Investigation against public officials can be carried even without state approval: Supreme Court

A public servant or official can be investigated against even without prior approval from the state government, unless the official can prove the investigation is being carried out with prejudice. The consent mentioned under section 6 of the Delhi Special Police Establishment Act, 1946 is merely directory and not mandatory. This remarkable judgement was passed by the bench consisting of Justice A M Khanwilkar and  Justice B R Gavai of the Supreme Court in the matter of M/S Fertico Marketing And Investment Pvt. Ltd. And Ors. Etc. V Central Bureau Of Investigation And Another Etc., [CRIMINAL APPEAL NOS. 760- 764 of 2020].

It was alleged that a few private individuals as well as public officials were involved in the selling of coal in the black market that lead to a loss to the tune of Rs.36.28 crore to the Central Government. The private individuals were named in the FIR by the CBI whereas, a chargesheet was filed against the public officials for misusing their authority and passing false status reports. The Single Judge hearing this case was faced with the question of whether the investigation carried out by the CBI was beyond its jurisdiction in light of Section 6 of the Delhi Special Police Establishment Act, 1946 (hereinafter referred to as “DSPE Act”).

The court opined that the investigation suffered from lacking inherent jurisdiction and held, “since in the present case, investigation conducted by the CBI was without the previous permission/consent of the Government of UP as such, was in breach of the mandatory provisions of Section 6 of the DSPE Act”. Further, it also laid down the principle that if any public servant, under the control of the State Government was named in the FIR, consent of the State Government would be required for investigation. But, if the official is not named in the FIR and is required to be contacted for further investigation in the matter, permission from the state government is not required.

The appeal before the Supreme Court arose as the High court held “that the question of consent can be raised only by the public servants who have been named in the FIR and not by the private individuals, who had come before the Court”. Thus, dismissing the appeals.

The counsel for appellant argued on two grounds. Firstly, that provisions of the PC Act can be levied only against public servants. Secondly, meeting of minds is a pre requisite for section 120 of the IPC. Thus, when read together, “the offence cannot stand unless there is a meeting of minds between public servant and the private individuals and as such, an FIR could not be registered. As such, for registration of FIR against the private individuals for the offences punishable under the Prevention of Corruption Act and other offences under the IPC, committed in the course of the same transaction or arising out of the same facts, the Members of DSPE have all the powers and jurisdiction. As such, we find absolutely no merits in the appeals filed by the private individuals”.

 The Supreme Court relied on the judgement passed in the case of H.N. Rishbud and Inder Singh v. The State of Delhi, ([1955] 1 SCR 1150) and State of Karnataka v. Kuppuswamy Gownder and Others, [(1987) 2 SCC 74] while it observed that, “In the present case, 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”.

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