D. Nedunchezhian v. The Government of Tamil Nadu represented by its Home Secretary, Madras
1992-11-24
RATNAM, SOMASUNDARAM
body1992
DigiLaw.ai
Judgment :- Somasundaram, J. This writ appeal has been filed against the order dismissing the W.P.No.15688 of 1989 filed by the appellant for the issue of a writ of certiorari to quash G.O.Ms.No.1216, Home (Transport II) Department, dated 30.5.1988, according sanction for prosecution of the appellant and others for offences under Secs.l20-B, I.P.C. read with secs.420,419,467,471,477 A, 161 and 165-A of the Indian Penal Code and sub-sec.(2) of Sec.5 read with clauses (a) and (b) of sub-sec(1) of Sec.5(b) of the Prevention of Corruption Act, 1947 and for any other offences punishable under other provisions of law and for taking cognizance of the said offences by a court of competent jurisdiction. 2. In 1985, certain Nationalised Banks in the city lodged complaints with the Central Bureau of Intelligence (hereinafter called C.B.I.) alleging that certain of the constituents who had availed the hire purchase loans to purchase second-hand lorries, had not repaid the loans and they are also not traceable. The C.B.I. made some of the Motor Vehicles Inspectors of this State including the appellant as accused in the case alleging that they had allowed registration of the concerned vehicles in the State on pecuniary considerations. After investigation, the C.B.I. laid the charge sheet C.B.I. 1/87 before the X Metropolitan Magistrate, Madras on 9. 1987, against the appellant and others. In April 1988, the C.B.I, made a request to the State Government to accord sanction to prosecute the appellant and other state Government Officials under Secs.l97(1)(b), Criminal Procedure Code. The respondent herein gave sanction as per the orders contained in G.O.Ms.No.1216 Home (Transport-II) Department dated 30.5.1988 permitting the C.B.I. to prosecute the appellant and others.
In April 1988, the C.B.I, made a request to the State Government to accord sanction to prosecute the appellant and other state Government Officials under Secs.l97(1)(b), Criminal Procedure Code. The respondent herein gave sanction as per the orders contained in G.O.Ms.No.1216 Home (Transport-II) Department dated 30.5.1988 permitting the C.B.I. to prosecute the appellant and others. In the said G.O. the respondent has ordered that sanction was accorded to the C.B.I. to prosecute the appellant for offences under the Prevention of Corruption Act and I.P.C. The relevant portion of G.O.Ms.No.1216 referred to above reads thus: “Now, therefore, in exercise of the powers conferred by clause (b) of sub-sec(1) of Sec.197 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) and clause (b) of sub-sec(1) of Sec.6 of the Prevention of Corruption Act, 1947 (Central Act II of 1947) the Government of Tamil Nadu hereby accords sanction for the prosecution of the said Thiruvalargal M.S.Shanmugasundaram, P.Rajendran, Nedun-chezhian, Robert Prithivirah, P.B.Vyas and R.Raghuraman, and Thiru Manicham for the said offences punishable under Sec.l20-B, I.P.C. read with Secs.420 419, 467,471, 477-A, 161 and 165-A of the Indian Penal Code (Central Act XLV of 1860) and sub-sec.(2) of Sec.5 read with clauses (a) and (b) of sub-sec(1) of Sec.5 of the Prevention of Corruption Act, 1947 (Central Act II of 1947) and for any other offences punishable under other provisions of law in respect of the acts aforesaid and for taking cognizance of the said offences by a Court of competent jurisdiction.” To quash the said G.O. the appellant filed W.P.No.l5688 of 1989. 3. Before the learned single Judge who heard the writ petition, it was urged on behalf of the appellant that the C.B.I. which has been constituted under the provisions of the Delhi Special Police Establishment Act, 1946 (hereinafter called the Act) has no jurisdiction to investigate or take any proceedings with reference to the offences alleged to have been committed by a State Government servant like the appellant.
It was further contended before the learned single Judge that under Sec.6 of the Act, the consent of the Government of the concerned State is required for enabling the C.B.I. to exercise powers and jurisdiction in any area within the said State and that in the present case, the State of Tamil Nadu has not given its consent under Sec.6 of the Act with reference to all the offences or all cases, but the consent is limited to cases which are expressly mentioned in clauses (i) & (ii) of Letter No.S.C/3036-1/81 dated 20.11.1981 issued by the Commissioner and Secretary to Government Home (S.C.) Department, Government of Tamil Nadu. Again, it was urged before the learned Single Judge that as per clauses (i) & (ii) of the last para of the letter No. SC/3036-1/81 dated 20.11.1981 issued by respondent, the C.B.I. has no jurisdiction to investigate the case against the appellant and the other state Government servants, pursuant to the complaints lodged by the Nationalised Banks before the C.B.I. The learned single Judge did not accept the contentions urged on behalf of the appellant and dismissed the writ petition. This writ appeal is directed against the order of the learned single Judge dismissing the writ petition. 4. Before us, Mr.Govindswaminathan, the learned Senior Counsel appearing for the appellant reiterated the contentions urged before the learned Single Judge and submitted that the C.B.I. has power to investigate in the State of Tamil Nadu only against the Central Government Servants or officers belonging to public sector undertakings and into such offences that are duly notified by the Government of India and that the C.B.I. has no power to investigate into any case relating to the State Government Servants like the appellant or into offences concerning the enactments that are not notified by the Government of India. Elaborating the above point, the learned Senior Counsel for the appellant contended that under Sec.6 of the Act, the consent of the concerned State Government is necessary for enabling the C.B.I, to investigate in cases in any area within the said State and that the State of Tamil Nadu has not given its consent under Sec.6 of the Act with reference to the offences for which the appellant and other accused are charged to enable the C.B.I. to investigate the case against the appellant and others.
The learned Counsel further submitted that clauses (i) and (ii) of the last para of the Letter No.SC/3036-1/81 dated 20.11.1981. will not cover the offences mentioned in the impugned order and consequently the investigation done by the C.B.I. in the case against the appellant and others for the offences mentioned in the impugned order is without jurisdiction and therefore, the impugned order is illegal and it is liable to be quashed. In support of his contention the learned counsel for the appellant relied on the following decisions: Budree, In re., 1972 L. W. (Crl.) 11. A.C.Sharma v. Delhi Administration, 1973 M.L.J. (Crl) 447:A.I.R 1973 S.C 913: (1973)1 Serv.L.R 779: (1973)1 S.C.C 726 : 1973 Crl.L.J.902: 1973 S.C.C. (Crl.) 608: (1973)2 S.C.J. 282. State of West Bengal v. Sampat Lal,A.I.R. 1985 S.C. 195. Management of Advance Insurance Company v. V.Gurudasmal, A.I.R. 1969 Del. 330. We are unable to accept the above contention of the learned counsel for the appellant. 5. The Act regulates the power of the Special Police Force constituted by the Government of India to investigate cases throughout the country. Sec.2 of the Act empowers the Central Government to constitute the Special Police Force notwithstanding anything contained in the Police Act, 1861,for investigation of offences notified by it under Sec.3 Invoking the above powers, the Government of India had constituted the C.B.I., as per resolution No.4/31/61/T dated 4. 1963. Sec.3 of the Act empowers the Central Government by notification in the Official Gazette to specify the nature of offences or class of offences that can be investigated by the C.B.I, constituted by it. Invoking the power under Sec.3 of the Act, the Central Government had issued several notifications specifying the nature of offences that can be investigated by the C.B.I. Sec.6 of the Act deals with the consent of the State Government to exercise of powers and jurisdiction by the C.B.I, under the Act. The said Sec.6 reads thus: "Nothing contained in Sec.6 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a part-A State or part-B State, not being a Railway area without the consent of the Government of that State." As per Sec.6 of the Act without the consent of the State Government, the C.B.I, has no power to investigate in the concerned State. 6.
6. In the present case, the Government of Tamil Nadu by letter No.188, dated 21. 1957 have given their consent to the functioning of Special Police Establishment in the State of Tamil Nadu in the following terms: "Sir, Sub: Police - Consent of State Governments to the functioning of the Special Police Establishment in the States. Ref: Shri K.B.Mandlekar’s letter No.6/46/56-AVD dated 11. 1956. I am to say that the Madras Government agree to the members of the Delhi Special Police Establishment exercising powers and jurisdiction within the Madras State with regard to the offences mentioned in the Notification forwarded with the letter cited. Yours faithfully, xxxx" Again, the Central Government in 1980, requested the Government of Tamil Nadu to accord its consent under Sec.6 of the Act, for the C.B.I, to carry on its investigation in the State of Tamil Nadu concerning the offences duly notified by the Central Government. The Government of Tamil Nadu by Letter No.Sc.3036-1/81, dated 20.11.1981 have given their consent under Sec.6 of the Act and the said letter dated 20.11.1981 reads thus: "Sir, Sub: Police - Criminal cases - Investigation by Central Bureau of Investigation - Consent of Government of Tamil Nadu under Sec.6of the Delhi Special Police Establishment Act. Ref: 1.No.6/45/56 AVD of Ministry of Home Affairs Government of India, dated 6th November, 1956 with notification No. 7/5/55-AVD, dated 6th November, 1956. 2. D.O.Letter.No.321/5/72-AVD(III), dated 5th June, 1972 from Thiru Ram Nowas Mirda, Minister Department of Personnel, Cabinet Secretariat, Government of India, addressed to Chief Minister to Tamil Nadu. 3. Lr.Ref.No 59937/Pol.IV/76.2, dated 18th May, 1976, In the letter 3rd cited, the Government of Tamil Nadu have agreed to the members of the Delhi Special Police Establishment exercising power and jurisdiction within the State of Tamil Nadu, as originally intimated in the Government Letter Ms.No.188, Home, dated 23rd January, 1957, and other subsequent Letters issued time to time on the subject.
The Government have examined the question whether the consent given in May, 1976 would require modification, In the D.O.Letter, dated 5th June, 1972, 2nd cited, it has been stated by the Government of India that the Special Police Establishment takes up suo motu only those cases which involve either Central Government servants or officers belonging to public sector undertaking under the Central Government or which involve financial or other interest of the Central Government or Public Sector undertakings under the Central Government or offences under certain Central Acts with the enforcement of which the Central Government is concerned, It has been stated by the Government of India that cases not falling under the above categories, that is, those mainly involving State Government employees or private persons can be taken up by the Special Police Establishments with the concurrence or at request of the State Government concerned. In the light of the position stated in paragraph 2, above, I am directed to state that in supersession of the consent given in the letter No.59937/ Pol.VI/76-2, Home, dated 18th May, 1976 and other letters issued from time to time on the subject, the Government of Tamil Nadu hereby give their consent under Sec.6 of the Delhi Special Police Establishment Act, 1946 only in respect of- (i) cases involving either Central Government servants or officers belonging to Public Sector undertakings under the Central Government, and .(ii) cases involving financial or other interest of the Central Government or public sector undertaking under the Central Government in relation to offences mentioned in the list of offences enclosed with the D.O.Letter second cited.“ Thereafter, on 3. 1988, the respondent by Letter No.S.C/698-3/88 again, gave their consent under Sec.6 of the Act in the following terms. Sir, Sub: POLICE - CRIMINAL CASES -Investigation by the C.B.I. - Consent of Government of Tamil Nadu under Sec.6 of the Delhi Special Police Establishment Act-Communicated. Ref: This Government’s Letter No.SC.3036-1/ 81 Home (SC) Department, dated 20.11.1981. ...... I am directed to inform you that the State Government on reconsideration and in supersession of the decision given in their letter cited, hereby agree to the members of the Delhi Special Police Establishment exercising powers and jurisdiction within the State of Tamil Nadu, as originally intimated in this Government’s letter No.188, Home, dated 21. 1957 and other subsequent letters issued from time to time on the subject.
1957 and other subsequent letters issued from time to time on the subject. Yours faithfully,” xxxxx It is seen from the impugned order of sanction that the appellant and the other accused are charged for offences under Secs.l20-B, I.P.C. read with Secs.420,419,467,471,477-A,161,165-AofI.P.C. and sub-sec.(2) of Sec.5 read with clauses (a) and (b) of sub-sec.(1) of Sec.5(b) of the Prevention of Corruption Act, 1947. The offences under the various sections referred to above are included in the notification dated 11. 1956 issued by the Government of India in exercise of power under Sec.3 of the Act. The materials on record go to show that the complaints which led to the investigation by the C.B.I, against the appellants and others were given in 1985 and the impugned order of sanction was passed on 30.5.1988. Therefore, the question we have to examine is whether the Government of Tamil Nadu has by the letters dated 20.11.1981 and 3. 1988 gave their consent under Sec.6 of the Act to enable the C.B.I, to investigate the case against the appellant and others in respect of the offences for which they are charged. By clause(ii) of the last para of the Letter dated 20.11.1981, the Government of tamil Nadu have given their consent under Sec.6 of the Act in respect of cases involving financial or other interest of the Central Government, or public Sector undertakings under the Central Government in relation to offences mentioned in the list of offences enclosed. The said clause (ii) will apply to all cases involving financial or other interest of Public Sector undertakings under the Central Government in relation to offences in the list of offences enclosed with the letter dated 6. 1972, which is similar to the list of offences enumerated in the notification dated 11. 1956. The impugned order shows that the offences in this case relate to defrauding several Nationalised Banks and Nationalised Banks are admittedly Public Sector Undertakings under the Central Government. Therefore, clause (ii) of the last para of the letter dated 20.11.1981 will certainly cover the offences, mentioned in the impugned order, for which the appellant and others are charged. In other words, Clause (ii) of the last para of the letter dated 20.11.1981 will cover all cases involving financial or other interests of Public Sector undertaking under the Central Government in relation to offences mentioned in the notification dated 11.
In other words, Clause (ii) of the last para of the letter dated 20.11.1981 will cover all cases involving financial or other interests of Public Sector undertaking under the Central Government in relation to offences mentioned in the notification dated 11. 1956 issued by the Central Government in exercise of the Power under Sec.3 of the Act, irrespective of the fact whether the accused in the case is a State Government servant or a Central Government servant or even a private person. Therefore, we are inclined to hold that clause (ii) referred to above will cover all persons including state Government servants provided they are Involved in cases involving financial or other interest of the Public Sector Undertaking under the Central Government like the Nationalised Banks. As already pointed out, the appellant and others are charged for offences which involved financial or other interests of Nationalised Banks. Again, the said offences for which the appellant and others are charged are offences under Prevention of Corruption Act and Indian Penal Code which are included in the notification issued by the Government of India in exercise of the power under Sec.3 of the Act. In these circumstances, we are unable to appreciate and accept the contention of the learned counsel for the appellant that the consent given by the Government of Tamil Nadu by the letters dated 20.11.1981 and 3. 1988 will not cover the State Government servants and that they will not also cover the offences falling under the Hire Purchase Act and the Motor Vehicles Act. The decisions referred to above and which were relied on by the learned counsel for the appellant are not helpful to the appellant because the principles laid down in those decisions will have no bearing to the facts of the present case. For all these reasons stated above, we have no hesitation in rejecting the contention of the learned counsel for the appellant that the order challenged in the writ petition according sanction underSec.l97(1)(b) of Criminal Procedure Code, to prosecute the appellant a State Government Servant by the C.B.I. is invalid, because the statutory consent given by the State Government under Sec.6 of the Act imposes a bar on the C.B.I. to investigate the case relating to the State Government Servants.
As we are agreeing with the conclusion of the learned single Judge on the first reason given by the learned single Judge, it is not necessary to examine the correctness of the other reason given by the learned single Judge in paras.7 and 8 of his order for arriving at the same conclusion. 7. There is yet another obstacle in the way of the appellant getting any relief in the proceedings under Art.226 of the Constitution. Admittedly, the appellant and other accused who are all State Government Servants filed Crl.M.P.Nos.11601, 6918,7484 and 6522 of 1982 etc. batch before this Court under Sec.482, Crl.P.C. to quash the charge sheet filed by the C.B.I, against the appellant and others for offences under the Prevention of Corruption Act and Indian Penal Code, and also the entire proceedings in C.C.No.13 of 1988 before the Special Judge (Court of Sessions, Madras). In the said Crl.M.Ps. the Jurisdiction of the C.B.I. to investigate in the State of Tamil Nadu with regard to the offences concerned the statutes not notified by the Central Government under the Act has been urged. Further, in the said Crl.M.Ps., the appellant and the other accused also sought to quash the charge sheet and the entire Criminal Proceedings in C.C.No.l3 of l988 on the file of the Special Judge (Court of Sessions, Madras) on the ground that there is no valid sanction under Sec.197, Crl.P.C, or under Sec.6 of the Prevention of Corruption Act, 1947. The learned Single Judge who heard the Crl.M.Ps. took the view that the C.B.I, had jurisdiction to investigate the offences for which the appellant and others are charged in the present case. The learned single Judge further held that there is a valid sanction for prosecution of the appellant and the other State Government servants who are accused in that case under Sec.197, Crl.P.C, and under Sec.6 of the Prevention of Corruption Act. Consequently, the learned single Judge repelling the contentions raised on behalf of the appellant and others, on 18. 89 dismissed the Crl.M.Ps. referred to above, filed under Sec.482, Crl.P.C. Aggrieved by the order of the learned single Judge dated 18. 1989 dismissing the Crl.M.P.Nos.6918, 7484 and 6522 of 82 filed S.L.P.Nos.2435,2436,2373,2374 and 2482 of 1989 before the Supreme Court. The Supreme Court by the order dated 22. 1990, dismissed the S.L.Ps.
89 dismissed the Crl.M.Ps. referred to above, filed under Sec.482, Crl.P.C. Aggrieved by the order of the learned single Judge dated 18. 1989 dismissing the Crl.M.P.Nos.6918, 7484 and 6522 of 82 filed S.L.P.Nos.2435,2436,2373,2374 and 2482 of 1989 before the Supreme Court. The Supreme Court by the order dated 22. 1990, dismissed the S.L.Ps. In these circumstances, the appellant having raised the very same objections before the learned single Judge of this Court in Crl.M.P.No.11601 of 1982 filed under Sec.482, Crl.P.C. that C.B.I, has no jurisdiction to investigate the case against the appellant and other accused for the offences for which they are charged and that there is no valid sanction for the prosecution of the appellant and others either under Sec.197, Crl.P.C, or under Sec.6 of the Prevention of Corruption Act, and failed before the learned Single Judge who disposed of the Crl.M.P.No.11601 of 1982, it is not open to the appellant to raise the very same objection once over again in the writ proceedings under Art.226of the Constitution, particularly when the S.L.Ps. filed by the other accused in the Criminal case against the order of the learned single Judge dismissing the Crl.M.Ps.6918, 7484 and 6522 of 1982 were dismissed by the Supreme Court. 8. For all the reasons stated above, we see no infirmity in the order of sanction accorded by the respondent in G.O.Ms.No.1216, Home (Transport II) Department, dated 30.5.1988 challenged in the writ petition and the learned single Judge rightly dismissed the writ petition. There is no merit in this writ appeal and it is liable to be dismissed. Accordingly, the writ appeal is dismissed. No costs.