S. Shamsul Hasan, J.

1. The petitioner in this application prays for quashing of Special Case No.24/72, pending in the court of Mr. S. N. Verma, Special judge, Patna, arising out of a F. I. R. lodged on 1.1,69 by the Superintendent of Police, C. B. I.

2. The investigation in this case was all along conducted by the officers of the Delhi Special Police Establishment and charge-sheet was submitted by shri Amar Singh, Inspector of C. B. I. , S. P. E. , C. I. A. I. under section 120-B of the Indian Penal Code and under section 5 (2) read with section 5 (1) (c) (d) of the Prevention of Corruption Act, 1947, (hereinafter to be referred to as the 1947 Act) on 5.4.72, on the basis of which cognizance was taken and the case was fixed for hearing in the court of Shri S. N. Jha, where charges were framed under section 120-B of the Indian Penal Code, under section 5 (2)read with section 5 (i) (c) as also under section 5 (3) read with section 5 (i) (d) of the 147 Act. The allegations made by the prosecution against the petitioner are not material for disposal of this case.

3. The short point urged by learned counsel for the petitioner is that the investigating agency established under the Delhi Special Police Establishment act, 1946, (hereinafter to be referred to asthe 1946 Act) had no right to investigate this case because in terms of section 6 of that Act consent of the state Government was lacking and this investigation being illegal and without jurisdiction vitiates the trial.

4. The history of this legislation is relevant for the purpose of this case. In 1943 the Government of India set up a police staff called the Special Police establishment War Department under the Special Police Establishment (War department Ordinance No. XXII of 1943 for the purpose of investigating offences of bribery and corruption connected with the Department of the Central government. It was then decided to constitute this establishment on a psrmanent basis. Since Ordinance No. XXII of 1943 lapsed on 30th September, 1946, to avoid break in the continuity Ordinance No.22 of 1946 was promulgated on the 25th March, 1947. This present Act was erected to give permanency to the establishment. In clause 2 of Ordinance No 21 of 1943 it was provided that the Central Government will constitute a police force which will exercise powers and jurisdiction throughout British India similar to the one exercised in a province by members of the police force of the Province. Sec.5 of ordinance No. XXII of 1946 provides as follows :

" (1) The Central Government may by order extend to any area (including railway areas) in British India outside the Chief Commissioners province of Delhi the powers and jurisdiction 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 Delhi Special Police Establishment are extended to any such area, a member of that police establishment may subject to any orders which the Central Government may make in this behalf, discharge the function 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".

Sec.6 of the said Ordinance provides as under :

"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 British India outside the Chief Commissioners province of Delhi, not being a Railway area, without the consent- (a) in case such area is in a Governors Province, of the Government of that Province ; and (b) in case such area is in a Chief Commissioners Province, of the chief Commissioner. "

It may be noted here that for the first time in