DSPE Act Provision Requiring States' Consent For CBI Investigation Is In Tune With Federal Character Of Constitution: Supreme Court

The Supreme Court has observed that the provision in Delhi Special Police Establishment Act, which requires the consent of State Government for CBI to exercise of powers and jurisdiction, are in tune with the federal character of the Constitution.

"Though Section 5 enables the Central Government to extend the powers and jurisdiction of Members of the DSPE beyond the Union Territories to a State, the same is not permissible unless, a State grants its consent for such an extension within the area of State concerned under Section 6 of the DSPE Act. Obviously, the provisions are in tune with the federal character of the Constitution, which has been held to be one of the basic structures of the Constitution.", the bench comprising Justices AM Khanwilkar and BR Gavai observed in a judgment delivered on Tuesday (11 Nov 2020).

The CBI, in this case, had registered crime against Fertico Marketing and Investment Private Limited and others alleging that the coal purchased under the FSA was sold in the black market. Later, it was found that the officials of District Industries Centre were also involved. The High Court dismissed their petition observing that the State Government had granted Post-Facto consent against the two public servants of the State Government whose names had figured during the course of investigation. It was held that the Post-Facto consent was sufficient for investigation by the CBI for the offences against the two public servants, whose names though did not find place in the FIR but were found in charge-sheet.

The contention raised in this case by the accused-appellant was 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. It was further contended 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. On the other hand, the state contended that the prior consent under Section 6 of the DSPE Act is not mandatory but directory. 

While considering these contentions, the Court noted that 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. The same is however with a rider, that 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, the bench noted. The court also noted that a Post-Facto consent was given by the State Government vide notification under Section 6 of the DSPE Act to the authorities to investigate the public servants-accused.

"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...

..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."

While upholding the High Court view, the bench observed 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. However, taking note of the fact that the High Court has not answered some of the issues framed by it, the bench remitted the case back to it for considering the said issues.

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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