Sri D K Shivakumar vs State Of Karnataka
2023 Latest Caselaw 2289 Kant

                             1


      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 20TH DAY OF APRIL, 2023

                            BEFORE

           THE HON'BLE MR. JUSTICE K.NATARAJAN

       WRIT PETITION NO.10479 OF 2020(GM-RES)
BETWEEN

SRI D K SHIVAKUMAR
S/O S.K. KEMPEGOWDA,
AGED ABOUT 57 YEARS,
R/AT NO. 252, 18TH CROSS,
SADASHIVA NAGAR,
BENGALURU- 560080                       ... PETITIONER

(BY SRI RAJENDRA M S, ADVOCATE)

AND

1.    STATE OF KARNATAKA
      REP. BY CHIEF SECRETARY
      VIDHANA SOUDHA
      BENGALURU- 560 001

2.    THE UNDER SECRETARY TO GOVERNMENT,
      HOME DEPARTMENT (CRIMES),
      GOVERNMENT OF KARNATAKA
      VIKAS SOUDHA
      BENGALURU- 560 001

3.    CENTRAL BUREAU OF INVESTIGATION
      ANTI CORRUPTION BRANCH
      NO.36, BELLARY ROAD
      GANGANAGAR
      BENGALURU - 560 032
      REPRESENTED BY SPP
                                         ... RESPONDENTS
(BY SRI MAHESH SHETTY, HCGP FOR R1
 R2 SERVED, UNREPRESENTED)
                               2


     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE GOVERNMENT ORDER DATED 25.9.2019 ISSUED BY
THE R-2 PRODUCED AT ANNEXURE-K. ISSUE AN ORDER AS TO
COST OF THE PETITION. GRANT AN INTERIM ORDER TO STAY
THE OPERATION AND FURTHER PROCEEDINGS PURSUANT TO
AND ANY ENQUIRY OR INVESTIGATION EMANATING FROM THE
GOVERNMENT ORDER DATED 25.9.2019 ISSUED BY THE R-2
ANNEXURE-K.

     THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 17.4.2023 THIS DAY, THE COURT
MADE THE FOLLOWING:

                            ORDER

This writ petition filed by the petitioner under Articles

226 and 227 of the Constitution of India praying for issue a

writ, in the nature of certiorari or any other appropriate

writ or order or direction, quashing the Government Order

bearing No.E-HD/40/COD/2019 dated 25.09.2019 issued

by the 2nd respondent by according sanction for

prosecution to the 3rd respondent-CBI to investigate the

alleged offences committed by the petitioner under the

provision of Prevention of Corruption Act (herein after

referred as to 'PC Act').

2. Heard Sri. Udaya Holla, learned Senior Counsel

appearing for the petitioner, learned SPP-II appearing for

respondent Nos.1 and 2 and Sri P. Prasanna Kumar,

learned Special Counsel appearing for respondent No.3.

3. The case of the petitioner is that he is the sitting

MLA and the President of the Karnataka Pradesh Congress

Party and he is said to be doing various business including

mining and real estate development. There was raid

conducted by the income tax department officials on

02.08.2017 on the various premises of the petitioner in

New Delhi and other places and they collected

Rs.8,59,69,100/-. It is alleged that Rs.41.00 lakhs was

recovered form the premises of the petitioner.

Subsequently, the income tax department officials

registered a case by filing a complaint against the

petitioner before the Special Court for Economic Offences

under the provisions of the Income Tax Act, 1961. Based

upon registering the income tax case, the Directorate of

Enforcement (hereinafter referred to as 'ED') also

registered a case in No.ECIR/04/HQ/2018 and

subsequently, the petitioner was arrested on 03.09.2019.

Thereafter, the office of the Special Director of ED issued a

letter dated 09.09.2019 to the State Government by acting

under Section 66(2) of Prevention of Money Laundering

Act, 2002 (hereinafter referred to as 'PML Act'). The letter

has been sent to the Chief Secretary of Government of

Karnataka and the Government of Karnataka accorded

sanction against the petitioner referring the matter to the

CBI for investigating the case for offences punishable

under the provisions of PC Act, 2018 vide its order dated

25.09.2019, which is under challenge.

4. The learned Senior counsel appearing for the

petitioner has contended that the State Government while

passing the impugned order, referring investigation to CBI,

has not applied its mind. While passing the said order, the

State Government has simply narrated the contents of the

letter issued by the ED and referred the case to the CBI

and in turn, the CBI registered an FIR against the

petitioner, which is not sustainable under law. Previously,

one Shashi Kumar Shivanna filed a writ petition

challenging the reference order in W.P. No.8316/2020,

which came to be dismissed by the Co-ordinate Bench, on

22.07.2020, on the ground the said person has no locus

standi and he was not an accused in the offence.

Therefore, it is contended that the petitioner, being an

accused, has right to challenge the very same order and,

therefore, the question of res-judicata does not apply as

the dispute is between some other persons and not

between the petitioner and the respondent.

5. The learned Senor Counsel has also contended

that out of five cases registered against the petitioner by

the income tax department officials, the petitioner was

discharged in three cases and the same was upheld by the

Hon'ble Supreme Court. In one case, the discharge

application came to be dismissed, which is stayed by the

Hon'ble Supreme Court. This fact has not been considered

by the State Government while according sanction. It is

also contended that even if it is an administrative order.

The State is required to apply its mind while granting any

sanction. Except culling out the letter of the ED, there is

no application of mind while referring the matter to the

CBI. Therefore, the order under challenge, dated

25.09.2019, is not sustainable under law. Hence, prayed

for quashing the same.

6. In support of his arguments, the learned Senior

counsel for the petitioner, has relied upon the various

judgments, which are as follows:

1. MANUSKHLAL VITHALDAS CHAUHAN VS.

STATE OF GUJARAT - 1997 (7) SCC 622;

2. M.P. SPECIAL POLICE ESTABLISHMENT VS.

STATE OF M.P. AND OTHERS - 2004(8) SCC 788;

3. ASSISTANT COMMISSIONER, COMMERCIAL TAX DEPARTMENT, WORKS CONTRACT AND LEASING, KOTA VS. SHUKLA AND BROTHERS - 2010 (4) SCC 785;

4. KRANTI ASSOCIATES PRIVATE LIMITED AND ANOTHER VS. MASOOD AHMED KHAN AND OTHERS - 2010 (9) SCC 496;

5. STATE OF WEST BENGAL AND OTHERS VS.

COMMITTEE FOR PROTECTION OF DEMOCRATIC RIGHTS, WEST BENGAL AND OTHERS - 2010 (3) SCC 571;

6. COMMON CAUSE, A REGISTERED SOCIETY VS. UNION OF INDIA AND OTHERS - 1999 (6) SCC 667;

7. SECRETARY, INOR IRRIGATION AND RURAL ENGINEERING SERVICES, U.P. AND OTHERS. V. SAHNGOO RAM ARYA AND ANOTHER - 2002 (5) SCC 521;

8. PREM CHAND SINGH VS. STATE OF UTTAR PRADESH AND ANOTHER - 2020 (3) SCC 54;

9. T.T. ANTONY VS. STATE OF KERALA AND OTHERS - (2001) 6 SCC 181;

10. SMT. ANDANUR KALAMMA AND OTHERS VS.

SMT. GANGAMMA AND OTHERS - 2005 SCC ONLINE KAR 787;

11.   ANDANUR     KALAMMA    AND    OTHERS        VS.
      GANGAMMA       (DEAD)         BY          LEGAL
      REPRESENTATIVES - 2018 (15) SCC 508;

12. SYED MOH. SALIE LABBAI (DEAD) BY L.Rs.

AND OTHERS VS. MOHD. HANIFA (DEAD) BY L.Rs. AND OTHERS - 1976 (4) SCC 780;

13. BOOZ ALLEN AND HAMILTON INC. VS. SBI HOME FINANCE LIMITED AND OTHERS -

2011 (5) SCC 532;

      14.    SATRUCHARLA     VIJAYA   RAMA   RAJU    VS.
             NIMMAKA JAYA RAJU AND OTHERS - 2006
             (1) SCC 212;

15. M/S. GOJER BROS. (PVT.) LTD. VS. SHRI RATAN LAL SINGH - 1974 (2) SCC 453;

16. KUNHAYAMMED AND OTHERS VS. STATE OF KERALA AND ANOTHER - 2000 (6) SCC 359;

17. COMMISSIONER OF INCOME TAX, BOMBAY VS. AMRITLAL BHOGILAL AND CO. - AIR 1958 SC 868;

18. COLLECTOR OF CUSTOMS, CALCUTTA VS.

             EAST    INDIA   COMMERCIAL      CO.    LTD.,
             CALCUTTA AND OTHERS - AIR 1963 SC
             1124;

7. Per contra, learned SPP-II Mr. Hegde appearing

for respondent No.1 has vehemently objected the petition

mainly on two grounds, firstly, that the order passed by

the State Government under Section 6 of the Delhi Special

Police Establishment Act (hereinafter referred to as 'DSPE

Act') does not require an order of sanction and it is only a

consent given to the CBI to investigate into the matter.

Therefore, it is contended that the order is a simple

executive order and it does not require a detailed reason

for according consent.

The second ground on which the learned SPP-II for

respondent State, urged that, the Co-ordinate Bench of

this Court has already considered the reference order

dated 25.09.2019 which was challenged by one Shashi

Kumar Shivanna in the writ petition referred supra. The

Co-ordinate Bench in the aforesaid writ petition has dealt

with the matter in detail and passed an order by rejecting

the writ petition filed by the said Shashi Kumar Shivanna.

Subsequently, the said person filed a writ appeal before

the Division Bench, where the writ appeal was also

dismissed and the same was not challenged before the

Hon'ble Supreme Court and it has attained the finality. The

judgment passed by the Co-ordinate Bench by upheld the

order passed by the State Government and not against

any person. Therefore, the judgment of the Co-ordinate

Bench is 'Judgment In Rem' and it is binding on all the

persons. Therefore, it cannot be questioned since the

principles of res judicata applies.

8. The learned SPP-II has also contended that

even if any error occurs while passing the order of sanction

or consent, that cannot be a ground for setting aside the

order since there is no prejudice would cause to the

petitioner's case and that can be cured under Section 465

of Cr.P.C. It is further contended that unless, it is

established that there is failure of justice, the same Cannot

be questioned.

9. The learned SPP-II has further contended that

provisions of Section 6 of the DSPE Act says about two

consents, one is general consent and the other is special

consent, and it is specifically expressed therein that the

case should be referred to the CBI. Though it is mentioned

in the order as sanction, but it is only a consent under

Section 6 of DSPE Act. Therefore, the learned SPP-II

prayed for dismissing the petition.

10. In support of his contentions, the learned SPP-II

for the respondent State has relied upon the various

judgments:

     1.   SRI      SHASHIKUMAR      SHIVANNA      VS.
          GOVERNMENT OF KARNATAKA AND OTHERS
          - W.P.NO.8316/2020;
     2.   SRI      SHASHIKUMAR      SHIVANNA      VS.

GOVERNMENT OF KARNATAKA - W.A.NO.444 /2020;

3. SRI C.L. PASHUPATHI VS. ENGINEERING-IN-

CHIEF (WRO) AND ANOTHER - 2008 SC ONLINE MADRAS 1518;

4. DARYVO AND OTHERS VS. STATE OF UTTAR PRADESH - 1962 1 SCR 574;

5. CENTRAL BANK OF INDIA AND OTHERS VS.

DRAGENDRA SINGH JADON - (2022) 8 SCC CASES 378;

6. SRI C. INDERNATH AND OTHERS VS. STATE OF TAMIL NADU AND OTHERS - (2022) 2 WritLR 614;

7. SRI M. BALAKRISHNA REDDY VS. DIRECTOR OF CENTRAL BUREAU OF INVESTIGATION, NEW DELHI (2008) 4 SCC CASES 409;

8. SRI BASAVARAJ SHIVAPPA MUTHAGI VS.

STATE OF KARNATAKA - (2021) D SUPREME (KAR) 387 ;

9. PRADEEP S. WODEYAR VS. STATE OF KARNATAKA - 2021 SCC ONLINE SC 1140.

11. Learned Counsel appearing for respondent No.3

has also objected the petition contending that for the

purpose of referring the case for investigation under

section 6 of DSPE Act does not require any application of

mind and the Coordinate Bench has already dismissed the

petition filed by one of the accused which was upheld by

the Division Bench of he High Court and therefore, there is

no reason to distinguish the said order. The petitioner has

no locus standi to question as to who should be his

investigating agency, he can only challenge the FIR, but

not the notification for referring the case for investigation.

The learned counsel for respondent No.3 further contended

that 90% of investigation has already been completed, lot

of materials have been collected against the petitioner.

Therefore, at this stage, this Court cannot quash the

notification.

12. In support of his case, the learned counsel for

respondent No.3 - CBI has relied upon the various

judgments, which are as under:

1. DELHI SPECIAL POLICE ESTABLISHMENT ACT, 1946 (ACT NO.25 OF 1946)(BARE ACT);

2. KANWAL TANUJ V. STATE OF BIHAR - (2020) 20 SCC 531;

3. CBI AND ANOTHER VS. RAJESH GANDHI AND ANOTHER - (1996) 11 SCC 253

4. M. BALAKRISHNA REDDY VS. CBI, NEW DELHI (2008) 4 SCC 409;

5. NIRMAL SINGH KAHLON V. STATE OF PUNJAB - (2009) 1 SCC 441;

6. NARMADA BAI V. STATE OF GUJARAT -

(2011) 5 SCC 79;

7. BASAVARAJ SHIVAPPA MUTTAGI Vs. STATE OF KARNATAKA - WP.NO.51012/2019;

8. SOMASEKAR VS. STATE OF KARNATAKA AND ANOTHER IN SPECIAL LEAVE TO APPEAL (CRIMINAL) NO.9649/2021;

9. S KASI VS. STATE - (2021) 12 SCC 1;

10. STATE OF CHATTISGARH AND ANOTHER VS.

            AMAN     KUMAR      SINGH    AND       OTHERS    -
            SLP(CRL.) NO.1703-1705/2022;
      11.   STATE    OF    HARYANA      AND    OTHERS      VS.
            BHAJAN LAL AND OTHERS 1992 SUPP(1)
            SCC 335.

13. The learned Senior Counsel for the petitioner, by

way of reply, has contended that the very order passed by

the State itself shows that it is an order of sanction, but

not the consent. The sanction and consent are

synonymous as per Section 470(3) of Cr.P.C. The reasons

is the soul of any order either administrative order or other

orders. Therefore, without application of mind and without

mentioning the reasons, sanction has been accorded,

which is not a speaking order and therefore it is not

sustainable under law. It is further contended that the

State has obtained opinion of the learned Advocate

General and, learned Advocate General has not stated

anything about the consent and even the State has not

obtained any consent of the Speaker while granting

permission. Hence, prayed for allowing the petition. It is

further contended that the res-judicata does not attract as

this petitioner was not a party in the earlier case. Hence it

is contended that the order of the co-ordinate bench is

'Judgment In Personem' and not binding on the petitioner.

Therefore, it is contended that the petitioner is opposite

leader and FIR has been registered based upon the

impugned order. Therefore, great prejudice would cause

to the petitioner. Hence, prayed for allowing the petition.

14. Having heard the arguments of learned counsel

for the parties, perused the records which reveals it is an

admitted fact that the petitioner is sitting MLA and the

opposite political party leader. There was raid conducted

by the income tax authorities and they seized cash from

the house of the petitioner and other places. It is also an

admitted fact that the IT department filed five cases before

the Special Court, out of which three cases were ended in

discharge and other cases are pending before the Hon'ble

Supreme Court. It is also an admitted fact that the ED

written letter the Chief Secretary to the Government of

Karnataka by invoking Section 66(2) of PML Act and the

Under Secretary to the Government, Home Department

(Crimes), issued the impugned order on 25.09.2019,

according sanction to CBI for investigation by invoking

power under Section 6 of DSPE Act. It is also an admitted

fact that one Shashi Kumar Shivanna filed Writ Petition

No.8316/2020 challenging the very impugned order dated

25.09.2019, which came to be dismissed on 22.07.2020.

It is also an admitted fact that the said Shashi Kumar

Shivanna filed an appeal before the Division Bench in W.A.

No.444/2020, wherein the Hon'ble Division Bench

dismissed the appeal on 05.02.2021 by granting liberty to

approach the appropriate Forum, in case the petitioner is

named as an accused in FIR. It is also an admitted fact

that after passing of the impugned order by the State

Government, the CBI registered an FIR against the

petitioner in No.ECIR/04/HQ/2018 which is already

challenged before this Court and it is pending for

consideration.

15. With these admitted facts, now the contention

taken by the respondents, in this case, is mainly on the

ground that the Co-ordinate Bench has already dismissed

the writ petition referred supra, which was filed challenging

the very impugned order and the said order passed in the

writ petition was upheld by the Division Bench. Therefore,

the judgment has attained finality and the present petition

is not maintainable on the ground of principles of res-

judicata. This is contended by respondent's counsel that

the judgment passed by the Co-ordinate Bench in the

aforesaid writ petition is Judgment In Rem binding on all

the persons. It is also contended that the order passed by

the State Government under Section 6 of DSPE Act is only

a consent but not sanction, whereas the petitioner

disputed the same on the ground that the said order is

sanction, which required application of mind, and no

principles of res judicata applies in this case.

16. Having heard the arguments of learned counsel

for the parties and on perusal of the records, the points

that arise for consideration are:

(i) Whether the impugned order passed by the State dated 25.09.2019 under Section 6 of the Delhi Special Police Establishment Act, 1946 was sanction or a consent ?

(ii) Whether the order passed by the Co- ordinate Bench in W.P.No.8316/2020(S-RES) applies the principles of res judicata ?"

17. The learned Senior counsel for the petitioner

has relied upon the judgment of the Hon'ble Supreme

Court while arguing the matter that the order under

challenge was a sanction order without application of mind.

The learned counsel relied upon the judgment of Hon'ble

Supreme Court in the case of Mansukhlal Vithaldas

Chauhan vs. State of Gujarat reported in (1997) 7 SCC

622, where the Hon'ble Supreme Court has held at

paragraph No.19 that the sanctioning authority was unable

to apply its independent mind for any reasons or what so

ever or pass an obligation or compulsion or constraint to

grant sanction, the order will be bad for the reason that

the discretion of the authority not to sanction was taken

away and it was compelled to act mechanically to sanction

the prosecution. The another judgment in the case of

M.P.Special Police Establishment vs. State of M.P.

and Others reported in (2004) 8 SCC 788, it has held

though the power to grant sanction is administrative

power, the same will stand vitiated if there is manifest

error or excise of power are arbitratory or non application

of mind. The Hon'ble Supreme Court has also held in the

case of Assistant Commissioner, Commercial Tax

Department, Works Contract and Leasing, Kota vs.

Shukla and Brothers reported in (2010) 4 SCC 785,

even in the administrative order, the authorities shall

record reasons by speaking order. The same view was

taken in the case of Kranti Associates Private Limited

and Another vs. Masood Ahmed Khan and Others

reported in (2010) 9 SCC 496. On perusal of the judgment

of the Hon'ble Supreme Court, it is well settled that while

granting sanction, the authority should apply its mind by

giving reason and a speaking order is a must and non

application of mind without looking to the document if any

sanction is accorded that will not be sustainable under the

law. Even for an administrative order, a speaking order or

reason is required.

18. On the other hand, the learned SPP-II has

contended that the impugned order of the State was only a

simple executive order for giving consent under Section 6

of the DSPE Act. In support of his contention, he has

relied upon the judgment of the Madras High Court in the

case of Dr.C.Indernath and Others vs. State of Tamil

Nadu and Others reported in (2022) 2 WritLR 614,

where the Madras High Court while dealing with the similar

situation where the matter was referred to the CBI for

investigation was held at paragraph No.49 of the judgment

as under:

"49. The Hon'ble Supreme Court in the case of Fertico Marketing and Investment Private Limited and others vs. Central Bureau of Investigation and another [2021 (2) SCC 525], held that though 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 the State concerned under Section 6 of 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. As could be seen from Article 226 of the Constitution of India, Schedule VII, List II - State List (1) public order and (2) police are listed, which are within the powers of the State. In this case, admittedly, the first respondent or the sixth respondent have no objection for conducting investigation by the CBI. The petitioners are named

accused in RC 0322020A0023, have no say who should investigate the offences against them. The decision to investigate or the decision on the agency does not violate principles of natural justice. Nor is there any provision in law under which, while granting consent or extending the powers or jurisdiction of the Delhi Special Police Establishment to the specified State and to any specified case any reasons are required to be recorded on the face of the notification. It is only a consent. It is seen that, in this case, if at all there is any objection with regard to conduct of investigation, the same has to be raised by the State Government of Tamil Nadu and not the petitioners."

19. The Hon'ble Supreme Court in the case of

M.Balakrishna Reddy vs. Director, CBI, New Delhi

reported in (2008) 4 SCC 409 at head note A, paragraph

Nos.44 and 71 has held as under:

"Head Note A: Police - CBI - Exercise of powers and jurisdiction by CBI in a State -

Consent of State Government under S. 6, Delhi Special Police Establishment Act, 1946 (Central Act 25 of 1946) - Manner of giving - Particular form, if any - Such consent, held, need not be

given in any particular form - Whether the consent was or was not given, depends on the facts of each case and no rule of universal application can be laid down in that regard - Delhi Special Police Establishment Act, 1946 (Central Act 25 of 1946) - Ss. 6, 5 and 3 -

Public Accountability and Vigilance - Vigilance authorities - CBI"

"44. Though the Court was not directly deciding the question whether a letter could be treated as valid consent, but whether separate consent was required for every individual member of the Delhi Police Establishment or general consent was enough. The Court nonetheless held the consent valid as general consent was all that was required by law. Though it did not remark on the form in which such consent should be given i.e. the letter, was correct or not, the fact that it could find nothing wrong with the consent raises a strong presumption in favour of the argument that a letter can be a means of granting consent by the State Government under Section 6."

"71. A closer scrutiny of the relevant provisions of the Delhi Act also add credence to

the view which we are inclined to take. Section 3 refers to "notification" and requires the Central Government to issue notification specifying offences or class of offences to be investigated by Special Police Establishment. Section 5 uses the term "order" and enables the Central Government to extend powers and jurisdiction of Special Police Establishment to other areas not covered by the Act. Section 6 which speaks of consent of the State Government for the exercise of powers and jurisdiction of the Special Establishment neither refers to "notification" nor "order". It merely requires consent of the State Government for the application of the Delhi Act. Parliament, in our considered opinion, advisedly and deliberately did not specify the mode, method or manner for granting consent though in two preceding sections such mode was provided. If it intended that such consent should be in a particular form, it would certainly have provided the form as it was aware of different forms of exercise of power. It, therefore, depends on the facts of each case whether the consent required by Section 6 of the Delhi Act has or has not been given by the

State Government and no rule of universal application can be laid down."

20. The learned SPP - II has also relied upon the

judgment of the Division Bench of this Court in the case of

Sri.Basavaraj Shivappa Muttagi vs. State of

Karnataka, through Additional Chief Secretary, Home

Department reported in 2021 0 Supreme(Kar) 387 and

has held at paragraph No.29 of the judgment which is as

under:

"129. The parameters for exercise of both the distinct powers of Government and Courts are naturally different and it is always possible and permissible, that even after the constitutional court declines to exercise its extraordinary judicial power holding that the case does not involve circumstances which are rare or exceptional, the State Government can exercise its ordinary executive powers under section 6 of the Delhi Special Police Establishment Act, 1946 in granting consent and the Central Government can, thereafter exercise its power by accepting the

investigation entrusted to it by the State Government. The said process is uninhibited by the high prerogative judicial powers of entrustment of inquiry to CBI. The same is independent and does not have any fetters with regard to whether extraordinary judicial powers are not exercised as the constitutional court did not find the matter to be extraordinary and containing such facts which justify exercise of jurisdiction which is to be exercised "cautiously, sparingly and under certain circumstances only". The power of the State Government therefore is not curtailed by such high standards."

The said judgment of the Division Bench of this Court

has been upheld by the Hon'ble Supreme Court in SLP

9649/2021.

21. In view of the judgments of the Hon'ble

Supreme Court, Division Bench of the High Court and order

passed by the Madras High Court, I am of the view, the

impugned order dated 25.09.2019 passed by the State

was nothing but a consent given by the State under

Section 6 of the DSPE Act and it is not a sanction as

required under either Sections 19 or 17 of the Prevention

of Corruption Act.

22. Though in the impugned order it was

mentioned as sanction was accorded but literally it is only

a consent and it is not a sanction and it is only a simple

executive order by giving consent to the CBI for

investigating the matter as against the petitioner. It is also

revealed by the opinion given by the Advocate General

that the Advocate General has categorically stated that no

sanction is required under Section 17(A) or 19 of the P.C.

Act. It is also brought to the notice of the Court by the

learned Senior counsel for the petitioner that the Co-

ordinate Bench while passing the order in the Writ Petition,

though it was stated that it was an administrative order in

its order, but it is not an administrative order but it is only

a simple executive order and it need not require any

detailed order for application of mind and even otherwise,

the authority i.e., Under Secretary has considered the

letter sent by the Directorate of Enforcement Department

and passed the order. Even Section 6 of the DSPE Act says

that it is only a consent of the State Government for

investigation by the Central Police. Such being the case,

the contention of the learned counsel for the petitioner

cannot be acceptable that there is no application of mind

while passing the impugned order. Therefore, on that

ground, the impugned order cannot be quashed.

23. Re. point No.2: The order passed by the Co-

ordinate Bench is the 'Judgment in Rem' which is binding

on all the persons including this Court and principles of res

judicata applies.

24. In this regard, the learned SPP - II and the CBI

counsel brought to the notice of this Court that the Co-

ordinate Bench dealt with the matter in detail by raising

three points for consideration and finally dismissed the

petition filed by the one Shashikumar Shivanna in

W.P.No.8316/2020.

25. For the convenience, the point raised by the

Co-ordinate Bench at paragraph No.13 of the order is read

as under:

"13. Having heard the learned Senior Counsel representing the petitioner and the learned Advocate General and the learned counsel for the respondent No.3, the following points would arise for determination:

a) Whether the petitioner has the locus standi to challenge the consent granted by the respondent No.1 under Section 6 of the DSPE Act, 1946 ?

b) Whether consent granted under Section 6 of the DSPE Act, 1946 is akin to a sanction contemplated under Section 17A or Section 19 of the Prevention of Corruption Act, 1988 or under Section 197 of the Criminal Procedure Code, 1973 ?

c) Whether in the facts and circumstances of this case, whether the respondent No.1 was required to apply its mind ? If yes then whether the respondent No.1 has applied its mind before granting consent under Section 6 of the DSPE Act, 1946?"

26. The Co-ordinate Bench finally while considering

point No.(c) has taken the view that there is no

requirement of application of mind while granting the

consent. Ultimately, the petition was dismissed. The same

was challenged before the Division Bench in W.A.444/2020

which came to be dismissed on 05.02.2021. Admittedly,

the said order of the Co-ordinate Bench attained finality

and no appeal was filed by the said Shashi Kumar

Shivanna. Of course, the present petitioner was not a

party to the said proceedings in W.P.8316/2020 and the

Co-ordinate Bench also stated that the said Shashi Kumar

Shivanna has no locus standi to challenge the order.

However, the Co-ordinate Bench while dealing with the

matter where the said Shashi Kumar Shivanna challenged

the very order dated 25.09.2019 for referring the matter

to the CBI, but the Co-ordinate Bench has categorically

held and given finding on the reference to the CBI in the

impugned order where the application of mind is not

required while giving consent under Section 6 of the DSPE

Act. Therefore, it cannot be said that the finding of the Co-

ordinate Bench is only on the petition filed by the Shashi

Kumar Shivanna, but it was on the issue of reference of

the case to the CBI for investigation against this petitioner

for the provisions of P.C. Act. Therefore, I am of the view

that the judgment of the Co-ordinate Bench was 'Judgment

In Rem', it was binding on this petitioner and also other

persons as the issue of reference under the impugned

order has been upheld by the Co-ordinate Bench.

Therefore, the contention of the petitioner counsel cannot

be acceptable that the judgment should be between the

same parties, but it was an identical dispute on the same

subject matter which was dealt with by the Co-ordinate

Bench. Therefore, the doctrine of the res judicata applies

to this case and also the order of the Co-ordinate Bench is

binding on this petitioner. Therefore, the judgments relied

by the counsel for the petitioner is not applicable to the

case on hand in view of my findings at point No.1.

27. That apart, the CBI after registering the case,

they said to be collected huge evidence and 90% of the

investigation is said to be completed and as argued by the

learned SPP-II, if any flaw in the order of sanction or

consent, the investigation cannot be vitiated that it is

curable defect under Section 465 of Cr.P.C.

28. Though the learned Senior counsel for the

petitioner has contended that the consent and sanction is

one ad the same as per Section 470(3) of Cr.P.C., but the

said provision is to attract only limitation point for taking

cognizance and a final report. Therefore, it cannot be said

that the consent and sanction are one and the same. It is

all together different.

29. In view of the above findings especially in point

No.1, the impugned order passed by the State under

Section 6 of the DSPE Act is only a formal consent and it is

not a sanction which requires a detailed order and as

stated by the Hon'ble Supreme Court, there is no

prescribed form to accord consent under Section 6 of the

DSPE Act and the Co-ordinate Bench has already decided

the issue of referring the case to CBI which was upheld by

the Division Bench. Such being the case, I am of the view,

there is no reason for this Court to distinguish or take

divergent opinion in respect of the order passed by the Co-

ordinate Bench in W.P.8316/2020(S-RES). Hence, the

petition is devoid of merits and liable to be dismissed.

30. Accordingly, the writ petition filed by the

petitioner is hereby dismissed.

Sd/-

JUDGE

CS/GBB