Allahabad High Court
M/S Fertico Marketing And … vs C.B.I.,Anti Corruption Branch … on 14 August, 2019Bench: Dinesh Kumar Singh HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved A.F.R. Case :- U/S 482/378/407 No. – 4253 of 2012 Applicant :- M/S Fertico Marketing And Investment Pvt., Ltd., And Ors. Opposite Party :- C.B.I.,Anti Corruption Branch Lucknow And Anr. Counsel for Applicant :- Gaurav Gupta,Himanshu Hemant Gupta,Nandit K Srivastava,Yasovardhan Swaroop Counsel for Opposite Party :- Birshwar Nath,S.B.Pandey connected with Case :- U/S 482/378/407 No. – 4251 of 2012 Applicant :- M/S Swastic Cement Products Pvt., Ltd., Chandauli And Anr. Opposite Party :- C.B.I., Anti Corruption Branch Lucknow And Anr. Counsel for Applicant :- Gaurav Gupta,Himanshu Hemant Gupta Counsel for Opposite Party :- Birshwar Nath and Case :- U/S 482/378/407 No. – 4252 of 2012 Applicant :- M/S Drolia Coke Industries Pvt., Ltd., Chandauli And Anr. Opposite Party :- C.B.I., Anti Corruption Branch Lucknow And Anr. Counsel for Applicant :- Gaurav Gupta,Himanshu Hemant Gupta Counsel for Opposite Party :- Birshwar Nath and Case :- U/S 482/378/407 No. – 4250 of 2012 Applicant :- M/S Jai Durga Industries And Anr. Opposite Party :- C.B.I., Anti Corruption Branch Lucknow And Anr. Counsel for Applicant :- Gaurav Gupta,Himanshu Hemant Gupta Counsel for Opposite Party :- Birshwar Nath and Case :- U/S 482/378/407 No. – 4446 of 2012 Applicant :- Sunil Kumar Singh Opposite Party :- The State Of U.P Thru C.B.I., Counsel for Applicant :- Santosh Srivastav,P.C.Mishra,Syed Zafar Abbas Zaidi Counsel for Opposite Party :- Bireshwar Nath and Case :- U/S 482/378/407 No. – 4553 of 2012 Applicant :- Shailendra Kumar Singh Opposite Party :- The State Of U.P And Ors. Counsel for Applicant :- Yashovardhan Swarup,Rajesh Kumar Pandey Counsel for Opposite Party :- Govt. Advocate,Bireshwar Nath and Case :- U/S 482/378/407 No. – 4554 of 2012 Applicant :- Rajiv Poddar Opposite Party :- The State Of U.P And Ors. Counsel for Applicant :- Yashovardhan Swarup,Rajesh Kumar Pandey Counsel for Opposite Party :- Govt. Advocate,Bireshwar Nath and Case :- U/S 482/378/407 No. – 4555 of 2012 Applicant :- Rajesh Kumar Gupta Opposite Party :- The State Of U.P And Ors. Counsel for Applicant :- Yashovardhan Swarup,Rajesh Kumar Pandey Counsel for Opposite Party :- Govt. Advocate,Bireshwar Nath and Case :- U/S 482/378/407 No. – 4556 of 2012 Applicant :- Dinesh Kumar Srivastava Opposite Party :- The State Of U.P And Ors. Counsel for Applicant :- Yashovardhan Swarup,Rajesh Kumar Pandey Counsel for Opposite Party :- Govt. Advocate,Bireshwar Nath and Case :- U/S 482/378/407 No. – 4682 of 2012 Applicant :- Vinay Kumar Agarwal And Anr. Opposite Party :- C.B.I., Anti Corruption Branch Lucknow And Anr. Counsel for Applicant :- Himanshu Hemant Gupta,Ashwariya Sinha,Gaurav Gupta Counsel for Opposite Party :- Bireshwar Nath and Case :- U/S 482/378/407 No. – 4683 of 2012 Applicant :- Jay Narayan Agarwal And Anr. Opposite Party :- C.B.I., Anti Corruption Branch Lucknow And Anr. Counsel for Applicant :- Himanshu Hemant Gupta,Ashwariya Sinha,Gaurav Gupta Counsel for Opposite Party :- Bireshwar Nath and Case :- U/S 482/378/407 No. – 4684 of 2012 Applicant :- Vinay Kumar Agarwal And Anr. Opposite Party :- C.B.I., Anti Corruption Branch Lucknow And Anr. Counsel for Applicant :- Himanshu Hemant Gupta,Ashwariya Sinha,Gaurav Gupta Counsel for Opposite Party :- Bireshwar Nath and Case :- U/S 482/378/407 No. – 4773 of 2012 Applicant :- Ramji Singh Opposite Party :- C.B.I., Anti Corruption Branch Lucknow And Anr. Counsel for Applicant :- Anand Dubey Counsel for Opposite Party :- Bireshwar Nath and Case :- U/S 482/378/407 No. – 4774 of 2012 Applicant :- Yogendra Nath Pandey Opposite Party :- The State Of U.P And Ors. Counsel for Applicant :- K. Saran,Alok Saran,Rahul Kumar Vaish Counsel for Opposite Party :- Govt. Advocate,Bireshwar Nath and Case :- U/S 482/378/407 No. – 4850 of 2012 Applicant :- Ramji Singh Opposite Party :- C.B.I., Anti Corruption Branch Lucknow And Anr. Counsel for Applicant :- Anand Dubey Counsel for Opposite Party :- Bireshwar Nath and Case :- U/S 482/378/407 No. – 4852 of 2012 Applicant :- Ramji Singh Opposite Party :- C.B.I., Anti Corruption Branch Lucknow And Anr. Counsel for Applicant :- Anand Dubey Counsel for Opposite Party :- Bireshwar Nath and Case :- U/S 482/378/407 No. – 4853 of 2012 Applicant :- Ramji Singh Opposite Party :- C.B.I., Anti Corruption Branch Lucknow And Anr. Counsel for Applicant :- Anand Dubey Counsel for Opposite Party :- Bireshwar Nath and Case :- U/S 482/378/407 No. – 4904 of 2012 Applicant :- Yogendra Nath Pandey Opposite Party :- C.B.I., Anti Corruption Branch Lucknow And Anr. Counsel for Applicant :- K. Saran,Alok Saran,Rajul Kumar Vaish Counsel for Opposite Party :- Bireshwar Nath and Case :- U/S 482/378/407 No. – 4905 of 2012 Applicant :- Yogendra Nath Pandey Opposite Party :- C.B.I., Anti Corruption Branch Lucknow And Anr. Counsel for Applicant :- K. Saran,Alok Saran,Rajul Kumar Vaish Counsel for Opposite Party :- Bireshwar Nath and Case :- U/S 482/378/407 No. – 4906 of 2012 Applicant :- Yogendra Nath Pandey Opposite Party :- C.B.I., Anti Corruption Branch Lucknow And Anr. Counsel for Applicant :- K. Saran,Alok Saran,Rajul Kumar Vaish Counsel for Opposite Party :- Bireshwar Nath and Case :- U/S 482/378/407 No. – 4907 of 2012 Applicant :- Yogendra Nath Pandey Opposite Party :- C.B.I., Anti Corruption Branch Lucknow And Anr. Counsel for Applicant :- K. Saran,Alok Saran,Rajul Kumar Vaish Counsel for Opposite Party :- Bireshwar Nath and Case :- U/S 482/378/407 No. – 5013 of 2012 Applicant :- Aftab Ahmad And Anr. Opposite Party :- The State Of U.P Thru C.B.I., Lucknow Counsel for Applicant :- P.C Mishra Counsel for Opposite Party :- Bireshwar Nath and Case :- U/S 482/378/407 No. – 5014 of 2012 Applicant :- Iqbal Ahmad Khan Opposite Party :- The State Of U.P Thru C.B.I., Lucknow Counsel for Applicant :- P.C Mishra Counsel for Opposite Party :- Bireshwar Nath and Case :- U/S 482/378/407 No. – 5015 of 2012 Applicant :- Sanjeev Kumar Singh And Anr. Opposite Party :- The State Of U.P Thru C.B.I., Lucknow Counsel for Applicant :- P.C Mishra Counsel for Opposite Party :- Bireshwar Nath and Case :- U/S 482/378/407 No. – 5016 of 2012 Applicant :- Shahnawaz Ahmad Opposite Party :- The State Of U.P Thru C.B.I., Lucknow Counsel for Applicant :- P.C Mishra Counsel for Opposite Party :- Bireshwar Nath and Case :- U/S 482/378/407 No. – 614 of 2013 Applicant :- Ravinder Aggrawal Opposite Party :- C.B.I Anti Corruption Branch Lucknow And Anr. Counsel for Applicant :- Ashwarya Sinha,Himanshu Hemant Gupta Counsel for Opposite Party :- Bireshwar Nath and Case :- U/S 482/378/407 No. – 615 of 2013 Applicant :- Ravinder Aggarwal Opposite Party :- C.B.I Anti Corruption Branch Lucknow And Anr. Counsel for Applicant :- Ashwarya Sinha,Himanshu Hemant Gupta Counsel for Opposite Party :- Bireshwar Nath and Case :- U/S 482/378/407 No. – 616 of 2013 Applicant :- Subhash Chand Tulsian And Anr. Opposite Party :- C.B.I Anti Corruption Branch Lucknow And Anr. Counsel for Applicant :- Ashwarya Sinha,Himanshu Hemant Gupta Counsel for Opposite Party :- Bireshwar Nath and Case :- U/S 482/378/407 No. – 617 of 2013 Applicant :- Sh. Subhash Chand Tulsian Opposite Party :- C.B.I Anti Corruption Branch Lucknow And Anr. Counsel for Applicant :- Ashwarya Sinha,Himanshu Hemant Gupta Counsel for Opposite Party :- Bireshwar Nath and Case :- U/S 482/378/407 No. – 618 of 2013 Applicant :- Gajraj Kumar Jain And Anr. Opposite Party :- C.B.I Anti Corruption Branch Lucknow And Anr. Counsel for Applicant :- Ashwarya Sinha,Himanshu Hemant Gupta Counsel for Opposite Party :- Bireshwar Nath and Case :- U/S 482/378/407 No. – 4851 of 2012 Applicant :- Ramji Singh Opposite Party :- C.B.I., Anti Corruption Branch Lucknow And Anr. Counsel for Applicant :- Anand Dubey Counsel for Opposite Party :- Bireshwar Nath ********* Hon’ble Dinesh Kumar Singh,J.
1. In these cases, the Central Bureau of Investigation (for short ‘the CBI’) registered five First Information Reports (herein after referred to as ‘FIR’) having RC Case Nos.0062011A0004 of 2011, 0062011A0005 of 2011, 0062011A0006 of 2011, 0062011A0007 of 2011 and 0062011A0008 of 2011. After investigation, charge sheets have been filed in all the five cases before the Special Judge, Anti Corruption, CBI, Lucknow. The Special Judge, Anti Corruption, CBI, Lucknow after taking cognizance, registered Criminal Case Nos.30 of 2012, 31 of 2012, 32 of 2012, 33 of 2012 and 34 of 2012 respectively, which are pending before the learned Special Judge, Anti Corruption, CBI, Lucknow. 2. In all the petitions under section 482 Cr.P.C. the accused persons arrayed in charge sheets sought relief of quashing the Charge sheet/summoning order and consequential proceedings pending before Special Judge, Anti Corruption, CBI, Lucknow. Parties have agreed that Criminal Misc. Case No.4253 of 2012, M/s Fertico Marketing & Investment Pvt. Ltd. and others v. CBI and another relating to RC Case No.0062011A0005 of 2011 be taken as leading case. Parties have also exchanged their pleadings in this case. Counsels representing the opposite parties have agreed that on the basis of pleadings in the leading case, all other cases may also be disposed of as facts and law in all above mentioned cases are almost identical. In view of the aforesaid, the facts of the leading Case No.4253 of 2012 are mentioned hereunder and all these petitions are being decided by a common judgement. 3. During 1980’s the Central Mine Planning and Design Institute (for short ‘the CMPDI’), a fully owned subsidiary of Coal India Limited, which is engaged in the field of environmental engineering and provides consultancy and engineering services across the globe, developed concept of Special Smokeless Fuel (for short ‘the SSF’) for large scale production of domestic coal to minimize pollution from raw material i.e. coal received from coal mines. The Coal India Limited invited small scale industries to produce SSF, a domestic fuel suitable for cooking in home, kitchens and canteen etc. The Coal India Limited, a Central Government owned Corporation, was authorized to formulate policy and guidelines with regard to pricing of coal.
4. The policy of e-auction was introduced in 2004-2005 and the coal companies after acceptance of bid trough e-auction under the contract, used to supply coal to the industrial units. This policy was challenged in different High Courts. The Supreme Court got transferred all the writ petitions pending in different High Courts challenging the policy of e-auction and rendered a decision in the matter of Ashoka Smokeless Coal India (P) Ltd. and others vs. Union of India and others, (2007) 2 SCC 640. The Supreme Court set aside the policy of e-auction of coal and issued directions to frame a new coal distribution policy (for short “NCDP”). The Coal India Limited framed a new policy introduced on 18.10.2007. According to the said policy, a Fuel Supply Agreement (FSA) was to be entered into between the coal companies and the purchasers of the coal. The FSA was a bilateral commercial agreement entered into in terms of the NCDP. The price of coal was fixed and notified by the Coal India Limited. It was obligatory on the part of the coal companies that before entering into FSA with buyer, first it was required to verify whether unit was in operation or not or in working condition and what would be the requirement of raw coal. Under the NCDP, the recommendations of the District Industries Centre (DIC) were not needed for allotment of coal to small scale industries. 5. After the new policy was introduced, the NCL, a subsidiary of Coal India Limited, wrote letters to the petitioners to enter into FSA in order to supply the coal in terms of the NCDP. It was specifically pointed out that the FSA would be a bilateral contract and coal would be supplied to them as per the notified price fixed by the Coal India Limited in pursuance thereof. The FSA was entered into between the petitioners and the coal companies on 30.4.2008. Under the agreement, the coal companies were at liberty to forfeit the security deposits and terminate the FSA in case of breach of agreement i.e. sell or diversion of coal for other uses than for which it was supplied. The supply of coal under the NCDP on the notified price was meant for SSF production in units and not for other big industries. 6. When the FSA was in existence, the CBI conducted a joint surprise check on 25.3.2011 in the factory premises of the petitioners in Petition No.4253 of 2012 and noticed large scale diversion of raw coal (allotted to small scale industries under the NCDP on notified prices for manufacture of SSF) in the black market in active connivance with the government officials thereby profiting exorbitantly and made wrongful gains and cause substantial loss to the Central Government to the tune of 36.28 crores. Similar raids were conducted in the premises of the petitioners of four cases and the FIRs’ as mentioned above were registered against them by the CBI. 7. During the course of investigation, it was revealed that the utilisation and functional status of the manufacturing units were verified and certificates were issued by the officials of the DIC, Chandauli. These certificates were made the basis of continued supply of raw coal that was ultimately diverted in black market. Two officers, namely, Ram Ji Singh, the then General Manager, DIC, Chandauli (since retired) and Yogendra Nath Pandey, Assistant Manager, DIC, Chanduali were part of the conspiracy. The investigation further revealed that these two officers had abused their official position and fraudulently and dishonestly sent false status reports regarding working conditions of the accused companies and, thereby induced the NCL dishonestly to supply coal on subsidized rates and, therefore, obtained pecuniary advantage. 8. Prosecution sanction was granted to these two public servants on 31.5.2012 under Section 19 of the Prevention of Corruption Act (for short ‘the PC Act’) by the competent authority. After completion of the investigation, the impugned charge sheets were filed on 31.5.2012 in all the five cases. These matters were argued at length earlier before this Court and the learned Single Judge vide judgement and order dated 24.2.2015 in these petitions framed two questions for decision by the Larger Bench as under :-
“1. Whether investigation of such cases having involvement of Public servant under control of State Government of U.P. as well as private individuals for offences punishable under the Prevention of Corruption Act, 1988 (49 of 1988), and attempts, abetments and conspiracies in relation to all or any of the offence or offences mentioned above and any other offence or offences committed in the course of the transaction and arising out of the same facts under the G.O. of State Government Dated 15.6.1989 can be investigated by CBI assuming suo moto jurisdiction under section 6 of DSPE Act without the previous permission or consent of State Government?
2. Whether total non compliance / absence of previous consent of State Government under section 6 of DSPE Act could be cured by grant of prosecution sanction under section 197 Cr.P.C. of under Section 19 of P.C. Act by State Government or competent authority ?”
9. A Division Bench of this Court vide judgement and order dated 6.7.2015 has answered these two questions referred to by the learned Single Judge as under :-
“Our answer therefore to question no.1 is that since the question as framed proceeds on an erroneous premise of facts available in the case, the same is answered by holding that the Government Order dated 15.6.l989 permits investigation and it was not a case of assuming suo motu jurisdiction by the CBI to investigate on the facts of the present case.
The second question framed by the learned Single Judge is returned unanswered in view of the fact that the affidavit of the State Government had not been invited by the learned Single Judge before proceeding to raise a doubt and frame the second question to be answered in this reference as observed above.”
10. Thereafter, this Court vide order dated 17.8.2015 had directed the State Government to file counter affidavit. In compliance of the aforesaid order dated 17.8.2015, the State Government had filed a counter affidavit dated 31.10.2015 and another counter affidavit dated 20.12.2015 was filed by the State Government. On 5.4.2018, this Court passed the following order :-
“Sri P.K. Singh, learned AGA prays for and is granted ten days time to file an affidavit of the responsible secretary of the Home Department regarding interpretation and scope of notification dated 15.06.1989 with regard to Section 6 of the Delhi Police Special Provisions Act.
Put up this case on 18.04.2018.”
11. In compliance of the order dated 5.4.2018, the State Government has filed the affidavit of Secretary (Home), Government of U.P. dated 9.5.2018 and, further a supplementary affidavit dated 9.7.2018 has been filed by the State Government. Another supplementary affidavit dated 10.9.2018 has also been filed by the Principal Secretary (Home), State of U.P. and, thereafter, a supplementary affidavit dated 12.3.2019 has been filed by the State Government. In all these affidavits, the stand of the State Government is that the vide notification dated 15.6.1989 the competent authority has accorded consent to the extension of powers and jurisdiction of the members of the DSPE in whole of the State of Uttar Pradesh for investigation of offences under the Prevention of the Corruption Act as mentioned in the notification with the rider/restriction that no sch investigation shall be taken up in cases relating to the public servants, under the control of the State Government except with the prior permission of the State Government. Restriction of prior permission of the State Government is limited only in relation to public servants under the control of the State Government and not to any private individual. The notification permits to the competent officer under DSPE for investigation of offences as mentioned in the notification in the State of Uttar Pradesh, but if any public servant under the control of the State Government is named in the First Information Report, the prior permission of the State Government would be required for the investigation. Further, in case, public servant under the control of the State Government is not named in the First Information Report, but at the subsequent stage, the name of public servant under the control of the State Government comes in light, the prior permission of the State Government in respect of the public servant would not be required for investigation. 12. It has been further stated that the Government of State of Uttar Pradesh has been pleased to accord sanction in pursuance of Section 6 of the DSPE Act to exercise the powers and jurisdiction by the members of the DSPE within the whole of the State of Uttar Pradesh for investigation against the involved officers Sri Ram Ji Singh, the then General Manager, DIC, Chandauli (since retired) and Sri Yogendra Nath Pandey, Assistant Manager, DIC, Chandauli in respect of case registered by the CBI on 13.4.2011, under Section 13(2) read with 13(1)(d) of PC Act and Section 120-B of IPC against Sri Anil Kumar Agarwal, Director, M/s Fertico Marketing & Investment Private Limited and unknown officers of DIC, Chandauli. vide notification dated 7.9.2018.
13. Heard Sri Ajit Kumar Sinha, learned Senior Advocate assisted by S/Sri Yoshovardhan Swarup, Himanshu Gupta, Anand Dubey and Aishwarya Sinha, learned counsels appearing for the petitioners and Sri Shiv Nath Tilhari, learned AGA, representing the State. 14. Sri Ajit Kumar Sinha, learned Senior Advocate submits that no consent was taken from the State Government under Section 6 of the Delhi Special Police Establishment Act (for short ‘the DSPE Act) for investigation of the offence in the present case and, therefore, the investigation was defective due to lack of prior consent of the State Government in respect of the public servants whose names surfaced during the investigation. The learned Single Judge vide his order dated 24.2.2015 and the Division Bench in its judgement dated 6.7.2015 have held that consent of the State Government must be obtained for the exercise of powers by the CBI in the State in case of involvement of a public servant under the control of the State Government. He has further submitted that scope of both the sections i.e. Section 6 of the DSPE Act and Section 19 of the PC Act are entirely different and both these sections operate in different areas. In absence of the consent under Section 6 of the DSPE Act, result would be that the investigation has been carried out by the CBI lacking inherent jurisdiction and, therefore, the impugned charge sheets are liable to be quashed. 15. The Division Bench has sent the matter back to the learned Single Judge with a direction to call for an affidavit from the State of Uattar Pradesh to clarify the grant of any sanction by the competent authority. He has also submitted that the sanction by the Additional Director Industries for prosecution under Section 19 of the PC Act has not been found to be adequate by the Division Bench to meet the mandatory and statutory requirement of consent under Section 6 of the DSPE Act and for this reason, the matter has been referred back to the learned Single Judge to call for an affidavit granting consent as per the requirement of Section 6 of the DSPE Act and the notification dated 15.6.1989. 16. Neither the CBI nor the State Government has brought any document on record to substantiate the statutory and mandatory requirement of consent under Section 6 of the DSPE Act. The CBI in its affidavit, stated that there is no need of consent and the State in its affidavit asserted that the mandatory requirement of consent is a must and concurred with the observation of the Division Bench as a mandatory requirement of the consent. It has been submitted that in view of the statutory bar and non-compliance of the provisions of Section 6 of the DSPE Act, the charge sheets are liable to be quashed. 17. On the other hand, Sri Ravi Nath Tilhari, learned AGA has submitted that the Division Bench vide judgement and order dated 6.7.2015 has held that lodging of the FIR and the commencement of the investigation did not suffer from any infirmity as this is not a case where there was no consent at all. The Division Bench has observed that a prior permission/consent was not even required when the names of officials have not been surfaced. The general consent under Section 6 of the DSPE Act by virtue of the notification dated 15.6.1989 did not create a complete bar to investigation. The bar of permission stood lifted giving allowance for investigation in the matter as no names of public servants had been disclosed till the investigation has been proceeded. Section 6 of the DSPE Act only enables the member of a force to proceed with the consent of the State Government and the said consent exists as per the notification dated 15.6.1989. Thus, the Division Bench has held that lodging of the FIR and the commencement of the investigation did not suffer from any infirmity as this is not a case of no consent at all of the State Government. Since, the FIR was lodged against unknown officials, the question of any prior permission did not arise at that stage. It is only when the public servant is identified and named, then the question of permission may become relevant.
18. Sri Tilhari has further submitted that initially the FIR was lodged against unknown officials and under the general consent of the State Government vide its notification dated 15.6.1989, the CBI lodged the FIRs and commenced the investigation. On further investigation, names of two public servants under the control of the State Government surfaced, whereafter permission has been sought to proceed further to prosecute them before filing of the charge sheet. He has further submitted that to attract the statutory bar to an investigation, prejudice and failure of justice has also to be established. It is submitted that the Division Bench has said that there has apparently been no action while proceeding with the investigation that may have occasioned failure of justice nor the element of prejudice in the real sense can be said to have been established. It has been further been submitted that these petitions have been filed by the private persons and entities and the Division Bench vide its judgement has held that there is no illegality in the investigation against the public servants. The cognizance has been taken by the competent court of law and, therefore, assuming that there is no public servant in the case, even then non-public servant can be prosecuted without junction of public servant.
19. In support of his contention, he has placed reliance upon the judgements of the Supreme Court rendered in the case of State through Central Bureau of Investigation, New Delhi v. Jitendra Kumar Singh, 2014 (11) SCC 724 and D. Sampath vs. The Inspector of Police, Special Investigation Cell and others, MANU/TN/1880/2016.
20. It has further been submitted that submissions of the learned counsel for the petitioners that since the private persons and entities have been implicated with the aid of Section 120-B IPC and the substantive charge is against the public servants under Section 13(2) read with section 13(1)(c) of the Prevention of Corruption Act, therefore, if the prosecution fails against the public servant, the non-public servant cannot be prosecuted as Section 13 of the PC Act applied only against public servant, has no force. The charge sheets have been submitted under Section 120-B, 420, 467, 468 and 471 IPC and 13(2) read with Section 13(1)(c) of the PC Act. He has submitted that learned Magistrate while taking cognizance, is not bound by the police report filed by the investigation agency and, therefore, the charge can be added or amended at any time. To buttress his submission, he has placed reliance upon the decision of the Supreme Court in the case of H.S. Bains vs. State (Union Territory of Chandigarh) 1980 (4) SCC 631. He has further submitted that the case is at initial stage as only the cognizance has been taken. It is well within the competence of the court either to add or alter the charge and, if the Court finds that some offence in the PC Act has been committed either by public servant or by a private person or by a combination of both, the court wound amend the charge accordingly.
21. The present case is related to huge scam, disclosing loss of public money running into several crores by diversion of a fixed price coal and it is not a matter of conspiracy only rather it is a matter of abetment and conspiracy. At any subsequent stage charge can be altered or added against public servant or non-public servant and once the charge is added or altered by the court of law, then the prosecution against public servant as well as private persons will proceed on those charges. 22. In view of the aforesaid, learned AGA submits that the proceedings should not be quashed at initial stage as there is neither any abuse of process of the Court nor interest of justice would be sub served by questioning the prosecution. The petitioners are the private persons and entities and, therefore, they are not the public servants under the control of the State Government and, they are fully covered under the notification dated 15.6.1989 for investigation by the CBI. Even if the proceedings against the public servants for the offences including under the PC Act are dropped, the proceedings against the non-public servants can go on. 23. The existence of a public servant for facing the trial before the Court is not a must and, even in his absence, private persons can be tried for the offences under the PC Act. It has been further submitted that the prosecution sanction as contemplated under Section 19 of the PC Act has been accorded by the Additional Director of Industries before filing the charge sheets by the CBI for prosecution of Sri Yogendra Nath Pandey, Assistant Manager of DIC, Chandauli. Sri A.K. Kadam, Additional Director of Industries was competent to grant the sanction for prosecution. It has also been submitted that the Government vide notification dated 7.9.2018 has also accorded sanction to exercise powers by members of DSPE against public servants in the present case and, the notification has been annexed along with supplementary affidavit dated 12.3.2019 filed by Sri Arvind Kumar, Principal Secretary (Home). Validity of the investigation has already been decided by the Division Bench vide its judgement and order dated 6.7.2015 and, in view of the sanction granted by the competent authority under Section 19 of the PC Act, there is no illegality in the impugned order taking cognizance and, therefore, there is no substance in these petitions. It has been submitted that the question of validity of prosecution sanction can be raised during trial and not a pre-trial stage. Since, the cognizance has already been taken, the validity of prosecution sanction can only be raised before the trial court.
24. In support of the aforesaid submission, he has placed reliance upon the judgement of the Supreme Court in the case of Dinesh Kumar vs. Chairman, Airport Authority of India and another, 2012 (1) SCC 532 and CBI vs. Ahok Kumar Agarwal, AIR 2014 SC 827.
25. I have considered the submissions of the parties carefully and perused the record including the two judgements; one by the learned Single Judge dated 24.4.2015, whereby reference was made to the Larger Bench and two questions referred as mentioned above and the second is the judgement of the Division Bench dated 6.7.2015.
26. Section 6 of the DPSE Act provides 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 area in a State not being a Union territory or railways area, without the consent of the Government of that State.”
27. The State Government has issued notification dated 15.6.1989 in pursuance of the provisions of Section 6 of the DPSE Act. The notification is extracted herein below :-
“Government of Uttar Pradesh Home(Police) Section-1 No.3442/VIII-1-84/88 Lucknow, dated : June 15, 1989 Notification In pursuance of the Provisions of Section 6 of the Delhi Special Police Establishment Act, 1946 ( 25 of 1946) the Governor of the State of Uttar Pradesh is pleased to accord consent to the extension of powers and jurisdiction of the members of the Delhi Special Police establishment in whole of the State of Uttar Pradesh, for investigation of offences punishable under the Prevention of Corruption Act, 1988 (49 of 1988), and attempts, abetments and conspiracies in relation to all or any of the offence or offences mentioned above and any other offence or offences committed in the course of the transaction and arising out of the same facts, subject however to the condition that no such investigation shall be taken up in cases relating to the public servants, under th control of the State Government except with the prior permission of the State Government.
BY ORDER IN THE NAME OF THE GOVERNOR.
Sd/-
(S.K. TRIPATHI) HOME SECRETARY TO THE GOVT OF UTTAR PRADESH”
28. Thus, there is general consent of the State Government giving powers and jurisdiction to the members of the DSPE in whole State of Uttar Pradesh for investigation of offence punishable under the provisions of the Prevention of Corruption Act. This general permission is with a rider that the investigation shall not be taken up in cases relating to the public servants under the control of the State Government except with the prior permission of the State Government.
29. The FIR was lodged against unknown officials as their names were not known. Therefore, the question of any prior permission for undertaking the investigation in the present cases, was not required. However, the general consent under Section 6 of the DSPE Act was available and, therefore, the CBI has rightly assumed the jurisdiction. Names of two public servants, namely, Ram Ji Singh, the then General Manager, DIC Chandauli (since retired) and Sri Yogendra Nath Pandey, the Assistant Manager, DIC, Chandauli surfaced after FIR was lodged and during investigation.
30. These petitions have been filed by the private entities/individuals and not by the Government officials, who were not named in the First Information Report, but charge sheets have been filed against them. The Division Bench in its judgement and order dated 6.7.2015 has already opined that initiation of investigation by the Central Bureau of Investigation in the offence was not without jurisdiction inasmuch as there was general consent/permission of the State Government given under the Government Order dated 15.6.1989. This judgement and order of the Division Bench has attained finality inasmuch as it has not been challenged any further.
31. The questions which arise for consideration in the present cases are; (i) whether it is open for the private entities and individuals to come before this Court and challenge the charge sheets on the ground that prior permission for investigation of the offence against the Government officials was not with the Central Bureau of Investigation and, therefore, charge sheets are to be quashed; and (ii) whether when the Government officials were not named in the First Information Report but during the course of investigation their names figured could the Government give consent after the investigation gets completed and charge sheet is prepared? 32. There is general consent vide the Government Order dated 15.6.1989 to exercise the powers and jurisdiction by the Central Bureau of Investigation for investigation of the offences punishable under the Prevention of Corruption Act, 1988. Thus, the investigation commenced by the Central Bureau of Investigation was not without jurisdiction inasmuch as no official was named in the First Information Report. However, names of two Government officials have figured during the course of the investigation. The protection provided in the notification, is in respect of the officials whose names have figured in the initial stage i.e. in the F.I.R., but if during the course of the investigation name of an official figures, it cannot be said that the Central Bureau of Investigation should stop the investigation and, first apply for the consent of the State Government and, then proceed further with the investigation in the offence. This can never be the intention of the State Government to put an halt in the ongoing investigation by the C.B.I. where name of a Government official figures during the investigation. 33. The purpose of sanction in respect of the Government official is to provide protection, so that a Government official who has acted bona fide, should not be unnecessarily harassed and prosecuted. The protection provided to the Government officials is at two stages i.e. at the initial stage when the State Government is required to give consent for investigation of an offence under the Prevention of Corruption Act by the C.B.I. and, thereafter, again under Section 19 of the Prevention of Corruption Act there is requirement of sanction by the competent authority in case of an offence punishable under Sections 7, 10, 11, 13 and 15 of the Prevention of Corruption Act alleged to have been committed by the public servant inasmuch as it is provided that no Court shall take cognizance of an offence punishable under these sections except with the previous sanction of the competent authority. 34. It is not in dispute that sanction under Section 19 of the Act has been accorded in respect of the Government officials whose names have figured during the course of investigation and against whom charge sheets have been filed along with the private entities/individuals before this Court. The charge sheets have been filed under Sections 120-B, 420, 467, 468, 471 IPC read with Section 13(2) and 13(1)(c) of the Prevention of Corruption Act. As stated above, the question of consent is relevant only in respect of the offences under Section 13 of the Prevention of Corruption Act and no previous consent is required in respect of the offences under IPC or any other penal provisions.
35. Thus, I do not fund any substance in the contention of the learned counsel for the petitioners that since the Government officials are charge sheeted along with the private entities and investigation proceeded for offences under Section 13 of the Prevention of Corruption Act along with other provisions of the I.P.C. in absence of prior consent of the State Government which was a must and in absence of prior consent, prosecution must fail.
36. From perusal of the affidavit of the Principal Secretary, Department of Home, Government of Uttar Pradesh, it is evident that the Government has granted the post facto consent vide notification dated 7.9.2018 against the two public servants of the State Government whose names have figured during the course of investigation. The consent given by the State Government vide order dated 7.9.2018 would deem to be sufficient for investigation by the C.B.I. of offences against the two public servants of the State Government whose names find place in the charge sheet, but were not named in the F.I.R. In cases where the name of a public servant is not in the F.I.R., but his name comes to light during the course of investigation and, charge sheet is filed against such a public servant of the State Government, the consent given after completion of investigation would be a valid consent under Section 6 of the DSPE Act. It is also relevant to mention here that cognizance has been taken by the competent court of law. The question of valid consent can be raised by the public servants, who have been named in the First Information Report, and not by the private individuals who have come before this Curt. 37. Hon’ble Supreme Court in the case of Jitendra Kumar Singh (supra) held that even in absence of the public servant, the private persons can be tried by a special Court. The presence of the public servant is not a sine qua non for trial of the private persons under the provisions of the Prevention of Corruption Act along with the provisions of the I.P.C. In paragraphs 38 to 45 of the aforesaid case, Hon’ble Supreme Court held as under :-
“38. A Special Judge exercising powers under the PC Act is not expected to try non-PC offences totally unconnected with any PC offences under Section 3(1) of the PC Act and in the event of a Special Judge not trying any offence under Section 3(1) of the PC Act, the question of the Special Judge trying non-PC offences does not arise. As already indicated, trying of a PC offence is a jurisdictional fact to exercise the powers under sub-section (3) of Section 4. The jurisdiction of the Special Judge, as such, has not been divested, but the exercise of jurisdiction, depends upon the jurisdictional fact of trying a PC offence. We are, therefore, concerned with the exercise of jurisdiction and not the existence of jurisdiction of the Special Judge.
39. The meaning and content of the expression “jurisdictional fact” has been considered by this Court in Carona Ltd. v. Parvathy Swaminathan & Sons [(2007) 8 SCC 559] , and noticed that where the jurisdiction of a court or a tribunal is dependent on the existence of a particular state of affairs, that state of affairs may be described as preliminary to, or collateral to the merits of the issue. The existence of a jurisdictional fact is thus a sine qua non or condition precedent to the assumption of jurisdiction by a court. In Ramesh Chandra Sankla v. Vikram Cement [(2008) 14 SCC 58 : (2009) 1 SCC (L&S) 706] , this Court held that by erroneously assuming existence of the jurisdictional fact, a court cannot confer upon itself jurisdiction which otherwise it does not possess.
40. We have already indicated that the jurisdictional fact so as to try non-PC offences is “trying any case” under the PC Act. As noticed by this Court in Ratilal Bhanji Mithani v. State of Maharashtra [(1979) 2 SCC 179 : 1979 SCC (Cri) 405], the trial of a warrant case starts with the framing of charge. Prior to that the proceedings are only an inquiry. The Court held as follows: (SCC p. 189, para 28) “28. Once a charge is framed, the Magistrate has no power under Section 227 or any other provision of the Code to cancel the charge, and reverse the proceedings to the stage of Section 253 and discharge the accused. The trial in a warrant case starts with the framing of charge; prior to it, the proceedings are only an inquiry. After the framing of the charge if the accused pleads not guilty, the Magistrate is required to proceed with the trial in the manner provided in Sections 254 to 258 to a logical end. Once a charge is framed in a warrant case, instituted either on complaint or a police report, the Magistrate has no power under the Code to discharge the accused, and thereafter, he can either acquit or convict the accused unless he decides to proceed under Sections 349 and 562 of the Code of 1898 (which correspond to Sections 325 and 360 of the Code of 1973).”
41. We may now examine whether, in both these appeals, the above test has been satisfied.
42. First, we may deal with Criminal Appeal No. 943 of 2008. CBI, in this appeal, as already indicated, submitted the charge-sheet on 1-11-2001 for the offences against A-1, who was a public servant, as well as against non-public servants. The learned Special Judge had, on 25-3-2003, framed the charges against the accused persons under Section 120-B read with Sections 467, 471 and 420 IPC and also under Sections 13(1)(d) and 13(2) of the PC Act and substantive offences under Sections 420, 467 and 471 IPC and also substantive offences under Sections 13(1)(d) and 13(2) of the PC Act against the public servants. Therefore, charges have been framed against the public servant as well as non-public servants after hearing the prosecution and defence counsel, by the Special Judge on 25-3-2003 in respect of the PC offences as well as non-PC offences. As already indicated, under sub-section (3) of Section 4, when trying any case, a Special Judge may also try any offence other than the offence specified in Section 3 and be charged in the same trial. The Special Judge, in the instant case, has framed charges against the public servant as well as against the non-public servant for the offences punishable under Section 3(1) of the PC Act as well as for the offences punishable under Section 120-B read with Sections 467, 471 and 420 IPC and, therefore, the existence of jurisdictional fact, that is, “trying a case” under the PC Act has been satisfied.
43. The Special Judge after framing the charge for the PC and non-PC offences posted the case for examination of the prosecution witnesses, thereafter the sole public servant died on 2-6-2003. Before that, the Special Judge, in the instant case, has also exercised his powers under sub-section (3) of Section 4 of the PC Act and hence cannot be divested of the jurisdiction to proceed against the non-public servant, even if the sole public servant dies after framing of the charges. On death, the charge against the public servant alone abates and since the Special Judge has already exercised his jurisdiction under sub-section (3) of Section 4 of the PC Act, that jurisdiction cannot be divested due to the death of the sole public servant.
44. We can visualise a situation where a public servant dies at the fag end of the trial, by that time, several witnesses might have been examined and to hold that the entire trial would be vitiated due to the death of a sole public servant would defeat the entire object and purpose of the PC Act, which is enacted for effective combating of corruption and to expedite cases related to corruption and bribery. The purpose of the PC Act is to make anti-corruption laws more effective in order to expedite the proceedings, provisions for day-to-day trial of cases, transparency with regard to grant of stay and exercise of powers of revision on interlocutory orders have also been provided under the PC Act. Consequently, once the power has been exercised by the Special Judge under sub-section (3) of Section 4 of the PC Act to proceed against non-PC offences along with PC offences, the mere fact that the sole public servant dies after the exercise of powers under sub-section (3) of Section 4, will not divest the jurisdiction of the Special Judge or vitiate the proceedings pending before him.
45. We are, therefore, inclined to allow Criminal Appeal No. 943 of 2008 and set aside the order of the High Court and direct the Special Judge to complete the trial of the cases within a period of six months.”
38. Submission of learned counsel for the petitioners that since the private persons/individuals have been implicated with the aid of Section 120-B IPC and substantive charge is against the public servants under Section 13(2) read with Section 13(1)(c) of the Prevention of Corruption Act and, if the prosecution fails against the public servants, the private persons cannot be prosecuted as Section 13 of the Prevention of Corruption Act applies only for the public servant, is also liable to be rejected.
39. As mentioned above, the charge sheets have been filed under Sections 120-B, 420, 467, 468 and 471 IPC read with Section 13(2)/13(1)(c) of the Prevention of Corruption Act. The charges have not yet been framed. Learned Trial Court will proceed to frame the charge against the accused after perusing the evidence available on the file. Therefore, at this stage, this Court cannot assume that charge would be framed only under Section 13(2) read with Section 13(1)(C) of the Prevention of Corruption Act. Further, the parties would be heard at the time of framing of the charge and, then charges would be framed under the appropriate provisions against the accused. Therefore, submission of the learned counsel for the petitioners that the substantive charge is only under Section 13 of the Prevention of Corruption Act, cannot be accepted at this stage and, it is liable to be rejected.
40. It is well established that the question of validity of prosecution sanction can be raised during trial and not at a pre-trial stage. The cases are at the initial stage inasmuch as cognizance has been taken and, therefore, the question of validity of sanction should not have been raised by the petitioners before this Court.
41. This Court has failed to appreciate that how the petitioners are prejudiced even if there is no consent in respect of the public servants whose names have figured during the course of investigation and against whom charge sheets have been filed and, after sanction under Section 19 of the Prevention of Corruption Act, the cognizance has been taken against them along with private entities/individuals. The public servants who have been named in the charge sheet, have not come forward to this Court challenging the investigation or charge sheets, but the private individuals have come before this Court on the ground that the substance of charge is only under Section 120-B read with Section 13(2)/13(1)(c) of the Prevention of Corruption Act and, if the prosecution fails in case of the public servants, the prosecution will also fail against them. However, the aforesaid contention has been rejected in the previous paragraphs. There is no prejudice caused to the petitioners even if it is assumed that there was no proper consent of the State Government under Section 6 of the DPSE Act.
42. In view of the aforesaid, I do not find any substance in these petitions and, therefore, the same are dismissed. The trial court is directed to proceed with the case expeditiously and conclude the trial as early as possible. The trial court should not get prejudiced by any of the observations made in this judgement.
( Dinesh Kumar Singh, J.) Order Date :- 14th August, 2019/Rao/-
   

News Reporter

Leave a Reply

Your email address will not be published. Required fields are marked *

%d bloggers like this: