SC on DSPE act provision requiring state’s consent for CBI investigation

OVERVIEW

• The Central Bureau of Investigation (CBI) cannot exercise its powers and jurisdiction over a State unless the concerned State gives consent for the same, the Supreme Court ruled on Tuesday.
• The Supreme Court has observed that the provision in Delhi Special Police Establishment Act, which requires the consent of State Government for CBI toexercise of powers and jurisdiction, are in tune with the federal character of the Constitution.
• However, failure to give such consent will not vitiate the probe if post-facto consent is obtained provided no prejudice has been caused to the accused due to lack of such prior consent, the court made it clear.
• The case in reference is M/s Fertico Marketing and Investment Pvt. Ltd. And Ors. Etc. v. Central Bureau of Investigation and Another Etc.

BACKGROUND

• A Bench of Justices AM Khanwilkar and BR Gavai reiterated the settled law in this regard holding that Section 6 of the Delhi Special Police Establishment Act (DSPE Act) mandates consent of State for CBI to exercise its powers over the State and the same is in consonance with the federal character of the Constitution.
• “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 judgment said.
• However, the court also noted that in the present case, there were no pleadings by the accused with regard to the prejudice caused to them on account of non-obtaining of prior consent under Section 6 of the DSPE Act. The court hence declined to interfere with the CBI probe.

HISTORY OF THE CASE

• It was hearing an appeal against a judgment of the Allahabad High Court in a case of corruption arising from a Fuel Supply Agreement (FSA) entered into between Coal India Limited and appellant, Fertico Marketing and Investment Private Limited.
• The CBI had, in March 2011, conducted a surprise raid at the premises of Fertico and found that the coal purchased under the FSA was sold in the black market. It was further found that this was done in connivance with the unknown government officials which led to loss of Rs.36.28 crore to the Central government.
• Cases were registered against Fertico Director and unknown officials of the District Industries Centre (DIC).
• During the course of investigation, it was found that two officers namely Ram Ji Singh, the then General Manager of DIC, Chandauli and Yogendra Nath Pandey, Assistant Manager of DIC, Chandauli were also part of the conspiracy. Investigation revealed that these two officials had abused their official positions and fraudulently and dishonestly sent false status reports regarding working conditions of the accused companies and thereby, dishonestly induced the Northern Coalfields Limited to supply coal on subsidized rates, for obtaining pecuniary advantage.

FURTHER DETAILS OF THE CASE (SLIDE 5, HEADING ON TOP)

• The UP government had, in 1989, granted general sanction to the CBI to investigate cases under Prevention of Corruption Act against private individuals.
• However, in case of public servants under the State government’s control, such probe needed case-to-case sanction from the State government.
• In this case, the State government granted sanction to the CBI to prosecute the two government officials, Ram Ji Singh and Yogendra Nath Pandey under Section 19 of the Prevention of Corruption Act by an order May 31, 2012.
• Subsequently, post-facto consent was given by the State Government vide notification of September 7, 2018, under Section 6 of the DSPE Act to the CBI to investigate the two public servants.
• Since there were no specific averments by the two public servants about any prejudice caused to them due to omission to get prior sanction, the apex court said that it will not interfere with the investigation.

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