The Allahabad High Court while allowing a petition noted that if any offence is committed by a citizen of India outside India, then investigation can be inquired or tried in India after getting prior sanction from the Central Government.
The Division Bench of Justice Vivek Kumar Birla and Justice Arun Kumar Singh Deshwal passed this order while hearing a petition filed by Smt Kalpana Maheshwari.
The facts of the case are that the daughter of the petitioner, Anshu Maheshwari, had married Sumit Binani on 27.11.2020. Thereafter, both of them shifted to the USA, where she died in a blast in the house at Seattle, US and when the petitioner came to know about the same she lodged a first information report dated 28.9.2023 at Police Station Medical College, District Meerut, U.P making allegations of dowry death against the accused Sumit Binani and copy of the first information report was sent to Ministry of Home Affairs, Government of India, New Delhi.
The petitioner also made a complaint to CBI on 2.6.2022 about the aforesaid incident.
Thereafter, on 15.10.2023 office of Senior Superintendent of Police, Meerut has submitted a report to Inspector General of Police, Meerut Zone, Meerut recommending the case to be investigated by the CBI as the offence has been committed outside India and finally matter was referred to CBI by the police authorities of UP. When no action was taken by the CBI to conduct investigation under Section 188 Cr.P.C regarding the death of the daughter of the petitioner.
The Court noted,
From perusal of the affidavit filed by the Secretary, Department of Personnel and Training, Government of India, New Delhi it appears that the guideline for conducting investigation under Section 188 CrPC has been mentioned. For initiating investigation under Section 188 CrPC consent of State Government is pre-requisite for consideration to entrust any case to CBI for investigation.
It is further mentioned that after receiving of consent of the State Government as required under Section 6 of Delhi Special Police Establishment Act, 1946 (DSPE Act) CBI being the Nodal Agency will get sanction from the Department of Personnel and Training, Government of India (DoPT) only then CBI can conduct investigation.
However, from perusal of Section 188 CrPC it is clear that if any offence is committed by a citizen of India outside India then investigation can be inquired or tried in India after getting previous sanction of the Central Government.
The Court further noted that,
From perusal of the Government notification dated 27.5.2016 issued by the Ministry of Personnel and Public Grievance and Pensions (Department of Personnel and Training), New Delhi, it is explicit that CBI was designated as Nodal Agency to deal with and obtain sanction for prosecution from the Ministry of Home Affairs, therefore, it is clear that in case any offence is committed outside India then only CBI can investigate and the State Government has no role in such cases.
As per Section 6 of DSPE Act consent of the State Government is required for investigation in any area of the State Government but if the investigation is to be conducted for the offence committed outside India by the Indian citizen then there is no requirement of seeking consent of the State Government. The Central Government may by order under Section 5 of DSPE Act extend the jurisdiction of CBI to any area in a State but in the case of investigation outside the country, Central Government does not pass any order under Section 5 of DSPE Act to extend the jurisdiction of CBI to any area in a State.
A circular dated 11.5.2017 issued by the CBI, which was produced by counsel for the petitioner before the Court, itself shows that CBI in pursuance of the notification dated 27.5.2016 of the Central Government has issued the circular and this circular specifically mentioned that the CBI has been designated as Nodal Agency to deal with and obtain sanction for prosecution from Ministry of Home Affairs under Section 188 CrPC, therefore, it is the CBI, which has to initiate the proceeding for obtaining sanction for the prosecution from Ministry of Home Affairs for conducting investigation regarding offence mentioned under Section 188 CrPC.
In view of the above analysis the Court held that for conducting investigation for the offence committed outside India by Indian citizens under Section 188 Cr.P.C there is no requirement to seek consent of the State Government under Section 6 of DSPE Act and only sanction of Central Government is required.
The Court observed,
Reverting back to the case, though it is clear from above analysis that there is no requirement for seeking consent of the State Government to conduct investigation under Section 188 CrPC but the affidavit filed by the Secretary, Department of Personnel and Training, Government of India specifically mentioned that the consent of the State Government is required and on the other hand it was also mentioned in the aforesaid affidavit that the State Government has also conveyed its consent for conducting investigation in the case to Ministry of External Affairs, Government of India by letter dated 5.9.2023, therefore, in substance State of UP already conveyed its consent to Government of India for conducting the investigation by CBI about the death of daughter of the petitioner but the CBI as well as DoPT unnecessarily raising technical issue and shifting burden on each other instead of taking any fruitful action to conduct the investigation for the death of daughter of the petitioner in United States of America.
By our earlier order dated 12.9.2024 a statement made by counsel for the Union of India and CBI was noted and in the order it was observed that the matter will be sorted out between them by the next date and appropriate action will be taken.
The Court found that by filing a short counter affidavit against Union of India and other respondents they are shirking their responsibilities and are doing nothing.
In view of the peculiar circumstances, the Court directed the respondent no 2-Central Bureau of Investigation, New Delhi and respondent no 3- Secretary, Ministry of Home Affairs, North Block, New Delhi to conduct the investigation regarding death of daughter of the petitioner (first informant) by completing necessary formalities within a period of 15 days from the date of production of a certified copy of the order before them.
With the aforesaid observations, the Court allowed the petition.