IMPORTANT POINT
Jurisdiction of Central Bureau of Investigation to investigate offences – Consent of State Government can be accorded at any stage, even when extension of jurisdiction of CBI to the State is still under contemplation.

JUDGMENT

Sanjay Dhar, J.—A common question of law as to whether the Central Bureau of Investigation is vested with jurisdiction to investigate offences committed within the territorial jurisdiction of erstwhile State of Jammu and Kashmir prior to its bifurcation into two Union Territories, has arisen in all these petitions. Besides laying challenge on the ground of jurisdiction of the CBI to investigate the offences, certain other grounds of challenge to the prosecution launched by Central Bureau of Investigation against the petitioners, which are peculiar to individual cases have also been raised by the petitioners. The petitions have been clubbed together on account of the fact that a common question of law has arisen as regards the jurisdiction of Central Bureau of Investigation to investigate offences committed in the erstwhile State of Jammu and Kashmir, as such for the present, by virtue of this judgment/order, it is proposed to deal with the said question of law only.

2. It has been contended by learned counsels appearing for the petitioners that the Central Bureau of Investigation lacks jurisdiction to investigate the FIRs which have been impugned in these petitions because no consent in terms of Section 6 of the Delhi Special Police Establishment Act (hereinafter referred to as DSPE Act) has been accorded by the erstwhile State of Jammu and Kashmir to the investigation of the instant cases. According to the petitioners, the Central Bureau of Investigation, before undertaking investigation of the impugned FIRs, was bound to obtain consent of the State Government in individual cases in terms of Section 6 of the DSPE Act and because the same has not been done, as such, the CBI lacks inherent jurisdiction to investigate the impugned FIRs and to file challan against the petitioners. It is also contended that notifications/orders in terms of Sections 3, 5 and 6 of DSPE Act are required to be issued in the same order in which these provisions have been incorporated in the Act, meaning thereby that in the first instance there has to be a notification under Section 3 which should be followed by an order under Section 5 and finally there has to be consent of the State Government in terms of Section 6 of the DSPE Act. It is contended that in the instant case, even if it is assumed that notifications/orders/consent have been issued by the relevant authorities, the same has not been done in the aforesaid order, which goes on to show that the provisions of DSPE Act have been observed in breach. It is also contended that under the provisions of Jammu and Kashmir Prevention of Corruption Act the offences are required to be investigated by the officers of Vigilance Organization, as such, the members of the CBI are not authorized to investigate offences under the aforesaid Act.

3. I have heard learned counsel appearing for the parties and also the learned Advocate General, who has put forward the stand of the Government of Union Territory of Jammu and Kashmir on the issue.

4. Before dealing with the contentions raised by learned counsel for the petitioners, it would be apt to trace out the legislative history of Delhi Special Police Establishment Act, 1946. A Division Bench of the Patna High Court in the case of J.N. Sahay V/s State of Bihar, 1982 Cri LJ 410 has traced out the legislative history of the aforesaid Act. While doing so the Division Bench has observed as under:—

“7. As an aftermath of outbreak of the World War II, various unscrupulous and anti-social persons, both official and non-officials, indulged in activities enriching themselves dishonestly at the cost of public and Government. The Government of India accordingly set up a central organisation for investigating offences relating to such transactions and the Delhi Special Police Establishment was set up in 1941 by an executive order under the administration