REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 760- 764 OF 2020

[Arising out of SLP(Crl.) Nos. 8342-46 of 2019]

M/S FERTICO MARKETING AND

INVESTMENT PVT. LTD. AND ORS. ETC. …Appellant(s)

VERSUS

CENTRAL BUREAU OF INVESTIGATION

AND ANOTHER ETC. …Respondent(s)

WITH

CRIMINAL APPEAL NOS. 765-767 OF 2020

[Arising out of SLP(Crl.) Nos. 8314-16 of 2019]

CRIMINAL APPEAL NOS. 768-769 OF 2020

[Arising out of SLP(Crl.) Nos. 8420-21 of 2019]

CRIMINAL APPEAL NOS. 770-774 OF 2020

[Arising out of SLP(Crl.) Nos. 1792-96 of 2020]

CRIMINAL APPEAL NOS. 775-777 OF 2020

[Arising out of SLP(Crl.) Nos. 1789-91 of 2020]

CRIMINAL APPEAL NOS. 778-785 OF 2020

[Arising out of SLP(Crl.) Nos. 1821-28 of 2020]

J U D G M E N T

B. R. GAVAI, J.

Leave granted.

2.All these appeals challenge the common judgment and order

passed by the learned Single Judge of the Allahabad High Court

1

dated 14

th

August 2019. The facts in brief giving rise to the present

appeals are as under:-

On 18

th

October 2007, Coal India Limited had introduced a

new policy, whereunder the Fuel Supply Agreement (hereinafter

referred to as ‘FSA’) was required to be entered into by coal

companies and purchasers of coal. In pursuance of the said policy,

on 30

th

April 2008, an FSA was entered into between the appellants

in appeals arising out of SLP(Crl.) Nos. 8342-46 of 2019 and the

Coal India Limited. On 25

th

March 2011, a joint surprise raid was

conducted by the CBI in factory premises of Fertico Marketing and

Investment Private Limited and it was found that the coal purchased

under the FSA was sold in the black market. It was further found by

CBI that this was done in connivance with the unknown government

officials which led to loss of Rs.36.28 crore to the Central

Government. Accordingly, on 13

th

April 2011, an FIR came to be

registered by CBI for the offences punishable under Sections 120B

and 420 of the IPC and Section 13 (2) read with Section 13(1)(d) of

the Prevention of Corruption Act, 1988 (hereinafter referred to as

‘the PC Act’) against Mr. Anil Kumar Agarwal, Director of said M/s

Fertico Marketing and Investment Pvt. Ltd. and unknown officials of

the District Industries Centre (hereinafter referred to as ‘DIC’),

2

District Chandauli, so also unknown officials of Northern Coalfields

Limited, Singrauli, Madhya Pradesh.

3.During the course of investigation, it was found that two

officers namely Ram Ji Singh, the then General Manager, DIC,

Chandauli and Yogendra Nath Pandey, Assistant Manager, 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.

4.The competent authority granted sanction to prosecute the

two public servants on 31

st

May 2012, under Section 19 of the PC

Act. Charge-sheet was filed on 31

st

May 2012, against the

appellants under Section 120B read with Section 420, Sections 467,

468 and 471 of the IPC. Various petitioners approached the High

Court by filing petitions under Section 482 Cr.P.C. praying for

quashing the charge-sheet/summoning order and consequential

proceedings pending before the Special Judge, Anti-Corruption,

CBI. The learned Single Judge of the High Court vide his order

3

dated 24

th

February 2015, framed the following four questions for

determination:-

Q.No.1:- Whether the investigation conducted by the CBI

in these bunch of cases are illegal and without jurisdiction

for non-compliance of section 6 of DSPE Act? If so, its

effect?

Q.No.2- Whether the cases are overwhelmingly and

predominantingly of civil nature as purely bases on

breach of contract (FSA) and the criminal prosecutions

are liable to be quashed?

Q.No.3- Whether CBI did not follow doctrine of parity in

filing the criminal prosecutions against the petitioners? If

so, its effect?

Q.No.4- Whether in absence of Officers /official of NCL,

charge of Criminal conspiracy under section 120-B IPC

could be made out?

Having framed the aforesaid questions, the learned Single

Judge has found in the judgment, that another Single Judge of the

said High Court has taken a view, that when the State Government

had granted sanction to prosecute an accused, it is implied that the

permission for investigation was also granted. The learned Single

Judge disagreed with the earlier view taken by another learned

Single Judge and was of the view, that 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 Delhi Special

Police Establishment Act, 1946 (hereinafter referred to as “DSPE

4

Act”). He was therefore of the view, that the investigation suffered

with incurable defect of lacking inherent jurisdiction. However, the

learned Single Judge found, that since he had disagreed with the

earlier view of learned Single Judge and since there was no binding

precedent on the issue, it was appropriate to refer question Nos.1

and 2 for decision by the Division Bench. The learned Single Judge

vide his detailed order dated 24

th

February 2015, referred the

following two questions to the Division Bench:-

1.Whether investigation of such cases having

involvement of Public servant under control of State

Government of U.P. as well as private individuals for

offences punishable under the Prevention of

Corruption Act, 1988 (49 of 1988), and attempts,

abetments and conspiracies in relation to all or any of

the offence or offences mentioned above and any

other offence or offences committed in the course of

the transaction and arising out of the same facts under

the G.O. of State Government Dated 15.6.1989 can be

investigated by CBI assuming suo moto jurisdiction

under section 6 of DSPE Act without the previous

permission or consent of State Government?

2.Whether total non compliance/absence of previous

consent of State Government under section 6 of DSPE

Act could be cured by grant of prosecution sanction

under section 197 Cr.P.C. of under section 19 of P.C.

Act by State Government or competent authority ?

5.The Division Bench vide its judgment and order dated 6

th

July

2015, answered the reference in the following terms:-

“Our answer therefore to question no.1 is that since the

question as framed proceeds on an erroneous premise of

5

facts available in the case, the same is answered by

holding that the Government Order dated 15.6.l989

permits investigation and it was not a case of assuming

suo motu jurisdiction by the CBI to investigate on the

facts of the present case.

The second question framed by the learned Single

Judge is returned unanswered in view of the fact that the

affidavit of the State Government had not been invited by

the learned Single Judge before proceeding to raise a

doubt and frame the second question to be answered in

this reference as observed above.

With the aforesaid answers to the two questions

framed, let the papers be placed before the concerned

court for proceeding in the matter in accordance with law.”

After the reference was answered, the matter again came up

before the learned Single Judge, who by order dated 17

th

August

2015, directed the State Government to file an affidavit. In

compliance with the directions issued by the High Court, the State

Government filed affidavits dated 31

st

October 2015 and 20

th

December 2015. The learned Single Judge passed an order on 5

th

April 2018, to the following effect:-

“Sri P.K. Singh, learned AGA prays for and is

granted ten days time to file an affidavit of the responsible

secretary of the Home Department regarding

interpretation and scope of notification dated 15.06.1983

with regard to Section 6 of the Delhi Police Special

Provisions Act.

Put up this case on 18.04.2018.”

6.In compliance with the order dated 5

th

April 2018, the State

Government filed various affidavits through the Secretary, Home

6

and Principal Secretary, Home. The stand taken by the State

Government in the said affidavits was that the Notification dated 15

th

June 1989, accorded consent to the powers and jurisdiction of the

Members of Delhi Special Police Establishment (hereinafter referred

to as ‘the DSPE’) in whole of the State of Uttar Pradesh for

investigation of offences under the Prevention of Corruption Act,

with the rider that no such investigation shall be taken up in cases

relating to the public servants, under the control of the State

Government except with the prior permission of the State

Government. It was the stand of the State Government, that

restriction of prior permission of the State Government was limited

only in relation to public servants under the control of the State

Government and not to any private individual. It was further the

stand of the Government, that the notification permits the competent

authority under DSPE Act for investigation of offences as mentioned

in the notification in the State of Uttar Pradesh. However, if any

public servant, under the control of the State Government was

named in the First Information Report, prior permission of the State

Government would be required for investigation. Further stand of

the State Government was that, public servant under the control of

the State Government, if not named in the First Information Report,

but if, in the further investigation, is found to be involved in the said

7

crime, the prior permission of the State Government would not be

required for investigation. The State Government further stated in

the affidavit, that insofar as two public servants are concerned i.e.

Sri Ram Ji Singh, the then General Manager, DIC, Chandauli and

Sri Yogendra Nath Pandey, Assistant Manager, DIC, Chandauli, the

sanction under Section 6 of the DSPE Act was granted vide

notification dated 7

th

September 2018, in respect of the FIR

registered by CBI on 13

th

April 2011, under Sections 120B and 420

IPC and Section 13 (2) read with Section 13(1)(d) of the PC Act.

7.The learned Single Judge vide the impugned order found, that

the State Government had granted Post-Facto consent vide

notification dated 7

th

September 2018, against the two public

servants of the State Government whose names had figured during

the course of investigation. The learned Single Judge found, that

the Post-Facto consent was sufficient for investigation by the CBI for

the offences against the two public servants, whose names though

did not find place in the FIR but were found in charge-sheet. The

learned Single Judge held, that if the names of the said public

servants did not figure in the FIR and their names came to light

during the course of investigation and charge-sheet was filed

against the said public servants of the State Government, the

8

consent given after completion of investigation would be a valid

consent under Section 6 of the DSPE Act. The learned Single

Judge further found, 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. The

learned Single Judge therefore, dismissed all the petitions. Being

aggrieved thereby, the present appeals.

8.Shri Mukul Rohatgi, learned Senior Counsel appearing on

behalf of the appellants submitted, that in the absence of the

consent of the State Government under Section 6 of the DSPE Act,

the DSPE (CBI) had no powers to conduct investigation in view of

the provisions contained in Section 6 of the DSPE Act. He

submitted, that the consent of the State Government is mandatory

as is seen from Section 6 of the DSPE Act. The learned Senior

Counsel would submit, that failure in obtaining the consent prior to

registration of the FIR would go to the root of the matter and vitiate

the entire investigation. He submitted, that the appellants-private

individuals have been charged with the offences punishable under

Sections 120B and 420 of IPC and Section 13(2) read with Section

13(1)(d) of the Prevention of Corruption Act. He submitted, that an

offence under the provisions of the Prevention of Corruption Act can

9

be registered only against public servant. He submitted, that since

the prosecution had invoked Section 120B of the IPC, the

mandatory requirement is that there has to be a meeting of minds.

He submitted, that an offence under Section 120B of the IPC read

with Section 13(1)(d) of the Prevention of Corruption Act 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. He submitted, that investigation in a matter which

concerns the conspiracy between the private individual and the

public servant, the same would not be permitted unless there is a

valid consent under Section 6 of the DSPE Act. The learned Senior

Counsel strongly relied on the judgment of this Court in the case of

Ms. Mayawati v. Union of India and Others

1

.

9.Mr. Ajit Kumar Sinha, learned Senior Counsel appearing on

behalf of the accused who are the public servants in appeals arising

out of SLP(Crl.) Nos. 8420-21 of 2019

submitted, that insofar as the appellants-public servants are

concerned, in the absence of a valid consent, the CBI could not

have exercised powers and jurisdiction to investigate the matter. It

is submitted, that the Post-Facto sanction granted on 7

th

September

2018, would not cure the defect of obtaining the prior consent. Both

1(2012) 8 SCC 106

10

the learned Senior Counsel therefore submitted, that the

proceedings are liable to be quashed and set aside.

10.Shri S.V. Raju, learned Additional Solicitor General would

submit, that the prior consent under Section 6 of the DSPE Act is

not mandatory but directory. He submitted, that in any case unless

the appellants point out that on account of the procedural

irregularity of not obtaining the prior consent, prejudice is caused to

the appellants or it has resulted in miscarriage of justice, the

investigation would not be vitiated. He submitted, that insofar as

the appellants-private individuals are concerned, the grievance of

the said appellants is totally unwarranted inasmuch as the

Notification dated 15

th

June, 1989 vide which a general consent has

been granted to investigate the matters arising out of PC Act, unless

it concerns a public servant under the control of the State

Government. Insofar as the public servants are concerned, the

learned ASG submitted, that in any case, the consent has been

granted after completion of the investigation on 7

th

September 2018

and as such the defect, if any, stands cured. He submitted, that in

any case, there are no pleadings by the appellants-public servants

with regard to prejudice caused to them or with regard to

11

miscarriage of justice. He therefore submitted, that no interference

is warranted with the judgment of the High Court.

11.It will be relevant to refer to Sections 5 and 6 of the DSPE Act

as under:-

5. Extension of powers and jurisdiction of special

police establishment to other areas.— (1) The Central

Government may by order extend to any area (including

Railway areas) in a State, not being a Union territory, the

powers and jurisdiction of members of the Delhi Special

Police Establishment for the investigation of any offences

or classes of offences specified in a notification under

section 3.

(2) When by an order under sub-section (1) the powers

and jurisdiction of members of the said police

establishment are extended to any such area, a member

thereof may, subject to any orders which the Central

Government may make in this behalf, discharge the

functions of a police officer in that area and shall, while so

discharging such functions, be deemed to be a member

of the police force of that area and be vested with the

powers, functions and privileges and be subject to the

liabilities of a police officer belonging to that police force.

(3) Where any such order under sub-section (1) is made

relation to any area, then, without prejudice prejudice to

the provisions of sub-section (2), any member of the Delhi

Special Police Establishment of or above the rank of Sub-

Inspector may, subject to any orders which the Central

Government may make in this behalf, exercise the

powers of the officer in charge of a police station in that

area and when so exercising such powers, shall be

deemed to be an officer in charge of a police station

discharging the functions of such an officer within the

limits of his station.

6. Consent of State Government to exercise of

powers and jurisdiction.— Nothing contained in section

5 shall be deemed to enable any member of the Delhi

12

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.

It could thus be seen, that 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.

12.It would be relevant to refer to the notification issued by the

Government of Uttar Pradesh dated 15

th

June 1989, which reads as

under:-

"Government of Uttar Pradesh

Home(Police) Section-1

No.3442/VIII-1-84/88

Lucknow, dated : June 15, 1989

Notification

In pursuance of the Provisions of Section 6 of the Delhi

Special Police Establishment Act, 1946 ( 25 of 1946) the

Governor of the State of Uttar Pradesh is pleased to

accord consent to the extension of powers and

jurisdiction of the members of the Delhi Special Police

establishment in whole of the State of Uttar Pradesh, for

13

investigation of offences punishable under the Prevention

of Corruption Act, 1988 (49 of 1988), and attempts,

abetments and conspiracies in relation to all or any of the

offence or offences mentioned above and any other

offence or offences committed in the course of the

transaction and arising out of the same facts, subject

however to the condition that no such investigation shall

be taken up in cases relating to the public servants, under

the control of the State Government except with the prior

permission of the State Government.

BY ORDER IN THE NAME OF THE GOVERNOR.

Sd/-

(S.K. TRIPATHI)

HOME SECRETARY TO THE GOVT

OF UTTAR PRADESH"

13.It could thus be seen, that the State of Uttar Pradesh has

accorded a general consent for extension of powers and jurisdiction

of the Members of DSPE, in the whole of State of Uttar Pradesh for

investigation of offences under the Prevention of Corruption Act,

1988 and attempts, abetments and conspiracies in relation to all or

any of the offence or offences committed in the course of the

transaction and arising out of the same facts. The same is however

with a rider, that no such investigation shall be taken up in cases

relating to the public servants, under the control of the State

Government, except with prior permission of the State Government.

As such, insofar as the private individuals are concerned, there is

no embargo with regard to registration of FIR against them

14

inasmuch as, no specific consent would be required under Section 6

of the DSPE Act. Vide notification dated 15

th

June 1989, the State of

Uttar Pradesh has accorded a general consent thereby, enabling

the Members of DSPE to exercise powers and jurisdiction in the

entire State of Uttar Pradesh with regard to investigation of offences

under the Prevention of Corruption Act, 1988 and also to all or any

of the offence or offences committed in the course of the same

transaction or arising out of the same facts. 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.

14.Insofar as the two public servants who have been undoubtedly

working under the State Government are concerned, initially, they

were not named in the FIR. However, their names surfaced during

the course of investigation and thus sanction was granted for their

prosecution under Section 19 of the Prevention of Corruption Act

vide order dated 31

st

May 2012, prior to filing of the charge-sheet. It

is also not in dispute that Post-Facto consent was given by the

15

State Government vide notification dated 7

th

September 2018, under

Section 6 of the DSPE Act to the authorities to investigate the public

servants.

15.As early as in 1955, the question arose for consideration

before this Court, as to whether an investigation carried out by a

police officer below the rank of Deputy Superintendent of Police,

under Section 5(4) of the Prevention of Corruption Act, 1947,

without the order of the Magistrate of First Class, was mandatory or

directory? While holding that the provision is mandatory, this Court

considered a question as to whether and to what extent, the trial

which follows such investigation, is vitiated. The Court, in H.N.

Rishbud and Inder Singh v. The State of Delhi

2

, observed as

under:-

“If, therefore, cognizance is in fact taken, on a police

report vitiated by the breach of a mandatory provision

relating to investigation, there can be no doubt that the

result of the trial which follows it cannot be set aside

unless the illegality in the investigation can be shown to

have brought about a miscarriage of justice. That an

illegality committed in the course of investigation does not

affect the competence and the jurisdiction of the Court for

trial is well settled as appears from the cases in Prabhu v.

Emperor AIR 1944 PC 73 and Lumbhardar Zutshi v. The

King AIR 1950 PC 26. These no doubt relate to the

illegality of arrest in the course of investigation while we

are concerned in the present cases with the illegality with

reference to the machinery for the collection of the

evidence. This distinction may have a bearing on the

2 [1955] 1 SCR 1150

16

question of prejudice or miscarriage of justice, but both

the cases clearly show that invalidity of the investigation

has no relation to the competence of the Court. We are,

therefore, clearly, also, of the opinion that where the

cognizance of the case has in fact been taken and the

case has proceeded to termination., the invalidity of the

precedent investigation does not vitiate the result, unless

miscarriage of justice has been caused thereby.”

It could thus be seen, that this Court has held, that the

cognizance and the trial cannot be set aside unless the illegality in

the investigation can be shown to have brought about miscarriage

of justice. It has been held, that the illegality may have a bearing on

the question of prejudice or miscarriage of justice but the invalidity

of the investigation has no relation to the competence of the court.

16.It will also be apposite to note the following observations of

this Court in State of Karnataka v. Kuppuswamy Gownder and

Others

3

, while considering the provisions of Section 465 of the

Cr.P.C.:-

14. The High Court, however, observed that provisions of

Section 465 CrPC cannot be made use of to regularise

this trial. No reasons have been stated for this conclusion.

Section 465 CrPC reads as under:

“Finding or sentence when reversible by

reason of error, omission or irregularity.—(1)

Subject to the provisions hereinbefore

contained, no finding, sentence or order

passed by a court of competent jurisdiction

shall be reversed or altered by a court of

appeal, confirmation or revision on account of

any error, omission or irregularity in the

3 (1987) 2 SCC 74

17

complaint, summons, warrant, proclamation,

order, judgment or other proceedings before

or during trial or in any inquiry or other

proceedings under this Code, or any error, or

irregularity in any sanction for the prosecution,

unless in the opinion of that court, a failure of

justice has in fact been occasioned thereby.

(2) In determining whether any error, omission

or irregularity in any proceeding under this

Code, or any error, or irregularity in any

sanction for the prosecution has occasioned a

failure of justice, the court shall have regard to

the fact whether the objection could and

should have been raised at an earlier stage in

the proceedings.”

It is provided that a finding or sentence passed by a court

of competent jurisdiction could not be set aside merely on

the ground of irregularity if no prejudice is caused to the

accused. It is not disputed that this question was neither

raised by the accused at the trial nor any prejudice was

pleaded either at the trial or at the appellate stage and

therefore in absence of any prejudice such a technical

objection will not affect the order or sentence passed by

competent court. Apart from Section 465, Section 462

provides for remedy in cases of trial in wrong places.

Section 462 reads as under:

“462. Proceedings in wrong place.—No

finding, sentence or order of any Criminal

Court shall be set aside merely on the ground

that the inquiry, trial or other proceedings in

the course of which it was arrived at or

passed, took place in a wrong Sessions

Division, district, sub-division or other local

area, unless it appears that such error has in

fact occasioned a failure of justice.”

This provision even saves a decision if the trial has taken

place in a wrong Sessions Division or sub-division or a

district or other local area and such an error could only be

of some consequence if it results in failure of justice,

otherwise no finding or sentence could be set aside only

on the basis of such an error.

18

17.This Court, in the case of Union of India v. Prakash P.

Hinduja and Another

4

, while relying on the judgment of this Court

in H.N. Rishbud

5

(supra), has observed thus:-

“21. …….The Court after referring to Prabhu v.

Emperor AIR 1944 SC 73 and Lumbhardar Zutshi v. The

King AIR 1950 PC 26 held that if cognizance is in fact

taken on a police report initiated by the breach of a

mandatory provision relating to investigation, there can be

no doubt that the result of the trial, which follows it cannot

be set aside unless the illegality in the investigation can

be shown to have brought about a miscarriage of justice

and that an illegality committed in the course of

investigation does not affect the competence and the

jurisdiction of the Court for trial. This being the legal

position, even assuming for the sake of argument that the

CBI committed an error or irregularity in submitting the

charge sheet without the approval of CVC, the

cognizance taken by the learned Special Judge on the

basis of such a charge sheet could not be set aside nor

could further proceedings in pursuance thereof be

quashed. The High Court has clearly erred in setting

aside the order of the learned Special Judge taking

cognizance of the offence and in quashing further

proceedings of the case.”

It could thus be seen, that this Court held that even for the

sake of argument that CBI had committed an error or irregularity in

submitting the charge-sheet without the approval of CVC, the

cognizance taken by the learned Special Judge on the basis of such

a charge-sheet, would not be set aside nor could further

proceedings in pursuance thereof be quashed.

4 (2003) 6 SCC 195

5 [1955] 1 SCR 1150

19

18.Recently, a bench of this Court consisting one of us

(Khanwilkar J.) had an occasion to consider the aforesaid provisions

of DSPE Act, in Kanwal Tanuj v. State of Bihar and Others

6

. In

the said case, the question arose, as to whether when an offence

was committed in the Union Territory and one of the accused was

residing/employed in some other State outside the said Union

Territory, the Members of DSPE had power to investigate the same,

unless there was a specific consent given by the concerned State

under Section 6 of the DSPE Act. The contention on behalf of the

appellant before the High Court was that since the appellant was

employed in connection with the affairs of the Government of Bihar,

an investigation was not permissible, unless there was a specific

consent of State of Bihar under Section 6 of the DSPE Act. This

Court rejected the said contention holding that if the offence is

committed in Delhi, merely because the investigation of the said

offence incidentally transcends to the Territory of State of Bihar, it

cannot be held that the investigation against an officer employed in

the territory of Bihar cannot be permitted, unless there was specific

consent under Section 6 of the DSPE Act. While considering the

argument on behalf of the State, that such a consent was necessary

for CBI to proceed with the investigation, this Court held that the

6 2020 SCC OnLine SC 395

20

respondent-State having granted general consent in terms of

Section 6 of the DSPE Act vide notification dated 19.02.1996, it was

not open to the State to argue to the contrary.

19.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.

20.Insofar as the reliance on the judgment of this Court in

Mayawati

7

(supra), the only question that fell for consideration

before this Court was, as to whether any of the orders passed by

this Court amounted to issuance of any direction to CBI to conduct a

roving inquiry against the conduct of the petitioner commencing

from 1995 to 2003 or as to whether the directions were restricted to

irregularities in the Taj Corridor matter. The court in the facts found,

that there was no such finding or satisfaction recorded by this Court

in the matter of the disproportionate assets of the petitioner on the

basis of the status report dated 11

th

September 2003 and as a

matter of fact, the petitioner was not even a party before this Court.

7 (2012) 8 SCC 106

21

21.In the result, we find no reason to interfere with the finding of

the High Court with regard to not obtaining prior consent of the

State Government under Section 6 of the DSPE Act.

22.However, it could be noticed that the learned Single Judge

while referring two questions to the Division Bench, had observed

that the question Nos. 2, 3 and 4 can be decided only after the

question No. 1 was answered. After the matter was returned to the

learned Single Judge by the Division Bench, the learned Single

Judge was bound to answer question Nos. 2, 3 and 4. The learned

Single Judge, in the impugned order, has not at all dealt with

question Nos. 2, 3 and 4.

23.We, therefore, remit the matter to the learned Single Judge for

deciding the question Nos. 2, 3 and 4 on its own merits. We clarify,

that we have not considered the merits of the matter and all

questions available to both the parties are kept open.

24.The criminal appeals are disposed of in the aforesaid terms.

Accordingly, all pending applications, if any, shall stand disposed of.

…………………………...J.

[A.M. KHANWILKAR]

22

………………………….J.

[B. R. GAVAI]

NEW DELHI;

NOVEMBER 17, 2020.

23