D. Nedunchezhian vs The Government of Tamil Nadu

Somasundaram, J.—This Writ Appeal has been filed against the order dismissing the Writ Petition No. 15688/89 filed by the Appellant for

the issue of a Writ of Certiorari to quash G.O. Ms. No. 1216, Home (Transport II) Department, dated 30.5.1988, according sanction for

prosecution of the Appellant and others for offences u/s 120-B, I.P.C. read with Ss. 420, 419, 467, 471, 477A, 161 and 165A of the Indian

Penal Code and sub-S.(2) of Section 5 read with Cls.(a) and (b) of sub-S.(1) of Section 5(b) of the Prevention of Corruption Act, 1947 and for

any other offences punishable under other provisions of law and for taking cognizance of the said offences by a court of competent jurisdiction.

In 1985, certain Nationalised Banks in the city lodged complaints with the Central Bureau of Investigation (hereinafter called CBI) alleging that

certain of the constituents who had availed of the Hire Purchase Loans to purchase secondhand lorries, had not repaid the loans and they are also

not traceable. The C.B.I. made some of the Motor Vehicles Inspectors of this State including the Appellant as accused in the case alleging that

they had allowed registration of the concerned vehicles in the State on pecuniary considerations. After investigation, the CBI laid the charge sheet

C.C. 1/87 before the X Metropolitan Magistrate, Madras on 2.9.1987, against the Appellant and others. In April 1988, the CBI made a request

to the State Government to accord sanction to prosecute the Appellant and other State Government Officials u/s 197(1)(b) of Criminal Procedure

Code. The Respondent herein gave sanction as per the orders contained in G.O. Ms. No. 1216 Home (Transport-II) Department dated 30.5.88

permitting the CBI to prosecute the Appellant and others. In the said G.O. the Respondent has ordered that sanction was accorded to the CBI to

prosecute the Appellant for offences under the Prevention of Corruption Act and IPC. The relevant portion of G.O. Ms. No. 1216 referred to

above reads thus:

Now, therefore, in exercise of the powers conferred by Cl.(b) of sub-S.(1) of Section 197 of the Code of Criminal Procedure, 1973 (Central Act

2 of 1974) and Cl.(b) of sub-S.(1) of S. 6 of the Prevention of Corruption Act, 1947 (Central Act II of 1947) the Governor of Tamil Nadu

hereby accords sanction for the prosecution of the said Thiruvalargal M.S. Shanmuga Sundaram, P. Rajendran, Nedunchezhian, Robert Prithiviraj,

P.B. Vyas and R. Raghuraman, and Thiru Manickam for the said offences punishable u/s 120-B, I.P.C. read with Ss. 420, 419, 467, 471, 477-A,

161 and 165 A of the Indian Penal Code (Central Act XLV of 1860) and Sub-section (2) of S. 5 read with Cl.(a) and (b) of Sub-section (1) of

S. 5(b) of the Prevention of Corruption Act, 1947 (Central Act II of 1947) and for any other offences punishable under other provisions of law in

respect of the acts aforesaid and for taking cognizance of the said offences by a Court of competent jurisdiction.

To quash the said G.O. the Appellant filed W.P. No. 15688 of 1989.

Before the learned Single Judge who heard the Writ Petition, it was urged on behalf of the Appellant that the CBI which has been constituted

under the provisions of the Delhi Special Police Establishment Act 1946 (herein after called the Act) has no jurisdiction to investigate or take any

proceedings with reference to the offences alleged to have been committed by a State Government servant like the Appellant. It was further

contended before the learned Single Judge that u/s 6 of the Act, the consent of the Government of the concerned State is required for enabling the

CBI to exercise powers and jurisdiction in any area within the said State that in the present case, the State of Tamil Nadu has not given its consent

u/s 6 of the Act with reference to all the offences or all cases, but the consent is limited to cases which are expressly mentioned in Cls.(i) and (ii) of

Letter No. S.C-/3036-1/81 dated 20.11.1981 issued by the Commissioner and Secretary to Government Home (S.C.) Department, Government

of Tamil Nadu. Again, it was urged before the learned Single Judge that as per Cls.(i) and (ii) of the last para of the letter No. SC/3036-1/81

dated 20.11.1981 issued by the Respondent, the C.B.I. has no jurisdiction to investigate the case against the Appellant and the other State

Government servants, pursuant to the complaints lodged by the Nationalised Banks before the C.B.I. The learned Single Judge did not accept the

contentions urged on behalf of the Appellant and dismissed the writ petition. This writ appeal is directed against the order of the learned Single

Judge dismissing the writ petition.

Before us, Mr. Govind Swaminathan, the learned Senior counsel appearing for the Appellant reiterated the contentions urged before the learned

Single Judge and submitted that the CBI has power to investigate in the State of Tamil Nadu only against the Central Government Servants or

officers belonging to public sector undertakings and into such offences that are duly notified by the Government of India and that the CBI has no

power to investigate into any case relating to the state Government Servants like the Appellant or into offences concerning the enactments that are

not notified by the Government of India. Elaborating the above point, the learned senior counsel for the Appellant contended that u/s 6 of the Act,

the consent of the concerned State Government is necessary for enabling the CBI to investigate in cases in any area within the said State and that

the State of Tamil Nadu has not given its consent u/s 6 of the Act with reference to the offences for which the Appellant and other accused are

charged to enable the CBI to investigate the case against the Appellant and others. The learned Counsel further submitted that Clauses (i) and (ii)

of the last para of the Letter No. SC/3036-1/81 dated 20.11.81 will not cover the offences mentioned in the impugned order and consequently the

investigation done by the CBI in the case against the Appellant and others for the offences mentioned in the impugned order is without jurisdiction

and therefore, the impugned order is illegal and it is liable to be quashed. In support of his contention the learned Counsel for the Appellant relied

on the following decisions:

Budree In re (1972) Law Weekly (Crl.) 11,

A.C. Sharma Vs. Delhi Administration,

3 State of West Bengal and Others Vs. Sampat Lal and Others,

Management of the Advance Insurance Co. Ltd. Vs. Gurudasmal, Supdt. of Police and Others, .

We are unable to accept the above contention of the learned Counsel for the Appellant.

The Act regulates the power of the Special Police Force constituted by the Government of India to investigate cases throughout the country.

Section 2 of the Act empowers the Central Government to constitute the Special Police Force notwithstanding anything contained in the Police

Act, 1861, for investigation of offences notified by it u/s 3 Invoking the above powers, the Government of India had constituted the CBI, as per

resolution No. 4/31/61/T dated 1.4.63. Section 3 of the Act empowers the Central Government by Notification in the Official Gazette to specify

the nature of offence or class of offences that can be investigated by the CBI constituted by it. Invoking the power u/s 3 of the Act, the Central

Government had issued several Notification specifying the nature of offences that can be investigated by the CBI. Section 6 of the Act deals with

the consent of the State Government to exercise of the powers and jurisdiction by the CBI under the Act. The said Section 6 reads thus:

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 Part-A State or Part-B State, not being a Railway area without the consent of the Government of that State.

As per Section 6 of the Act without the consent of the State Government, the CBI has no power to investigate in the concerned State.

In the present case, the Government of Tamil Nadu by letter No. 188 dated 23.1.57 have given their consent to the functioning of Special

Police Establishment in the State of Tamil Nadu in the following terms:

Sir,

Sub: Police-Consent of State Governments to the functioning of the Special Police Establishment in the States.

Ref: Shri K.B. Mandlekar''s letter No. 6/46/56-AVD dated 6.11.56.

I am to say that the Madras Government agree to the members of the Delhi Special Police Establishment exercising powers and jurisdiction within

the Madras State with regard to the offences mentioned in the Notification forwarded with the letter cited.

Yours faithfully

x x x

Again, the Central Government in 1980, requested the Government of Tamil Nadu to accord its consent u/s 6 of the Act for the CBI to carry on

its investigation in the State of Tamil Nadu concerning the offences duly notified by the Central Government. The Government of Tamil Nadu by

Letter No. Section 3036-1/81 dated 20.11.81 have given their consent u/s 6 of the Act and the said letter dated 20.11.81 reads thus:

Sir,

Sub: Police-Criminal Cases-Investigation by Central Bureau of Investigation-Consent of Government of Tamil Nadu u/s 6 of the Delhi Special

Police Establishment Act.

Ref: 1. No. 6/45/56 AVD of Ministry of Home Affairs Government of India, dated 6th November, 1956 with notification No. 7/5/55- AVD,

dated 6th November, 1956.

2.D.O. Lr. No. 321/5/72-AVD (III), dated 5th June 1972 from Thiru Ram Niwas Mirda, Minister Department of Personnel, Cabinet Secretariat

Government of India, addressed to Chief Minister of Tamil Nadu.

Lr. Ref. No. 59937/Pol. IV/76.2 dated 18th May, 1976. In the letter 3rd cited, the Government of Tamil Nadu have agreed to the members of

the Delhi Special Police Establishment exercising power and jurisdiction within the State of Tamil Nadu, as originally intimated in this Government

Letter Ms. No. 188, Home, dated 23rd January, 1957, and other subsequent Letters issued from time to time on the subject.

The Government have examined the question whether the consent given in May, 1976 would require modification. In the D.O. letter, dated 5th

June, 1972, 2nd cited, it has been stated by the Government of India that the Special Police Establishment takes up suo motu only those cases

which involve either Central Government servants or officers belonging to public sector undertaking under the Central Government or which

involve Financial or other interest of the Central Government of Public sector undertakings under the Central Government or offences under certain

Central Acts with the enforcement of which the Central Government is concerned. It has been stated by the Government of India that cases not

falling under the above categories, that is, those mainly involving State Government employees or private persons can be taken up by the Special

Police Establishments with the concurrence or at request of the State Government concerned.

In the light of the position stated in paragraph 2, above, I am directed to state that in supersession of the consent given in the letter No.

59937/pol.VI/76-2, Home, dated 18th May, 1976 and other letters issued from time to time on the subject, the Government of Tamil Nadu

hereby given their consent u/s 6 of the Delhi Special Police Establishment Act, 1946 only in respect of-

(i) cases involving either Central Government servants or officers belonging to public sector undertakings under the Central Government, and

(ii) cases involving financial or other interest of the Central Government or public sector undertaking under the Central Government in relation to

offences mentioned in the list of offences enclosed with the D.O. Letter second cited.

Thereafter, on 1.3.88, the Respondent by letter No. SC/698-3/88 again, gave their consent u/s 6 of the Act in the following terms.

Sir,

Sub: Police Criminal Cases-Investigation by the CBI - Consent of Government of Tamil Nadu u/s 6 of the Delhi Special Police Establishment Act

- Communicated.

Ref: This Government''s Letter No. SC/3036-1/81 Home (SC) Department, dated 20.11.1981.

I am directed to inform you that the State Government on reconsideration and in supersession of the decision given in their letter cited, hereby

agree to the members of the Delhi Special Police Establishment exercising powers and jurisdiction within the State of Tamil Nadu, as originally

intimated in this Government''s letter Ms. No. 188, Home dated 23.1.1957 and other subsequent letters issued from time to time on the subject.

Yours faithfully,

x x x

It is seen from the impugned order of sanction that the Appellant and the other accused are charged for offences u/s 120-B IPC read with Ss. 420,

419, 467, 471, 477-A, 161, 165-A of IPC and Sub-section (2) of Section 5 read with Cl.(a) and (b) of sub-S.(1) of Section 5(b) of the

Prevention of Corruption Act, 1947. The offences under the various Ss. referred to above are included in the notification dated 6.11.56 issued by

the Government of India in exercise of power u/s 3 of the Act. The materials on record go to show that the complaints which led to the

investigation by the CBI against the Appellants and others were given in 1985 and the impugned order of sanction was passed on 30.5.1988.

Therefore, the question we have to examine is whether the Government of Tamil Nadu have by the letters dated 20.11.81 and 1.3.88 given their

consent u/s 6 of the Act to enable the CBI to investigate the case against the Appellant and others in respect of the offences for which they are

charged. By Cl. (ii) of the last para of the letter dated 20.11.81, the Government of Tamil Nadu have given their consent u/s 6 of the Act in respect

of cases involving financial or other interest of the Central Government, or Public Sector Undertakings under the Central Government in relation to

offences mentioned in the list of offences enclosed. The said Cl. (ii) will apply to all cases involving financial or other interest of Public Sector

undertakings under the Central Government in relation to offences in the list of offences enclosed with the letter dated 5.6.72. which is similar to the

list of offences enumerated in the Notification dated 6.11.56. The impugned order shows that the offences in this case relate to defrauding several

nationalised banks and nationalised banks are admittedly Public Sector Undertakings under the Central Government. Therefore, Cl. (ii) of the last

para of the letter dated 20.11.1981 will certainly cover the offences, mentioned in the impugned order, for which the Appellant and others are

charged. In other words, Cl.(ii) of the last para of the letter dated 20.11.81 will cover all cases involving financial or other interests of public sector

undertaking under the Central Government in relation to offences mentioned in the Notification dated 6.11.56 issued by the Central Government in

exercise of the Power u/s 3 of the Act, irrespective of the fact whether the accused in the case is a State Government servant or a Central

Government servant or even a private person. Therefore, we are inclined to hold that Cl.(ii) referred to above will cover all persons including State

Government servants provided they are involved in cases involving financial or other interest of the Public Sector Undertaking under the Central

Government like the nationalised banks. As already pointed out, the Appellant and others are charged for offences which involved financial or

other interest of nationalised banks. Again, the said offences for which the Appellant and others are charged offences under Prevention of

Corruption Act and Indian Penal Code which are included in the notification issued by the Government of India in exercise of the power u/s 3 of

the Act. In these circumstances, we are unable to appreciate and accept the contention of the learned Counsel for the Appellant that the consent

given by the Government of Tamil Nadu by the letters dated 20.11.81 and 1.3.88 will not coyer the State Government servants and that they will

not also cover the offences falling under the Hire Purchase Act and the Motor Vehicles Act. The decisions referred to above and which were

relied on by the learned Counsel for the Appellant are not helpful to the Appellant because the principles laid down in those decisions will have no

bearing to the facts of the present case. For all these reasons stated above, we have no hesitation in rejecting the contention of the learned Counsel

for the Appellant that the order challenged in the writ petition according sanction u/s 197(1)(b) of Criminal Procedure Code, to prosecute the

Appellant, a State Government Servant, by the CBI is invalid, because the statutory consent given by the State Government u/s 6 of the Act

imposes a bar on the CBI to investigate the case relating to the State Government Servants. As we are agreeing with the conclusion of the learned

Single Judge, it is not necessary to examine the correctness of the other reason given by the learned single Judge in paras 7 and 8 of his order for

arriving at the same conclusion.

There is yet another obstacle in the way of the Appellant getting any relief in the proceedings under Article 226 of the Constitution. Admittedly,

the Appellant and other accused who are all State Government Servants filed Criminal Miscellaneous, Petitions Nos. 11601, 6918, 7484 and

6522 of 1982 etc. batch before this Court u/s 482, Code of Criminal Procedure to quash the charge sheet filed by the CBI against the Appellant

and others for offences under the Prevention of Corruption Act and Indian Penal Code, and also the entire proceedings in C.C. No. 13/88 before

the Special Judge (Court of Sessions, Madras). In the said Crl.M. Ps. the jurisdiction of the CBI to investigate in the State of Tamil Nadu with

regard to the offences concerned the statutes not notified by the Central Government under the Act has been urged. Further, in the said Crl.M. Ps.,

the Appellant and the other accused also sought to quash the charge sheet and the entire Criminal Proceedings in C.C. No. 13/88 on the file of the

Special Judge (Court of Sessions, Madras) on the ground that there is no valid sanction u/s 197, Cr.P.C, or u/s 6 of the Prevention of Corruption

Act, 1947. The learned Single Judge who heard the Crl.M. Ps. took the view that the CBI had jurisdiction to investigate the offences for which the

Appellant and others are charged in the present case. The learned single Judge further held that there is a valid sanction for prosecution of the

Appellant and the other State Government servants who are accused in that case u/s 197, Cr.P.C, and u/s 6 of the Prevention of Corruption Act.

Consequently, the learned Single Judge repelling the contentions raised on behalf of the Appellant and others, on 14.8.1989 dismissed the Crl.M.

Ps. referred to above, filed u/s 482, Code of Criminal Procedure Aggrieved by the order of the learned Single Judge dated 14.8.1989 dismissing

the Crl.M. Ps. some of the accused namely the Petitioners in Crl.M.P. Nos. 6918, 7484 and 6522 of 82 filed SLP Nos. 2435, 2436, 2373, 2374

and 2482 of 1989 before the Supreme Court. The Supreme Court by the order dated 27.2.1990, dismissed the S.L. Ps. In these circumstances,

the Appellant having raised the very same objections before the learned single Judge of this Court in Crl.M.P. No. 11601/82 filed u/s 482 Code of

Criminal Procedure that C.B.I. has no jurisdiction to investigate the case against the Appellant and other accused for the offences for which they

are charged and that there is no valid sanction for the prosecution of the Appellant and others either u/s 197, Cr.P.C, or u/s 6 of the Prevention of

Corruption Act and failed before the learned Single Judge who disposed of the Crl.M.P. No. 11601/82, it is not open to the Appellant to raise the

very same objection once over again in the Writ proceedings under Art, 226 of the Constitution, particularly when the S.L. Ps. filed by the other

accused in the Criminal case against the order of the learned Single Judge dismissing the Crl.M. Ps. 6918, 7484 and 6522 of 82 were dismissed

by the Supreme Court.

For all the reasons stated above, we see no infirmity in the order of sanction accorded by the Respondent in G.O. Ms. No. 1216, Home

(Transport II) Department dated 30.5.1983 challenged in the Writ petition and the learned Single Judge rightly dismissed the writ petition. There is

no merit in this Writ Appeal and it is liable to be dismissed. Accordingly, the writ Appeal is dismissed. No costs.