CENTRAL BUREAU OF INVESTIGATION vs. STATE OF KARNATAKA

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R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 29 DAY OF AUGUST, 2024
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
WRIT PETITION NO. 27220 OF 2023 (GM-RES)
CONNECTED WITH
WRIT PETITION NO.670 OF 2024 (GM-RES)

IN W.P.27220/2023
BETWEEN:

SRI. BASANAGOUDA R PATIL (YATNAL)
S/O RAMANAGOUDA B PATIL
AGED ABOUT 59 YEARS
OCC MLA, VIJAYAPURA CONSTITUENCY
R/AT OLD IB, STATION ROAD
VIJAYAPURA 586101, KARNATAKA.
…PETITIONER
(BY SRI. DALWAI VENKATESH - ADVOCATE)
AND:

1. STATE OF KARNATAKA
THE DEPUTY SECRETARY TO GOVERNMENT
HOME DEPARTMENT (CRIMES, PRISONS & CINEMA)
VIKAS SOUDHA, BENGALURU 560001.

2. CENTRAL BUREAU OF INVESTIGATION
ANTI CORRUPTION BUREAU
NO 36, BELLARY ROAD
GANGANAGAR, BENGALURU 560032
REP. BY ITS SUPERINTENDENT OF POLICE
3. SRI D K SHIVAKUMAR
S/O S K KEMPEGOWDA
AGE 60 YEARS, OCC:MLA

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TH
ADD: NO 252, 18 CROSS
SADSASHIVA NAGAR
BENGALURU 560080.

4. THE ADDL. DIRECTOR GENERAL OF POLICE
KARNATAKA LOKAYUKTA
M S BUILDING, BANGALORE-01.
…RESPONDENTS
(BY SRI. KAPIL SIBAL – SR. COUNSEL A/W SRI
K. SHASHIKIRAN SHETTY – AG A/W SMT. MAMATHA SHETTY –
AGA, SRI. JAGADEESHA B N – ADDL. SPP, SRI. ISMAIL
ZABIULLA – AAG, SRI. ADIT S PUJARI- ADVOCATE AND SRI.
RACHEL RAJU ALICE – ADVOCATE FOR RESPONDENT NO.1;
SRI. P PRASANNA KUMAR – ADVOCATE FOR RESPONDENT
NO.2; DR. ABHISHEK SINGHVI – SR. COUNSEL AND SRI. UDAY
HOLLA – SR. COUNSEL ALONG WITH SRI. MAYANK JAIN-
ADVOCATE, MADHUR JAIN – ADVOCATE, ARPIT GOWL –
ADVOCATE AND SIDHARTH SEIM – ADVOCATE FOR SRI. VIVEK
HOLLA – ADVOCATE FOR RESPONDENT NO.3; SRI. VENKATESH
S. ARABATTI – SPL. COUNSEL FOR RESPONDENT NO.4)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO;
A) DECLARE THAT THE IMPUGNED ORDER DATED 28.11.2023
VIDE G O NO.HD4COD 2023 PASSED BY THE RESPONDENT
NO.1 VIDE ANNEXURE-D AS VOID AND NON-EST IN LAW AND
CONSEQUENTLY QUASH THE SAME ; B) DIRECT RESPONDENT
NO.2 TO INVESTIGATE AND SUBMIT FINAL REPORT IN
CBI/ACB/BLR RC 10(A) 2020 VIDE ANNEXURE-A; C) ISSUE
DIRECTION UNDER SECTION 483 OF CODE OF CRIMINAL
ST
PROCEDURE TO LEARNED 21 ADDL. CITY CIVIL AND
SESSIONS AND SPECIAL JUDGE, FOR CBI CASES JUDGE; AND
D) QUASH THE ORDER DATED 22.12.2023 ISSUED BY THE
RESPONDENT NO.1 IN HD4COD 2023 DATED 22.12.2023 VIDE
ANNEXURE-F.

IN W.P.670/2024
BETWEEN:

CENTRAL BUREAU OF INVESTIGATION
(ANTI CORRUPTION BUREAU)
OFFICE AT NO.36, BELLARY ROAD

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GANGANAGAR, BENGALURU 560032.
REP. BY THE CHIEF INVESTIGATION OFFICER
SRI ANANDAKRISHNAN T.P
ADDL., SUPERINTENDENT OF POLICE
CENTRAL BUREAU OF INVESTIGATION
AT ANTI CORRUPTION BUREAU
BENGALURU 560032.
…PETITIONER
(BY SRI. P PRASANNA KUMAR - ADVOCATE)
AND:

1. STATE OF KARNATAKA
REP BY ITS CHIEF SECRETARY
RD
ROOM NO320, 3 FLOOR
VIDHANA SOUDHA
BENGALURU 560001.

2. THE SECRETARY
HOME DEPARTMENT
ROOM NO.222
II FLOOR, VIDHANA SOUDHA
BENGALRU 560001.
3. THE UNDER SECRETARY TO GOVERNMENT
HOME DEPARTMENT (CRIMES)
II FLOOR, VIDHANA SOUDHA
BENGALURU 560001.

4. DEPUTY SECRETARY TO GOVERNMENT
HOME DEPARTMENT
(CRIMES, PRISONS AND CINEMA)
II FLOOR, VIDHANA SOUDHA
BENGALURU 560001.

5. KARNATAKA LOKAYUKTHA
BENGALURU CITY
REP BY ITS SUPERINTENDENT OF POLICE
MS BUILDING
BENGALURU 560001.

6. SRI. D K SHIVAKUMAR
S/O S K KEMPE GOWDA

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AGED 60 YEARS
MEMBER OF LEGISLATIVE ASSEMBLY
& DEPUTY CHIEF MINISTER
STATE OF KARNATAKA
TH
R/AT NO.252, 18 CROSS
SADASHIVANAGAR
BENGALURU 560080.
…RESPONDENTS
(BY SRI. KAPIL SIBAL – SR. COUNSEL A/W SRI
K. SHASHIKIRAN SHETTY – AG A/W SMT. MAMATHA SHETTY –
AGA, SRI. JAGADEESHA B N – ADDL. SPP, SRI. ISMAIL
ZABIULLA – AAG, SRI. ADIT S PUJARI- ADVOCATE AND SRI.
RACHEL RAJU ALICE – ADVOCATE FOR RESPONDENTS NO.1 TO
4; SRI. VENKATESH S. ARABATTI – SPL. COUNSEL FOR
RESPONDENT NO.5; DR. ABHISHEK SINGHVI – SR. COUNSEL
AND SRI. UDAYA HOLLA – SR. COUNSEL ALONG WITH SRI.
MAYANK JAIN – ADVOCATE, MADHUR JAIN – ADVOCATE, ARPIT
GOEL – ADVOCATE AND SIDHARTH SEIM – ADVOCATE FOR
SRI. VIVEK HOLLA – ADVOCATE FOR RESPONDENT NO.6)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO;
QUASH THE IMPUGNED GOVERNMENT ORDER DTD 28.11.2023
VIDE GO.NO.HD4COD 2023, BENGALURU PASSED BY THE R4 /
DEPUTY SECRETARY (PRODUCED VIDE ANNEXURE-M TO THE
WRIT PETITION) AND QUASH THE IMPUGNED GOVERNMENT
ORDER DTD 22.12.2023 VIDE GO.NO.HD4COD 2023,
BENGALURU AND ITS CORRIGENDUM DTD 26.12.2023 VIDE
GO NO.HD4COD 2023, BENGALURU PASSED BY THE R3 /
UNDER SECRETARY (PRODUCED VIDE ANNEXURE-P AND Q TO
THE WRIT PETITION)
THESE WRIT PETITIONS, HAVING BEEN FURTHER HEARD
AND RESERVED FOR JUDGMENT ON 12.08.2024 COMING ON
FOR PRONOUNCEMENT THIS DAY, K. SOMASHEKAR . J.,
MADE THE FOLLOWING:

CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR
AND
HON'BLE MR JUSTICE UMESH M ADIGA

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CAV ORDER
(PER: HON'BLE MR JUSTICE K.SOMASHEKAR)

As common questions of law and facts arise for
consideration in both these petitions, they are heard
together and are disposed of by this common order.
2. The petition in W.P.No.27220/2023 is filed by one
Sri Basanagouda R. Patil (Yatnal), praying to declare the
impugned order dated 28.11.2023 vide GO No.HD4COD
2023 passed by State Government produced at Annexure-
“D” as void and non-est and consequently to quash the
same; further, for issue of a writ of mandamus to direct
Central Bureau of Investigation to investigate and submit
a final report; to quash the order dated 22.12.2023 issued
by State Government in HD 4 COD 2023 at Annexure-“F”
and such other reliefs.
3. The petition in W.P.No.670/2024 has been
preferred by the Central Bureau of Investigation against
the respondents, arraigning one Shri D.K. Shivakumar as
Respondent No.6, praying to issue an order in the nature
of certiorari quashing the impugned Government Order
dated 28.11.2023 vide G.O.No.HD4COD 2023, Bengaluru,

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th
passed by the 4 respondent / Deputy Secretary
(produced as Annexure-“M” to the writ petition) and also
for issue of a writ of certiorari quashing the impugned
Government Order dated 28.11.2023 vide GO No.HD4COD
2023, Bengaluru and its Corrigendum dated 26.12.2023
rd
vide GO No.HD4COD 2023, Bengaluru, passed by the 3
respondent / Under Secretary (produced as Annexures “P”
and “Q” to the said writ petition).

4. We have heard the learned Senior Counsel Shri
Kapil Sibal and the learned Advocate General Shri K.
Shashi Kiran Shetty appearing on behalf of Respondent
No.1 / State in W.P.No.27220/2023 and for Respondent
Nos.1 to 4 / State in the connected petition in
W.P.No.670/2024. Further, we have heard the learned
Senior Counsel Dr. Abhishek Singhvi appearing on behalf
of Respondent No.3 in W.P.No.27220/2023 and for
Respondent No.6 in W.P.No.670/2024, namely,
Sri. D.K. Shivakumar. Further, we have heard the
arguments of Learned counsel Shri. Venkatesh P. Dalwai
for the petitioner in W.P.No.27220/2023, namely,

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Shri. Basanagouda R. Patil (Yatnal), learned counsel Shri
Venkatesh S. Arabatti for Karnataka-Lokayukta /
Respondent No.4 in W.P.No.27220/2023 and for
Respondent No.5 in W.P.No.670/2024 as well as the
learned Spl. PP. Shri P. Prasanna Kumar for the CBI in
both the petitions and perused the entire material on
record.

5. In a nutshell, these petitions have been filed
challenging the withdrawal of consent for an investigation
against Shri D.K. Shivakumar / respective respondent in
both the petitions. The investigation pertains to a case
registered under the Prevention of Money Laundering Act,
2002, following an income tax search conducted on
02.08.2017 that revealed a significant amount of
unaccounted cash.
6. It transpires from the facts of the cases that the
respective respondent in both the petitions namely Shri
D.K. Shivakumar, the Deputy Chief Minister and President
of the Karnataka Pradesh Congress Party, was subjected
to an Income Tax Department search on August 2, 2017.

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During the search, Income Tax officials are said to have
recovered Rs.8,59,69,100/-, including Rs. 41.00 lakhs
from various premises. Consequently, a case was filed
against the said respondent under the Income Tax Act,
1961, before the Special Court for Economic Offences. The
Directorate of Enforcement (ED) also registered a case
(ECIR/HQ/4/2018). On September 9, 2019, the ED sent a
letter to the Karnataka State Government under Section
66(2) of the Prevention of Money Laundering Act, 2002,
seeking consent for investigation. The State Government
consented on September 25, 2019, leading to the
registration of an FIR against the said respondent. Against
the FIR, the said respondent filed Writ Petition No.
10479/2020 to quash the order, but the same was
dismissed on April 20, 2023. Subsequently, a writ appeal
in WA No. 646/2023 was filed. During the pendency of the
writ appeal, it was reported on November 24, 2023, that
the State Cabinet had withdrawn the consent for
investigation against Shri D.K. Shivakumar, under Section
6 of the DSPE Act, 1946.

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7. The petitioner Shri Basanagouda R. Patil (Yatnal)
filed an intervening application in the writ appeal, arguing
that the withdrawal of consent was arbitrary, malafide,
and against public interest, citing the Supreme Court's
decision in KaziDorji vs. State of Sikkim. The High Court
allowed the said respondent to withdraw both the writ
appeal and the writ petition. The petitioner / Yatnal,
claiming locus-standi based on involvement as an
intervenor in WA No. 646/2023, argues that the
withdrawal of consent is unlawful and interferes with
ongoing investigations and judicial proceedings. Despite a
defamation suit filed by the said respondent in 2019, the
petitioner contends it does not hinder the legal challenge
against the withdrawal of consent. The petitioner asserts
that the withdrawal of consent is tailored to benefit of the
said respondent and is tainted with malafides, and
constitutes interference with an ongoing investigation. The
petitioner seeks a declaration that the withdrawal of
consent is void and that the investigation should continue
unaffected, hence this writ petition in W.P.No.27220/2023.

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8. The learned Advocate Shri Venkatesh P.Dalwai
appearing for the petitioner in W.P 27220/2023 claims
that, locus standi to challenge the impugned order as an
intervening applicant in W.A. No. 646/2023, having been
heard on merits regarding the withdrawal of consent for
investigation by State Government, the petitioner argues
that State Government violated Articles 141 and 144 of
the Indian Constitution.
9. The Advocate for the petitioner further states that,
Respondent No. 2 in W.P 27220/2023 / CBI, after
registering an FIR under Section 13(1)(e) of the PC Act
1988 against Respondent No. 3 in W.P No.27220/2023,
conducted part of the investigation. The alleged offence
involves amassing wealth disproportionate to known
sources of income, a serious charge for a public servant.
The petitioner argues that the hasty withdrawal of consent
for Respondent No. 3 in W.P 27220/2023, Deputy Chief
Minister of Karnataka, indicates bias and illegalities that
warrant this Hon'ble High Court's intervention.

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10. The petitioner Advocate in W.P 27220/2023
further argues that, criminal law for cognizable offences
can be initiated by any person, even if not personally
injured or aggrieved, under Section 154 CrPC or by
invoking the Learned Magistrate under Section 200 CrPC.
A de facto complainant can challenge adverse orders in
higher courts, even if not personally aggrieved, to prevent
the stifling of prosecution.
11. The petitioner Advocate further states that, due
to State Government’s action, they cannot file a complaint
or invoke jurisdiction under Section 200 Cr.P.C, as the FIR
is registered and the matter is pending before the Trial
Court, as consequence when prosecution is stifled by State
Government, the only recourse is to approach the High
Court in pursuance of the same and submits that, this
Court, being the designated court for cases involving
MPs/MLAs, is the appropriate forum for this writ petition.
12. The petitioner argues that the principles set by
the Apex Court regarding the withdrawal of prosecution
under Section 321 Cr.P.C. should apply to the impugned

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action, confirming the petitioner's locus standi to challenge
it. The petitioner in W.P.27220/2023 asserts their right to
challenge the withdrawal of consent for investigation by
the State Government, claiming locus standi as an
intervening applicant in W.A. No. 646/2023 having been
heard on merits regarding the withdrawal of consent for
investigation by the State Government. The petitioner
argues that Respondent No. 1 / State has violated Articles
141 and 144 of the Indian Constitution which particularly
concerning Respondent No. 3 in W.P 27220/2023 indicates
bias and illegalities.
13. The petitioner emphasizes and submits that,
though they have a right to initiate criminal law
proceedings, even without personal injury, they are unable
to do so due to the pending FIR. They argue that they
should not be treated differently from a de facto
complainant and that the High Court is the appropriate
forum for this case due to the involvement of an MLA.
14. The petitioner highlights their duty to expose the
abuse of power by the State Government and argues that

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the principles set by the Apex Court for withdrawal of
prosecution should apply, confirming their locus standi to
challenge the impugned action. These are the contentions
advanced by the learned counsel Shri Venkatesh P.
Dalwai, for the petitioner / Basanagouda R. Patil (Yatnal),
in W.P.No.27220/2023. Further, Shri Dalwai, has relied on
the following citations, in support of his submissions:
i) W P No 8316/2020 (S-Res) dated 22-7-2020
ii) PSR Sadhanatham V/s Arunachalam; 1980 (3) SCC Page
141 (Para 13 tol 16)

iii) A R Antulay V/s Ramdas Srinivas; AIR 1984 SC 718
iv) V S Achutanandan V/s R Balakrishna Pillai; 1994 (4)
S C C 299

v) Manohar lal V/s Vinesh; 2001 (5) SCC 407
vi) Manzoor Ali Khan V/s Union of India;- 2015(2) S C C. 33
vii) Abdul Wahab V/s State of Kerala; AIR 2018 SC 4265
viii) Kazi Lhendup Dorji V/s CBI; -1994 Supp SCC 116
ix) K Chandrashekar V/s CBI; AIR 1998 SC 2001.

15. It is the further contention of the Shri Venkatesh P.
Dalwai, learned counsel for the petitioner / Yatnal, in
W.P.No.27220/2023 by way of his further synopsis filed on
02.08.2024 that, Respondent No.3 / Shri D.K.
Shivakumar, had challenged the registration of FIR and

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investigation by the CBI in W.P.No.15251/2022. The
learned Single Judge of this Court, by order dated
19.10.2023, has dismissed the said petition and thereby
permitted the CBI to continue the investigation. The said
order was challenged by the said Respondent No.3 before
the Hon’ble Apex Court in SLP (Criminal) Diary
No.47121/2023. The Hon’ble Apex Court, by its order
dated 14.07.2024, has dismissed the said SLP, which
order has been produced as Document No.1. It is the
contention of Shri Venkatesh P. Dalwai for the petitioner in
W.P.No.27220/2023 that, the resultant effect of the
judgment of the Hon’ble Apex Court is that the order of
the learned Single Judge in allowing the investigation by
the CBI, has been merged with the order in SLP. Hence,
the CBI will have to be allowed to complete the
investigation and to file an appropriate report in the Court.
16. He further submits that Article 131 of the
Constitution of India deals with original jurisdiction of the
Supreme Court and clauses (a), (b) and (c) clearly specify
that the applicability is valid only in disputes between the

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States, Union of India on either side. It is his contention
that the said constitutional bar does not apply to the
present dispute as in these writ petitions, as there are
private parties in the present writ petitions. This view is
supported by the judgment of the Hon’ble Apex Court in
the case of STATE OF BIHAR vs. UNION OF INDIA
((1970 (1) SCC 67)) .
17. Learned counsel Shri Venkatesh P. Dalwai further
submits that Section 6 of the DSPE Act requires the
consent of the State Government for the CBI to exercise
its powers and jurisdiction within that State. This means
that, even though Section 5 allows the Central
Government to extend the DSPE’s powers to any area, the
actual exercise of these powers within a State, depends on
the State’s consent as per Section 6 of the DSPE Act.
18. Further, Section 5 of the DSPE Act grants the
Central Government the authority to extend the DSPE’s
jurisdiction, but Section 6 permission is mandatory since it
begins with non-obstante clause. Hence, it is his
contention that Section 6 consent / permission is

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necessary to register the case within the State. However,
once case was registered based on the consent,
subsequent withdrawal will not affect ongoing investigation
by the CBI but only prohibits any other fresh case being
registered by it in future. Hence, it is submitted by the
learned counsel Shri Venkatesh P. Dalwai that in the
present case, withdrawal post registration and
commencement of investigation will not affect the powers
of the CBI under the DSPE Act.
19. Since the very foundation of withdrawal of
consent order is contrary to law of the land, i.e., ratio laid
down by Kazi Dorji case which is binding on all authorities
under Article 144 of the Constitution of India and such FIR
was registered during pendency of the writ petition, it has
no sanctity in law. Hence, the learned counsel Shri
Venkatesh P. Dalwai submits that the FIR has no
independent legs to stand as the act of transfer of
investigation is without jurisdiction and is nullity in the eye
of law.

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20. Whereas the learned SPP Shri P. Prasanna Kumar
for the respondent in the aforesaid writ petition and also
petitioner in the connected proceedings in
W.P.No.670/2024 for the CBI has specifically contended
relating to the ‘general consent’ and also ‘specific consent’
and their guidelines inclusive of the scope of Article 131 of
the Constitution of India and so also the relevant
provisions of the CVC Act, 2003 and he has argued in
conformity with the arguments advanced by the learned
counsel Shri Venkatesh Dalwai for the aforesaid petitioner
and he submitted that the contentions of Shri Venkatesh
P. Dalwai be considered even though he has submitted the
written synopsis in terms of written arguments on the
aforesaid aspects.
21. The Learned Special Counsel Shri P. Prasanna
Kumar appearing for the Central Bureau of Investigation in
both the petitions contends that, t he State Government
issued consent to the CBI under Section 6 of the DSPE Act
on 25.09.2019, leading to the registration of FIR RC No.
10(A)/2020. When such being the case, the State

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Government's subsequent withdrawal of consent during
the on-going investigation, is illegal and without due
process of law. Further, the Respondent / State’s reliance
on Section 21 of the General Clauses Act to justify their
withdrawal, is misplaced. He submits that the Hon’ble
Supreme Court in the case of Kazi Lhendup Dorji v. CBI
(1994 Supp (2) SCC 116) , examined the power to
withdraw consent under Section 21 of the General Clauses
Act concerning Section 6 of the DSPE Act. While the court
did not definitively answer whether Section 21 could be
invoked, it held that even if it were applicable, the
withdrawal would have only prospective effect and would
not impact the ongoing investigations.
22. Further, the learned Special Counsel Shri P.
Prasanna Kumar highlights the Supreme Court's rulings in
K. Chandrasekhar v. State of Kerela ((1998) 5 SCC
223), Common Cause v. Union of India ((2023) 10
SCC 321) , and various High Court judgments, including
Ramesh Chandra Singh v. CBI ( 2020 SCC online Cal
586) and Kotrappa Haldal v. State of Karnataka (AIR

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1984 Kant 34) , which unequivocally state that
withdrawal of consent does not affect pending
investigations. Further, the CBI is obligated to complete
the investigation and file its final report, regardless of any
withdrawal. The State Government's actions in not only
withdrawing consent but also transferring the investigation
to the Karnataka Lokayuktha, is illegal and contrary to the
Supreme Court's directives in the aforementioned
cases. The question of whether Section 21 of the General
Clauses Act applies to Section 6 of the DSPE Act, remains
unresolved. However, the Supreme Court's stance in Kazi
Lhendup Dorji (1994 Supp (2) SCC 116) makes it
clear that this question is irrelevant to the effect of
withdrawal of pending investigations. Once consent is
given under Section 6 of the DSPE Act, the CBI must
conclude the investigation, and withdrawal of consent
cannot impede this process. It is contended that the
transfer of the investigation to the Lokayuktha further
raises concerns about potential interference and influence,
jeopardizing the fairness and impartiality of the

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investigation, especially considering the accused's high
public office.
23. Per contra, Shri Venkatesh S. Arbatti, the learned
Special counsel and Special Public Prosecutor for the
Karnataka Lokayukta appears and advances his arguments
on behalf of Respondent No.5 in W.P 670/2024 /Karnataka
Lokayukta. He contends that the Petitioners have
challenged the Government orders dated 28.11.2023 and
26.12.2023, respectively, which directed the transfer of
the case (FIR No. CBI/ACB/BLR/2020 RC(10A)/2020) to
the Karnataka Lokayukta. Acting upon these orders, a new
FIR in (Crime No. 13/2024) came to be registered under
Section 13(1)(b) read with Section 13(2) of the PC Act on
08.02.2024 and the investigation has been taken up by
the DySP-3, Bengaluru City Division, Karnataka
Lokayukta, and significant progress has been made,
including the collection of material evidence. He further
contends that the Lokayukta has jurisdiction to investigate
the case as per the Government Orders and has taken
appropriate steps in accordance with the law.

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24. In essence, learned Special Counsel for
Respondent No. 5 / Karnataka Lokayukta argues that, the
transfer of the investigation from the CBI to the Lokayukta
was legally authorized by the Government orders, based
on which the Lokayukta has initiated and is actively
pursuing the investigation into the matter for which
jurisdiction has been established based on the
Government order mentioned supra. Further, his
submission is that the investigation is underway, and
material evidence has been collected.
25. Learned Senior Advocate Mr. Kapil Sibal and the
learned Advocate General Mr.Shashi Kiran Shetty, both
appearing for Respondent Nos.1 to 4 in WP. 670 / 2024
and for Respondent 1 in WP No. 27220 / 2023, contend
that the consent granted on 25.09.2019 for CBI
investigation is void ab initio , contrary to statute and
guidelines, and tainted by political mala fides . Under
the Delhi Special Police Establishment Act, 1946 ("DSPE
Act"), the CBI can investigate within the territory of a
State only if:

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“ Section 3 Notification: Specifies the offences or
classes of offences that the CBI is empowered to
investigate.
Section 5 Notification: Extends the jurisdiction of
the CBI beyond the Union Territories and into the
specified States.
Section 6 Consent: The State provides consent for
the CBI to investigate pursuant to notifications
under Sections 3 and 5 of the DSPE Act”.
26. In the case on hand, a notification under Section
5 of the DSPE Act was issued on 27.02.2020, after the
State’s consent under Section 6 on 25.09.2019, making
the consent procedurally invalid. Furthermore, the consent
was issued on oral directions from the then Chief Minister,
without awaiting the required opinion of the then Advocate
General. Additionally, the consent was granted without the
State registering an FIR and without demonstrating as to
why the State police were inadequate to investigate the
case. The checklist required by guidelines was issued only
on 11.12.2019, three months after the consent was
granted, indicating non-adherence to guidelines and

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reliance on insufficient and non-cogent material for
granting consent.
27. Learned Senior Counsel Shri Kapil Sibal further
contends that the ED’s letter dated 09.09.2019, which
triggered the State’s consent, was deficient under Section
66(2) of the PMLA. Section 66(2) permits sharing of
information by the Director or authorized officer with the
concerned agency for necessary action when there is an
opinion based on "information" or "material in possession"
that provisions of any other law are contravened. Further,
the deficiencies in the letter were appraised to the Bench
stating that, the letter is addressed to the Chief Secretary
instead of the concerned agency and further, the letter did
not specify which provisions of any other law were
contravened and also the letter lacked any information or
material demonstrating commission of an offence. It is
further contended that without being in possession of
details regarding assets or sources of income of the
respondent No.6 in WP. No.670/2024, the Director or
authorized officer could not have had either "information"

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or "material" indicating the commission of an offence of
disproportionate assets. The letter copied material related
to purported offences under the Income Tax Act, without
disclosing which specific provisions of the Prevention of
Corruption Act were violated or the check period for
disproportionate assets, violating Section 66(2) of the
PMLA.
28. It is also contended that the State’s actions upon
receiving the ED's letter were inconsistent and irregular,
such as The Chief Secretary forwarded the letter to the
Chief Minister instead of the appropriate agency further
upon which The Chief Minister unilaterally issued oral
directions to grant consent without obtaining necessary
legal opinions or internal guidelines and such consent was
issued without justifying the need for CBI investigation or
explaining why the State police were inadequate. Thus it
is contended that the resultant actions violated the
guidelines and procedures required for granting such
consent, indicating procedural irregularities and lack of
due process.

- 25 -


29. It is also contended that the ED’s action in
addressing a letter to the CBI on 02.09.2019 was illegal.
According to the federal structure, information should have
been shared with the State agency under Entry 80 List I
and Entry 2 List II of the Seventh Schedule of the
Constitution of India. The letter should have been
addressed to the Government of India for information if a
Central Government employee was involved, but
investigation should always be conducted by the local
police with territorial jurisdiction. The direct
communication to the CBI indicates a predetermined
decision to refer the matter to the CBI, bypassing proper
channels.
30. It is the further contention of the learned Senior
Counsel Shri Kapil Sibal that declaring the State’s
withdrawal of consent on 28.11.2023 as illegal, would
undermine the federal structure. Allowing the CBI to
intervene on Central Government directions whenever
there is a political difference would violate the principle of
state autonomy in investigations. This undermines the

- 26 -


primary responsibility of the State to ensure fair trial and
investigation within its territory.
31. It is the further contention of the learned Senior
Counsel that Reliance placed in the cases of Kazi Lhendup
Dorji v. CBI and K. Chandrasekhar v. CBI is misplaced as
these judgments do not address the validity of the consent
order. It is contended that the case in Kazi Lhendup Dorji
v. CBI: deals with the effect of revoking general consent
and does not apply to specific consent cases. Further, the
case in K. Chandrasekhar v. CBI: pertains to further
investigation post charge-sheet and outlines reasons for
transferring cases to the CBI, which do not apply to this
case as the investigation had not been completed and no
charge-sheet was filed.
32. It is his further contention that the State is within
its power to declare the consent void due to procedural
irregularities and malafide actions. This ensures fair
investigation and upholds the State’s authority in
maintaining law and order. Declaring the consent void
maintains the integrity of the federal structure and

- 27 -


ensures that State agencies are not overridden without
due process and valid reasons.
33. In essence, The Respondent Nos.1 to 4 have
challenged the validity of the consent granted to the CBI
for investigation, citing procedural irregularities, statutory
violations, and lack of adherence to guidelines. The ED's
letter triggering the consent was deficient, and the State's
actions were inconsistent and irregular. Additionally, the
direct communication between the ED and CBI was illegal
and bypassed proper channels. Declaring the State's
withdrawal of consent as illegal would violate the federal
structure and undermine its autonomy. The cited
precedents are inapplicable, and the State has the
authority to declare the consent void to ensure a fair
investigation and to uphold its powers.
34. Learned Senior Counsel Dr. Abhishek Manu
Singhvi and Mr. Udaya Holla both appearing for Shri D. K.
Shivakumar / Respondent No. 6 in Writ Petition No.
670/2024 contend that the earlier Consent dated
25.09.2019 was void-ab-initio, in the light of violation of

- 28 -


Section 66(2) of PMLA, as Section 66(2) of PMLA
mandates disclosure of information to the 'concerned
agency,' based on the opinion of the Director or specified
authority regarding contraventions of other laws.
35. In the instant case, information regarding the
same was malafidely shared with the Chief Secretary of
Karnataka and the Petitioner (CBI) on 09.09.2019,
bypassing the jurisdictional police, which violate Section
66(2) of PMLA. The letter dated 09.09.2019 merely
reproduces information from the Income Tax Department
and does not disclose an offence under Section 13(1)(e) of
the PC Act. The ED's case, which formed the basis for the
CBI's case, was quashed by the Supreme Court on
05.03.2024. Additionally, the Respondent No. 6 has been
discharged in three out of four prosecution complaints filed
by the Income Tax Department, with a stay granted by the
Supreme Court in the remaining case.
36. Furthermore, learned Senior Counsel Dr.
Abhishek Manu Singhvi submits that, the previous consent
was based solely on the oral opinion of the then Chief

- 29 -


Minister of Karnataka on 24.09.2019, indicating political
motivation and does not to any stretch, accord justification
for referring the case directly to the CBI without
ascertaining the nature of the offence or the jurisdictional
police's ability to investigate. Previous challenges by
Shashi Kumar Shivanna were dismissed on the point of
locus and are irrelevant to the present case and no specific
reason was provided for singling out Respondent No. 6
while other cases were referred to the Lokayukta coupled
with The DoPT guidelines for transferring cases to the CBI
were not followed. In support of the same respondent
No.6 places reliance in the case of State of West Bengal
v. Committee for Protection of Democratic Rights,
2010 [(2010) 3 SCC 571] which states that, directly
referring the case to the CBI contravenes the Supreme
Court guidelines that prohibit routine or mechanical
transfers to the CBI.
37. Further learned Senior Counsel submits that, the
preliminary enquiry was unauthorized as it lacked sanction
under Section 17A of PC Act, as CBI did not form an

- 30 -


opinion that the alleged acts of Respondent No. 6 were
unrelated to recommendations or decisions taken in
discharge of official duty resulting in the information
shared by the ED on 09.09.2019 did not disclose a case of
disproportionate assets and the Attorney General's legal
opinion dated 25.09.2019 was ignored.
38. The learned Senior Counsel Dr. Abhishek Manu
Singhvi contented that there was no application of mind or
reasons recorded while granting consent to the CBI and
places reliance’s on such precedents namely,
i) Mansukhil Vithaldas Chauhan v. State of Gujarat
(1997) [1997 7 SCC 622],

ii) M.P. Special Police Establishment v. State of M.P.
(2004) [2004 8 SCC 788],

iii) Kranti Associates (P) Ltd. v. Masood Ahmed
Khan (2010) [2010 SCC 496],

iv) State of Karnataka v. S. Subbegowda (2023)
[2023 SCC online SC 911].
39. Learned Senior Counsel further argues that the
very disclosure of information with CBI is in violation of
federal structure; the State police should conduct
preliminary enquiries and register FIRs upon receiving
information about a cognizable offence as Entry 2 of list II

- 31 -


of the VII Schedule of the Constitution confers exclusive
Jurisdiction on the State with regard to policy, and places
reliance on Lalita Kumari v. Govt. of Uttar Pradesh,
2012 AIR 2012 SC 1515; State of West Bengal v.
Committee for Protection of Democratic Rights,
2010(2010 3 SCC 571) to substantiate the same and
after the consent withdrawal, CBI officers cease to be
state police officers under Section 5 of the DSPE Act.
40. Further the learned Senior Counsel submits that,
the withdrawal of the previous consent is covered under
Section 21 of the General Clauses Act which includes
Government's Power to Add, Amend, Vary, or Rescind
Notifications, Orders, Rules, or Bye-laws and thus Section
21 empowers the State Government to withdraw previous
orders, including illegal consents to the CBI.
41. Section 21 of the General Clauses Act applies to
all Central Legislations, allowing the State to transfer
investigations by rescinding previous orders (Common
Cause v. Union of India, 2023; Jai Prakash Singh
Tomar v. State of U.P., 2001; Shree Sidhbali Steels

- 32 -


Ltd. v. State of U.P., 2011; Venkatesh Yeshwant
Deshpande v. Emperor, 1938) .
42. Thus, Kazi's Judgment so relied upon, is not
Applicable, as Kazi's case is fact-specific and does not
establish a general principle. The Supreme Court did not
address Section 21 of the General Clauses Act in Kazi's
case.
43. Lastly learned Senior Counsel Dr. Abhishek Manu
Singhvi submits that Writ Petition under Article 226 is not
appropriate for disputes between Central and State, such
disputes between the Central and State Governments
should be addressed under Article 131 of the Constitution
and not Article 226 and places reliance on such case laws
State of Karnataka v. Union of India, 1977 [1997 4
SCC 608]; Chief Conservator of Forests, Govt. of AP
v. Collector, 2003)[2003 3 SCC 472].
44. Learned Senior Counsel submits that the earlier
consent, dated 25.09.2019, was fundamentally flawed and
thus void ab initio. This is due to a series of procedural

- 33 -


irregularities, including violations of the PMLA by
bypassing jurisdictional authorities, and reliance on ED and
IT cases that have since been weakened or overturned.
Moreover, the consent was allegedly procured through
undue political influence and lacked proper justification.
The subsequent CBI preliminary enquiry was
unauthorized, lacking the necessary sanction under
Section 17A of the PC Act, and was initiated based on
information that did not disclose a case of disproportionate
assets, contrary to the Attorney General's legal opinion.
The very grant of consent itself is argued to be arbitrary
and illegal, devoid of reasoned justification and in violation
of established administrative law principles. This entire
process also bypassed the State police's jurisdiction,
raising significant concerns regarding federalism principles.
45. However, the subsequent withdrawal of consent
is asserted to be entirely legal, grounded on the provisions
of Section 21 of the General Clauses Act. The Kazi case,
often cited in such matters, is argued to be distinguishable
on the facts and does not pose a legal barrier to the

- 34 -


withdrawal. Finally, the learned Senior Advocate contends
that the appropriate forum for resolving this dispute lies
not under Article 226, but rather under Article 131 of the
Constitution, which governs disputes between the Central
and State governments.
46. Further, the contentions of the Counsel for
Respondents 1- 4 and 6 were countered by the CBI as
such in W.P No. 670/2024 contending that, the
Respondents present a multi-pronged challenge to the
CBI's investigation and the withdrawal of consent, raising
issues concerning the legality of the consent, procedural
compliance, and the transfer of the investigation.
47. Learned Special Counsel Shri P. Prasanna Kumar
for the CBI contends that the consent under Section 6 of
the DSPE Act is non-est in law, invalid, and that it lacks
proper application of mind, the same being issued after
the Section 5 notification and having failed to specify the
nature of the offence or address the necessity for sanction
under Section 17A of the PC Act.

- 35 -


48. However, the learned Special Counsel for the
CBI/Petitioner in W.P.No.670/2024, refutes these claims
by highlighting that the consent order has already been
challenged and upheld in previous writ petitions (W.P. No.
10479/2020 and W.P. No. 8316/2020). Furthermore, he
has relied in the case of M. Balakrishna Reddy v.
Director, CBI (2008) 4 SCC 409 to emphasize that
there is no specific format for issuing consent under
Section 6 of the DSPE Act. It is also his contention that the
Chief Minister's order, though not in writing, is valid and
reflects proper application of mind. Additionally, it is
contended that the ED's letter adequately identifies the
offence under Section 13(1)(e) of the PC Act, for which
sanction under Section 17A is not mandatory.
49. The Respondents' attempt to distinguish the Kazi
Lhendup Dorji case is countered by the Petitioner/CBI,
who asserts that the case is squarely applicable as there is
no differentiation between general and specific consent
under the DSPE Act.

- 36 -


50. The counsel for the Respondents / State claim
that the information should have been sent to the State
Police instead of the Chief Secretary and that the CBI
investigation cannot proceed since the ED proceedings
were quashed/stayed. However, the counsel for the
Petitioner/CBI refutes these arguments, explaining that
the Chief Secretary serves as the nodal officer for such
communications. Moreover, a separate letter was sent to
the CBI due to the involvement of a Central Government
employee. The Petitioner/CBI cites the cases of Harish
Fabiani v. ED 2022 SCC Online 3121 , Prakash
Industries v. Union of India 2023 SCC online Del
336 , and V.P. Nanda Kumar v. ED 2023 SCC Online
Ker 6848 to establish that sharing information under
Section 66(2) does not automatically constitute an offence
and necessitates an independent investigation. Therefore,
the outcome of the ED proceedings does not impact the
CBI's independent probe.
51. The Respondents / State further argue that the
CBI should not have registered an FIR before the State

- 37 -


Police and that the consent order does not specify the
offences for transfer, relying on a CBI Manual pro forma
and the case of State of W.B. v. Committee for
Protection of Democratic Rights (2010) 3 SCC 571 .
However, the Petitioner/CBI counters these arguments by
stating that there is no legal requirement for prior FIR
registration by the State Police. They clarify that the CBI
Manual pro forma is merely indicative, not legally binding.
Additionally, they contend that the consent order
sufficiently identifies the offence under Section 13(1)(e) of
the PC Act, making the transfer of investigation valid. The
Petitioner/CBI also argues that the reliance placed on
State of W.B. v. Committee for Protection of
Democratic Rights (2010) 3 SCC 571 is misplaced, as
it pertains to the powers of Constitutional Courts, not the
State Government's authority under Section 6 of the DSPE
Act.
52. In these writ petitions, the petitioner/CBI has
facilitated documents namely Annexures-M,P,Q which are
originals and Annexures-A,L,N and R which are true copies

- 38 -


of the originals. These documents have been produced in
order to consider the issue in question. The document at
annexure-A reveals that the Enforcement Directorate,
Government of India addressed a letter to Shri Vijaya
Bhaskar T.M, IAS, Chief Secretary to Government of
Karnataka, Bengaluru, relating to sharing information
under Section 66(2) of The Prevention Of Money
Laundering Act, 2002 (“PMLA Act” for brevity) in case of
Shri D.K Shivakumar and others. In pursuance of the
prosecution complaint filed by the Income Tax Authority
for the offences punishable under section 276C(1), 277,
and 278 of the Income Tax act 1961 read with Sections
193, 199 and 120B of the Indian Penal Code, 1860, the
investigation was taken up by the Enforcement Directorate
under the provisions of the PMLA Act to unearth the
proceeds of crime and for filing of consequent complaint
under the Act. Paragraph No 3 of the said letter dated
09.09.2019 of the Enforcement Directorate states that the
persons investigated have also violated the Provisions of
Prevention Of Corruption Act as they have been/are
working in the Government of Karnataka. Hence the same

- 39 -


is forwarded in furtherance of Section 66(2) of the PMLA
Act, 2002. This office has also shared the same with CBI
vide this office letter dated 02.09.2019(Annexure-B) and
are requested to kindly take note of the above facts and
take appropriate action in accordance with law.
53. Section 17 A of the PC Act 1988, reads thus:
“17A. Enquiry or Inquiry or investigation of
offences relatable to recommendations made or
decision taken by public servant in discharge of
official functions or duties.—No police officer shall
conduct any enquiry or inquiry or investigation into
any offence alleged to have been committed by a
public servant under this Act, where the alleged
offence is relatable to any recommendation made
or decision taken by such public servant in
discharge of his official functions or duties, without
the previous approval—

(a) in the case of a person who is or was
employed, at the time when the offence was
alleged to have been committed, in connection with
the affairs of the Union, of that Government;

(b) in the case of a person who is or was
employed, at the time when the offence was
alleged to have been committed, in connection with
the affairs of a State, of that Government;

- 40 -


(c) in the case of any other person, of the
authority competent to remove him from his office,
at the time when the offence was alleged to have
been committed:
Provided that no such approval shall be
necessary for cases involving arrest of a person on
the spot on the charge of accepting or attempting
to accept any undue advantage for himself or for
any other person:
Provided further that the concerned authority
shall convey its decision under this section within a
period of three months, which may, for reasons to
be recorded in writing by such authority, be
extended by a further period of one month.]”

54. Further section 19 of the PC Act reads thus:
“19. Previous sanction necessary for
prosecution.—(1) No court shall take cognizance of
an offence punishable under 1 [sections 7, 11, 13
and 15] alleged to have been committed by a public
servant, except with the previous sanction 2 [save
as otherwise provided in the Lokpal and Lokayuktas
Act, 2013 (1 of 2014)]— (a) in the case of a person
3 [who is employed, or as the case may be, was at
the time of commission of the alleged offence
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;

- 41 -


(b) in the case of a person 3 [who is
employed, or as the case may be, was at the time
of commission of the alleged offence 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:
[Provided that no request can be made, by a
person other than a police officer or an officer of an
investigation agency or other law enforcement
authority, to the appropriate Government or
competent authority, as the case may be, for the
previous sanction of such Government or authority
for taking cognizance by the court of any of the
offences specified in this sub-section, unless—
(i) such person has filed a complaint in a
competent court about the alleged offences for
which the public servant is sought to be
prosecuted; and
(ii) the court has not dismissed the complaint
under section 203 of the Code of Criminal
Procedure, 1973 (2 of 1974) and directed the
complainant to obtain the sanction for prosecution
against the public servant for further proceeding:
Provided further that in the case of request
from the person other than a police officer or an
officer of an investigation agency or other law
enforcement authority, the appropriate Government

- 42 -


or competent authority shall not accord sanction to
prosecute a public servant without providing an
opportunity of being heard to the concerned public
servant:
Provided also that the appropriate
Government or any competent authority shall, after
the receipt of the proposal requiring sanction for
prosecution of a public servant under this sub-
section, endeavour to convey the decision on such
proposal within a period of three months from the
date of its receipt:
Provided also that in case where, for the
purpose of grant of sanction for prosecution, legal
consultation is required, such period may, for the
reasons to be recorded in writing, be extended by a
further period of one month:
Provided also that the Central Government
may, for the purpose of sanction for prosecution of
a public servant, prescribe such guidelines as it
considers necessary.”

55. A perusal of the aforesaid provision would reveal
that section 19 is a bar for any court to take cognizance
for prosecution of the offences under sections 7,11,13 and
15 unless the said sanction for prosecution is made
available to the prosecuting agency by the Central
Government or State Government, as the case may be.

- 43 -


56. In the instant case, it must be ascertained by the
Investigating Agency as to what is the nature of the
offences committed by the public servant concerned. If the
alleged offence relates to any recommendation or decision
taken by such public servant, only then issue under
Section 17-A would arise.
57. Even earlier also there was a writ petition in WP
No.8316 of 2020 filed by Shri Shashi Kumar Shivanna
against the Government of Karnataka as the first
respondent, Under Secretary to Government as the second
Respondent and CBI as the third Respondent. The said
petition was filed challenging the correctness of the
consent accorded by the Government of Karnataka under
Section 6 of the Delhi Special Police Establishment Act,
1946 (“DSPE Act” for brevity).
58. The Enforcement Directorate found that the
petitioner being a co brother of Mr. D.K Shivakumar and
officer grade employee of HAL, was involved in property
transactions on behalf of Mr D.K Shivakumar. Hence the
ED, after commencing the investigation forwarded its

- 44 -


report to Respondent No.1 by its letter dated 09.09.2019
in terms of 66(2) of the PMLA Act, 2002 for appropriate
action. The ED then secured an opinion from Advocate
General, who opined that sanction as contemplated under
Section 17A of PC Act would arise only when a
recommendation or decision taken by such public servant
in discharge of his official function is in issue and that the
sanction contemplated under section 19 of the PC act is to
be obtained only after a charge sheet. The said writ
petition came to be dismissed as being without merit. This
issue has been addressed and also considered in the
aforesaid writ petition and has been disposed of.
59. The learned Senior Counsels in the aforesaid writ
petitions had taken various contentions and accordingly
point that would arise for determination whether the
petitioner has the locus to challenge the sanction granted
by Respondent No.1 under Section 6 of DSPE Act. Whether
the sanction granted under Section 6 of the DSPE act is
akin to Section 17-A or 19 of PC act or under section 197
of Cr.PC. The aforesaid point which has been raised in the
writ petition has been answered by referring to certain

- 45 -


judgments which are indicated therein. But it is not the
point for consideration in these two writ petitions filed by
the petitioners.
60. Annexure-E is the First Information Report under
section 154 of the Cr.P.C. This document is also produced
by the learned Special PP Shri Prasanna Kumar for CBI.
61. Annexure-F relates to proceedings in W.A No 444
of 2020 between the appellant namely Shashi Kumar
Shivanna against Respondents 1-3. Keeping in view the
submission made by the learned senior counsel for the
appellant who more importantly submits that even though
no FIR has been registered against the appellant, yet a
search was conducted in the premises of the appellant by
the CBI. He submits that the appellant be granted the
liberty to take recourse to the remedy available to him, in
case the appellant rates as accused in the FIR by CBI.
Keeping in view the submission of the learned Senior
Counsel in the aforesaid writ appeal, the same was
disposed of.

- 46 -


62. Annexure-G is in respect of the order passed by
the learned single Judge in WP No.10479 of 2020 dated
28.09.2020. This writ petition has been dealt in detail and
the entire material available on record has been perused
inclusive of the provision of Section 239/227 of the Cr.PC
and so also Section 482 of Cr.PC as well as Articles 226
and 227 of the Constitution Of India. But the order passed
in this writ petition indicates that the investigating officer
examined so many witnesses collected voluminous
documents, more than 84 witnesses and almost ending
stage of investigation relating to registration of FIR.
63. Annexure-M is regarding entrustment of the case
to the Central Bureau of Investigation vide G.O No. E-
HD/40/COD/2019 dated 25.09.2019 which relates to the
proceedings of the Government of Karnataka. The
proceedings of The Government of Karnataka reveals that
the cabinet observed the previous government has
decided to hand over the case to CBI in a casual and
hurried manner without assigning appropriate reasons and
without application of mind and without consulting the
relevant stake holders in the State. Overall, Cabinet

- 47 -


expressed that the legal requirements were not fulfilled
before issuance of the said Government Order and
therefore it is not in accordance with law. In view of the
above reasons and in the background of the opinion of the
Advocate General on 28.11.2023, the Cabinet has decided
to withdraw the Government order dated 25.09.2019 as
per Section 21 of the Karnataka General Clauses Act,
1899. At this juncture is relevant to refer to Section 6 of
DSPE act which reads thus;
“6. Consent of State Government to exercise
of powers 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 3 [a State,
not being a Union territory or railway area], without
the consent of the Government of that State.”

64. It is also relevant to refer to Section 21 of The
Karnataka General Clauses Act, 1897 which reads thus;
“21. Power to issue, to include power to add
to, amend, vary or rescind notifications, orders,
rules or bye-laws.—Where, by any 1 [Central Act]
or Regulations a power to 2 [issue notifications,]
orders, rules or bye-laws is conferred, then that
power includes a power, exercisable in the like

- 48 -


manner and subject to the like sanction and
conditions (if any), to add to, amend, vary or
rescind any 3 [notifications,] orders, rules or bye-
laws so 4 [issued].”

65. Further it is relevant to extract Section 66[2] of
the PMLA act which reads thus;
“[(2) If the Director or other authority
specified under sub-section (1y) is of the opinion,
on the basis of information or material in his
possession, that the provisions of any other law for
the time being in force are contravened, then the
Director or such other authority shall share the
information with the concerned agency for
necessary action.]”

66. Annexure-N relates to the proceedings in WA
No.646 of 2023 dated 29.11.2023 challenging the order
passed in WP No.10479/2020 seeking to set aside the
order dated 20.04.2023 and further to quash the
Government order dated 25.09.2019. Process having been
served upon Respondent Nos. 1 and 2 in the aforesaid
appeal, they entered appearance through the learned
Additional Government Advocate and the CBI was
represented by the learned special counsel Shri P Prasanna

- 49 -


Kumar. In the said appeal learned Senior Advocates
Dr. Abhishek Manu Singhvi and Udaya Holla had moved a
memo stating that in the light of the Government order
dated 28.11.2023, the prayer in the writ petition has been
rendered infructuous and hence the writ petition and writ
appeal may be permitted to be withdrawn. Learned
Counsel Shri P Prasanna Kumar for CBI and Learned
Counsel Shri Venaktesh P Dalwai appearing for the
intervener vide IA No.3 of 2023 had vehemently opposed
the said memo seeking withdrawal by relying on several
propositions. This court had observed that our Constitution
recognizes the rule of continuity of Government,
regardless of one political party replacing the other in the
seat of power, owing to periodic elections. Hence this court
had observed that the validity and efficacy of the subject
FIR being kept miles away from their consideration the
appeal itself being withdrawn accordingly this court had
permitted the appellant to withdraw the said appeal.
67. However in the instant case the issues involved
are between the petitioner in both the writ petitions
against the Respondents and relating to Respondent No.3

- 50 -


in one writ petition and respondent No.6 in another writ
petition. The same relates to proceedings initiated by
recording an FIR as FIR No CBI/ACB/BLR/2020, RC-
10[A2020] relating to investigation has been referred but
when once FIR has been recorded under Section 154 of
the Cr.P.C it is relevant to proceed further for investigation
keeping in view the provision of section 161 of Cr.P.C
which reads thus:
“161. Examination of witnesses by police.-
(1) Any police officer making an investigation
under this Chapter, or any police officer not below
such rank as the State Government may, by
general or special order, prescribe in this behalf,
acting on the requisition of such officer, may
examine orally any person supposed to be
acquainted with the facts and circumstances of the
case.
(2) Such person shall be bound to answer
truly all questions relating to such case put to him
by such officer, other than questions the answers to
which would have a tendency to expose him to a
criminal charge or to a penalty or forfeiture.
(3) The police officer may reduce into writing
any statement made to him in the course of an
examination under this section; and if he does so,
he shall make a separate and true record of the

- 51 -


statement of each such person whose statement he
records.

68. Further, Section 162 of the Cr.P.C reads thus:
“162. Statements to police not to be signed:
Use of statements in evidence. -
(1) No statement made by any person to a
police officer in the course of an investigation under
this Chapter, shall, if reduced to writing, be signed
by the person making it; nor shall any such
statement or any record thereof, whether in a
police diary or otherwise, or any part of such
statement or record, be used for any purpose, save
as hereinafter provided, at any inquiry or trial in
respect of any offence under investigation at the
time when such statement was made:
Provided that when any witness is called for
the prosecution in such inquiry or trial whose
statement has been reduced into writing as
aforesaid, any part of his statement, if duly proved,
may be used by the accused, and with the
permission of the Court, by the prosecution, to
contradict such witness in the manner provided by
section 145 of the Indian Evidence Act, 1872 (1 of
1872); and when any part of such statement is so
used, any part thereof may also be used in the re-
examination of such witness, but for the purpose
only of explaining any matter referred to in his
cross-examination.

- 52 -


(2) Nothing in this section shall be deemed to
apply to any statement falling within the provisions
of clause (1) of section 32 of the Indian Evidence
Act, 1872 (1 of 1872); or to affect the provisions of
section 27 of that Act.
Explanation.- An omission to state a fact or
circumstance in the statement referred to in sub-
section (1) may amount to contradiction if the same
appears to be significant and otherwise relevant
having regard to the context in which such omission
occurs and whether any omission amounts to a
contradiction in the particular context shall be a
question of fact.”

69. Section 173 Cr.P.C relates to filing of a Charge-
sheet against accused persons in the FIR recorded by the
Investigating Agency. The relevant Section 173 Cr.P.C.,
reads thus:
“173. Report of police officer on completion of
investigation.

x x x
(8) Nothing in this section shall be deemed
to preclude further investigation in respect of an
offence after a report under sub-section (2) has
been forwarded to the Magistrate and, where upon
such investigation, the officer-in-charge of the
police station obtains further evidence, oral or

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documentary, he shall forward to the Magistrate a
further report or reports regarding such evidence in
the form prescribed; and the provisions of sub-
sections (2) to (6) shall, as far as may be, apply in
relation to such report or reports as they apply in
relation to a report forwarded under sub-section
(2).”


70. Keeping in view the scope of section 154, it is
also relevant to extract Section 167 Cr.P.C, which reads
thus:
“167. Procedure when investigation cannot be
completed in twenty-four hours.-
x x x
(i) ninety days, where the investigation
relates to an offence punishable with death,
imprisonment for life or imprisonment for a term of
not less than ten years;
(ii) sixty days, where the investigation relates
to any other offence, and, on the expiry of the said
period of ninety days, or sixty days, as the case
may be, the accused person shall be released on
bail if he is prepared to and does furnish bail, and
every person released on bail under this sub-
section shall be deemed to be so released under the
provisions of Chapter XXXIII for the purposes of
that Chapter;]


- 54 -


71. But the charge sheet ought to have been laid
keeping in view the scope of Section 167 of Cr.P.C relating
to the period for filing of a charge-sheet. But the FIR has
been recorded by the CBI in the year 2020 and referred
the said case for the purpose of investigation. The
investigation has been carried by the Investigating
Agency/CBI keeping in view the provisions of the IT act,
1961. Though FIR was recorded in the year 2020,
considerable period has been taken by the concerned
Investigating Agency but they have not concluded the
investigation.
72. As regards CVC, the CVC operates as an
independent statutory body under the Central Vigilance
Commission Act, 2003, which ensures its autonomy from
executive influence. The CVC is not under the control of
any executive authority, ensuring unbiased functioning in
its anti-corruption efforts. The CVC consists of the Central
Vigilance Commissioner as the Chairperson and not more
than two Vigilance Commissioners namely, Members.
Their appointment is made by the President of India,
based on the recommendations of a Committee. The said

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Committee comprises of the Prime Minister as Chairperson
and the Minister of Home Affairs and The Leader of the
Opposition in the Lok Sabha as its Members. The CVC has
the power of superintendence over the Central Bureau of
Investigation (CBI) related to cases under the Prevention
of Corruption Act, 1988. It ensures that the CBI follows
proper procedures, but it cannot dictate specific actions or
outcomes for individual cases, as specified in Section 8
clause (b). It is further stated that the CVC can refer
cases to the CBI or other investigative agencies for a
thorough and impartial investigation. It has the power to
conduct its own inquiries or investigations into corruption
cases, ensuring thorough and fair scrutiny. They submit
an annual report to the President of India, detailing its
activities, findings, and recommendations. This report is
also laid before both Houses of the Parliament, ensuring
transparency and accountability. Hence, under the
scheme of the CVC Act, more foolproof mechanism is
adopted by ensuring that corruption cases are dealt
properly without bias by CBI under the supervision of CVC.
Hence, under no circumstances, the State Government has

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the power or jurisdiction to transfer the case from central
agency to state agency.
73. It is also relevant to refer to the Seventh
Schedule of the Indian Constitution which contains three
lists that outlines the distribution of powers and functions
between the Union and the States.
74. Entry 80 of List 1 of the Union List, states thus:
“Extension of the powers and jurisdiction of
members of a police force belonging to any State to
any area outside that State, but not so as to enable
the police of one State to exercise powers and
jurisdiction in any area outside that State without
the consent of the Government of the State in
which such area is situated; extension of the
powers and jurisdiction of members of a police
force belonging to any State to railway areas
outside that State” .

75. Entry 2 of List 2 of the State List states thus:
“Police (including railway and village police)
subject to the provisions of Entry 2A of List I”
.

76. The Learned Counsel Shri Venkatesh Dalwai for
the petitioner in WP No.27220/2023 submitted that 90%

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of the investigation has been completed by the
Investigating Agency i.e. CBI after the case was entrusted
to it. But there was no specific reason for referring the
said proceedings to the CBI for further investigation. The
CBI being the central Agency has proceeded with the
matter keeping in view Section 6 of the DSPE Act, 1946.
However, it is to be noted that firstly the matter was orally
entrusted to the CBI for investigation. Even after
entrusting the matter to the CBI, the CBI had not filed a
final report.
77. Both the Learned Senior Counsel for the
respective Respondents have taken us through almost all
materials inclusive of the reliances stated supra. However
the contentions advanced by Shri Venkatesh P Dalwai and
Shri P Prasanna Kumar do not have any substance to
proceed further. On the other hand, Learned Senior
Counsel Shri Kapil Sibal for the State and Dr. Abhishek
Manu Singhvi for Respondent Nos.3 & 6 in the respective
petitions, have referred to various provisions relating to
General Clauses act inclusive of PMLA Act, 2002 and so
also Section 6 of DSPE act, 1946.

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78. Learned Senior Counsel Shri Kapil Sibal and also
the learned Senior Counsel Dr. Abhishek Manu Singhvi,
have emphatically submitted keeping in view the aforesaid
items in the Schedule mentioned above, that the CBI has
not effectively made an endeavour to file the charge-sheet
against the accused persons in the aforesaid crime before
the court having jurisdiction to deal the matters.
79. As regards the offence under Section 120B of the
IPC, 1860 relating to ‘conspiracy’, the said concept is an
independent one lugged against the accused and the
Enforcement Directorate has dwelled in as regards the
same for investigation purposes.
80. In the instant case, the crime came to be
registered in the year 2020 and thereafter the
investigation has been taken up by the Investigating
Agency, that is the CBI, but the investigation has not been
completed well within the time stipulated under Section
167 of the Cr.P.C. Keeping in view the contentious
contentions made by the learned Senior Counsel for the
respective respondents, it is relevant to state that FIR No.

- 59 -


CBI/ACB/BLR/2020 RC(10A)/2020) was transferred to the
Karnataka Lokayukta. Acting upon the order dated
28.11.2023 and 26.12.2023, a new FIR in Crime No.
13/2024 came to be registered under Section 13(1)(b)
read with Section 13(2) of the PC Act on 08.02.2024.
Subsequent to recording the FIR, the investigation was
taken up by the DySP-3, Bengaluru City Division,
Karnataka Lokayukta, and significant progress has been
made, including the collection of material evidence
according to the counsel’s submission.
81. For the CBI to take up investigation within the
boundaries of a State, requires prior consent of that State
as per Section 6 of the DSPE Act. The Union Government
can authorise the CBI to investigate such a crime in a
State but only with the consent of the concerned State
Government. The Supreme Court and High Courts,
however, can order the CBI to investigate such a crime
anywhere in the country without the consent of States.
82. From this it can be construed that there are 2
types of consent for an investigation by the CBI namely,

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A) General Consent, when a state gives a general
consent (Section 6 of the Delhi Special Police
Establishment Act) to the CBI for probing a case, the
agency is not required to seek fresh permission every time
it enters that state in connection with investigation or for
every case. A general consent is given to facilitate
seamless investigation in a case of corruption or violence.
B) Specific Consent, when a general consent is
withdrawn, CBI needs to seek case-wise consent for
investigation from the concerned state government, and if
specific consent is granted by concerned State government
for a Particular case under Section 6 of DSPE Act.
83. Once a State withdraws consent, the CBI has to
seek permission before it can register a case against a
person or an entity based in that state. Thus, the CBI has
to seek permission from the State government if it has to
probe anyone residing in that State.

84. It is also relevant to refer to Article 131 of the
Constitution of India, which reads thus:

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“131. Original jurisdiction of the Supreme
Court:
Subject to the provisions of this Constitution,
the Supreme Court shall, to the exclusion of any
other court, have original jurisdiction in any
dispute—(a) Between the Government of India and
one or more States; (b) between the Government of
India and any State or States on one side and one or
more other States on the other; or (c) between two
or more States, if and in so far as the dispute
involves any question (whether of law or fact) on
which the existence or extent of a legal right
depends:
Provided that the said jurisdiction shall not
extend to a dispute arising out of any treaty,
agreement, covenant, engagement, named or other
similar instrument which, having been entered into
or executed before the commencement of this
Constitution, continues in operation after such
commencement, or which provides that the said
jurisdiction shall not extend to such a dispute.”

85. As regards maintainability of the petitions under
Article 131 and as regards DSPE Act, it is relevant to refer
to a recent pronouncement of the Hon’ble Apex Court in
the case of THE STATE OF WEST BENGAL vs. UNION

- 62 -


OF INDIA (ORIGINAL SUIT No.4/2021) . In the said
judgment, the Hon’ble Apex Court has held thus:
“We find that, in the present suit, the plaintiff
is raising the legal issue as to whether after
withdrawal of the consent under Section 6 of the
DSPE Act, the CBI via the defendant – Union of India
can continue to register and investigate cases in its
area in violation of the provisions of Section 6 of the
DSPE Act. The same has been sought to be attacked
by the defendant – Union of India by raising various
contentions challenging the maintainability of the
suit. In our considered opinion, the contentions
raised by the defendant, do not merit acceptance
and for the reasons given hereinbefore, are rejected.
The preliminary objection is, therefore, rejected.
However, we clarify that the aforesaid findings are
for the purposes of deciding preliminary objection
and will have no bearing on merits of the suit. The
suit shall proceed in accordance with law on its own
merits.”

86. In the present cases, this court finds it pertinent
to examine the precedent set in State of West Bengal v.
Union of India , which firmly establishes the
maintainability of suits under Article 131 of the
Constitution of India when a dispute concerns the

- 63 -


existence or extent of a legal right between the Central
Government and a State Government. The court in that
case, affirmed that even if the legal right in question does
not directly stem from the Constitution, the Supreme
Court retains original jurisdiction to adjudicate such
disputes.
87. These writ petitions raise complex questions
regarding the interplay between the powers of the State
and Central Governments in the context of CBI
investigations. The petitioner challenges the State's
withdrawal of consent for a CBI investigation into alleged
offences under the Prevention of Corruption Act, 1988,
against the Deputy Chief Minister of Karnataka, contending
that the withdrawal is arbitrary, mala fide, and impedes
the on-going investigation.
87. The respondents, including the State Government
and the Deputy Chief Minister, argue that the initial
consent granted to the CBI was void ab initio due to
procedural irregularities and statutory violations. They

- 64 -


further assert that the State's withdrawal of consent is
legally valid and within its powers.
88. The CBI maintains that the withdrawal of consent
does not affect pending investigations and that it is
obligated to complete the investigation and file its final
report. The CBI disputes the respondents' claims regarding
the invalidity of the initial consent and the alleged
procedural irregularities.
89. In these matters, the core issue pertains to the
jurisdiction of the Central Bureau of Investigation (CBI) to
operate within a State's boundaries following the State
Government's withdrawal of consent. This directly impacts
the State's authority and control over its police force, a
matter that is constitutionally significant. The dispute
involves interpreting the Delhi Special Police Establishment
(DSPE) Act in conjunction with the constitutional
provisions regarding the division of powers between the
Central Government and the State Government.

- 65 -


90. The Court, after carefully considering the
arguments presented and the relevant legal provisions,
notes that the dispute essentially involves a conflict
between the State government and the CBI, which
operates under the superintendence of the Central
Government. The issues raised concern the interpretation
of statutory provisions like the DSPE Act and the
Prevention of Money Laundering Act (PMLA), and their
relationship with constitutional provisions regarding the
division of powers between the Central Government and
the State Government.
91. Drawing upon the rationale established in the
State of West Bengal v. Union of India case mentioned
supra, this court finds that these writ petitions clearly fall
within the ambit of Article 131 of the Constitution of India.
The dispute involves a legal question concerning the
extent of the Central Government's authority to deploy the
CBI within a State, that has withdrawn its consent. The
resolution of this dispute will directly impact the legal
rights and jurisdiction of both the Central and State

- 66 -


Governments, making it a fit subject for adjudication
under the Supreme Court's original jurisdiction as per
Article 131 of the Constitution of India.
92. In light of these considerations, we hold that the
present writ petitions are not maintainable. The dispute, at
its core, is between the CBI, representing the Union
Government, and the State Government. Such disputes,
which involve questions about the extent of the Central
Government's authority and the State's autonomy, are
more appropriately addressed within the exclusive original
jurisdiction of the Hon’ble Supreme Court under Article
131 of the Constitution of India.
93. Accordingly, the writ petitions are dismissed as
not maintainable. However, the petitioners are granted
liberty to pursue appropriate remedies before the Hon’ble
Supreme Court under Article 131 of the Constitution of
India.

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94. Thus, both the writ petitions viz.,
W.P.No.27220/2023 and W.P.No.670/2024 are hereby
dismissed as not maintainable.
Before parting with this judgment, this Court places
on record its deep appreciation for the able research and
assistance rendered by its Research Assistant-cum-Law
Clerk, Mr.Pranav.K.B.


Sd/-
(K.SOMASHEKAR)
JUDGE



Sd/-
(UMESH M ADIGA)
JUDGE


KS