Ratnesh Verma vs Central Bureau Of Investigation & ...
2021 Latest Caselaw 3980 Cal

                       IN THE HIGH COURT AT CALCUTTA
                     CRIMINAL REVISIONAL JURISDICTION


PRESENT:

THE HON'BLE JUSTICE TIRTHANKAR GHOSH


                            C.R.R. 1270 of 2021
                                (Via Video Conference)

                           Ratnesh Verma
                                 -vs.-
                Central Bureau of Investigation & Anr.


For the Petitioner      :           Mr. Milon Mukherjee, Sr. Adv.,
                                   Mr. Sabir Ahmed, Adv.,
                                   Mr. Avik Ghatak, Adv.,
                                   Mr. Soham De Dhara, Adv.

For the CBI             :          Mr. Y. J. Dastoor, Ld. A.S.G.,

                                   Mr. Phiroze Edulji, Adv.,

                                   Mr. Samrat Goswami, Adv.



For the State           :          Mr. Kishore Datta, Ld. Adv. General,
                                   Mr. S. G. Mukherji, Ld. P.P.,
                                   Mr. Ranabir Roy Chowdhury, Adv.


Heard on                    :      01.06.2021,    08.06.2021,        09.06.2021,
                                   10.06.2021,    14.06.2021,        19.06.2021,
                                   21.06.2021,    22.06.2021,        23.06.2021,
                                   30.06.2021,    02.07.2021,        06.07.2021,
                                   09.07.2021 & 14.07.2021



Judgment on             :          28.07.2021
                                       2


Tirthankar Ghosh, J:-


      This revisional application has been preferred challenging the

proceedings relating to case No. R.C.0102020A0022 dated 27.11.2020

under Sections 120B/409 of the Indian Penal Code read with Sections

13(2)/13(1)(a) of the Prevention of Corruption Act, 1988 (hereinafter referred

to as 'P.C. Act' ) pending before the Learned Judge, Special (C.B.I.) Court,

Asansol, Paschim Bardhaman.


      The complaint in relation to the First Information Report is set out as

follows:-


      "Information received from reliable sources has revealed that illegal

excavation and theft of coal is being done by criminal elements from the

leasehold area of ECL in active connivance of the officials of ECL, CISF,

Indian Railways and concerned other departments. During the Joint

Inspection conducted by Vigilance Department and Task Force of ECL on

several leasehold areas of ECL from May, 2020 and onwards, evidence of

extensive illegal mining in the leasehold area of ECL and its transportation

was found. The team found several machineries which were used for

excavating coal from illegal mining. During these inspections, a large

number of vehicles and equipments used in illegal coal mining / its

transportation and illegally excavated coal have been seized. Several

instances of installation of illegal weigh bridges in concrete form were also

detected which confirms of illegal coal mining and transportation from ECL

areas in organized manner at a very large scale. It is further revealed by the

source that illegal mining is going on at the leasehold area of ECL behind
                                         3


Topsi village under Kunustoria Area and at Lachhipur Village under Kajora

Area by the coal mafias in active connivance with officials of ECL and those

of CISF.


       It is learnt that during departmental raids on 07.08.2020 at 1 No.

Railway Siding of Pandaveswar area, 9.050 MT of stolen coal was recovered

and seized. Seizure of stolen coal was made from several other Railway

locations as well. It is learnt that this illegal activity is being run at Railway

sidings by the criminals with active connivance of unknown Railway

officials.


       It is further learnt that as per the Standard Operating Procedure for

Action Plan - Illegal Mining and coal theft dated 08.08.2020 of CIL, "the

main role of all the raids and actions to be taken is of the Area Security

Officer/Area Security In-Charge, Area Authorities under the respective Chief

of Security, ECL and under Area General Managers."


       Information has also been received that Shri Amit Kumar Dhar (A-1),

was the General Manager, Eastern Coalfield Limited (ECL) Kunustoria Area

(presently General Manager, Pandaveswar Area), and Shri Dhananjay Rai (A-

4), ASI is the Area Security Inspector, Kunustoria, ECL. It is also learnt from

the source that Shri Jayesh Chandra Rai (A-2), is the General Manager,

Kajora Area and Shri Debashish Mukherjee (A-5), SSI, is the Security In-

Charge, Kajora Area, ECL. Shri Tanmay Das (A-3) is the Chief of Security,

ECL who is in overall charge to check and prevent illegal mining in ECL

area. A large number of instances of illegal coal mining have been reported

from their area with their active connivance.
                                        4


      Information has also revealed that Shri Anup Maji @ Lala (A-6) is one

of the main organizers for most of the illegal mining at ECL area and

transportation of illegal excavated / stolen coal. He is running the above

activities in connivance with the aforesaid public servants and those public

servants are allowing him to misappropriate the government property i.e.

coal from the leasehold area of ECL.


      From the above facts and circumstances, it appears that illegal coal

mining in the ECL lease hold area is going on along with theft of coal from

Railway sidings in an organized manner and above said officials of ECL,

Security Officers of ECL & CISF in connivance with unknown officials of

Railway and other public servants allowed Shri Anup Maji @ Lala (A-6) and

other unknown private persons to misappropriate the national property

entrusted to them and by this way the aforesaid public servants have

committed criminal breach of trust of the property entrusted to them.


      The above facts disclose commission of a cognizable offence. Hence, a

regular case is registered against (i) Shri Amit Kumar Dhar (A-1), the then

General Manager, Kunustoria Area (now working as General Manager,

Pandaveswar Area), ECL, (ii) Shri Jayesh Chandra Rai (A-2), General

Manager, Kajora Area, ECL, (iii) Shri Tanmay Das (A-3), Chief of Security,

ECL, Asansol, (iv) Shri Dhananjay Rai (A-4), ASI, Area Security Inspector,

Kunustoria, ECL, (v) Shri Debashish Mukherjee (A-5), SSI, Security In-

Charge, Kajora Area, ECL, (vi) Shri Anup Maji @ Lala (A-6), Private person

and unknown official of ECL, CISF, Indian Railways and other department

and unknown private persons u/s 120B, 409 of IPC and section 13(2) r/w
                                        5


13(1)(a) of P.C. Act, 1988 [as amended by the P.C(Amendment), Act, 2018]

and endorsed to Shri Umesh Kumar, ASP, CBI, ACB, Kolkata for

investigation."


      Mr. Milon Mukherjee, learned senior advocate appearing for the

petitioner submitted that CBI did not have jurisdiction to investigate and/or

initiate any case within the State of West Bengal in the absence of consent

given in that regard by the Government of West Bengal under Section 6 of

the Delhi Special Police Establishment Act, 1946 (hereinafter referred to as

"DSPE Act"). Earlier, vide G.O.No. 6145-PL/PE/2A/10/88 dated 02.08.1989

issued by the Home Department, Government of West Bengal, consent was

accorded to CBI for carrying out investigation within West Bengal. However,

the State Government, vide a Gazette Notification dated 16.11.2018, revoked

the general consent, which was accorded to the CBI, under Section 6 of the

DSPE Act. In order to fortify such argument, it has been submitted that the

extension of powers and jurisdiction of the CBI in any area (including

Railway areas) in a State, as granted by the Central Government under

Section 5 of the DSPE Act is subject to the consent of the concerned State

Government as mandated under Section 6 of the DSPE Act. This, according

to the petitioner, is in consonance with the powers granted to the Parliament

under Entry 8 read with Entry 80 of List I of VII Schedule.


      It has      been further submitted that the initial notification issued

under Section 5 of the DSPE Act dated 18.02.1963 did not specifically

mention the phrase "Railway areas", but only mentioned the State of West

Bengal. As such, in absence of the initial notification under Section 5 of the
                                        6


DSPE Act empowering the CBI to investigate in "Railway areas" within the

State of West Bengal, the DSPE Act cannot be made applicable. An

emphasis has been made on the phrase "Railway areas". The term "Railway

Area" as it appears in Section 6 of the DSPE Act is not defined and the

statute is silent whether the CBI has unlimited and unbridled powers to

investigate the cases where no territorial jurisdiction is defined. The

definition of "Railways" under the Railways Act, 1989, if considered as a

reference point for ascertaining the area covered by the Railways, would

make it amply clear that "railway sidings" appertaining to the mines cannot

be read as forming part of the "Railway areas" as contemplated under the

DSPE Act. Likewise, Section 2(32A) of the Railways Act describes "Railway

land" as any land in which a Government Railway has any right, title or

interest. As such, by virtue of enactment of the Railway Protection Force Act,

1957 which was enacted to provide for the constitution and regulation of an

armed force of the Union for the better protection and security of Railway

property, passenger area and passengers and for matters connected

therewith. It is the Railway Protection Force which ought to be the

appropriate authority to investigate the matter of theft, pilferage etc. of the

goods 'consigned' to the Railways which is absent in the FIR, which is the

subject-matter of the case. The definition of "Railway" as provided in Section

2(31) of the Railways Act, 1989 which has been borrowed from the definition

from a cognate statute (i.e. the Railways Act), according to the petitioner, is

not in pari materia to the DSPE Act and is contrary to the law laid down by

the Hon'ble Supreme Court in the judgment of Maheshwari Fish Seed Farm

Vs. TN Electricity Board & Anr. reported in (2004) 4 SCC 705.
                                       7


      The learned senior advocate for the petitioner, in support of his

contentions, relied upon the following judgments :


         i.   Subramanian Swamy Vs. Director, CBI and Anr. reported in
              (2014) 8 SCC 682.
        ii.   A.C. Sharma Vs. Delhi Administration reported in (1973) 1 SCC
              726.
       iii.   State of West Bengal and Ors. Vs. Committee for Protection of
              Democratic Rights, West Bengal and Ors. reported in (2010) 3
              SCC 571.
        iv. CBI Vs. V. C. Shukla & Ors. reported in (1998) 3 SCC 410.


      Mr. Kishore Datta, learned Advocate General, submitted that the State

of West Bengal having withdrawn the general consent on 16.11.2018 which

was accorded on 02.08.1989 under Section 6 of the DSPE Act and

communicated to the CBI on 19.11.2018, the registration of the FIR on

27.11.2020

is in excess of its jurisdiction and authority. According to him,

India is a federation of States as Article 1(1) of the Constitution of India

provides that India is an Union of States i.e. federation of States and every

federation requires division of powers between the Centre and the State. He

submitted that distribution of powers is legislative which is provided under

Articles 245 to 255 and administrative which are provided under Articles

256 to 261. As per his submission, legislative powers of the Parliament and

the State Legislatures are provided under Articles 245 and 246 of the

Constitution. He added that investigation is included in the word "police" in

Entry 2 List II of VII Schedule as well as in Entry 1 of List II. Hence,

investigation is a State subject under the Constitution. DSPE Act being a

pre-Constitutional statute was enacted under Entry 39 of the Federal

Legislation List which corresponds to Entry 80 of List I of VII Schedule of the

Constitution of India.

According to the learned Advocate General, Section 5 of the DSPE Act

extends powers of CBI beyond Union Territories. However, the said power

under Section 5 of the DSPE Act is subject to Section 6 of the DSPE Act

which speaks about consent of State being mandatory for exercise of powers

under Section 5 of the DSPE Act. The starting words of Section 6 of the

DSPE Act clearly state that "Nothing contained in Section 5 shall be deemed

to enable any member of DSP Establishment to exercise power and

jurisdiction in any area in a State, without the consent of the Government of

that State". He submitted that a plain reading of the statute reflects that the

consent of the Government of the State is mandatory and necessary for

exercising of powers and jurisdictions of CBI in any area of the State.

Additionally, he submitted that consent under Section 6 of the DSPE

Act flows from the federal structure of the Constitution which is held to be a

basic structure of our Constitution. Federalism being one of the basic

structures of the Constitution and there being demarcation of legislative

powers envisaged under Article 246 of the Constitution of India, consent of

the State assumes importance. Thus, de hors consent of the State, the

exercise of such power of CBI would be in absolute violation of Federal

structure and against Article 246(3) of the Constitution, as police is a State

subject. In order to substantiate his argument, he relied upon judgment of

the Hon'ble Supreme Court in State of West Bengal & Ors. Vs. Committee for

Protection of Democratic Rights & Ors. reported in (2010) 3 SCC 571

(paragraphs 23 to 35, 37, 38, 40).

The other argument which has been canvassed before this Court by

the State of West Bengal is that Section 6 of the DSPE Act was never

challenged by CBI and as such, consent of the State Government is

mandatory before exercising any power within the jurisdiction of the State

and no other meaning can be attributed to Section 6 of the DSPE Act. Any

action of investigation in State de hors consent of the Government of that

State by CBI is not permitted by law and as such, is illegal and non est in

the eye of law. To that effect, learned Advocate General relied upon the

judgments of the Hon'ble Supreme Court in Manohar Lal Sharma Vs. The

Principle Secretary & Ors. reported in (2014) 2 SCC 532 (paragraph 52) and

M/S Fertico Marketing & Ors. Vs. Central Bureau of Investigation & Anr.

reported in (2021) 2 SCC 525 (paragraph 17).

Learned Advocate General emphasized that as the FIR/RC was

registered without consent of the State of West Bengal much after the

withdrawal of notification on 16.11.2018, the CBI cannot be allowed to take

recourse to the date at which the preliminary enquiry was registered and as

such, has no jurisdiction to investigate the offence so far as the present case

is concerned. In support of his submission, learned Advocate General relied

upon a judgment of the Hon'ble Supreme Court in Bhavesh Jayanti Lakhani

Vs. State of Maharashtra & Ors. reported in (2009) 9 SCC 551 (paragraphs

93 to 95, 98 to 100).

Learned Advocate General concluded his arguments by submitting

that as the FIR/RC is nullity, all consequential steps, which followed, are

non est in the eye of law.

Mr. Y. J. Dastoor, learned Additional Solicitor General, appearing for

the CBI, submitted that once notification has been issued under Section 5(1)

of the DSPE Act including the State of West Bengal therein, the Railway

Area which forms part of the State is automatically included therein. If the

State has withdrawn the consent for investigation of the cases under Section

6 of the DSPE Act, the same cannot be withdrawn with reference to the

Railway Areas. Learned Additional Solicitor General referred to various

provisions of the Code of Criminal Procedure in terms of investigation, arrest

and seizures. It has been stressed even a part cause of action can give rise

to rightly invoke the jurisdiction of the CBI to register a case.

Lastly, it has been submitted that as the investigation of the case is

still continuing, the FIR cannot be dissected.

The present revisional application was heard along with CRR 810 of

2021 and CRR 1349 of 2021. None of the parties raised question regarding

the issue whether the allegations made in the FIR constitutes offences or

not. The sole question which has been called upon to be answered is as

follows:

Pursuant to the withdrawal notification dated 16.11.2018, whether

the investigation by CBI in respect of FIR which was subsequently

registered, is valid and legal?

On perusal of the records of this case, it reflects that the case was

registered under the provisions of Sections 120B/409 of the Indian Penal

Code and Section 13(2) read with Section 13(1)(a) of the P.C. Act, 1998 [as

amended by the P.C. (Amendment) Act, 2018] and the genesis of the case

related to the alleged offences being committed by the (i) General Manager,

Kunustoria area, ECL, (ii) General Manager, Kajora area, ECL, (iii) Chief of

Security, ECL, Asansol Area, (iv) Security Inspector, Kunustoria, ECL,

Security In-Charge, Kajora area, ECL and also unknown Officials of ECL,

CISF and Indian Railways. During the joint inspection conducted by

Vigilance Department and Task Force of ECL on several leasehold areas of

ECL, evidence of extensive illegal mining in the leasehold area of ECL was

found. It would not be out of place to state that Eastern Coal Fields Limited

is a subsidiary of Coal India Limited which is a Government company. The

officers referred to above would fall within the purview of Section 8(2) of the

Central Vigilance Commission Act, 2003.

The Constitution Bench in the case of Subramanian Swamy (supra)

while dealing with Section 6A of the DSPE Act was pleased to observe that

there cannot be any rational basis which would entitle bureaucrats of Joint

Secretary level and above, who are working with the Central Government

should be protected under Section 6A of the DSPE Act while the same level

of officers who are working in the State will not get such protection, though

both classes of these officers are accused of an offence under the P.C. Act,

1988. Discrimination or differentiation must be based on pertinent and real

differences, which are to be distinguished from irrelevant and artificial ones.

In paragraph 70 of the said judgment it has been held that "every public

servant against whom there is a reasonable suspicion of commission of a

crime or there are allegations of an offence under the PC Act has to be treated

equally and similarly under Law."

A co-ordinate Bench of this Court in Ramesh Chandra Singh and

Another Vs. Central Bureau of Investigation reported in 2020 SCC Online

Cal. 586 after taking into consideration the relevant Entries in List II of VII

Schedule was pleased to hold that "Article 246 only prescribes the powers of

the Parliament and the State legislature to enact laws. The areas prescribed

in List I are within the exclusive domain of the Parliament. List II is within the

domain of the State legislature. List III enumerates areas which both the

Parliament and the State can legislate. The Constitution inter alia aims to

preserve the Federal Structure through the above provisions. It is not however

a rigid demarcation. The framers of the Constitution were cautious to

prescribe as above only in the context of the legislative powers of the Centre

and the State. The area of operation of the Central Government and cannot be

curtailed by any Central or State legislation."

The Court proceeded to observe that the action of the Central

Government in desiring investigation into the acts and omissions of its

officer who functioned under a statute which Central Government has

enacted must be outside the scope of Section 6 of the DSPE Act. The Central

Government having a national responsibility in zealously regulating the

conduct of the persons vested with the authority to enforce Central

Legislations which includes Officials of Railways, CISF and ECL. The

national interest so sought to be secured and achieved must have a rational

nexus with desire of the Central Government for conducting an investigation

in alleged offences of the nature complained of through a central agency.

The Co-ordinate Bench of this Court thereafter proceeded to hold that

"This Court is, therefore, of the view that, the Central Government/CBI's

power to investigate and prosecute its own officials cannot be in any way

impeded or interfered by the State even if the offenses were committed within

the territory of the State. This Court is conscious of the limited jurisdiction of

this court under Section 482 of the CrPC and does not wish to enter into the

question of propriety of withdrawal of consent which existed for 30 years."

This Court is not unmindful regarding the judgment dated 03.02.2021

passed in WPA 10457 of 2020, the order dated 12.02.2021 passed by the

Hon'ble Division Bench of this Court in MAT 158 of 2021 with MAT 167 of

2021 and the order passed in Special Leave to Appeal (Crl.) Nos. 1620-

1621/2021 wherein the Hon'ble Supreme Court, because of paucity of time

to conclude the hearing before recess, directed to continue with the

investigation of the case subject to a limited protection being granted to the

petitioner therein by way of an interim order.

This Court has also taken into account the observations of the Hon'ble

Apex Court made in paragraph 23 of the judgment in Kanwal Tanuj Vs.

State of Bihar & Ors. reported in 2020 SCC Online SC 395 wherein it has

been held that "The power bestowed on Special Police Force in terms of

Section 2 and 3 of the 1946 Act cannot be undermined by an executive

instruction in the form of proviso".

In paragraph 27 of M/S Fertico Marketing & Ors. Vs. Central Bureau of

Investigation & Anr. reported in (2021) 2 SCC 525, the Hon'ble Supreme

Court has been pleased to hold that ".... 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."

On an overall assessment of the facts of the present case and the law

referred to above, it can be safely stated that the offenders under the

Prevention of Corruption Act are to be dealt with equally. As such, the

public servants whose office location may be in different States, but are

associated with the Central Government, corporations established by or

under any Central Act, Government companies, societies and local

authorities owned or controlled by the Central Government cannot be

distinguished and/or discriminated because of the location of their offices

being at different States and are to be hauled up for corruption in like and

similar manner uniformly throughout the country. The view of the co-

ordinate Bench of this Court in Ramesh Chandra Singh (supra) that the

Central Government/CBI's power to investigate and prosecute its own

officials cannot be impeded or interfered by the State assumes importance

and is with the spirit of the Indian Constitution.

The gravity of the offences relating to corruption and the manner in

which it is to be dealt with, was considered by the legislature as well as the

Hon'ble Apex Court (in a number of judgments). Pursuant to Vineet

Narain's case, Central Vigilance Commission Act, 2003 was enacted with

the sole purpose of causing inquiries into offences alleged to have been

committed under P.C. Act by certain categories of public servants of the

Central Government, corporations by or under any Central Act, Government

companies, societies and local authorities owned or controlled by the

Central Government. Section 26 of the CVC Act, 2003 incorporates

amendments to the DSPE Act, 1946. Consequently Section 4 of the DSPE

Act was amended. Sub-section (1) of Section 4 of the DSPE Act vests the

Commission with the powers to superintend investigations conducted by the

officers of DSPE in respect of offences committed under the P.C. Act, 1988.

The earlier sub-section (1) of Section 4 vested superintendence to the

Central Government. Thus, the term 'superintendence' referred in the said

provision is not merely administrative or logistic support but is a functional

superintendence. Needless to state that it is only offences related to

Prevention of corruption Act, 1988 which finds place in the DSPE Act and

no other offences under special or general law has been referred to therein.

Moreover, the DSPE Act with its amendments have been restructured

for facilitating/enabling the CBI to carry out investigations under the P.C.

Act and the withdrawal notification dated 16.11.2018 is abrupt, devoid of

any reasons and has the effect of shielding corrupt Central Government

Officials, thereby, deterring the CBI officers to investigate offences in respect

of officers falling within the category of Section 8(2) of the CVC Act, 2003.

However, there may be cases where exclusively the officers belonging to the

State Government are involved, in such cases the fact of the case may

demand consent under Section 6 of the DSPE Act, but the nature of

allegations complained in the present case, the officers/accused who are

involved and the loss which has been sustained do not involve any

interference with the powers vested in the State by the Constitution.

There has been no illegality committed in the ongoing investigation

and as such there is no scope for interference in the continuation of

investigation relating to case No. R.C.0102020A0022 dated 27.11.2020.

Consequently, C.R.R. 1270 of 2021 is dismissed.

Pending applications, if any, are also dismissed.

All parties shall act on the server copy of this judgment duly

downloaded from the official website of this Court.

Urgent photostat certified copy of this judgment, if applied for, be

supplied to the parties upon compliance with all requisite formalities.

(Tirthankar Ghosh, J.)