While ruling quite specifically on the jurisdiction of CBI, the Meghalaya High Court has in a notable oral judgment titled Shri T Pathaw Vs Inspector of Police, CBI & Anr in Criminal Petition. No. 48 of 2022 and cited in 2022 LiveLaw (Meg) 10 that was pronounced finally on February 10, 2023 has ruled explicitly that the CBI is well within its right to investigate offences under IPC provided they are in nexus with offences under Prevention of Corruption Act. It was also clarified by the court that however when the offences under the provisions of the Prevention of Corruption Act are dropped from the charge-sheet, for CBI to continue its prosecution, specific consent of the State is required as jurisdiction of the CBI would cease as on the date of filing of such charge sheet.
It must be mentioned here that the observations were made by the Single Judge Bench of Justice W Diengdoh while hearing a plea in terms of which the petitioner had invoked the jurisdiction of the court with a prayer to set aside and quash the FIR that was filed by the Head of Branch, CBI, ACB, Shillong and a consequent charge-sheet being filed leading to the formal proceeding before the Chief Judicial Magistrate of Shillong. The court thus allowed the petition and the FIR dated 10.12.2015 filed by the Head of Branch, CBI, ACB, Shillong and the related proceedings in CR Case No.(S) of 2017 before the court of the learned Chief Judicial Magistrate, Shillong was set aside and quashed.
At the very outset, this learned oral judgment authored by the Single Judge Bench of Justice W. Diengdoh of Meghalaya High Court sets the ball in motion by first and foremost putting forth in para 1 that, “This is an application under Section 482 preferred by the petitioner herein with a prayer to set aside and quash the FIR dated 10.12.2015 filed by the Head of Branch, CBI, ACB, Shillong and upon investigation, a consequent chargesheet dated 31.12.2016 being filed leading to the formal proceeding being CR Case No. 38(S) 2017 now pending before the learned Chief Judicial Magistrate, Shillong with the petitioner herein as the sole accused.”
Simply put, the Bench then states in para 3 that, “The learned counsel has then submitted that the petitioner herein is the Chairman of Ranger Security and Service Organisation dealing mostly in the area of outsourcing of manpower to various organisations requiring such manpower.”
As we see, the Bench then mentions aptly in para 4 that, “North Eastern Indira Gandhi Regional Institute of Health and Medical Sciences (NEIGRIHMS) has floated tender for availing the services of outsource personnel at NEIGRIHMS, Shillong and the petitioner’s organisation being the successful bidder has thereafter entered into an Agreement for Outsourcing Manpower dated 01.01.2012.”
It is also worth mentioning that the Bench then aptly observes in para 5 stating that, “Pointing out some relevant clauses from the said agreement, particularly clauses 6, 7 and 15 of the same, the learned counsel has submitted that it was agreed that the petitioner/second party shall deploy the required manpower of NEIGRIHMS and such manpower shall be the employees of the petitioner/second party. It was also incumbent upon the petitioner/second party to ensure that due compliance with all statutory obligations under all related legislations including compliance under the provisions of the Employees’ Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter referred to as EPF Act) and ESI Act, etc., as far as the said personnel deployed are concerned. At this juncture, the learned counsel has candidly admitted that the petitioner at the relevant point of time had failed to comply with the conditions and provisions of the EPF Act as far as contribution toward the fund on the part of the employer is concerned.”
It is worth noting that the Bench notes in para 7 that, “On the matter being investigated, the Investigating Officer(I/O) then filed a final report under Section 173 Cr.P.C before the Court of the learned Chief Judicial Magistrate, Shillong, exonerating the role of A-1 and A-2 respectively, on the ground of insufficient evidence, but has however implicated A-3, the petitioner herein as having committed an offence under Section 420, 406 IPC for allegedly fraudulently and dishonestly misappropriating an amount of Rs 20,93,305 meant for EPF. The respondent/CBI has also submitted a list of 164 prosecution witnesses and 640 voluminous documents to be proved. Accordingly, a regular case being CR Case No. 38(S) 2017 was registered and is now pending before the court of the learned Chief Judicial Magistrate, Shillong. The matter is at the stage of consideration of charges.”
Be it noted, the Bench notes in para 23 that, “Factually established, the CBI on some source information or otherwise have found it fit to lodge an FIR implicating two persons who are admittedly public servants being employees of NEIGRIHMS and the petitioner herein who is a private individual, in a case under Section 120B, 420 IPC and Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988. At this stage, nobody has questioned the jurisdiction of the CBI to launch prosecution. However, once investigation is completed, the Investigating Officer has filed the final report under Section 173 CrPC and has come to the conclusion that no case is made out against the two public servants, but instead a case under Section 420 and 406 IPC has been made out against the petitioner herein and the matter was forwarded to the court of the learned Chief Judicial Magistrate, Shillong for trial.”
Needless to say, the Bench then states in para 24 that, “The CBI is the premiere investigating agency of India known to investigate several cases of corruption particularly under the PC Act, 1988 as well as other economic crimes or special crimes. The legal powers of investigation of the CBI are derived from the DSPE Act, 1946. As pointed out by the learned DSGI, Section 3 of the DSPE Act provides for offences to be investigated by the CBI on being notified by the Central government in this regard. An extract from the CBI manual was produced in court by the learned DSGI wherein under the heading Section 3, at column A, a list of offences punishable under various sections of the Indian Penal Code has been listed, Section 420 and 406 being included therein which can be investigated upon by the CBI.”
Most significantly, the Bench then mandates in para 25 holding that, “However, under Section 6 of the said DSPE Act, if the CBI is to operate in any of the states, consent of such State government for exercise of its powers and jurisdiction is required. By now, it is well settled that CBI can investigate into cases involving offences under the PC Act, however, when it comes to offences under the IPC which are generally taken up and investigated into by the State or local police, if a particular case involves provisions of offences under the PC Act as well as IPC then the CBI would be well within its right to investigate into such cases, but if, as in the present case, though initially the offences involves provisions under the PC Act along with those under the IPC, which was rightfully investigated into by the CBI, after the filing of the charge sheet wherein only the provisions under the IPC remains, while the offences under the provisions of the PC Act were dropped, including release of liabilities of the public servants implicated therein, it stands to reason that the jurisdiction of the CBI would ceased as on the date of filing of the charge-sheet. At this juncture, if the CBI is to continue prosecution, the specific consent of the State is required. Admittedly, nothing is on record as to whether such consent was given or not or whether the same was requested or not. In view thereof, as submitted by the learned counsel for the petitioner, that the charge sheet was forwarded by the CBI in the court of the Chief Judicial Magistrate, the same was without jurisdiction. On this ground alone, the entire proceedings against the petitioner are vitiated.”
Most remarkably, the Bench hastens to add in para 31 observing that, “On an analysis of the case of the parties herein and the observations made above, this Court would refer to the case of State of Haryana & Ors. v. Bhajanlal & Ors.: 1992 Suppl (1) SCC 335, wherein the Hon’ble Supreme Court categorising instances or illustrations within which the inherent power of the High Court under 482 can be exercised, one such instance being para 102(1), this Court applying the principle therein, is convinced that the petitioner has made out a case for his prayer to be allowed. The said paragraph reads as follows:
“102.(1) Where the allegations made in first information report or the complaint, even if they are taken at face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused…”.”
As a corollary, the Bench then most commendable holds in para 32 that, “In the light of the above, this petition is hereby allowed, the FIR dated 10.12.2015 filed by the Head of Branch, CBI, ACB, Shillong and the related proceedings in CR Case No. (S) of 2017 before the court of the learned Chief Judicial Magistrate, Shillong are hereby set aside and quashed.” Finally, the Bench concludes by disposing of the petition with no costs.
In conclusion, it can well be said that the Meghalaya High Court has made it indubitably clear that CBI’s jurisdiction ceases if the charge-sheet lacks Prevention of Corruption Act offences. It was also made absolutely clear by the Bench that when the offences under the provisions of the Prevention of Corruption Act are dropped from the charge-sheet, for CBI to continue its prosecution, specific consent of the State government is required as jurisdiction of the CBI would cease as on the date of filing of such charge-sheet. Very rightly so!
(The writer is a lawyer based in Meerut, Uttar Pradesh).
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