Karnataka HC Rejects Plea By Relative Of DK Shiva Kumar Against Consent Given For CBI Investigation In To Corruption Charges

The alleged offences came to light in August 2017 when the Income Tax Department raided the New Delhi premise of the minister and found him to be the beneficiary of benami investments in a number of properties. The petitioner, a close relative of Shivkumar was also found to have been involved in transactions on behalf of Shivkumar. The Enforcement Directorate thereby started investigations into the matter under the Prevention of Money Laundering Act, 2002 and also forwarded its report to the Karnataka Government in 2019 to take appropriate action for alleged violations of the Prevention of Corruption Act.

The Karnataka Government under Section 6 of the Delhi Special Police Establishment Act, 1946 gave permission to the CBI to investigate the alleged offences of corruption against DK Shivkumar and other officials of the Government of Karnataka after seeking opinion from the Advocate General of Karnataka.

The primary contention of the petitioner is that a "sanction" to prosecute cannot be given by the State on the basis of vague allegations and without an application of mind, both of which were rejected by the Court.

The Court clarified that the use of the term "sanction" in the impugned order of the State Government was wrongly employed as the action of the Government to grant permission to the CBI under Section 6 of the Delhi Special Police Establishment Act, 1946 was only "consent" to enable the CBI to investigate the offence.

The Court elaborated on the distinction between the terms "sanction" and "consent" as follows:

"In so far as the term "consent" found in Section 6 of the DSPE Act, 1946, it only means a "permission" of the concerned State in the constitutional scheme of things. On the other hand, the word "sanction" found in Sections 17A and 19 of the PC Act, 1988, Section 197 in the Criminal Procedure Code inheres a thoughtful application of mind to ascertain whether the record placed before the Authority bears out enough material to proceed to prosecute. The requirement of application of mind while granting "sanction" is intended to avoid frivolous or vexatious proceedings from being adopted, particularly against public servants in the discharge of their official duties."

In response to the petitioner's contention that Section 6 of the DSPE Act cannot be invoked without an application of mind, the Court stated that grant of consent under Section 6 of the DSPE Act was more in the nature of an administrative order and does not require enormous rejigging.

The Court also stated that the petitioner had no locus standi to challenge the impugned order of consent as he failed to establish how any of his rights were infringed or vitiated by the grant of such consent. It further reiterated the well-established jurisprudence that an accused has no choice of the investigating agency to suggest that the claim of the petitioner stands null in the given circumstances.

Further, the Court noted that a locus standi to challenge the impugned order can exist with the petitioner as a matter of right only when Section 6-A of the DSPE Act, 1946 is violated and investigation and inquiry by the CBI is commenced without approval of the Central Government. This source of this right rested in the fact that the petitioner was a government employee employed as Chief Manager of Hindustan Aeronautics Limited.