.2,2604,000/- from the funds of Society to a Company viz., M/s.Surya Wind Farms, thereafter, transferred to his personal account; the overt act against the petitioner(A5) in W.P.No.5729 of 2021, who is holding the post of Deputy / Joint Secretary, National Head Quarters, is that A1 managed fraudulent election to the Managing Committee with the support of A5, to tactfully allow the other accused to continue with their act of misappropriation.
23. The CBI registered FIR and conducted search in nine places and investigation proceeded, at that stage, the petitioners questioned the consent and concurrence given by the State Government. In this case, a complaint has been forwarded by the Deputy Secretary to Governor, Office of the Governor regarding the criminal misconduct, criminal breach of trust, misuse of funds, no proper audit of accounts, misappropriation of society funds and assets. It is seen that in this case, complaint was lodged on 27.03.2020, before the Joint Director of South Zone, Central Bureau of Investigation by the Deputy Secretary to Governor, 22/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021 Office of the Hon'ble Governor. Thereafter, on 09.04.2020, the impugned Government Order in G.O.(Ms).No.181, Home (POL.VII) Department issued, wherein the State Government accorded consent under Delhi Special Police Establishment Act to the Central Government. On 12.06.2020 impugned Gazette Notification has been issued by the second respondent, approval of Section 17- A of P.C.Act, on 19.12.2020 obtained, thereafter FIR registered on 28.12.2020 and investigation commenced. The office and residence of accused searched and documents collected.
24. The prime contentions of the petitioners are that the Society is not a statutory body even though it has been constituted under Indian Red Cross Society Act 1920. No public fund is received, no government control over the society and the office bearers are not discharging any public duty. The Society is not receiving any funds from the Government either from Central or from State, it is an autonomous body, managed by democratically elected office bearers. The society is functioning with the subscription paid by its members and income from the properties owned by it. The office is functioning only on Honorary basis. The statutory auditor audited the Accounts of the society and the same was scrutinized by the independent auditor, 23/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021 appointed by the Hon'ble Governor. The accounts were placed in Annual General Body meeting and unanimously approved in the said meeting. The Government of Tamil Nadu associated with the Society, in two projects namely, “Free Hearse Services” (F.H.S) and “Janani Sishu Suraksha Karyakram” Project (J.S.S.K) as a private partner by entering into a memorandum of understanding. Tamil Nadu Health Department made payments based on the actual and production of utilization certificates. Thus, no fund is directly provided to the Society under two Projects as alleged.
25.The society is associating with the Health Department of the Government in two projects honorarily, the actual expenditure is paid by the Government after due audit. It is a private body without having any pivotal governmental control and as such, the office bearers cannot be termed as "public servants" within the meaning of Prevention of Corruption Act. Hence the impugned Government Order proceeds on the basis that they are the public servants is not correct. The impugned G.O. has been passed mechanically without any subjective satisfaction of the Government and on the assumption that the office bearers are the public servants. The complainant is the Deputy Secretary to 24/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021 Governor and the Government Order is also passed by the Governor. The complaint dated 27.03.2020, was given straight away to the Joint Director of CBI and no "complaint" was pending with the State Government at any point of time.
26. It is seen that the petitioners are holding office of the Managing Committee by conducting sham election. Huge financial irregularities to the tune of Rs.2,26,04,000/- committed by an individual viz., Senthilnathan(A4), Ex-treasurer, in connivance with the other Managing Committee. Initially, the funds were transferred to the Company viz., M/s.Suriya Wind Farms, thereafter, to his personal account. When the diversion of IRCS fund by Senthilnathan was brought to knowledge of Dr.Harish L Mehta(A1), the Chairman, instead of making a police complaint, the said Senthilnathan was let to go scot free with just an apology letter, and was made to resign.
27. Further, during review of account, the Auditor finds that certain files, vouchers records found missing for the expenses made during the period of one Dr.Vadivel Mugundhan and the same ratified by the present Committee, not supported by valid and relevant documents. No physical verification of the fixed assets 25/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021 undertaken; recoveries in term of agreements with tenants have not made; expenditures towards replacement in the Blood Bank is done without approval, even not rectified subsequently; difference in the expenditure as per the Auditor's Certificate and the Books of Account in CSR activities, pursuant to a Memorandum of Understanding with a third party; Utilization of earmarked donations towards specified purposes fo Flood Relief, Bilateral Program, WHO Child Protection Project is not carried out properly; Construction contracts entertained without inviting tenders / quotations and the documents pertaining to fixing of rates are not available. Further, there are allegation made by the vice President against the Chairman Dr.Harish L.Mehta and his team in respect of utilisation of funds
28.The Managing Committee spent Rs.1,26,00,000/- for inauguration of Centenary celebrations of the Society by overbooking the accounts out of which, only Rs.14,00,000/- spent towards welfare of public and the remaining amount has been swindled. The Blood Bank run by the Society should donate the blood at free of cost to the Government Hospital and if surplus available, blood to be given to private entity at a price, however, sold the blood for Rs.25,00,000/- to private entity and organisations 26/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021 in which A1 involved to promote his self interest. The Social Welfare Schemes viz., “Free Hearse” and “Janani Sishu Suraksha Karyakram” are totally funded by the Government and operated by IRCS-TN. As per the definition in clause (xii) of Section 2(c) of the Prevention of Corruption Act, it is clear that IRCS-TN Branch is public Authority.
29. The learned Public Prosecutor invited the attention of this Court to the Judgment of the Calcutta High Court in Ramesh Chandra Singh Vs. CBI reported in 2020 SCC OnLine Cal 586, wherein the petitioner there sought to quash the case on the file of CBI for the reason that the Government of West Bengal withdrew the consent granted under Section 6 of the Delhi Special Police Establishment Act. However, since the registered office is situated at New Delhi, the consent under Section 6 is not mandatory, since by default, the CBI has jurisdiction and permitted the CBI to proceed with the investigation.
30. In the present case on hand, A5 is the Deputy / Joint Secretary of Indian Red Cross Society, National Head Quarters, which is situated at India Red Cross Society at No.1, Red Cross Road, New Delhi – 110 001, which is well within the jurisdiction of 27/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021 the Delhi Special Police Establishment namely CBI, which is also the contention of the petitioner/A5. Hence, in the logical view, the G.O.(Ms) No.181, dated 09.04.2020 itself is not mandatory, in view of the above Judgment.
31. The attention of this Court was also invited to the Judgment of the Hon'ble Supreme Court in State Vs. N.S.Ghaneswaran, reported in (2013 (3) SCC 595), wherein it is held that CBI can register FIR as per the procedure traceable in CBI Manual 6.10.1. Hence, there is no illegality in CBI registering FIR. Further, the Hon'ble Apex Court in Central Bureau of Investigation, Bank Securities and Fraud Cell Vs. Ramesh Gelli and Others reported in (2016 (3) SCC 788), held as follows:-
34. The definition of public duty in Section 2(b) of the PC Act, indeed, is wide.
Discharge of duties in which the State, the public or the community at large has an interest has been brought within the ambit of the expression ‘public duty’. Performance of such public duty by a person who is holding an office which requires or authorize him to perform such duty is the sine qua non of the definition of the public servant contained 28/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021 in Section 2(c)(viii) of the PC Act. The expressions ‘office’ and ‘public duty’ appearing in the relevant part of the PC Act would therefore require a close understanding.
35. In P.V. Narasimha Rao Vs. State (1998 4 SCC 626) the meaning of the expression ‘office’ appearing in the relevant provision of the PC Act has been understood as “a position or place to which certain duties are attached, specially one of a more or less public character.” Following the views expressed by Lord Atkin in McMillan Vs. Guest (1942 AC 561), this Court had approved the meaning of the expression ‘office’ to be referable to a position which has existence independent of the person who fills up the same and which is required to be filled up in succession by successive holders.
36. While there can be no manner of doubt that in the Objects and Reasons stated for enactment of the Prevention of Corruption Act, 1988 it has been made more than clear that the Act, inter alia, envisages widening of the scope of the definition of public servant, nevertheless, the mere performance of public duties by the holder of any office cannot bring 29/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021 the incumbent within the meaning of the expression ‘public servant’ as contained in Section 2(c) of the PC Act. The broad definition of ‘public duty’ contained in Section 2(b) would be capable of encompassing any duty attached to any office inasmuch as in the contemporary scenario there is hardly any office whose duties cannot, in the last resort, be traced to having a bearing on public interest or the interest of the community at large. Such a wide 2 (1942) AC 561 understanding of the definition of public servant may have the effect of obliterating all distinctions between the holder of a private office or a public office which, in my considered view, ought to be maintained.
Therefore, according to me, it would be more reasonable to understand the expression “public servant” by reference to the office and the duties performed in connection therewith to be of a 'public character'.
32. The primary contentions of the petitioners are on two 30/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021 folds;
(i) that as per IRCS, the President of the Headquarters of the Society is the supreme authority, who alone can take action against the office bearers and the Managing Committee. The IRCS functioning as per the Act and Rules and codified procedures. IRCS do not receive any grants from Central and State Government and it is an independent Body, registered under the Societies Act. Hence, no case can be registered against the petitioners under the Provisions of Corruption Act.
(ii) 3rd respondent has lodged a complaint directly to the 5 th respondent on 27.03.2020, thereafter, Notification under Section 6 of DSPE Act was issued by the 1st respondent State Government on 09.04.2020. Following the same, Notification was issued by the 2nd respondent, under Section 5 of the Delhi Special Police Establishment Act, 1946, on 12.06.2020. The 7th respondent gave approval under Section 17A of the Prevention of Corruption Act, on 19.12.2020. Thereafter, the 5th respondent registered a case in Crime No.23 of 2020, on 28.12.2020, for the offence under Sections 120-B, and 409 IPC., and Sections 13(2) read with 13(1)(a) of the Prevention of Corruption Act, 1988 against six 31/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021 named persons and unknown public servants and private persons.
33. With regard to the first contention that the Indian Red Cross Society do not receive any grants from the Government is not correct. Indian Red Cross Society has been formed on the corpus available from public donation, as could be seen from the Act. Further, prime properties have been allotted by the Central Government as well as respective Governments for the Headquarters and its branches throughout India on concessional charge recognizing the public service rendered by the IRCS. This is the special privilege given to IRCS. The Society carries on 'public duty', which cannot be disputed by the petitioners. They run the Blood Bank, issuance of Certificates for Nurses, Paramedical Certificates and others, with credence. Further, they also run Children Home, Play School etc. Apart from that, they have been entrusted with the exclusive service of “Free Hearse Services” (F.H.S) as per G.O.(Ms)No.342, dated 31.12.2010, followed by Memorandum of Understanding, dated 02.02.2011 and “Janani Sishu Suraksha Karyakram” Project (J.S.S.K) as per G.O(Ms)No396, dated 30.12.2015, followed by Memorandum of Understanding dated 18.12.2016.
34. From the Government Order and the annexures, it is seen 32/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021 that exclusive services entrusted to them. The Government of Tamil Nadu, have given Grants to IRCS pursuant to Memorandum of Understanding entered between the Government of Tamil Nadu and IRCS, on 02.03.2011 and 18.02.2016. The Secretary, IRCS, Tamil Nadu Branch and Program Assistant, IRCS., are nominated as Members for State Level Administrative Committee and District Monitoring Committee. By way of grants, provision in the Budgetary allocation made, which are given to IRCS, which is nothing but receipts of grants from the Government of Tamil Nadu. Further, the transactions of these two services were not initially shown in the Income statement to the Income Tax Department. In fact, they obtained two separate PAN numbers for IRCS and for the two Schemes. Later, on objection, the 2nd PAN number was deleted. Though IRCS state that it was only for the service rendered payments received and Red Cross Society not earned income is not proper, as could be seen from the ledger account of the said two projects. The Health and Family Welfare Department confirms the Grants-in-Aid given to IRCS, Tamil Nadu Branch.
35. Further, from the letter of IRCS, New Delhi, it is seen 33/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021 that the State Branch has been receiving their share of 4.52%. Thus, the Tamil Nadu Branch receiving grants from the State Government and also from its Headquarters is confirmed. Apart from that, IRCS, Tamil Nadu Branch is allotted with one Acre prime property land in Egmore. Further, IRCS is given privilege of running the Blood Bank and also given exclusive rights to various other projects of Government of Tamil Nadu. Thus, the IRCS is receiving grants and also doing 'public duty', whereas, these receipts not properly accounted and submitted. The 8th respondent raised these issues brought out the misdeeds committed by the Office bearers of IRCS, viz., petitioners and others of the Society. The 3rd respondent, on receipt of complaints and particulars, thereafter, lodged the complaint to the 5th respondent. Thus, the contention of the petitioner that they will not come under the ambit of Prevention of Corruption Act, since they are not public servants, is not proper. By receiving the grants from the Government, the IRCS comes under the provisions of Prevention of Corruption Act. Further, the petitioners are doing 'public duty', as could be seen from the nature of duties they have been discharging.
34/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021
36. Further, the citation referred by the petitioners is with regard to action taken by the Government pertaining to dissolving of the Managing Committee and Kerala State taking over the Management by appointing the District Collector, which is the issue involved in the case of Sunil C.Kurien, Chairman, State Branch, Indian Red Cross Society, Thiruvananthapuram reported in [2016 SCC Online Ker 21542], in Manoj Ambaram Kahar vs. Indian Red Cross Society and others reported in [2016 SCC Online Guj 7916] it relates to service matters.
37. For the contentions that the petitioners are not public servant cannot be countenanced, in view of the public office and public duty attached to their position. The Hon'ble Apex Court in the case of the Central Bureau of Investigation, Bank Securities and Fraud Cell Vs. Ramesh Gelli and Others reported in (2016 (3) SCC 788) as extracted supra had clearly held that as per Clause VIII of Section 2(c) of the Prevention of Corruption Act, any person who holds an office by virtue of which he is authorized or require to perform public duty is a public servant. Further in the case of P.V. Narasimha Rao Vs. State reported in (1998 4 SCC 626) it had defined the word, 'office' and how it has to be understood. Following the same, the Apex 35/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021 Court in the case of Manish Trivedi Vs. State of Rajasthan held that the word, 'office' is of indefinite connotations and, it would mean a position or place to which certain duties are attached and has an existence, which is independent of the persons, who fill it.
38. In this case, the petitioners herein are given privileged status and benefits on the office they held in IRCS. Thus, the position is clear that 'public duty' means, a duty in discharge of which, the State, the public of the community at large has an interest. This Court in the Full Bench Judgment in Crl.R.C(MD)No.612 of 2020 had held that a person to be regarded as 'public servant' within the meaning of both Clause (viii) or Clause (ix) of Section 2(c) of Prevention of Corruption Act, are the persons, who have been required to discharge their official duties, when it is found that the person is dealing and discharging his public duty and or the community at large as an interest . In this case, the petitioners involved in various services, that too, in which IRCS given exclusive privilege and right of implementing the Scheme with grants. Further, in the case of Sunil Yadav Vs. Indian Red Cross Society reported in Indiankanoon.org /DOC/314, dated 31.07.2009 it is held that as per the creation of IRCS Delhi Branch by an Act of Parliament is a public authority 36/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021 like all the other State Branches.
39. The said proposition has been reiterated by the Hon'ble Supreme Court in the case of State of Gujarat vs. Mansukhbhai Kanjibhai Shah reported in 2020 Online SC 412. Thus, the petitioners discharging the public duty is not in dispute. Hence, the case against the petitioners under the Prevention of Corruption Act can proceeded.
40. As regards the second contention is concerned, issuance of G.O.(Ms)No.181, dated 09.04.2020, for fraudulent activities by issuing Notification under Section 6 of the Delhi Special Police Establishment Act is a colourable exercise, non-est and cannot be revisited.
41. On perusal of the said Government Order, it is seen that two documents have been referred to. Document No.1 is the complaint of the third respondent, dated 27.03.2022, addressed to the fifth respondent, along with a letter dated 27.03.2022 of the complaint. Document No.2, report of the Director General of Police, dated 09.04.2020. From the Government Order, it is seen that in the abstract, it is stated that the transfer of complaint is on 37/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021 the allegation of fraudulent activities and actions detrimental to the interest of the Indian Red Cross Society, Tamil Nadu Branch and the Financial Establishment to the CBI for investigation. Thus, the first respondent states it is transfer of complaint to the CBI. In the body of the Government Order, the allegation in the complaint discussed, finding that cognizable offence committed by the petitioners and other accused and further, the complaint reveal any involvement of the State Government Officials, thus, the first respondent accorded sanction under Section 6 of the Delhi Special Police Establishment Act, 1946. It would be appropriate to extract below Sections 3, 5 and 6 of the Delhi Special Police Establishment Act, 1946:-
''3.Offences to be investigated by special police establishment.—The Central Government may, by notification in the Official Gazette, specify the offences or classes of offences which are to be investigated by the Delhi Special Police Establishment.
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 38/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021 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 the said 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.
39/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021
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.''
42.On a plain reading of Section 3 of the Delhi Special Police Establishment Act, 1946, it is clear that the Central Government may, by notification in a Official Gazette, specify the offence or classes of offence, which are to be investigated by the Delhi Special Police Establishment [CBI].
43. Section 5(1) of the Delhi Special Police Establishment Act, 1946, the Central Government may extend to any area the powers and jurisdiction of CBI for investigation of any offence. Section 5(2) of the Act, when an order has been passed under Section 5(1) of the Act, the CBI has to discharge the functions of the Police Officer of that area. Section 5(3), CBI Officer, who has been entrusted with such investigation, to be a member of CBI or above the rank of Sub-Inspector.
40/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021
44.In this case, on the complaint of the third respondent, finding no involvement of State Government Officials and also finding seriousness of the offence and the involvement of Headquarters Officials and others, found it appropriate, for CBI to conduct investigation, hence the case was transferred. It is seen that Section 6 of the DSPE Act only stresses that consent has to be obtained only from the State. It is seen, that in this case, under Section 6 of the DSPE Act, the CBI obtained consent. The second respondent issued a Notification under Section 5 of the DSPE Act on 12.06.2020. Thereafter, 17-A approval under the Prevention of Corruption Act was obtained on 19.12.2020 from seventh respondent, thereafter, FIR registered on 28.12.2020. Consent obtained to avoid any future complication, in abundant caution. Nothing more.
45.On registration of the FIR, searches were conducted at 9 places on 06.01.2021 following the procedures of Cr.P.C. In this case, FIR registered for the offences under Sections 120-B and 409 of IPC and under Section 13(2) read with Section 13(1)(a) of the Prevention of Corruption Act.
41/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021
46.The questioning of locus, of the third respondent is not proper, since it is settled legal proposition that anybody can set the law in motion, except where the statute enacting or creating an offence indicates to the contrary. This is a settled proposition as seen in A.R.Antulay vs. Ramdas Sriniwas Nayak and another reported in 1984 (2) SCC 500. Further, it had also held that punishment of the offender in the interest of the society being one of the objects behind statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait-jacket formula of locus standi. It is pertinent to note that in this case, lodging of complaint by the third respondent cannot be found fault with. As per Section 39 of Cr.P.C., there are certain offences, wherein duty is cast on the public to give information of certain offences, to give information to the nearest Magistrate or the Police Officer, of such commission or intention. Section 39(viii) of Cr.P.C reads as follows:-
''39. Public to give information of certain offences.
(viii) section 409 (that is to say, offence relating to criminal breach of trust by public servant, etc.);'' 42/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021
47. Thus, the third respondent not only being Deputy Secretary of the Governor, even as a commoner, when an offence, coming to his knowledge as per Section 39 of Cr.P.C. has lodged the complaint.
48. Further, the contention of the petitioners is that, in the absence of no complaint pending before State Police, transferring the investigation or giving consent is not proper. From the Government Order, it is clearly stated it is transfer of complaint. Further, in Section 2(h) of Cr.P.C., investigation is defined as follows:-
“2(h) “investigation" includes all the proceedings under this Court for the collection of evidence conducted by a Police Officer or by any person (other than a Magistrate), who is authorized by a Magistrate in this behalf.” Section 154 of Cr.P.C. gives power to investigate.
49. The Hon'ble Supreme Court in the case of Fertico Marketing and Investment Private Limited and others vs. Central Bureau of Investigation and another [2021 (2) SCC 525], held that though the Central Government to extend the powers and jurisdiction of Members of the DSPE beyond the Union 43/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021 Territories to a State, the same is not permissible unless a State grants its consent for such an extension within the area of the State concerned under Section 6 of DSPE Act. Obviously, the provisions are in tune with the federal character of the Constitution, which has been held to be one of the basic structures of the Constitution. As could be seen from Article 226 of the Constitution of India, Schedule VII, List II – State List (1) public order and (2) police are listed, which are within the powers of the State. In this case, admittedly, the first respondent or the sixth respondent have no objection for conducting investigation by the CBI. The petitioners are named accused in RC 0322020A0023, have no say who should investigate the offences against them. The decision to investigate or the decision on the agency does not violate principles of natural justice. Nor is there any provision in law under which, while granting consent or extending the powers or jurisdiction of the Delhi Special Police Establishment to the specified State and to any specified case any reasons are required to be recorded on the face of the notification. It is only a consent. It is seen that, in this case, if at all there is any objection with regard to conduct of investigation, the same has to be raised by the State Government of Tamil Nadu and not the petitioners. 44/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021
50. The word ''consent'' has been discussed in Sri Shashi Kumar Shivanna vs. The Government of Karnataka, Rep. by Home Sercretary, Bengaluru and another [W.P.No.8316 of 2020, dated 22.07.2020], which reads as follows:-
''22. The word "consent" is phonetically, etymologically and textually different from the word "sanction" and a world of difference pervades between the two and can never be used interchangeably. Though the respondent No.1 has termed it as sanction under Section 6 of the DSPE Act, 1946 in the impugned order, yet what can be granted is only a consent and nothing more. The word "consent" admits of myriad definitions as per its use in various legislations such as consent in contractual matters, consent in offences relating to human body, consent for establishment under the Environmental laws. In so far as the word "consent" found in Section 6 of the DSPE Act, 1946, it only means a "permission" of the concerned State in the Constitutional scheme of things. On the other hand, the word "sanction" found in Sections 17A and 19 of the PC Act, 1988, Section 197 in the Criminal Procedure Code inheres a thoughtful application of mind to ascertain whether the record placed before the Authority bears out enough material to proceed to prosecute. The requirement of application of 45/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021 mind while granting "sanction" is intended to avoid frivolous or vexatious proceedings being adopted, particularly against public servants in the discharge of their official duties. The Judgments relied upon by the learned Senior Counsel appearing for the petitioner primarily relate to non-application of mind in the matter of granting sanction either under Section 197 of the CrPC or under Article 163 of the Constitution of India or under Section 19 of the PC Act, 1988 and thus cannot aid the petitioner.''
51. Thus, it is seen that the grant of consent under Section 6 of the DSPE Act, 1946, is more in the nature of an administrative Order and does not require enormous rejigging, as the issue is whether to allow the investigation to be done by the CBI or not.
52. Further, in the case of State, Rep. by Inspector of Police, Chennai vs. N.S.Gnaneswaran reported in 2013 (3) SCC 594, the Hon'ble Supreme Court observed that while determining whether a provision is mandatory or directory, in addition to the language used therein, the Court has to examine the context in which the provision is used and the purpose it seeks to achieve. Further, whether the provision is mandatory or directory, depends 46/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021 upon the intent of the legislature and not upon the language with which the intent is clothed. In this case, the only grievance of the petitioners is that, Section 6 of the DSPE Act is non-est, hence, the other consequential orders passed should be quashed.
53. Section 6 of the DSPE Act deals with consent of the State Government to exercise of powers and jurisdiction and nothing more. Further, as the petitioners, who are accused, have no say who should investigate the offences against them. Based on the complaint of the third respondent, on the recommendation of the sixth respondent, the first respondent issued the Government Order in G.O.(Ms)No.181, dated 09.04.2020.
54. In Subramanian Swamy v. Manmohan Singh, (2012) 3 SCC 64, it has been observed as follows-:
“68. Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the 47/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021 concept of a socialist, secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our preambular vision. Therefore, the duty of the Court is that any anticorruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption.
That is to say in a situation where two constructions are eminently reasonable, the Court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it.”
55. In view of the above, this Court finds the contentions raised by the petitioners are unreasonable, not sustainable.
Hence, all the Writ Petitions are dismissed. Since the investigation has been stalled for the past few years, the Central Bureau of Investigation is directed to give priority and complete the investigation in the case, as expeditiously as possible. No costs. 48/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021 Consequently, the connected miscellaneous petitions are closed.
24.06.2022 Index: Yes/No Internet: Yes/No MPK To
1.The Secretary State of Tamil Nadu, Home Department (POL VII), Fort St.George, Chennai.
2.The Secretary Union of India Ministry of Personnel, Public Grievance and Pension, North Block, New Delhi 110 001
3.The Deputy Secretary to Governor, Office of the Hon'ble Governor, Raj Bhavan, Guindy, Chennai – 600 022.
4.The Director, Central Bureau of Investigation, Plot 5-B, C.G.O.Complex, Lodhi Road, New Delhi – 110 003.
5.The Joint Director of South Zone, Central Bureau of Investigation, Anti Corruption Branch, Chennai III floor, Shastri Bhavan, No.26, Haddows Road, Nungambakkam, Chennai – 600 006.
49/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021
6.The Director General of Police, Tamil Nadu, Chennai – 600 004.
7.Indian Red Cross Society, By its General Secretary, National Headquarters, Red Cross Road, New Delhi 110 003.
50/51 https://www.mhc.tn.gov.in/judis W.P.Nos.2007, 2031, 2392 & 5729 of 2021 M.NIRMAL KUMAR, J.
MPK Pre-Delivery Order made in W.P.Nos.2007, 2031, 2392 & 5729 of 2021 24.06.2022 51/51 https://www.mhc.tn.gov.in/judis