Ram Krishna Khiritkar vs Central Bureau Of Investigation Anti Corruption Bureau

Since both these petitions filed under Section 482 of CrPC arise out of FIR No. RC1242011A0016 registered under Section 120B read with Section 420 of the Indian Penal Code, they are clubbed and heard together and are being disposed of by this common order.

Heard Mr. Devershi Thakur, Advocate, learned counsel for the petitioner in CRMP No. 151 of 2017 and Mr. Abhishek Sinha, learned Senior Advocate assisted by assisted by Mr. Ashish Surana, Mr. Aditya Goel, Ms. Sameksha Gupta and Mr. Samrath Singh Marhas, learned counsel for petitioner in CRMP No. 913 of 2016 as well as Mr. B. Gopa Kumar, learned Standing Counsel, appearing for the respondent/CBI.

CRMP No. 151 of 2017 has been filed by the petitioner being aggrieved by the Final Report submitted by the CBI against the petitioner, who had already retired/left the Company in 2007 & final settlement was made to him on 30.10.2007, not being the beneficiary has been charge-sheeted in FIR No. RC1242011A0016 dated 30.11.2011 (Annexure P/1), arising out of Criminal Case No. 1013/2012 (Annexure-P/2), whereby the learned Judicial Magistrate First Class, Raipur (C.G.) has framed the charges on 18.11.2016 (Annexure-P/3).

CRMP No. 913 of 2016 has been filed by the petitioner being aggrieved by the order dated 10.08.2016 (Annexure-P/1) passed in Criminal Revision No. 202/2016 in case of Satish Goyal Vs. Central Bureau of Investigation, ACB, Chhattisgarh and the order dated 20.06.2016 (Annexure-P/2) passed by the learned trial Court along with the proceedings of the case culminating out of FIR No. RC1242011A0016 u/s 120B r/w Section 420 IPC titled as CBI vs. Ind Power Limited pending in the Court of Special Magistrate, CBI, Raipur, Chhattisgarh, by which the revision petition preferred by the petitioner under Section 397 of Cr.P.C. has been dismissed.

Brief facts of the cases are that, on 30.11.2011, a case was registered on the allegation in the FIR that Sh. Satish Goel, Chairman and Sh. R.K. Khiritkar, Authorised signatory of the petitioner Company conspired with officials of the South Eastern Coalfields Ltd, Bilaspur (SECL) and cheated SECL by getting excess linkage coal which is cheaper than the price of coal sold through E-auction/ spot auction for Captive Power Plant (CPP) of the Company showing its capacity as 20 MW although actual capacity of concerned Captive Power Plant (CPP) was only 10 MW. It is further alleged that the Company had lifted excess coal valuing Rs. 5,47,12,682/- approx during the period from 2007-2011 and the excess coal was ultimately diverted. During the investigation, the Investigating Officer seized various documents from the accused Company. Finally the charge-sheet was submitted before the concerned trial Court simultaneously calling upon the accused persons through notice by CBI to put in their appearance on 30.10.2012 before the Learned Trial Court. In pursuance to the said notice, the accused persons had put in their appearance before the Learned Trial Court. The CBI officials filed the charge-sheet and without taking cognizance of the offence, summoning the accused persons, the Learned Trial Court was pleased to call upon the accused persons to seek bail in the present matter. The accused persons filed their respective bail applications which were allowed by subjecting the accused persons to bail on furnishing personal bonds of Rs. 50,000/- with one surety of like amount.

The matter travelled to this Hon’ble Court by way of Cr.M.P No. 16 of 2014 against the summoning order passed by the learned Trial Court. This court remanded the matter back to the learned Trial Court vide order dated 09-01-2014 with the following directions:-

“the court below shall apply its mind and pass an order in terms of Section 190 (1) (b) read with Section 204 of the Code and after examination of charge sheet and material placed before it in case of taking cognizance and proceeding against the petitioners, the Court is not required to issue process or to pass any order in terms of Section 437 of Cr.P.C.

The order relating to bail shall continue till disposal of the case or unless it is cancelled.

The petitioners will not be entitled to participate in the proceedings in passing the order in terms of Section 190 (1) (b) read with Section 204 of the Code, but the parties shall remain in attendance before the Court below on 03rd February, 2014.”

Upon remanding back of the matter, the Petitioner filed an application seeking monitoring of investigation before the learned Trial Court by drawing its attention to various documents seized by the Investigating Officer against a seizure memo dated 05-12-2011 which were concealed from it and not placed on record. In the charge sheet this memo has been shown as dated 10-12-2011 though actual is dated 05-12-2011. Application under Section 340 of the Criminal Procedure Code and apart from other applications were also filed before the learned Trial Court.

The learned Trial Court proceeded to call upon the accused persons to face trial in the present case and all other applications filed by the petitioner were also dismissed by the learned Trial Court vide separate order. The petitioner preferred a revision petition against the order passed by the learned Trial Court, which was dismissed vide impugned order dated 10-08-2016. Hence, the present petition.

Mr. Abhishek Sinha, learned Senior Advocate, appearing for the petitioner in CRMP No. 913/2016 submitted that the petitioner (private person) has been prosecuted by the Central Bureau of Investigation constituted under the Delhi Police Special Establishment Act, 1946 (hereinafter referred to as DSPE Act, 1946) for an offence charge sheeted under Section 420, 120 B Indian Penal Code, simpliciter by charge sheet dated 30.10.2012 on which the learned Special Magistrate constitutes under Section 11 of the Cr.P.C. to try offences (other than Prevention of Corruption Act) has passed on order taking cognizance on 20.06.2016. Though initially an offence was registered against the officials of the PSU (South Eastern Coal Field Limited) under Section 13(2) read with Section 13(1)(d) of the PC Act. However, in the charge sheet they have been given a clean chit and only private persons have been prosecuted by the CBI for an offence under Section 420 read with Section 120 B of Indian Penal Code. The whole case of the prosecution is that an offence of conspiracy of cheating was committed. The conspiracy as alleged was hatched with public servants. However, on due investigation the investigation agency itself has found that there was no conspiracy and therefore they have discharged/dropped the main accused A1 and A2 of the FIR, who were public servants from being prosecuted.

Mr. Sinha further submitted that the admitted facts are that the First Information Report was registered on 30.11.2011 by CBI ACP Bhilai, Chhattisgarh bearing RC No. 1242011A0016 under Section 120 B read with Section 420, 13(1)(d) of the Prevention of Corruption Act against Shri Kari Sharma, Shri S. Radhakrishnan, Shri Satish Goel, Shri. R.K. Khiritkar. The allegation as revealed from the FIR in substance is that IND Power Limited applied for coal linkage to Ministry of Coal for its Captive Power Plant (hereinafter referred as CPP). Their plant was inspected by a team of SECL officials namely accused Mr. Kari Sharma and Mr. S. Radhakrishnan Deputy Chief Sales Manager and on their report the capacity of CPP was shown as 20 MW, however the actual capacity was 10 MW and accordingly excess coal was off subsidized rate was lifted thereby a wrongful gain was obtained and loss caused. The entire thing was alleged to have been done by Company in conspiracy with SECL officials. It is on this fact, the officials of the PSU were said to have committed an offence that CBI assumed jurisdiction to register the FIR and initiate investigation. Admittedly the charge sheet was filed by CBI before the Special Judge, CBI annexed as P/3 wherein only against three accused persons i.e. A-1 as IND Power Limited, A-2 as Mr. Satish Goel, A-3 as Mr. R.K. Khiritkar. Mr. S. Radhakrishnan, Mr. Khari Sharma, the officials of the SECL were not charge sheeted. The charge sheet was only in respect of offence under Section 420 read with Section 120 B and no offences under the Prevention of Corruption Act and the learned Special Judge CBI has failed to apply its mind and consider the elementary fact that the charge sheet does not contain any order under Section 6 of DSPE Act, 1946 empowering CBI or granting any consent to CBI to exercise power and jurisdiction in any area in the State of Chhattisgarh. Thus, in absence of there being any consent by State Government Section 6 to exercise power and confer jurisdiction on CBI in respect of any offence under Section 420 read with Section 120 B of the Indian Penal Code, the order of the Special Court to take cognizance on the final report is grossly illegal, without subject matter jurisdiction and authority of law as per the law laid down in the case of Balakrishna Reddy Vs. CBI reported in (2008) 4 SCC 409.

Mr. Sinha also submitted that the prosecution of the petitioner for an offence under section 420 read with 120 B of Indian Penal Code by the CBI and the proceedings before it to try CBI cases is without jurisdiction as there is no general or specific consent under Section 6, the State Government with respect to the present case enabling any member of the DSPE (CBI) to exercise power and jurisdiction in the area of Chhattisgarh for alleged offence. The State Government vide notification dated 19.07.2012 published Official Gazette has that the earlier letter dated 03.02.2001 not be constitute a consent under Section 6 and further direction has been issued to give consent for extending the of each case on case-to-case basis. Admittedly there is no specific consent in respect of the present case terms notified dated 19.07.2012 along with charge dated 30.10.2012. Hence, the entire prosecution of the petitioner stands without jurisdiction and stands vitiated.

Mr. Sinha contended that when the offence under the Prevention of Corruption Act is being dropped including release of liabilities of public servants implicated therein, it stands to reason that the jurisdiction of the CBI would ceased as on the date of filing of the charge sheet. That the mandatory consent (specific/general) from State Government as provided under Section 6 the Act, 1946 is must for invoking jurisdiction of CBI which is absent in the present case. That the same legal issue has been dealt in the case of T Pathaw Vs Inspector of Police CBI reported in 2023 SCC Online Megh 33, the relevant paragraph 25 is being reproduced for your Lordship's kind reference :

"25. However, under Section 6 the said DSPE Act, if the CBI to operate any the States, consent of such State Government for exercise of its powers and jurisdiction is required. By now, it is well settled that CBI can investigate into cases involving offences under the PC Act, however, when it comes to offences under the IPC which are generally taken up and investigated into by the State or local police, if a particular case involves provisions of offences under the PC Act as well as IPC then the CBI would be well within its right to investigate into such cases, but if, as in the present case, though initially the offences involves provisions under the PC Act along with those under the IPC, which was rightfully investigated into by the CBI, after the filing of the charge sheet wherein only the provisions under the IPC remains, while the offences under the provisions of the PC Act were dropped, including release of liabilities of public servants implicated therein, it stands to reason that the jurisdiction of the CBI would ceased as on the date of filing of the charge sheet. At this juncture, if the CBI is to continue prosecution, the specific consent of State is required. Admittedly, nothing is on record as to whether such consent was given or not or whether the same was requrested or not. In view thereof, as submitted by the learned counsel for the petitioner, that the charge sheet was forwarded by the CBI in the court of the Chief Judicial, the same goes with jurisdiction. On the ground alone the entire proceeding against the petitioner is vitiated."

Mr. Sinha further contended that the doctrine of parity also goes in favour of the present petitioner also because the initial FIR was targeted against the 2 SECL officers to be in conspiracy with petitioner in getting extra linkage of coal. Both PSU officers were discharged in chargesheet citing negligence in departmental enquiry. As it was held by Hon'ble supreme Court in K. Sitaram v. CFL Capital Financial Service Ltd in Criminal Appeal No. 2285 of 2011; {(2017) 5 Supreme court cases 725}; that... "Withdrawal of complaint by complainant with respect of two out of four accused persons on exactly the same set of facts in common complaint- issuance of process against remaining two accused held, could not be sustained in present case where all four accused were sought to be made liable for exactly the same act/omission". He further submitted that the Company IND Power Limited has already paid the amount of excess coal.

Mr. Devershi Thakur, learned counsel, appearing for the petitioner in CRMP No. 151 of 2017 adopted the submissions advanced by Mr. Sinha.

On the other hand, Mr. B. Gopa Kumar, learned Standing Counsel, appearing for the respondent/CBI submitted that so far as contention of the petitioner that general consent from the State Government under Section 6 of the Act, 1946 was not there, it is submitted that vide letter No.695/Home/2001 dated 03.02.2001, Govt. of Chhattisgarh has given consent under Section 6 of the Act 1946. In the light of the aforesaid letter, various cases were registered in the State of Chhattisgarh. Instant case was also registered by the CBI on 30.11.2011 which is well within the purview of aforesaid letter dated 03.02.2001. It is further contended that consent given earlier was not withdrawn by the Govt. of Chhattisgarh rather vide notification dated 19.7.2012, Govt. of Chhattisgarh had informed that consent under Section 6 of the Act 1946 shall continue to be given only on the merits of each case, i.e. on case to case basis. It is further contended that instant case was registered on 30.11.2011 i.e. prior to issuance of alleged clarificatory notification dated 19th July, 2012 hence, it cannot be said that CBI has registered and investigated instant case without any territorial jurisdiction.

So for as in relation to specific question putforth to learned counsel for the respondent/CBI as to why the accused SECL officials were discharged/dropped from the proceedings initiated against them after arriving at a conclusion they have cheated by criminal conspiracy of the petitioners herein and charges were framed only against the petitioners under Section 420 read with 120B IPC, he has no answer.

I have heard learned counsel for the parties and perused the impugned order and materials available on record.

First question before the Court for consideration is : whether there was general consent from the State Government under Section 6 of the Act, 1946 or not ?

Section 6 of the Act, 1946 is very important which requires consent of State Government for exercising powers and jurisdiction under the Act by Special Police Establishment to any area in a State not being Union Territory or Railway. The said Section, therefore, may be quoted in extenso;

“6. Consent of the State Government to exercise powers and jurisdiction:- Nothing contained in Sec. 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.”

Plain reading of the above provisions goes to show that for exercise of jurisdiction by the CBI in a State (other than Union Territory or Railway Area), consent of the State Government is necessary. In other words, before the provisions of the Delhi Act are invoked to exercise power and jurisdiction by Special Police Establishment in any State, the following conditions must be fulfilled;

(i) A notification must be issued by the Central Government specifying the offences to be investigated by Delhi Special Police Establishment (Section 3);

(ii) An order must be passed by the Central Government extending the powers and jurisdiction of Delhi Special Police Establishment to any State in respect of the offences specified under Section 3 (Section 5); and

(iii) Consent of the State Government must be obtained for the exercise of powers by Delhi Special Police Establishment in the State (Section 6).

In view of the above, only on the basis of clarificatory notification issued by the Govt. of Chhattisgarh dated 19.07.2012, it cannot be said that there was no consent given by the State government under Section 6 of the Act, 1946 or consent was withdrawn.

The conclusion portion of the Final Report (Annexure P/3) reads as follows :

“It is established during investigation that Shri Kari Sharma and Shri S. Radhakrishnan of SECL had inspected the CPP of Ind Power Ltd., Raigarh. Shri S. Radhakrishnan is a non-technical man whereas Shri Kari Sharma is a technical. They had verified only on two points that the Captive Power Plant was commissioned and the end use plant (Sponge Iron Plant of the company) was in existence. They found Captive Power Plant and end use plant in working condition and as such they signed the inspection report. They had not determined the capacity of CPP. The inspection report dated 03.12.2006 duly filled in was supplied by Shri R.K. Khiritkar and it was duly signed by Shri Ram Krishna Khiritkar, Authorised Signatory. Thus, the accused SECL officers had negligently facilitated the company in getting linkage coal for 20 MW. No criminality on the part of accused SECL officers has been established during investigation, but negligence of these officials in their duties is certainly evident due to which Ind Power Ltd., Raigarh could be able to get the excess coal in the form of linkage. In fact, the accused SECL officials were cheated by criminal conspiracy of Shri Satish Goel and Shri Ram Krishna Khiritkar and were made to believe that the CPP was of 20MW capacity. For the negligence shown by SECL officers, they are being separately dealt with departmentally under relevant conduct rules applicable to them.

From the facts mentioned in the previous paragraphs, it is clear that the company i.e. Ind Power Ltd., Raigarh (Through its Director Satish Goel), Shri Satish Goel, Director of the company and Shri Ram Krishna Khiritkar, Authorised Signatory of the company have criminally conspired and cheated and thus committed offences punishable u/s 120-B r/w 420 IPC.”

While dealing with the case of criminal conspiracy in Topandas Vs. State of Bombay, reported in AIR 1956 SC 33, the Hon’ble Supreme Court has held as under :

“6. Criminal conspiracy has been defined in section 120-A of the Indian Penal Code:-"When two or more persons agree to do or cause to be done (i) an illegal act, or (ii) an act which is, not illegal by illegal means, such an agreement is designated a criminal conspiracy". By the terms of the definition itself there ought to be two or more persons who must be parties to such an agreement and it is trite to say that one person alone can never be held guilty of criminal conspiracy for the simple reason that one cannot conspire with oneself. If, therefore, 4 named individuals were charged with having committed the offence under section 120- B of the Indian Penal Code, and if three out of these 4 were acquitted of the charge, the remaining accused, who was the accused No.1 in the case before us, could never be held guilty of the offence of criminal conspiracy.”

In the instant case, initially an offence was registered against the officials of the PSU (South Eastern Coal Field Limited) under Section 13(2) read with Section 13(1)(d) of the PC Act. The whole case of the prosecution is that an offence of conspiracy of cheating was committed by the accused SECL officials by criminal conspiracy of the petitioners herein, however, in the charge sheet, proceedings initiated against the accused SECL officials were dropped and only private persons have been prosecuted by the CBI for an offence punishable under Section 420 read with Section 120B of Indian Penal Code. The learned counsel for the CBI also could not answer the query of the Court as to how the petitioners can be prosecuted for commission of offence of cheating in conspiracy when the two co-accused, who were officials of SECL, with whom they conspired to commit the offence of cheating, have been exonerated by the CBI and no charges were framed against them.

Considering the aforesaid facts and circumstances of the case and in the light of judgment rendered by the Hon’ble Supreme Court in the cases of K. Sitaram (supra) and Topandas (supra), the charge framed against the petitioners under Section 420 read with Section 120-B of the IPC by the trial Court was wholly illegal and cannot be justified and on this count alone, the petitions are being liable to be allowed.

Accordingly, both the petitions filed under Section 482 Cr.P.C. are allowed. The impugned order dated 10.08.2016 passed in Criminal Revision No. 202/2016, arising out of order dated 20.06.2016 passed in Criminal Case No.1013/2012 by the learned trial Court along with the proceedings of the case culminating out of FIR No. RC1242011A0016 u/s 120B r/w Section 420 IPC and the order dated 18.11.2016 passed by the learned trial Court in Criminal Case No. 1013/2012, whereby charges has been framed against the petitioners and all consequential proceedings pending against them, if any, are hereby quashed and set aside.