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2023 (4) TMI 1026 - HC - Money LaunderingSanction or a consent? - impugned order passed by the State dated 25.09.2019 under Section 6 of the Delhi Special Police Establishment Act, 1946 - Applicability of principles of res judicata - judgement in rem or personam? - HELD THAT - The impugned order dated 25.09.2019 passed by the State was nothing but a consent given by the State under Section 6 of the DSPE Act and it is not a sanction as required under either Sections 19 or 17 of the Prevention of Corruption Act. Though in the impugned order it was mentioned as sanction was accorded but literally it is only a consent and it is not a sanction and it is only a simple executive order by giving consent to the CBI for investigating the matter as against the petitioner. It is also revealed by the opinion given by the Advocate General that the Advocate General has categorically stated that no sanction is required under Section 17(A) or 19 of the P.C. Act. It is also brought to the notice of the Court by the learned Senior counsel for the petitioner that the Co-ordinate Bench while passing the order in the Writ Petition, though it was stated that it was an administrative order in its order, but it is not an administrative order but it is only a simple executive order and it need not require any detailed order for application of mind and even otherwise, the authority i.e., Under Secretary has considered the letter sent by the Directorate of Enforcement Department and passed the order - Such being the case, the contention of the learned counsel for the petitioner cannot be acceptable that there is no application of mind while passing the impugned order. Therefore, on that ground, the impugned order cannot be quashed. Whether the order passed by the Co-ordinate Bench is the 'Judgment in Rem' which is binding on all the persons including this Court and principles of res judicata applies? - HELD THAT - The Co-ordinate Bench dealt with the matter in detail by raising three points for consideration and finally dismissed the petition filed by the one SHASHI KUMAR SHIVANNA VERSUS THE GOVERNMENT OF KARNATAKA AND ORS. 2020 (7) TMI 827 - KARNATAKA HIGH COURT - The Co-ordinate Bench finally has taken the view that there is no requirement of application of mind while granting the consent. Ultimately, the petition was dismissed. The same was challenged before the Division Bench in W.A. 444/2020 which came to be dismissed on 05.02.2021. Admittedly, the said order of the Co-ordinate Bench attained finality and no appeal was filed by the said Shashi Kumar Shivanna. Of course, the present petitioner was not a party to the said proceedings in 2020 (7) TMI 827 - KARNATAKA HIGH COURT and the Co-ordinate Bench also stated that the said Shashi Kumar Shivanna has no locus standi to challenge the order. However, the Co-ordinate Bench while dealing with the matter where the said Shashi Kumar Shivanna challenged the very order dated 25.09.2019 for referring the matter to the CBI, but the Co-ordinate Bench has categorically held and given finding on the reference to the CBI in the impugned order where the application of mind is not required while giving consent under Section 6 of the DSPE Act. Therefore, it cannot be said that the finding of the Co-ordinate Bench is only on the petition filed by the Shashi Kumar Shivanna, but it was on the issue of reference of the case to the CBI for investigation against this petitioner for the provisions of P.C. Act. The judgment of the Co-ordinate Bench was 'Judgment In Rem', it was binding on this petitioner and also other persons as the issue of reference under the impugned order has been upheld by the Co-ordinate Bench. Therefore, the contention of the petitioner counsel cannot be acceptable that the judgment should be between the same parties, but it was an identical dispute on the same subject matter which was dealt with by the Co-ordinate Bench. Therefore, the doctrine of the res judicata applies to this case and also the order of the Co-ordinate Bench is binding on this petitioner. Therefore, the judgments relied by the counsel for the petitioner is not applicable to the case on hand. The impugned order passed by the State under Section 6 of the DSPE Act is only a formal consent and it is not a sanction which requires a detailed order and as stated by the Hon'ble Supreme Court, there is no prescribed form to accord consent under Section 6 of the DSPE Act and the Co-ordinate Bench has already decided the issue of referring the case to CBI which was upheld by the Division Bench. Such being the case, there is no reason for this Court to distinguish or take divergent opinion in respect of the order passed by the Co-ordinate Bench - Petition dismissed.
Issues Involved:
1. Whether the impugned order dated 25.09.2019 passed by the State under Section 6 of the Delhi Special Police Establishment Act, 1946 was a sanction or a consent. 2. Whether the order passed by the Co-ordinate Bench in W.P.No.8316/2020 applies the principles of res judicata. Summary: Issue 1: Nature of the Order (Sanction vs. Consent) The petitioner challenged the State Government's order dated 25.09.2019, which accorded sanction to the CBI to investigate alleged offences under the Prevention of Corruption Act. The petitioner argued that the State Government did not apply its mind while issuing the order and merely reiterated the contents of a letter from the Directorate of Enforcement (ED). The petitioner cited several Supreme Court judgments emphasizing the necessity of a reasoned and speaking order for sanction, asserting that the impugned order lacked such reasoning. The respondents, however, contended that the order was merely a consent under Section 6 of the DSPE Act, not a sanction. They argued that the consent did not require detailed reasoning or application of mind. The court agreed with the respondents, citing judgments from the Supreme Court and the Division Bench, which clarified that consent under Section 6 of the DSPE Act is a simple executive order and does not necessitate a detailed order or application of mind. Thus, the court concluded that the impugned order was a consent and not a sanction. Issue 2: Applicability of Res Judicata The respondents argued that the principles of res judicata applied since a Co-ordinate Bench had already dismissed a similar writ petition (W.P.No.8316/2020) challenging the same order. The Co-ordinate Bench's decision was upheld by the Division Bench, making it a 'Judgment In Rem' binding on all persons, including the petitioner. The petitioner contended that res judicata did not apply as he was not a party to the earlier case. The court held that the Co-ordinate Bench's judgment was indeed a 'Judgment In Rem' and binding on the petitioner. The Co-ordinate Bench had addressed the issue of referring the case to the CBI and determined that application of mind was not required for granting consent under Section 6 of the DSPE Act. Therefore, the court found that the principles of res judicata applied, and the petitioner's challenge was not maintainable. Conclusion: The court dismissed the writ petition, concluding that the impugned order was a consent under Section 6 of the DSPE Act, not a sanction, and that the principles of res judicata applied due to the Co-ordinate Bench's prior judgment.
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