1. THE CBI DOES NOT HAVE THE AUTHORITY TO INQUIRE AND INVESTIGATE INTO THE MATTER.

The CBI is established under Delhi Special Police Establishment Act, 1946.; Section 5 and 6 of the said act deals with the jurisdiction of CBI, Section 6 of the Act states that the CBI cannot exercise its power and jurisdiction in any area in the State without the consent of the Government of the state. The amendment brought in by the Central Vigilance Commission, Act in the DSPEA adding Section 6A which states stipulates that, Approval of Central Government to conduct inquiry or investigation.- (1) The Delhi Special Police Establishment shall not conduct any inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 (49 of 1988 ) except with the previous approval of the Central Government where such allegation relates to(a) the employees of the Central Government of the level of Joint Secretary and above; and (b) such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government.1 This section makes the approval of central government compulsory. As held in so and soThe CBI does not have the authority to investigate in the matter without prior permission of the State.2 \The facts of the present case shows that the CBI on the basis of source information has taken sou moto action pursuant to the source information and has investigated and inquired in the case,3 without obtaining any consent of State Government or approval from the Central Government.
Formatted: Indent: Left: 0.5"

Section 6, Delhi Special Police Establishment Act, 1946 Nothing contained in Section 5 shall be deemed to enable any member of the Delhi 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.
2

Goutam Ghoshal vs The State Of West Bengal (2012) 1 CLJ (cal) 372 Para 7, Fact Sheet

Therefore, the Appellant humbly submits that the CBI did does not have the jurisdiction to investigate the matter and the sou moto action taken by the CBI and the charge-sheet filed is not valid and in violation with Section 6 and 6A of the Delhi Special Police Establishment Act, 1946.

2. THE

CONSPIRACY

IN

QUESTION

IS

COMMON

CONSPIRACY,

INVOLVING COMMON TRANSACTION OUGHT TO BE TRIED TOGETHER. Section 220(4) of the Code of Criminal Procedure, 1973 provides for the amalgamation of trail.4 Further, Section 220 1 stipulates that If a series of acts so connected together so as to form part of the same transaction, committed by the same person, may be charged with, and tried at one trail for every such offence.5 Same transaction is continuity of action and sameness of purpose.6 There should be a proximity of time or place between the several acts,7 but proximity of time is not essential where continuity of action and purpose are established.8 Where the charge as framed discloses one single conspiracy although spread over several years there is only one object to the conspiracy i.e. to cheat the members of public and so it is one transaction. All offences committed in pursuance of the conspiracy can be tried jointly. 9 In the present matter the act of the petitioners forms a part of same conspiracy as there was a common intention of the petitioners and the purpose was same, the petitioners were disbursing the inputs from the finance ministry on the fictitious bills. As per the Section, Ccontinuity refers not to the time so much as to the intimate connection between the acts. There has to be a continuation in the thread of common purpose for application of joinder of trail. Mere difference in time of the commission of offence does not necessarily disprove continuity, they may still be
4

If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more, of such acts.
5

Section 220(1), Code of Criminal Procedure, 1973. Sailendra v Emp. (1938) 65 I.A 158. State of A.P. vs. Ganeswara A. 1963 S.C. 1850 Aftab vs. State of Hyderabad (1955) 1 S. C. R. 588 Samsher Bahadur vs. State of Bihar AIR 1956 Pat. 404

linked together as to form the same transaction. In case of State of Bombay vs. Umarsaheb Buransaheb Inamda,10 the Court said that the two offences of criminal breach of trust could have been tried together in the present case, as the offences were said to have been committed in pursuance of the criminal conspiracy entered into by the accused, All the offences committed in pursuance of the conspiracy are committed in the course of the same transaction and therefore can be tried together at one trial, in view of sub s. (1) of s. 235 of the Code which provides that if in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with and tried at one trial for every such offence. In S. Swamirathnam vs. State Of Madras,11 the Honourable Supreme Court observed that the charge as framed, discloses one single conspiracy, although spread over several years. There was only one object of the conspiracy and that was to client members of the public. The fact that in the course of years others joined the conspiracy or that several incidents of cheating took place in pursuance of the conspiracy did not change the conspiracy & did not spilt up a single conspiracy into several conspiracies. Section 220 is an exception to section 19 of the Code of Criminal Procedure, 1973; Section 219 cannot operate in the case where 220 is applicable.12 It is therefore humbly submitted that the allegations against the petitioners is one of common conspiracy and involves one common transaction, therefore should be tried together.

3. THE REMAND OF THE APPELLANT WAS ILLEGAL AND NOT AUTHORIZED IN LAW Section 167 of the Code of Criminal Procedure provides that the Magistrate has the power to detain a person in custody of the accused person for the maximum period of 90 days in cases which relates to offence punishable for tern not less than ten years.13 No court of special judge can take cognizance of an offence except previous sanction of the appropriate authority. 14
Comment [Rao1]: U have not structured this argument and the second argument properly. The language is very bad. It doesnot even looked connected. Everything is disconnected and illogical. Start every argument they way have started your last i.e. th 4 argument. I

10 11

1962 AIR 1153 AIR 1957 SC 340 State of A.P vs. Subbaiah A. 1961 S.C. 1246 Proviso (a)Section 167, Code of Criminal Procedure, 1973. Vinod Lal vs. State of H.P. 1995 Cr. L. J2603 at p. 2607.

12

13

14

Section 19 of the Prevention of Corruption Act, 1988 clearly says that the court cannot take cognizance unless there is a valid sanction order. Sanction as mentioned in section 19 of Prevention of Corruption Act is a prerequisite for taking cognizance of an offence and prosecution for that offence by a special judge under the said act.15 Section 309 of the Code of Criminal Procedure, 1973 gives the power to the Magistrate to keep the accused in remand if it is imperative that further evidence can be may be obtained, but this can only be done after taking cognizance. Section 309 comes into operation after taking cognizance.16 If the Magistrate has not taken cognizance of the offence, no remand order can be passed under S. 309(2).17 In Ramdeo Mahto vs. State of Bihar,18 the court said that under section 309 of the code there can hardly be any doubt in view of sub-section (2) of the section itself that there can be no remand until after taking of cognizance or commencement of trail. Since the statutory period of 90 days, envisaged under Section 167(2) Code of Criminal Procedure, had lapsed, the Petitioner could be remanded to custody, as cognizance has not be taken for the want of sanction. Section 309 of the Code of Criminal Procedure would be applicable only after cognizance of the offence had been and the investigation complete. 19 In the absence of cognizance further detention of the Petitioner was wholly illegal and not authorized in law and the petitioners were, therefore, entitled to be released as the cognizance cannot be taken due to the failure of the Investigating Authorities to obtain sanction for prosecuting the Petitioners. Therefore, there isin no provision in law to authorize the detention of the petitioners. In G. Sadanandan vs. State of Kerala,20 the Apex Supreme Court Court said that the power of detention in an authority, if exceeded, abused or mala fide makes the detention unlawful. In a petition of habeas corpus it is open to the High Court either to grant bail or to direct the competent authority to consider the bail application, and to grant bail on such terms and

15

State vs. Ravinder Singh 1995 Cri LJ 3428(Del). CBI vs. Anupam J Kulkarni AIR 1992 SC 1768 Ved Kumar Seth vs. State of Assam 1975 Cri LJ 647 1978 Cri LJ 1074 Natabar Parida vs. State of Orissa 1975 CrLJ 1212 AIR 1966 SC 1925

16

17

18

19 20

conditions as the court deems fit under the facts and circumstances of the case.21 The High Court has the power to grant bail to the petitioner as an interim relief in a writ of habeas corpus challenging his detention.22 It is humbly submitted before the Honourable Supreme Court Court that the detention of the petitioners in remand ins illegal and there is no statutory provision enabling the remand of the petitioners, therefore the petitioners be released on bail.

4. SANCTION IS REQUIRED FOR THE PROSECUTION OF A PUBLIC SERVANT. The Code of Criminal Procedure, 1973 and the Prevention of Corruption Act, 1988 makes sanction from a competent authority mandatory for the prosecution of public official in accordance to Section 197 and Section 19 respectively, when the act is in discharge of official duty. The argument will be threefold: Firstly, the appellants were public servant, secondly, the act alleged was reasonably connected with the discharge of public duty, and lastly, that the sanction was required for the prosecution in the present matter. 4.1 The Appellants were public servants employed under the Government. Section 2(c) of the Prevention of Corruption Act, 1988 defines public servant.23 As per the definition, public duty would mean a duty in discharge of which either the State, public or community aided has an interest. As per section 2 (c)(viii) any person who holds an office by virtue of which he is authorized or required to perform any public duty would come within the purview of definition of "public servant" and would be amenable to the rigours of P.C. Act.24 The appellants were appointed by the government and they were authorized to discharge a public duty. The Appellants humbly submits that the accused were public servants under the definition of the Prevention of Corruption Act.

21

K.A. Abbas vs. Sri Satyanarayana Rao 1993 Cri LJ 2948

22 23

Harjit Singh vs. State of Punjab 1983 Cri LJ 1221 Section 2(c), Prevention of Corruption Act, 1988 (i) Any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty; (viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty.
24

Faiyaz Ahmad vs. State Of Bihar AIR 1990 SC 2147

4.2 The act of the Appellants was reasonably connected with the discharge of public duty. "Public duty" means a duty in the discharge of which the State, the public or the community at large has an interest.25 In Parkash Singh Badal & Anr. v. State of Punjab,26 Official duty was defined as commission or omission under taken in course of his or her service. The act of the official must be reasonably connected with the official discharge of duty, thus, all acts done by a public servant in the purported discharge of his official duties cannot as a matter of course be brought under the protective umbrella of requirement of sanction.27 There should be reasonable connection with the act and discharge of official duty, even if the official acted excess of his duty but there is some reasonable connection, then it wont be a sufficient ground to deprive the official from protection. The obvious question that arises from such a rule is that what is the definition of reasonable connection with discharge of official duty. 28 The Honourable Supreme Court has laid down a test for the determination of official duty.29 The District Magistrate duty was to send the budgetary quotation prepared by the DDO to the finance ministry and the duty of the Secretary, Department Food and Civil Supplies was to approve the district-wise disbursal of the inputs from finance ministry. It is therefore humbly brought before the attention of the Honourable Court that the act of the appellants was under the definition of official duty. 4.3 Sanction was required for the prosecution of the Appellants.

25

Section 2(b), Prevention of Corruption Act, 1988. [2007] 1 SCC 1 General Officer Commanding (Army) vs. CBI Rakesh Kumar Mishra vs. State Of Bihar 2006 (1) SCC 557

26

27

28

29

Orissa & Ors. vs. Ganesh Chandra Jew 2004 (4) SC 52 One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty.

Section 19 of the Prevention of Corruption Act, 1988 makes sanction for the prosecution of a public servant compulsory.30 The Code of Criminal Procedure also states that the court cannot take cognizance without valid order of sanction.31 No court of special judge can take cognizance of an offence except previous sanction of the appropriate authority.32 Sanction as mentioned in Section 19 is a prerequisite for taking cognizance of an offence and prosecution for that offence by a special judge under the said act.33 The sanction from the competent authority is still awaited. Therefore, it is humbly submitted that the sanction is required for the prosecution of theprosecuting a public servant and since there is no sanction , in the present case appellants.
Comment [Rao2]: Last argument concluded properly

30

No court shall take cognizance of an offence punishable under section 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government; (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government; (c) in the case of any other person, of the authority competent to remove him from his office. 31 Section 197, Code of Criminal Procedure, 1973.
32

Vinod Lal vs. State of H.P. 1995 Cr. L. J2603 at p. 2607. State vs. Ravinder Singh 1995 Cri LJ 3428(Del).

33