1. Withdrawal of consent by State Government under Section 6, Delhi Special Police Establishment Act, 1946, and its effect on pending criminal investigations. (Para 1 , 2 , 3 , 4 )
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1994 Supreme(SC) 373
SUPREME COURT OF INDIA
(BEFORE S.C. AGRAWAL, B.P. JEEVAN REDDY AND M.K. MUKHERJEE, JJ.)
KAZI LHENDUP DORJI
Versus
CENTRAL BUREAU OF INVESTIGATION AND OTHERS
Writ Petition (Civil) No. 313 of 1993{Under Article 32 of the Constitution of India}, decided on March 29, 1994
Advocates appeared
Ram Jethmalani, Senior Advocate (B.N. Agarwal, H.L. Bhandari and P.H. Parekh, Advocates, with him) for the Petitioner;
K.T.S. Tulsi, Additional Solicitor General (Hemant Sharma and P. Parameswaran, Advocates, with him) for the Petitioner.
N. Santosh Hegde, Senior Advocate (Vepa P. Sarathi and K. Swami, Advocates, with him) for the Petitioner 3.
K. Parasaran, Senior Advocate (Rakesh K. Sharma, Shivi Sharma, P.R. Tiwari and K. Rajendra Chowdhary, Advocates, with him) for the Respondent 4.
Important Points
Withdrawal of consent by a State Government under Section 6 of the Delhi Special Police Establishment Act, 1946, operates prospectively. It does not affect investigations already initiated prior to the revocation, and the CBI remains competent to complete such investigations and file reports under Section 173 CrPC.
Subject
Criminal Law - Withdrawal of Consent for Investigation
Act Referred
Headnote
Constitution of India, 1950 - Article 32 – Indian Penal Code,1860 - Section 120-B - Criminal Procedure Code,1973 - Section 173 - Delhi Special Police Establishment Act, 1946 - Section 6 - Prevention of Corruption Act, 1947 - Section 5(2) read with 5(1)(e) - General Clauses Act - Section 21 – Offence of Criminal conspiracy – Investigation - Withdrawal of consent - Constitution of a special police force for investigation of certain offences in Union Territories, for superintendence and administration of said force and for extension to other areas of powers and jurisdiction of members of said force in regard to investigation of said offences - DSPE constituted under said Act is now known as Central Bureau of Investigation - Powers and jurisdiction of members of said police establishment are extended to any such area, a member thereof may subject to any orders which Central Government may make in this behalf, discharge functions of a police officer in that area and shall while so discharging such functions be deemed to be a member of police force of that area and be vested with powers, functions and privileges and be subject to liabilities of a police officer belonging to that police force –Held, writ petition Court find that after issuance of impugned notification inefforts were made by Central Government during period from to persuade Government to accord necessary consent and when said attempts failed, petitioner moved this Court - Therefore, even if Court proceed on basis that Section 21 of General Clauses Act is applicable to an order passed under Section 6 of Act, an order revoking an order giving consent under Section 6 of Act can have only prospective operation and would not affect matters in which action has been initiated prior to issuance of order of revocation - Impugned notification dated has to be construed in this light - If thus construed it would mean that investigation which was commenced by CBI prior to withdrawal of consent under impugned notification dated - In other words CBI was competent to complete the investigation in cases registered by it against Respondent 4 and other persons and submit report in competent court - On that view of matter, it is not necessary to go into question whether provisions of Section 21 of General Clauses Act can be invoked in relation to consent given under Section 6 of Act - Writ petition is therefore allowed.
Legal Category Hierarchy
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constitutional law
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legislative competence
- parliamentary powers (Para 13)
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legislative competence
- administrative law
- crime and sentencing
- practice and procedure
Advocates:
B.N.AGRAWAL, H.L.BHANDARI, HEMANT SHARMA, K.PARASARAN ATTORNEY, K.RAJENDRA CHAUDHARY, K.SWAMY, K.T.S.Tulsi, N.SANTOSH HEGDE, P.H.Parekh, P.PARMESHVARAN, P.R.TIVARI, RAKESH K.SHARMA, RAM JETHMALANI, SHIVI SHARMA, VEPA P.SARATHI
B.N.AGRAWAL, H.L.BHANDARI, HEMANT SHARMA, K.PARASARAN ATTORNEY, K.RAJENDRA CHAUDHARY, K.SWAMY, K.T.S.Tulsi, N.SANTOSH HEGDE, P.H.Parekh, P.PARMESHVARAN, P.R.TIVARI, RAKESH K.SHARMA, RAM JETHMALANI, SHIVI SHARMA, VEPA P.SARATHI
Table of Contents
2. Whether consent under Section 6 is withdrawable via Section 21, General Clauses Act, and whether such withdrawal affects investigations already initiated. (Para 9 , 10 , 11 , 12 )
3. Legislative competence of Parliament is established; public interest in corruption cases justifies overcoming delay; withdrawal of consent cannot operate retrospectively. (Para 13 , 14 , 15 , 16 )
4. Withdrawal of consent under Section 6 of the Delhi Special Police Establishment Act operates prospectively and does not preclude completion of pending investigations. (Para 16 , 17 )
5. Writ petition allowed; notification withdrawing consent declared to operate prospectively, permitting CBI to file reports for investigations initiated prior to withdrawal. (Para 17 )
6. Does Parliament have the legislative competence to extend the powers of the Delhi Special Police Establishment to other States?
Yes, the expression State in Entry 80 of List I of the Seventh Schedule to the Constitution includes Union Territories, allowing the extension of police powers to another State provided the State Government consents. (Para 13 )
7. Does the withdrawal of consent under Section 6 of the Delhi Special Police Establishment Act affect investigations already in progress?
No, such withdrawal operates only prospectively. It does not affect matters where action was initiated prior to the revocation, and the investigating agency remains competent to complete the investigation and submit the final report. (Para 16 , 17 )
8. Can Section 21 of the General Clauses Act be used to rescind consent given under Section 6 of the Delhi Special Police Establishment Act retrospectively?
No, Section 21 of the General Clauses Act does not confer a power to issue an order having retrospective operation. Any revocation of consent under this provision can only have prospective operation. (Para 16 )
Judgment
S.C. AGRAWAL, J.- This writ petition filed under Article 32 of the Constitution raises the question whether it is permissible to withdraw the consent given by the State Government under Section 6 of the Delhi Special Police Establishment Act, 1946 (hereinafter referred to as the Act) whereby a member of the Delhi Special Police Establishment (DSPE) was enabled to exercise powers and jurisdiction for the investigation of the specified offences in any area in the State and, if so, what is the effect of such withdrawal of consent on matters pending investigation on the basis of such consent on the date of withdrawal.
2. The Act was enacted to make provision for the constitution of a special police force in Delhi for the investigation of certain offences in the Union Territories, for the superintendence and administration of the said force and for the extension to other areas of the powers and jurisdiction of members of the said force in regard to the investigation of the said offences. DSPE constituted under the said Act is now known as the Central Bureau of Investigation (CBI). Sections 5 and 6 of the Act read as under:
"5. (1) The Central Government may by order extend to any area (including Railway areas) in a State, not being a Union Territory the powers and jurisdiction of members of the Delhi Special Police Establishment for the investigation of any offences or classes of offences specified in a notification under Section 3.
(2) When by an order under sub-section (1) the powers and jurisdiction of members of the said police establishment are extended to any such area, a member thereof may, subject to any orders which the Central Government may make in this behalf, discharge the functions of a police officer in that area and shall, while so discharging such functions, be deemed to be a member of the police force of that area and be vested with the powers, functions and privileges and be subject to the liabilities of a police officer belonging to that police force.
(3) Where any such order under sub-section (1) is made in relation to any area, then, without prejudice to the provisions of sub-section (2), any member of the Delhi Special Police Establishment of or above the rank of Sub-Inspector may, subject to any orders which the Central Government may make in this behalf, exercise the powers of the officer-in-charge 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 officer within the limits of his station.
6. Nothing contained in Section 5 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a State, not being a Union Territory or railway area, without the consent of the Government of that State."
3. By his letter dated 20-10-1976, addressed to the Deputy Secretary to the Government of India, Department of Personnel and Administrative Reforms, the Chief Secretary to the Government of Sikkim conveyed the consent of the Government of Sikkim under Section 6 of the Act to the members of the DSPE in exercising powers and jurisdiction on the whole of the State of Sikkim for the investigation of the offences punishable under various provisions of the Indian Penal Code specified therein as well as offences under the Prevention of Corruption Act, 1947. Similar consent in respect of offences under other enactments was conveyed by letter of the Chief Secretary, Government of Sikkim, dated 10-7-1979 and the orders of the Government of Sikkim dated 24-12-1983, 28-6-1984 and 10-12-1984.
4. Respondent 4 was the Chief Minister of Sikkim during the period 1979 to 1984. He ceased to be the Chief Minister on 11-5-1984. On 26-5-1984, a case [RC.5/84-CIU(A)] was registered by the CBI for offences punishable under Section 5(2) read with Section 5(1)(e) of the Prevention of Corruption Act, 1947. The allegations, in brief, were that Respondent 4, while ac
