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TMI Blog2020 (4) TMI 910X X X X Extracts X X X X X X X X Extracts X X X X ..... he being an officer of the Indian Administrative Service (IAS) employed in connection with the affairs of the Government of Bihar as District Magistrate at Aurangabad District (State of Bihar) could not be subjected to investigation by the CBI without the prior consent of the State. 4. The Appellant has been named as an Accused alongwith one Shri C. Sivakumar, CEO, Bhartiya Rail Bijli Company Limited (for short, "BRBCL"), Nabinagar, District Aurangabad, Bihar on the basis of FIR registered by the CBI pursuant to information received from a reliable source alleging as follows: A reliable source information has been received that Bhartiya Rail Bijlee Company Limited (BRBCL), a subsidiary of NTPC Ltd. is constructing four units of 250 MW at Nabinagar in Aurangabad District (Bihar). The joint venture project has been developed by Bhartiya Rail Bijlee Company Limited (BRBCL) with NTPC having 74 percent share, while the Ministry of Railways with the remaining 26 percent. Indian Railways would get 90 percent and the state of Bihar would get ten percent of the power generated from BRBCL's plants. The construction work of BRBCL was proposed in the 2005-06 Union Budget and the Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Gopal Prasad Singh (now deceased). 5. It was then fraudulently directed by Shri Kanwal Tanuj, DM, Aurangabad that 7.45 acre land in Khata No. 12, Plot No. 1 of Mauja Kajrine be recorded in the name of Shri Gopal Prasad Singh (now deceased) and the matter may be further processed accordingly. Circle Officer, Nabinagar sent a letter No. 74, dated 11.03.2017 to Chief-Executive officer BRBCL for purchasing of the land from the owner Shri Gopal Prasad Singh (now deceased), Circle Officer, Nabinagar thereafter issued another letter dated 25.03.2017 to BRBCL recalling his previous letter dated 22.06.2015 and informed that 7.45 acres out of the total land in Khata No. 12, plot No. 1 of Mauja Kajrine has been registered in name of Shri Gopal Prasad Singh. The circle officer further informed BRBCL that 6.545 acres falling in the Ash Dyke area in the above mentioned plot was being earmarked/acquired for the BRBCL and directed the BRBCL to purchase the said land from the owner Shri Gopal Prasad Singh and 0.905 acres from the Govt. Land was being transferred to BRBCL for the purpose of the plant. 6. Source information also revealed that as per procedure possession of land is taken in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it does not disclose any criminal offence against the Appellant and for a declaration that it has been lodged against the Appellant (a State Government employee), without prior permission of the State Government and was thus in violation of Section 6 of the Delhi Special Police Establishment Act, 1946 (for short, "the 1946 Act"). In other words, the FIR has been registered without jurisdiction and is void ab initio. 6. The High Court after considering the grounds of challenge, proceeded to hold that BRBCL is an "affiliate" or "associate" in relation to National Thermal Power Company (NTPC) Ltd. and the Railways respectively. The registered office of BRBCL was in the Union Territory of Delhi (National Capital Territory of Delhi) and the allegation regarding defrauding the said undertaking (BRBCL) and siphoning of funds had occurred in the Union Territory of Delhi (National Capital Territory of Delhi). The funds for implementation of the project through BRBCL were provided by the Central Government in terms of the Union Budget proposed in the year 2005-06. The High Court then concluded that criminal conspiracy for committing the offence was thus hatched at Delhi and for all these re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stigation of any such offence by the Delhi Special Police Establishment. File No. 1/Vividh-6019/96) By order of Governor of Bihar Sd/- -- (D.P. Maheshwari) Commissioner & Secretary Home Department The High Court negatived the argument of the Appellant that the proviso in the said notification restricted the general consent accorded by the State. It was urged by the Appellant that the purport of the proviso was to make it amply clear that no consent was given by the State Government in terms of Section 6 of the 1946 Act to authorise the members of the DSPE to exercise powers and jurisdiction under the 1946 Act in respect of offences in which public servants employed in connection with the affairs of the Government of Bihar were allegedly involved. Investigation in respect of such cases could be undertaken only after taking prior consent of the State Government of Bihar and not otherwise. 7. The High Court noted that it was not the case of the Appellant that the offences referred to in the subject FIR were not covered by the notification issued by the Central Government in terms of Section 3 of the 1946 Act. The High Court held that the investigation in the present case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d controlled by the Government of India cannot be given a narrow meaning. While dealing with the proviso in the subject notification dated 19.2.1996, the High Court in paragraphs 57 and 58 observed thus: 57. The proviso to the notification dated 19.02.1996 issued by the Government of Bihar cannot come to the rescue of the Petitioner in the present set of facts and circumstances where the C.B.I. while investigating a case involving a government company who is acting as an agent of the public sector undertaking and Ministry of Railways finds that some more persons including those who are public servants presently working and serving under the Government of Bihar are also involved in the conspiracy which has an ultimate effect of causing unlawful loss to the principal for which the agent is working, no individual consent would be required in terms of Section 6 of the D.S.P.E. Act. 58. The contention of the learned Senior Counsel based on the proviso part of the notification dated 19.02.1996 could have been worth consideration if it could have been shown to this Court that the entire alleged offence in respect of which the C.B.I. has assumed jurisdiction to investigate relate to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cord. It is thus urged that the alleged act of the Appellant was done in official capacity and was protected by Section 79 of the Indian Penal Code. The CBI ought to have undertaken preliminary enquiry before rushing to register the FIR on the basis of source information. Even for that reason, the action of CBI cannot be countenanced - not being in conformity with the CBI Manual. It is urged that the FIR does not disclose any offence qua the Appellant and that it was registered without offering any explanation for the inordinate delay. Finally, it is urged that the registration of FIR itself was barred by Section 6 of the 1946 Act read with notification dated 19.2.1996. 9. The State of Bihar has supported the claim of the Appellant on the question of law by contending that Policing is a State subject under Entry 2 List II of Schedule VII of the Constitution. Hence, having due regard to the federal structure recognised under the Constitution, provision such as Section 6 of the 1946 Act has been incorporated. According to the State, combined reading of Sections 2, 3, 5 and 6 of the 1946 Act would show that DSPE has jurisdiction to investigate offences notified Under Section 3 in any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ritory of Delhi. The investigation of such a case cannot be regarded as in respect of an offence independently committed by the public servant employed in connection with the affairs of the Government of Bihar as such. As a result, no consent of any State to investigate such an office would be necessary. As a matter of fact, no State would have jurisdiction to enquire into or investigate the offence committed in relation to the Government of India undertaking registered in the territory of Delhi. Similarly, only the Courts in Delhi would have jurisdiction to take cognizance of the stated offence. In such a situation, the occupation or status of the Accused or his residence cannot be the basis to constrict the powers of the investigating agency (DSPE) in any manner. It is urged that if the argument of the Appellant is accepted, that would have serious implications. For, in cases where the DSPE during the course of investigation of specified crimes committed in Union Territory is confronted with the Accused employed/residing in different States, it would require the DSPE to obtain consent of every such State wherever the Accused resides and is an employee of that State. That cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant in the State of Bihar would not alter the substratum of the offence or crime in question stated to have been committed to defraud the Government undertaking (BRBCL) and resultantly siphoning of its funds within the Union Territory of Delhi (National Capital Territory of Delhi). 12. Our attention is also invited by the learned Additional Solicitor General to a recent decision of the Delhi High Court in Anand Agarwal v. Union of India and Ors., which has upheld the stand taken by the CBI that requirement of consent of the State is premised on the basis that the specified offence or offences committed and under investigation, have taken place in the State (outside the Union Territory). The Delhi High Court has agreed with the view taken by the High Court of Judicature at Patna in the impugned judgment. It is urged that the appeal be dismissed being devoid of merit. 13. After cogitating over the rival submissions, the core issue which arises for consideration in the present case is: whether the proviso in the stated notification dated 19.2.1996 would come in the way of the officials of DSPE to register FIR and carry on investigation of specified offences committed within th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 3, in a State not being a Union Territory. Such extension of powers and jurisdiction of members of the special police force becomes necessary in respect of specified offences "committed outside the jurisdiction of the Union Territory" referred to in Sections 2 and 3 of the 1946 Act. However, in keeping with the federal structure of the Constitution which is fundamental to the Constitution, consent of such a State has been made essential, as predicated in Section 6 of the 1946 Act. Sections 5 and 6 of the 1946 Act read thus: 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 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 of any orders which the Central Government may make in this behalf, discharge the func ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... special purpose for investigation of specified offences committed within the Union Territory, in terms of notification issued Under Section 3 of the 1946 Act. 17. This Court in M. Balakrishna Reddy (supra) expounded the purport of Sections 3, 5 and 6 of the 1946 Act and observed in paragraph 19 as under: 19. Plain reading of the above provisions goes to show that for exercise of jurisdiction by CBI in a State (other than Union Territory or Railway area), consent of the State Government is necessary. In other words, before the provisions of the Delhi Act are invoked to exercise power and jurisdiction by Special Police Establishment in any State, the following conditions must be fulfilled: (i) A notification must be issued by the Central Government specifying the offences to be investigated by Delhi Special Police Establishment (Section 3); (ii) An order must be passed by the Central Government extending the powers and jurisdiction of Delhi Special Police Establishment to any State in respect of the offences specified Under Section 3 (Section 5); and (iii) Consent of the State Government must be obtained for the exercise of powers by Delhi Special Police Establishment in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on can be laid down. 18. The High Court, in the present case, after analysing the material on record clearly found that BRBCL was a Government undertaking and the project undertaken by it was funded by the Central Government and that it had its registered office in the Union Territory of Delhi (National Capital Territory of Delhi), where the offence of defrauding the undertaking (BRBCL) and siphoning of its funds was allegedly committed. We see no reason to deviate from the opinion so recorded by the High Court. 19. The Appellant, however, would rely on the allegations in the subject FIR to contend that the role of the Appellant at best is in respect of certain official duty in connection with the affairs of the Government of Bihar. This submission overlooks the substratum of the allegations in the FIR, as registered by the CBI against the CEO of BRBCL - Shri C. Sivakumar and the Appellant being co-Accused (party to the conspiracy) regarding defrauding the Government of India undertaking (BRBCL) having its registered office at Delhi (Union Territory) and siphoning of its funds. The alleged role played by the Appellant may be a means to facilitate the commission of crime of defrau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t qua him shall be obtained. This proviso must operate limited to cases or offences which have been committed within the territory of the State of Bihar. If the specified offence is committed outside the State of Bihar, as in this case in Delhi, the State police will have no jurisdiction to investigate such offence and for which reason seeking consent of the State to investigate the same would not arise. In our opinion, the stated proviso will have no application to the offence in question and thus the Delhi special police force/DSPE (CBI) must be held to be competent to register the FIR at Delhi and also to investigate the same without the consent of the State. 23. Even otherwise, the proviso has the effect of differentiating and classifying offenders differently for treatment thereunder, including investigation of offences and prosecution for offences on the basis of being public servant employed in connection with the affairs of the Government of Bihar. The power bestowed on special police force in terms of Sections 2 and 3 of the 1946 Act cannot be undermined by an executive instruction in the form of proviso. Dealing with a similar challenge to a statutory provision - Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6-A itself is discriminatory. That being the position, the discrimination cannot be justified on the ground that there is a reasonable classification because it has rational relation to the object sought to be achieved. (emphasis supplied) The thrust of this exposition is that every person committing the same offence is to be dealt with in the same manner in accordance with law, which is equal in its application to everyone. The discrimination or differentiation must be founded on pertinent and real differences as distinguished from irrelevant and artificial ones. In paragraph 70, the Court went on to observe that every public servant against whom there is a reasonable suspicion of commission of a crime or there are allegations of an offence under the PC Act has to be treated equally and similarly under law. 24. Suffice it to observe that the proviso contained in the stated notification dated 19.2.1996 cannot be the basis to disempower the special police force/DSPE (CBI) from registering the offence committed at Delhi to defraud the Government of India undertaking (BRBCL) and siphoning of its funds and having its registered office at Delhi. Allegedly, the stated offence has be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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