Delhi Special Police Establishment Act, 1946: s.6 – Consent under – Scope of – FIR by CBI alleging offences u/ss. 120B and 420 IPC and s. 13(2) r/w. s. 13(1)(d) of Prevention of Corruption Act, 1988 (PC Act) – Against Director of coalpurchasing company and unknown public servants – During investigation two public servants of the State Government were found to be part of the conspiracy – Charge-sheet filed against the Director of the coal-purchasing company and against the public servants after obtaining sanction u/s. 19 of PC Act – Petitions u/s. 482 Cr. P.C. seeking quashing of the criminal proceedings – Single Judge of High Court dismissed the petitions holding that post-facto consent after completion of investigation would be a valid consent u/s. 6 – Appeal to Supreme Court – Held: As regards private individuals no consent is required u/s. 6 and hence there was no embargo in registering FIR against them – As regards public servants, the postfacto consent u/s. 6 given by the State Government was valid – The public servants have also not been able to show any prejudice caused to them or any miscarriage of justice, in absence of prior consent u/s. 6 – Matter remitted to High Court to decide other issues raised before the High Court – Code of Criminal Procedure, 1973 – s.482.
Disposing of the appeals, the Court
HELD: 1. Though Section 5 of Delhi Special Police Establishment Act, 1946 (DSPE Act) enables the Central Government to extend the powers and jurisdiction of Members of the Delhi Special Police Establishment (DSPE) beyond the Union Territories to a State, the same is not permissible unless, a State grants its consent for such an extension within the area of State concerned under Section 6 of the 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. The State of Uttar Pradesh has accorded a general consent for extension of powers and jurisdiction of the Members of DSPE, in the whole of State of Uttar Pradesh for investigation of offences under the Prevention of Corruption Act, 1988 and attempts, abetments and conspiracies in relation to all or any of the offence or offences committed in the course of the transaction and arising out of the same facts. The same is however with a rider, that no such investigation shall be taken up in cases relating to the public servants, under the control of the State Government, except with prior permission of the State Government. [Paras 11, 13][966-E-F; 967-E-F]
2. Insofar as the private individuals are concerned, there is no embargo with regard to registration of FIR against them inasmuch as, no specific consent would be required under Section
6 of the DSPE Act. Vide notification dated 15th June 1989, the State of Uttar Pradesh has accorded a general consent thereby, enabling the Members of DSPE to exercise powers and jurisdiction in the entire State of Uttar Pradesh with regard to investigation of offences under the Prevention of Corruption Act, 1988 and also to all or any of the offence or offences committed in the course of the same transaction or arising out of the same facts. As such, for registration of FIR against the private individuals for the offences punishable under the Prevention of Corruption Act and other offences under the IPC, committed in the course of the same transaction or arising out of the same facts, the Members of DSPE have all the powers and jurisdiction. As such, there are no merits in the appeals filed by the private individuals. [Para 13][967-F-H; 968-A-B]
3.1 Insofar as the two public servants in the present case are concerned, who have undoubtedly been working under the State Government, initially, were not named in the FIR. However, their names surfaced during the course of investigation and thus sanction was granted for their prosecution under Section 19 of the Prevention of Corruption Act vide order dated 31st May 2012, prior to filing of the charge-sheet. It is also not in dispute that Post-Facto consent was given by the State Government vide notification dated 7th September 2018, under Section 6 of the DSPE Act to the authorities to investigate the public servants. [Para 14][968-B-C]
3.2 In the present case, there are no pleadings by the public servants with regard to the prejudice caused to them on account of non-obtaining of prior consent under Section 6 of the DSPE Act qua them specifically in addition to the general consent in force, nor with regard to miscarriage of justice. There is no reason to interfere with the finding of the High Court with regard to not obtaining prior consent of the State Government under Section 6 of the DSPE Act. [Paras 19, 21][972-B-C; E-F]
H. N. Rishbud and Inder Singh v. The State of Delhi [1955] 1 SCR 1150; State of Karnataka v. Kuppuswamy Gownder and Others (1987) 2 SCC 74 : [1987] 2 SCR 295; Union of India v. Prakash P. Hinduja and Another (2003) 6 SCC 195 : [2003] 1 Suppl. SCR 307; Kanwal Tanuj v. State of Bihar and Others (2020) SCC OnLine SC 395 – relied on.
Ms. Mayawati v. Union of India and Others (2012) 8 SCC 106 : [2012] 7 SCR 33 – referred to.
4. The Single Judge while referring two questions to the Division Bench, had observed that the question Nos. 2, 3 and 4 can be decided only after the question No. 1 was answered. After the matter was returned to the Single Judge by the Division Bench, the Single Judge was bound to answer question Nos. 2, 3 and 4. The Single Judge, in the impugned order, has not at all dealt with question Nos. 2, 3 and 4. Therefore, the matter is remitted to the Single Judge for deciding the question Nos. 2, 3 and 4 on its own merits. The merits of the matter have not been considered and all questions available to both the parties are kept open. [Paras 22, 23][972-F-H; 973-A]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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