In the present case of Kanwal Tanuj v. State Of Bihar & Ors, the Appellant is an accused along with one Shri C. Sivakumar, CEO, Bhartiya Rail Bijli Co. Ltd., (“BRBCL”) based on FIR registered by the CBI under Secs. 120B, 420, 467, 468 and 471 of IPC read with Sec. 13(1)(d) of the Prevention of Corruption Act, 1988 (“PCA”). The Appellant is an officer of the Indian Administrative Services employed with the affairs of the Government of Bihar and Shri C. Sivakumar, CEO of BRBCL is accused of large-scale corruption and siphoning of government funds in criminal connivance with the Local District Administration. The information upon which the FIR was registered discloses commission of offences punishable under aforementioned provisions of law.
Furthermore, to understand the Court’s decision it is important to note that the offence was committed within the jurisdiction of the Delhi High Court. The registered office of BRBCL was in the Union Territory of Delhi (National Capital Territory of Delhi) and the allegation regarding defrauding the said undertaking (BRBCL) and siphoning of funds had occurred in the Union Territory of Delhi (National Capital Territory of Delhi). Through a general consent vide Notification dated 19.02.1996 (“Notification”), the Government of Bihar had granted all members of Delhi Special Police Establishment (“DSPE”) consent to exercise powers and jurisdiction under the 1946 Act in the whole of the State of Bihar in respect of the stated offences.
The Appellant had filed a writ petition for quashing the FIR on the ground that it does not disclose any criminal offence and a declaration that the said FIR was lodged against a State Government employee without prior permission of the State.
Arguments:
The Appellant argued that the FIR was filed against him without the prior permission of the Government of Bihar because the proviso to the Notification required the DSPE to require the prior consent of the State Government where the public servant involved is employed in connection with the affairs of the Government of Bihar. Furthermore, the Appellant submitted that the High Court interpreted the Notification erroneously and that the view would result in impacting the federal structure of the country.
The use of the term “may” in Secs. 3 & 5 of the DSPE Act in contradiction to the expression “shall” appearing in Sec. 6 requires that the prior consent of the State Government is sine qua non to empower the officials of DSPE. It was urged that since the act complained of in the FIR was done under the official capacity, the protection of Sec. 79 of IPC was to extend to the Appellant.
The State of Bihar, on the contrary, argued that the expression “may” appear in Secs. 3 & 5 is merely an enabling provision, allowing the Central Government to extend the jurisdiction of DSPE. Moreover, Secs. 2,3,5 & 6 must be read interpreted harmoniously and a combining reading suggests that the DSPE has jurisdiction to investigate offences under Sec. 3. It further submitted that the Consent under the Notification was partial and since policing is a State subject, the DSPE ought to have intimated the State about the acts of commission and omission of the officers of the State, so that the State could have examined the same and resorted to appropriate action as per law.
The CBI argued that the residence or occupation of the accused cannot interfere with the investigation in respect of conspiracy to defraud the Government of India. The harmonious and purposive construction of the provisions of the 1946 Act, in particular Sec. 5 thereof, would be to confine the consent of the State Government under Sec.6 in respect of investigation of crime exclusively committed within the jurisdiction of that State.
Court’s View:
The Court expounded the decision of the Constitution Bench in Subramanian Swamy v. Director, CBI & Anr., (2014) 8 SCC 682, and observed that the notification is an executive instruction cannot be countenanced as it defeats the purpose of the finding the prima facie truth. Moreover, the Delhi High Court in Anand Agarwal v. Union of India & Ors, (2018) SCC OnLine Del. 117 had held that requirement of consent of the State is premised on the basis that the specified offence or offences committed and under investigation, have taken place in the State (outside the Union Territory).
The harmonious reading of the provisions, Secs. 3, 5 & 6 reveal that the Central Government via notification may specify certain offences to be investigated by the DSPE (Sec.3) and whereupon an order under Sec. 5 enables the Central Government to extend the power and jurisdiction of the DSPE. Lastly, Sec. 6 merely requires the consent of the State Government in any form.
Thus, in the instant case, the Court found that BRBCL was a Government undertaking funded by the Central Government with its registered office in the Union Territory of Delhi where the offence of defrauding the BRBCL and siphoning of its funds was allegedly committed. That is to say, the offence was committed outside the State of Bihar and to require the prior permission of the State to register an FIR for the offences committed by an employee of the State would be contrary to the objective intended to be achieved by the Act.
Moreover, the Notification grants the general consent and the proviso to the said Notification has a limited application, that is, only when the offence is committed within the territory of the State that the prior permission of the State Government is mandatory. The power bestowed on the special police force in terms of Secs. 2 & 3 of the 1946 Act cannot be undermined by an executive instruction in the form of the proviso. In this regard, the DSPE (CBI) would be disempowered if the proviso is allowed to take effect. As succinctly put by the SC,
“In other words, consent of the State under Sec. 6 cannot come in the way or constrict the jurisdiction of the special police force constituted under Sec. 2 to investigate specified offences under Sec. 3 of the 1946 Act committed within the Union Territories.”
Court’s Decision:
The Appeal was dismissed and it was held that prior consent as necessitated under the proviso of the Notification was required only when the offence was committed within the State of Bihar.
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