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IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR
SANJAY DHAR, J.
Kumar Avinav – Petitioner
Versus
Union of India th. Commissioner/Secretary to Government Ministry of Home Afairs, New Delhi & Ors. – Respondents
CRMC No. 29 Of 2016
Decided On : 02-02-2023
CENTRAL BUREAU OF INVESTIGATION - JURISDICTION - INVESTIGATION OF OFFENCES COMMITTED WITHIN THE TERRITORIAL JURISDICTION OF ERSTWHILE STATE OF JAMMU AND KASHMIR PRIOR TO ITS BIFURCATION INTO TWO UNION TERRITORIES - CONSENT OF STATE GOVERNMENT UNDER SECTION 6 OF DELHI SPECIAL POLICE ESTABLISHMENT ACT, 1946 - GENERAL CONSENT ACCORDED BY THE GOVERNMENT OF JAMMU AND KASHMIR - JURISDICTION OF CBI TO INVESTIGATE CERTAIN OFFENCES IN THE STATE OF JAMMU AND KASHMIR - CONSENT LETTERS ISSUED BY THE GOVERNMENT OF JAMMU AND KASHMIR - VALIDITY AND EFFECT - INTERPRETATION OF CONSENT LETTERS - SCOPE AND EXTENT OF CONSENT - CASES REGISTERED BY LOCAL POLICE AND TRANSFERRED TO CBI - SPECIFIC CONSENT NOTIFICATION UNDER SECTION 6 OF THE ACT - NECESSITY - OFFENCES RELATING TO CONSPIRACIES AND OFFENCES UNDER JAMMU AND KASHMIR STATE PREVENTION OF CORRUPTION ACT - INCLUSION IN CONSENT LETTERS - POWERS AND JURISDICTION OF CBI MEMBERS INVESTIGATING OFFENCES UNDER JAMMU AND KASHMIR STATE PREVENTION OF CORRUPTION ACT.
Fact of the Case:
Several petitions were filed challenging the jurisdiction of the Central Bureau of Investigation (CBI) to investigate offences committed within the territorial jurisdiction of the erstwhile State of Jammu and Kashmir prior to its bifurcation into two Union Territories. The petitioners contended that the CBI lacked jurisdiction to investigate the impugned FIRs as no consent had been accorded by the erstwhile State of Jammu and Kashmir in terms of Section 6 of the Delhi Special Police Establishment Act (DSPE Act). The petitioners also raised other grounds of challenge peculiar to individual cases.
Finding of the Court:
The Court held that the erstwhile State of Jammu and Kashmir had accorded general consent under Section 6 of the DSPE Act for the exercise of jurisdiction by the CBI to investigate the offences mentioned in the consent letter dated 07.05.1958 read with the letter dated 18.12.1963. The Court further held that these communications had not been withdrawn by a competent authority of the erstwhile State of Jammu and Kashmir. Therefore, the CBI had jurisdiction to investigate the offences mentioned in the aforesaid two consent letters read with the notification dated 01.04.1964 and the order dated 01.04.1964.
Issues: 1. Whether the Central Bureau of Investigation (CBI) has jurisdiction to investigate offences committed within the territorial jurisdiction of the erstwhile State of Jammu and Kashmir prior to its bifurcation into two Union Territories? 2. Whether the erstwhile State of Jammu and Kashmir has accorded consent under Section 6 of the Delhi Special Police Establishment Act (DSPE Act) for the exercise of jurisdiction by the CBI to investigate certain offences in the State of Jammu and Kashmir? 3. Whether the consent letters issued by the Government of Jammu and Kashmir are valid and effective? 4. What is the scope and extent of the consent accorded by the Government of Jammu and Kashmir? 5. Whether a specific consent notification under Section 6 of the DSPE Act is necessary in cases where the investigation of an FIR registered by the local Police is transferred to the CBI? 6. Whether offences relating to conspiracies and offences under the Jammu and Kashmir State Prevention of Corruption Act are included in the consent letters? 7. What are the powers and jurisdiction of CBI members investigating offences under the Jammu and Kashmir State Prevention of Corruption Act?
Ratio Decidendi: 1. The consent letters issued by the Government of Jammu and Kashmir on 07.05.1958 and 18.12.1963 are valid and effective and have not been withdrawn by a competent authority. 2. The consent accorded by the Government of Jammu and Kashmir is a general consent and not a case-to-case consent. 3. A specific consent notification under Section 6 of the DSPE Act is not necessary in cases where the investigation of an FIR registered by the local Police is transferred to the CBI. 4. Offences relating to conspiracies and offences under the Jammu and Kashmir State Prevention of Corruption Act are included in the consent letters. 5. CBI members investigating offences under the Jammu and Kashmir State Prevention of Corruption Act have the same powers and jurisdiction as officers of the Vigilance Organization.
Final Decision: The Court answered the common question of law in all the petitions by holding that the erstwhile State of Jammu and Kashmir had accorded general consent under Section 6 of the DSPE Act for the exercise of jurisdiction by the CBI to investigate the offences mentioned in the consent letter dated 07.05.1958 read with the letter dated 18.12.1963. The Court further held that these communications had not been withdrawn by a competent authority of the erstwhile State of Jammu and Kashmir. Therefore, the CBI had jurisdiction to investigate the offences mentioned in the aforesaid two consent letters read with the notification dated 01.04.1964 and the order dated 01.04.1964. The Court directed the Registries of both the Wings of the High Court to delink all the petitions and list them separately before the roster Bench for consideration on other legal grounds raised in the petitions on an individual basis. The Court also vacated the stay of proceedings before the Trial court.
JUDGMENT :
1. 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. 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:
The erstwhile State of Jammu and Kashmir has accorded general consent under Section 6 of the DSPE Act for the exercise of jurisdiction by the CBI to investigate certain offences in the State of Jammu....
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 un....
The general consent given by the State Government for investigation of offences punishable under a specific act holds good for authorizing the investigative agency to investigate subsequent amendment....
CBI investigation – Govt. orders according general consent to exercise powers and jurisdiction under DSPE Act against private persons for alleged offences whether acting separately or in conjunction ....
The CBI does not require State consent for jurisdiction when the conspiracy is initiated outside the State, as established under Sections 5 and 6 of the DSPE Act.
Lack of sanction for prosecution is not always fatal to case of prosecution.
State consent under DSPE Act prior to FIR registration validates CBI investigation despite earlier preliminary verification; no quashing of proceedings post charge-sheet and cognizance absent miscarr....
The main legal principle established in the judgment is that the CBI has the authority to investigate in Railway areas within a state, even after the withdrawal of consent by the State Government, ba....
The court clarified that the CBI had jurisdiction to investigate the case without specific consent under Section 6 of the DSPE Act and that the lack of specific consent did not result in a miscarriag....
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