Lack of State Govt.’s Prior Consent will not Vitiate CBI Probe Except Prejudice has been Caused to Accused: SC

Lack of State Govt.’s prior consent will not vitiate CBI probe except prejudice has been caused to accused: SC

The power and jurisdiction of CBI can’t exercise on State except the concerned State gives consent for the same, ruled the Apex Court.

 However, lack of State Govt.’s prior consent will not vitiate CBI probe under Sec 6 of the DELHI SPECIAL POLICE ESTABLISHMENT ACT, 1946 (DSPE Act) except prejudice has been caused to accused, it added.

Sec 6 of the DSPE Act states about Consent of State Government to exercise of powers and jurisdiction

It states that nothing contained in section 5 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a State, not being a Union territory or railway area, without the consent of the Government of that State.

Brief facts of the Case

  • A charge sheet was filed against a company and some public officials by the Central Bureau of Investigation under Prevention of Corruption Act, 1988.
  • The State government of Uttar Pradesh has accorded a general consent to the powers and jurisdiction of the Members of Delhi Special Police Establishment in the whole of the State of Uttar Pradesh for investigation of offences under the Prevention of Corruption Act, with the 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 the prior permission of the State Government.
  •  It was the stand of the State Government, that restriction of prior permission of the State Government was limited only in relation to public servants under the control of the State Government and not to any private individual. It was further the stand of the Government, that the notification permits the competent authority under DSPE Act for investigation of offences as mentioned in the notification in the State of Uttar Pradesh.
  •  However, if any public servant, under the control of the State Government was named in the First Information Report, prior permission of the State Government would be required for investigation.
  • Before the High Court, the contention of the accused-public servants’ 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. The High court dismissed their petitions.

Contention before SC

  • They approached the Supreme Court and contended before the Court 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 the 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.
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Observation made by the SC

  • Referring to the verdict in H.N. Rishbud and Inder Singh v. The State of Delhi,  the Court observed that, “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 the 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,” it added.
  • 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.
  • “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 ruled.
  • Thus, the Court refused to interfere with the finding of the High Court with regard to not obtaining the 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 Name:  FERTICO MARKETING AND INVESTMENT PVT. LTD. vs. CENTRAL BUREAU OF INVESTIGATION

Citation: CRIMINAL APPEAL NOS. 760- 764 OF 2020

Coram: Justices AM Khanwilkar and BR Gavai

Lack of State Govt.’s prior consent will not vitiate CBI probe except prejudice has been caused to accused: SC

Also Read: A Document Is Presumed To Be Genuine If The Same Is Registered: SC

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