Paragraph numbers below are the court’s original numbering, recovered from the source text.
17. This Court, in the case of Union of India v. Prakash P. Hinduja and Another4, while relying on the judgment of this Court in H.N. Rishbud5 (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 4 (2003) 6 SCC 195 5 [1955] 1 SCR 1150 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.
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 Others6. 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 6 2020 SCC OnLine SC 395 M/S. FERTICO MARKETING AND INVESTMENT PVT. LTD v. CENTRAL BUREAU OF INVESTIGATION [B. R. GAVAI, J.] 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 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 Mayawati7 (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 11th September 2003 and as a matter of fact, the petitioner was not even a party before this Court.
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, 7 (2012) 8 SCC 106 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. Kalpana K. Tripathy Appeals disposed of. M/S. FERTICO MARKETING AND INVESTMENT PVT. LTD v. CENTRAL BUREAU OF INVESTIGATION [B. R. GAVAI, J.]