Lack Of Prior Consent From State Govt. Would Not Vitiate CBI Investigation If No Prejudice Is Caused To Accused: Supreme Court

The CBI investigation is not vitiated merely for not obtaining prior consent of the State Government under Section 6 of the DSPE Act (in addition to general consent which was in force), unless it is shown that prejudice has been caused to the accused, the Supreme Court has observed.

This case pertains to charge sheet filed against a company and some public officials by the Central Bureau of Investigation under Prevention of Corruption Act, 1988. 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. However, 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.

Before the High Court, the accused-public servants' contention was that the failure in obtaining the consent prior to registration of the FIR would go to the root of the matter and vitiate the entire investigation. As the High court dismissed their petitions, they approached the Supreme Court contending that in the absence of the consent of the State Government under Section 6 of the DSPE Act, the DSPE (CBI) had no powers to conduct investigation in view of the provisions contained in Section 6 of the DSPE Act.On the other hand, the state contended that the prior consent under Section 6 of the DSPE Act is not mandatory but directory.

Addressing this contention, the bench comprising Justices AM Khanwilkar and BR Gavai, referred to the decision in H.N. Rishbud and Inder Singh v. The State of Delhi, and observed thus:

"It could thus be seen, that this Court has held, that the cognizance and the trial cannot be set aside unless the illegality in the investigation can be shown to have brought about miscarriage of justice. It has been held, that the illegality may have a bearing on the question of prejudice or miscarriage of justice but the invalidity of the investigation has no relation to the competence of the court."

"It could thus be seen, that this Court held that even for the sake of argument that CBI had committed an error or irregularity in submitting the charge- sheet without the approval of CVC, the cognizance taken by the learned Special Judge on the basis of such a charge-sheet, would not be set aside nor could further proceedings in pursuance thereof be quashed."

The court further noted that 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.

Therefore, the bench refused 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. However, it noted that the High Court has not answered some of the issues framed by it and therefore remitted the case back to it.

CASE: FERTICO MARKETING AND INVESTMENT PVT. LTD. vs. CENTRAL BUREAU OF INVESTIGATION [CRIMINAL APPEAL NOS. 760- 764 OF 2020] 

CORAM: Justices AM Khanwilkar and BR Gavai

COUNSEL: Sr. Adv Mukul Rohatgi,Sr. Adv Ajit Kumar Sinha, ASG S.V. Raju 

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