M/S. Fertico Marketing and Investment Pvt. Ltd and Ors. Etc. v. Central Bureau of Investigation and Another Etc.

B. R. GAVAI, J. 1. Leave granted. 2. All these appeals challenge the common judgment and order passed by the learned Single Judge of the Allahabad High Court dated 14 th August 2019. The facts in brief giving rise to the present appeals are as under:- On 18 th October 2007, Coal India Limited had introduced a new policy, whereunder the Fuel Supply Agreement (hereinafter referred to as ‘FSA’) was required to be entered into by coal co mpanies and purchasers of coal. In pursuance of the said policy, on 30 th April 2008, an FSA was entered into between the appellants in appeals arising out of SLP(Crl.) Nos. 8342-46 of 2019 and the Coal India Limited. On 25 th March 2011, a joint surprise raid was conducted by the CBI in factory premises of Fertico Marketing and Investment Private Limited and it was found that the coal purchased under the FSA was sold in the black market. It was further found by CBI that this was done in M/S. FERTICO MARKETING AND INVESTMENT PVT. LTD v. CENTRAL BUREAU OF INVESTIGATION connivance with the unknown government officials which led to loss of Rs.36.28 crore to the Central Government. Accordingly, on 13 th April 2011, an FIR came to be registered by CBI for the offences punishable under Sections 120B and 420 of the IPC and Section 13 (2) read wi th Section 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as ‘the PC Act’) against Mr. Anil Kumar Agarwal, Director of said M/s Fertico Marketing and Investment Pvt. Ltd. and unk nown officials of the District Industries Centre (hereinaft er referred to as ‘DIC’), District Chandauli, so also unknown officials o f Northern Coalfields Limited, Singrauli, Madhya Pradesh. 3. During the course of investigation, it was found that two officers namely Ram Ji Singh, the then General Manager, DIC, Chandauli and Yogendra Nath Pandey, Assistant Manager, DIC, Chandauli were also part of the conspiracy. Investigation revealed that these two officials had abused their official positions and fraudulently and dishonestly sent false status reports regarding working conditions of the accused companies and thereby, dishonestly induced the Northern Coalfie lds Limited to supply coal on subsidized rates, for obtaini ng pecuniary advantage. 4. The competent authority granted sanction to prosecute the two public servants on 31 st May 2012, under Section 19 of the PC Act. Charge-sheet was filed on 31 st May 2012, against the appellants under Section 120B read with Section 420, Sections 467, 468 and 471 of the IPC. Various petitioners approached the High Court by filing petitions under Section 482 Cr.P.C. praying for quashing the charge-sheet/ summoning order and consequential proceedings pending before t he Special Judge, Anti-Corruption, CBI. The learned Single Judge of the High Court vide his order dated 24 th February 2015, framed the following four questions for determination:- Q.No.1:- Whether the investigation conducted by the CBI in these bunch of cases are illegal and without jurisdict ion for non-compliance of section 6 of DSPE Act? If so, its effe ct? Q.No.2- Whether the cases are overwhelmingly and predominantingly of civil nature as purely bases on breach of contract (FSA) and the criminal prosecutions are liable t o be quashed? 961 Q.No.3- Whether CBI did not follow doctrine of parity in fili ng the criminal prosecutions against the petitioners? If so, its effect? Q.No.4- Whether in absence of Officers /official of NCL, charge of Criminal conspiracy under section 120-B IPC could be made out? Having framed the aforesaid questions, the learned Single Judge has found in the judgment, that another Single Judge of the s aid High Court has taken a view, that when the State Government had gra nted sanction to prosecute an accused, it is implied that the p ermission for investigation was also granted. The learned Single Judge disagreed with the earlier view taken by another learned Single Judge and was of the view, that since in the present case, investigation conducted by the CBI was without the previous permission/consent of the Government of UP as such, was in breach of the mandatory provisions of Section 6 of the Delhi Special Police Establishment Act, 1946 (hereinafter referred to as “DSPE Act”). He was therefore of the view, that the in vestigation suffered with incurable defect of lacking inherent jurisdiction. However, the learned Single Judge found, that since he had disagreed with the earlier view of learned Single Judge and since there was no bi nding precedent on the issue, it was appropriate to refer question Nos.1 and 2 for decision by the Division Bench. The learned Single Judge vide his detailed order dated 24 th February 2015, referred the following two questions to the Division Bench:- 1. Whether investigation of such cases having involvement of Public servant under control of State Government of U.P. as well as private individuals for offences punishable under the Prevention of Corruption Act, 1988 (49 of 1988), a nd attempts, abetments and conspiracies in relation to al l or any of the offence or offences mentioned above and a ny other offence or offences committed in the course o f the transaction and arising out of the same facts under the G.O. of State Government Dated 15.6.1989 can be investigated by CBI assuming suo moto jurisdiction under section 6 of DSPE Act without the previous permission or consent of State Government? M/S. FERTICO MARKETING AND INVESTMENT PVT. LTD v. CENTRAL BUREAU OF INVESTIGATION [B. R. GAVAI, J.] 2. Whether total non compliance/absence of previous consent of State Government under section 6 of DSPE Act could be cured by grant of prosecution sanction under section 197 Cr.P.C. of under section 19 of P.C. Act by State Government or competent authority ? 5. The Division Bench vide its judgment and order dated 6 th July 2015, answered the reference in the following terms:- “Our answer therefore to question no.1 is that sinc e the question as framed proceeds on an erroneous premise of facts available in the case, the same is answered by holding that the Government Order dated 15.6.l989 permits investigat ion and it was not a case of assuming suo motu jurisdict ion by the CBI to investigate on the facts of the present cas e. The second question framed by the learned Single Judge is returned unanswered in view of the fact that the a ffidavit of the State Government had not been invited by the learned Single Judge before proceeding to raise a doubt and frame the second question to be answered in this referenc e as observed above. With the aforesaid answers to the two questions framed, let the papers be placed before the concerned court for proceeding in the matter in accordance with law.” After the reference was answered, the matter again ca me up before the learned Single Judge, who by order dated 17 th August 2015, directed the State Government to file an affidavit. In compl iance with the directions issued by the High Court, the State Government fi led affidavits dated 31 st October 2015 and 20 th December 2015. The learned Single Judge passed an order on 5 th April 2018, to the following effect:- “Sri P.K. Singh, learned AGA prays for and is granted ten days time to file an affidavit of the responsible secretary of the Home Department regarding interpretation and scope of notification dated 15.06.1983 with regard to Section 6 of the Delhi Police Special Provisions Act. Put up this case on 18.04.2018.” 6. In compliance with the order dated 5 th April 2018, the State Government filed various affidavits through the Secretary, Ho me and 963 Principal Secretary, Home. The stand taken by the State Government in the said affidavits was that the Notification dated 15 th June 1989, accorded consent to the powers and jurisdiction of the Members of Delhi Special Police Establishment (hereinafter referred to as ‘the DS PE’) in whole of the State of Uttar Pradesh for investigation of offenc es under the Prevention of Corruption Act, with the rider that no such investigation shall be taken up in cases relating to the public servants, under the control of the State Government except with the prior permission of t he State Government. It was the stand of the State Government, that restriction of prior permission of the State Government was limited only in relation to public servants under the control of the State Government and not to any private individual. It was further the stand of the Government, that the notification permits the competent authority under DSPE Act for investigation of offences as mentioned in the notification in the State of Uttar Pradesh. However, if any public servant, under the control of the State Government was named in the First Information Report, pr ior permission of the State Government would be required for investigation. Further stand of the State Government was that, public serva nt under the control of the State Government, if not named in the First Information Report, but if, in the further investigation, is found to be involved in the said crime, the prior permission of the State Government would not be required for investigation. The State Government further stated in the affidavit, that insofar as two public servants are concerned i.e. Sri Ram Ji Singh, the then General Manager, DIC, Chandauli and Sri Yogendra Nath Pandey, Assistant Manager, DIC, Chandauli, the sanction under Section 6 of the DSPE Act was granted vide notifica tion dated 7th September 2018, in respect of the FIR registered by CBI on 13 th April 2011, under Sections 120B and 420 IPC and Section 13 (2) read with Section 13(1)(d) of the PC Act. 7. The learned Single Judge vide the impugned order found, that the State Government had granted Post-Facto consent vide notification dated 7 th September 2018, against the two public servants of the St ate Government whose names had figured during the course of investigation. The learned Single Judge found, that the Post-Facto consent was sufficient for investigation by the CBI for the offences against the two public servants, whose names though did not find place in the FIR but were found in charge-sheet. The learned Single Judge held, that if the names of the said public servants did not figure in the FIR an d their names came to light during the course of investigation and charge-she et was M/S. FERTICO MARKETING AND INVESTMENT PVT. LTD v. CENTRAL BUREAU OF INVESTIGATION [B. R. GAVAI, J.] filed against the said public servants of the State Government, the consent given after completion of investigation would be a valid consent under Section 6 of the DSPE Act. The learned Single Judge further found, that the question of consent can be raised only by the public servan ts who have been named in the FIR and not by the private individuals, who had come before the Court. The learned Single Judge therefore, dis missed all the petitions. Being aggrieved thereby, the present appeals. 8. Shri Mukul Rohatgi, learned Senior Counsel appearing on behalf of the appellants submitted, that in the absence of the cons ent of the State Government under Section 6 of the DSPE Act, the DSPE (CB I) had no powers to conduct investigation in view of the provisions contained in Section 6 of the DSPE Act. He submitted, that the cons ent of the State Government is mandatory as is seen from Section 6 of the DSPE Act. The learned Senior Counsel would submit, that failure in obtaining the consent prior to registration of the FIR would go to the root of the matter and vitiate the entire investigation. He subm itted, that the appellants-private individuals have been charged with t he offences punishable under Sections 120B and 420 of IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act. He submitted, that an offence under the provisions of the Prevention of Corruption Act can be registered only against public servant. He submitted, that since the prosecution had invoked Section 120B of the IPC, the mandatory requirement is that there has to be a meeting of minds. He sub mitted, that an offence under Section 120B of the IPC read with Section 13(1)(d) of the Prevention of Corruption Act cannot stand unless there is a meeting of minds between public servant and the private individuals and as such, an FIR could not be registered. He submitted, that investig ation in a matter which concerns the conspiracy between the private indi vidual and the public servant, the same would not be permitted unless there is a valid consent under Section 6 of the DSPE Act. The learned S enior Counsel strongly relied on the judgment of this Court in the case of Ms. Mayawati v. Union of India and Others 1. 9. Mr. Ajit Kumar Sinha, learned Senior Counsel appearing on behalf of the accused who are the public servants in appeals arising out of SLP(Crl.) Nos. 8420-21 of 2019 submitted, that inso far as the appellants-public servants are concerned, in the abse nce of a valid consent, the CBI could not have exercised powers and jurisdiction to 1 (2012) 8 SCC 106 965 investigate the matter. It is submitted, that the Post-Facto sanction granted on 7 th September 2018, would not cure the defect of obtaining the prior consent. Both the learned Senior Counsel therefore submitted, that the proceedings are liable to be quashed and set aside. 10. Shri S.V. Raju, learned Additional Solicitor General would submit, that the prior consent under Section 6 of the DSPE Act is not mandatory but directory. He submitted, that in any case unless the appellants point out that on account of the procedural irregularity of not obtaining the prior consent, prejudice is caused to the appellants or it has resulted in miscarriage of justice, the investigation would not be vitiated. He submitted, that insofar as the appellants-private i ndividuals are concerned, the grievance of the said appellants is totally unw arranted inasmuch as the Notification dated 15 th June, 1989 vide which a general consent has been granted to investigate the matters aris ing out of PC Act, unless it concerns a public servant under the control of the State Government. Insofar as the public servants are concerned, the l earned ASG submitted, that in any case, the consent has been gr anted after completion of the investigation on 7 th September 2018 and as such the defect, if any, stands cured. He submitted, that in any case, there are no pleadings by the appellants-public servants with regard to prejudice caused to them or with regard to miscarriage of justice. He therefore submitted, that no interference is warranted with the judgment of the High Court. 11. It will be relevant to refer to Sections 5 and 6 of the DS PE Act as under:- 5. Extension of powers and jurisdiction of special police establishment to other areas.— (1) The Central Government may by order extend to any area (including Railway areas) in a State, not being a Union territory, the powers an d jurisdiction of members of the Delhi Special Police Establishment for the investigation of any offences or cl asses of offences specified in a notification under section 3 . (2) When by an order under sub-section (1) the power s and jurisdiction of members of the said police establishm ent are extended to any such area, a member thereof may, subject t o any orders which the Central Government may make in th is behalf, discharge the functions of a police officer in tha t area and shall, while so discharging such functions, be deemed to M/S. FERTICO MARKETING AND INVESTMENT PVT. LTD v. CENTRAL BUREAU OF INVESTIGATION [B. R. GAVAI, J.] be a member of the police force of that area and be vested with the powers, functions and privileges and be su bject to the liabilities of a police officer belonging to that police force. (3) Where any such order under sub-section (1) is m ade relation to any area, then, without prejudice prejudice to th e provisions of sub-section (2), any member of the Delhi Sp ecial Police Establishment of or above the rank of Sub-In spector may, subject to any orders which the Central Government ma y make in this behalf, exercise the powers of the officer in c harge of a police station in that area and when so exercising such powers, shall be deemed to be an officer in charge of a police station discharging the functions of such an office r within the limits of his station. 6. Consent of State Government to exercise of power s and jurisdiction.— 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 a rea], without the consent of the Government of that State. It could thus be seen, that though Section 5 enables 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 State concerned under Section 6 of the DSPE Act. Obviousl y, the provisions are in tune with the federal character of the Co nstitution, which has been held to be one of the basic structures of the Constitution. 12. It would be relevant to refer to the notification issued by the Government of Uttar Pradesh dated 15 th June 1989, which reads as under:- “Government of Uttar Pradesh Home(Police) Section-1 No.3442/VIII-1-84/88 Lucknow, dated : June 15, 1989 Notification In pursuance of the Provisions of Section 6 of the Delhi Special Police Establishment Act, 1946 ( 25 of 1946 ) the 967 Governor of the State of Uttar Pradesh is pleased to acco rd consent to the extension of powers and jurisdiction of the members of the Delhi Special Police establishment i n whole of the State of Uttar Pradesh, for investigation of offences punishable under the Prevention of Corruption Act, 1988 (49 of 1988), and attempts, abetments and conspiracies in relati on to all or any of the offence or offences mentioned above and any other offence or offences committed in the course of th e transaction and arising out of the same facts, subject howev er to the condition that no such investigation shall be taken up in cases relating to the public servants, under the contr ol of the State Government except with the prior permission of th e State Government. BY ORDER IN THE NAME OF THE GOVERNOR. Sd/- (S.K. TRIPATHI) HOME SECRETARY TO THE GOVT OF UTTAR PRADESH” 13. It could thus be seen, that the State of Uttar Pradesh h as accorded a general consent for extension of powers and jurisdiction of the Members of DSPE, in the whole of State of Uttar Pradesh for investigation of offences under the Prevention of Corruption Act, 1988 and attempts, abetments and conspiracies in relation to all or any of the offence or offences committed in the course of the transaction and arising out of the same facts. The same is however with a rider, tha t no such investigation shall be taken up in cases relating to the pu blic servants, under the control of the State Government, except with prior permission of the State Government. As such, insofar as the private individuals are concerned, there is no embargo with regard to registration of FIR against them inasmuch as, no specific consent would be required under Section 6 of the DSPE Act. Vide notification dated 15 th June 1989, the State of Uttar Pradesh has accorded a general consent thereby, enabl ing the Members of DSPE to exercise powers and jurisdiction in the entire State of Uttar Pradesh with regard to investigation of offences under the Prevention of Corruption Act, 1988 and also to all or any of the offence or offences committed in the course of the same transaction or arisi ng out of the same facts. As such, for registration of FIR against the private M/S. FERTICO MARKETING AND INVESTMENT PVT. LTD v. CENTRAL BUREAU OF INVESTIGATION [B. R. GAVAI, J.] individuals for the offences punishable under the Prevention of Corruption Act and other offences under the IPC, committed in the course of the same transaction or arising out of the same facts, the Members of DSPE have all the powers and jurisdiction. As such, we find absolutel y no merits in the appeals filed by the private individuals. 14. Insofar as the two public servants who have been undoubtedly working under the State Government are concerned, initially, they were not named in the FIR. However, their names surfaced during the course of investigation and thus sanction was granted for their prosecution under Section 19 of the Prevention of Corruption Act vide order date d 31 st May 2012, prior to filing of the charge-sheet. It is also not in dispute that Post-Facto consent was given by the State Government vide notification dated 7 th September 2018, under Section 6 of the DSPE Act to the authorities to investigate the public servants. 15. As early as in 1955, the question arose for consideration before this Court, as to whether an investigation carried out by a police officer below the rank of Deputy Superintendent of Police, under Section 5(4) of the Prevention of Corruption Act, 1947, without the order of th e Magistrate of First Class, was mandatory or directory? While holding that the provision is mandatory, this Court considered a question as to whether and to what extent, the trial which follows such investigation, is vitiated. The Court, in H.N. Rishbud and Inder Singh v. The State of Delhi 2, observed as under:- “If, therefore, cognizance is in fact taken, on a police re port vitiated by the breach of a mandatory provision relat ing to investigation, there can be no doubt that the result of the tr ial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committe d in the course of investigation does not affect the compete nce and the jurisdiction of the Court for trial is well settled as appears from the cases in Prabhu v. Emperor AIR 1944 PC 73 and Lumbhardar Zutshi v. The King AIR 1950 PC 26. These no doubt relate to the illegality of arrest in the course of investigation while we are concerned in the present cases with the illegality with reference to the machinery for the collection 2 [1955] 1 SCR 1150 969 of the evidence. This distinction may have a bearing on the question of prejudice or miscarriage of justice, but bo th the cases clearly show that invalidity of the investigation ha s no relation to the competence of the Court. We are, th erefore, clearly, also, of the opinion that where the cognizance of t he case has in fact been taken and the case has procee ded to termination., the invalidity of the precedent investigation do es not vitiate the result, unless miscarriage of justice has been caused thereby.” It could thus be seen, that this Court has held, that the cognizance and the trial cannot be set aside unless the illegality in the investigation can be shown to have brought about miscarriage of justice. It has been held, that the illegality may have a bearing on the question of prejudice or miscarriage of justice but the invalidity of the inves tigation has no relation to the competence of the court. 16. It will also be apposite to note the following observations of this Court in State of Karnataka v. Kuppuswamy Gownder and Others 3, while considering the provisions of Section 465 of the Cr.P.C.:- 14. The High Court, however, observed that provisions of Section 465 CrPC cannot be made use of to regularise this trial. No reasons have been stated for this conclusion. Section 465 CrPC reads as under: “Finding or sentence when reversible by reason of error, omission or irregularity.—(1) Subject to the provisions hereinbefore contained, no finding, sent ence or order passed by a court of competent jurisdiction shall be reversed or altered by a court of appeal, confirmati on or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, orde r, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prose cution, unless in the opinion of that court, a failure of justice has in fact been occasioned thereby. (2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any 3 (1987) 2 SCC 74 M/S. FERTICO MARKETING AND INVESTMENT PVT. LTD v. CENTRAL BUREAU OF INVESTIGATION [B. R. GAVAI, J.] error, or irregularity in any sanction for the pros ecution has occasioned a failure of justice, the court shal l have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.” It is provided that a finding or sentence passed by a court of competent jurisdiction could not be set aside merely on the ground of irregularity if no prejudice is caused to the accus ed. It is not disputed that this question was neither raised by the accused at the trial nor any prejudice was pleaded either at the trial or at the appellate stage and therefore in abse nce of any prejudice such a technical objection will not a ffect the order or sentence passed by competent court. Apart from Section 465, Section 462 provides for remedy in cases of trial in wrong places. Section 462 reads as under: “462. Proceedings in wrong place.—No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong Sessions Division, district, sub-di vision or other local area, unless it appears that such error has in fact occasioned a failure of justice.” This provision even saves a decision if the trial h as taken place in a wrong Sessions Division or sub-division or a district or other local area and such an error could only be of some consequence if it results in failure of justice, ot herwise no finding or sentence could be set aside only on the ba sis of such an error. 17. This Court, in the case of Union of India v. Prakash P. Hinduja and Another 4, while relying on the judgment of this Court in H.N. Rishbud 5 (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 971 to investigation, there can be no doubt that the result o f the trial, which follows it cannot be set aside unless the illegal ity in the investigation can be shown to have brought a bout a miscarriage of justice and that an illegality committed in t he course of investigation does not affect the compete nce and the jurisdiction of the Court for trial. This being the legal position, even assuming for the sake of argument th at the CBI committed an error or irregularity in submitting the charge sheet without the approval of CVC, the cognizance tak en by the learned Special Judge on the basis of such a charge s heet could not be set aside nor could further proceeding s in pursuance thereof be quashed. The High Court has clea rly erred in setting aside the order of the learned Special Judge taking cognizance of the offence and in quashing fu rther 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 pursuanc e 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 Others 6. 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 w as 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 o f 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 Biha r, 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 cons ent 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 publ ic 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 C ourt in Mayawati 7 (supra) , the only question that fell for consideration before this Court was, as to whether any of the orders passed by thi s 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 11 th 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 learne d 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 J udge for deciding the question Nos. 2, 3 and 4 on its own merits. We clarify, 7 (2012) 8 SCC 106 973 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 te rms. 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.]