1998 Supreme(SC) 554

1998(4) Supreme 374
Supreme Court of India
(From Kerala High Court)
M.K. Mukherjee & S.S. Mohammed Quadri, JJ.
K. Chandrasekhar etc. -Appellants
versus
The State of Kerala & Ors -Respondents
Criminal Appeal No. 489 of 1997
With
Crl.A. Nos. 490, 491, 492, 493, 494-97 of 1997
With
Crl.A. No. 528 of 1998
(Arising out of SLP (Crl.) No. 593 of 1998)
Decided on 29-4-1998
Counsel for the Parties :
For the Appearing Parties : Altaf Ahmad, Additional Solicitor General, A.S. Nambiar, Shanti Bhushan, Sr. Advocates, R. Sathish, Prasanath Gandhi, Ms. Anne Mathew, Rakesh K. Sharma, M.P. Vinod, P. Parmeswaran, Romy Chako, S.N. Terdol, S. Muralidhar, G. Prakash, Ms. Beena Prakash, (M.K. Damodaran), Advocate General, Kerala, A.X. Verghese, M.K.D. Namboodiri, Advocates.

Important Point
Notification dated 27.6.96 by Kerala Government withdrawing the con­sent u/s. 6 of Delhi Police Special Establishment Act, 1946 of investiga­tion by CBI and ordering reinvestigation of the case by State Police is invalid and is liable to be quashed with heavy costs of Rs. 1 lakh to be paid to each of the six accused/appellants by the Government.

Headnote:Official Secrets Act, 1923-Sections 3 and 4-And Section 34 IPC-Charges of espionage-Delhi Special Police Establishment Act, 1946-Section 6-State Government’s consent under-Initial inves­tiga­tion by Kerala Police-Later investigation into the offence trans­ferred and entrusted to C.B.I. for investigation pursuant to consent given u/s. 6 of the 1946 Act-C.B.I. not only started but also com­pleted the investigation armed with that consent and submitted its Report u/s. 173(2) of Cr.P.C. pray­ing for discharge of all accused persons as allegations of espionage were not proved and were false-Report accepted by Court and accused discharged-But Kerala Government noti­fying withdrawal of the consent and directing reinvestigation-Can the State Government withdraw the consent? (No) whether the impugned notification dated 27.6.96 followed by amendatory notification dated 8.7.96 valid? (No)-Effect-Impugned notification quashed with award of costs of Rs. 1 lakh to each of the six accused Appel­lants-Appeal allowed.

       Held : In view of the law so laid down by a three Judge Bench of this Court, it must be held that an investigation started by C.B.I. with the consent of the State Government concerned cannot be stopped midway by withdrawing the consent. (Para 23)

       Since, in the present case, unlike that of Kazi Lhendup Dorji, 1994 Supp. (2) SCC 116, the consent was withdrawn after report under Section 173(2) Cr.P.C. was filed on completion of investigation as the State Govern­ment would like to further investigate into the case, the question which still remains to be answered is whether this distinguishing fact alters the principle laid down therein. To answer this question it will be necessary to refer to Section 173 of the Code. (Para 24)

       From a plain reading of the above Section it is evident that after submission of police report under sub-section (2) on completion of investigation, the police has a right of ‘further’ investigation under sub-section (8) but not ‘fresh investigation’ or ‘re-investigation’. That the Government of Kerala was also conscious of this position is evident from the fact that though initially it stated in the Explana­tory Note of their notification dated June 27, 1996 (quoted earlier) that the consent was being withdrawn in public inte­rest to order a ‘re-investigation’ of the case by a special team of State police offi­cers, in the amendatory notification (quoted earlier) it made it clear that they wanted a ‘further investigation of the case’ instead of ‘re-investigation of the case’. The dictionary meaning of ‘further’ (when used as an adjective) is ‘additional’; more; supplemental. ‘Further’ investigation therefore is the continuation of the earlier investiga­tion and not a fresh investigation or reinvestigation to be started ab-initio wiping out the earlier investigation altogether. In drawing this conclusion we have also drawn inspiration from the fact that sub-section (8) clearly envisages that on completion of further investigation the investi­gating agency has to forward to the Magistrate a ‘further’ report or reports-and not fresh report or reports-regarding the ‘further’ evidence obtained during such investigation. Once it is accepted-and it has got to be accepted in view of the judgment in Kazi Lhendup Dorji (supra) -that an investigation undertaken by CBI pursuant to a consent granted under Section 6 of the Act is to be completed, notwithstanding withdrawal of the consent, and that ‘further investigation’ is a continuation of such investigation which culminates in a further police report under sub-section (8) of Section 173, it necessarily means that withdrawal of consent in the instant case would not entitle the State police, to further investigate into the case. To put it differently, if any further investigation is to be made it is the C.B.I. alone which can do so, for it was entrusted to investigate into the case by the State Government. Resultantly, the notification issued withdrawing the consent to enable the State Police to further inves­tigate into the case is patently invalid and unsustainable in law. In view of this finding of ours we need not go into the questions, wheth­er Section 21 of the General Clauses Act applies to the consent given under Section 6 of the Act and whether consent given for investigat­ing into Crime No. 246/94 was redundant in view of the general consent earlier given by the State of Kerala. (Para 25)

       Held finally : From the above facts and circumstances we are constrained to say that the issuance of the impugned notification does not comport with the known pattern of a responsible Government bound by rule of law. This is undoubtedly a matter of concern and consternation. We say no more. (Para 27)

       On the conclusions as above we allow these appeals and quash the impugned notification. We direct the Government of Kerala to pay a sum of Rs. 1,00,000/- (Rupees one lac) to each of the six accused- appel­lants as costs. (Para 28)