IMPORTANT POINTS
(1) Section 6A of DSPE Act is held to be not in force from date of its insertion i.e. 11.09.2003 – Once a law is declared to be unconstitutional, being violative of Part-III of Constitution, then it would be held to be void ab initio, still born, unenforceable and non est in view of Article 13(2) of Constitution and its interpretation by authoritative pronouncements.
(2) Article 20 (1) of Constitution does not prohibit substitution of penalty or sentence which is not higher or greater than previous one or modification of rigours of criminal law.

JUDGMENT :

VIKRAM NATH, J.

Criminal Appeal No. 377/2007

1. This Constitution Bench has been constituted to consider whether the declaration made by a Constitution Bench of this Court, in the case of Subramanian Swamy vs. Director, Central Bureau of Investigation and Another, (2014) 8 SCC 682 that Section 6A of the Delhi Special Police Establishment Act, 194¹ [In short ‘DSPE Act’] being unconstitutional, can be applied retrospectively in context with Article 20 of the Constitution.

2. Necessary facts relevant for the purposes of this case are stated hereunder:

2.1 The appellant-Central Bureau of Investigation² [In short “CBI”] after registering the First Information Report at 02:00 pm on 16.12.2004 for offences under the Prevention of Corruption Act, 1988³ [In short “PC Act 1988”] laid a trap in the evening on the same day wherein the respondent is said to have accepted bribe to set the things right for the radiologist conducting Pre-Natal test to determine the sex of the foetus in contravention of the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994. The respondent applied for discharge, inter-alia, amongst others on the ground that the trap which was a part of the enquiry/investigation had been laid without the previous approval of the Central Government as provided under Section 6A of the DSPE Act.

2.2. The Special Judge, CBI, rejected the application for discharge vide order dated 30.04.2006 which was carried in revision before the High Court and was registered as Criminal Revision Petition No. 366 of 2006. Learned Single Judge of the High Court vide judgment dated 05.10.2006 framed three questions for consideration namely:

1. What is the background with regard to Section 6A of the DSPE Act?

2. Did the CBI acted in contravention of Section 6A(1)?

3. If yes, does it mean that the entire trial, consequent upon an illegal investigation, is vitiated?

It answered question No. 2 in favour of the respondent and further with respect to question No. 3 left it open for the competent authority to take the decision and further proceed with reinvestigation and in case sanction is not granted, to notify the Special Judge, CBI, to close the case. The operative part of the order is in paragraph 29 of the judgment which is reproduced hereunder:

“29. It follows that if, at the initial stage of trial, the illegality of investigation is brought to the notice of the court and yet the Trial Court continues with the trial then, such proceedings would be liable to be set aside by the High Court in exercise of its revisional jurisdiction. In this case, in view of the discussion above, it is clear that the provisions of Section 6A(1) of the Prevention of Corruption Act, 1988 are mandatory and not merely directory. The investigation carried out in contravention of such provisions is, therefore, clearly illegal, in violation of a statutory requirement. The dismissal of the discharge application moved on behalf of the petitioner means that the trial would continue. This cannot be permitted in view of the discussion above. Because, then the court would be turning a blind eye and a deaf ear to the illegality in investigation which has been brought to its notice at the earliest stage. However, it also does not mean that the petitioner is entitled to a discharge and the closure of the case against him. As pointed out in Rishbud’s case and Mubarak Ali’s case, reinvestigation is to be ordered in the context of the provisions of section 6A of the said Act. While the file is to be kept pending before Special Judge, approval of the Central Government is to be sought for investigation. If approval is accorded then the matter shall be reinvestigated as per prescribed procedure and the material gathered in such re-investigation shall be placed before the Special Judge for further proceedings in accordance with law. If the approval is not given by the Central Government, then the same shall be notified to the Special Judge who shall then clo