Kanwal Tanuj vs The State Of Bihar on 24 April, 2020


Supreme Court of India

Kanwal Tanuj vs The State Of Bihar on 24 April, 2020

Author: A.M. Khanwilkar

Bench: A.M. Khanwilkar, Dinesh Maheshwari

                                                    1


                                                                       REPORTABLE

                                 IN THE SUPREME COURT OF INDIA

                               CRIMINAL APPELLATE JURISDICTION

                                 CRIMINAL APPEAL NO. 414 OF 2020
                               (Arising out of SLP(Crl.) No. 9876 of 2018)

          Kanwal Tanuj                                             ….Appellant(s)

                                                Versus

          State of Bihar & Ors.                                    ….Respondent(s)




                                           JUDGMENT

A.M. Khanwilkar, J.

1. Leave granted.

2. This appeal emanates from the judgment and order dated

17.9.2018 passed by the High Court of Judicature at Patna (for

short, “the High Court”) in Criminal Writ Jurisdiction Case

(CWJC) No. 879/2018, whereby the writ petition filed by the

appellant for quashing of first information report (FIR) being R.C.

A.C.­I, 2018A 0002 dated 21.2.2018 registered by the Central

Bureau of Investigation (for short, “the CBI”) under Sections
Signature Not Verified

Digitally signed by
DEEPAK SINGH
Date: 2020.04.24
15:21:52 IST
Reason:

120B, 420, 467, 468 and 471 of the Indian Penal Code (for short,
2

“the IPC”) read with Section 13(1)(d) of the Prevention of

Corruption Act, 1988 (for short, “the PC Act”) came to be rejected.

3. The principal ground canvassed by the appellant before the

High Court was that he being an officer of the Indian

Administrative Service (IAS) employed in connection with the

affairs of the Government of Bihar as District Magistrate at

Aurangabad District (State of Bihar) could not be subjected to

investigation by the CBI without the prior consent of the State.

4. The appellant has been named as an accused alongwith one

Shri C. Sivakumar, CEO, Bhartiya Rail Bijli Company Limited (for

short, “BRBCL”), Nabinagar, District Aurangabad, Bihar on the

basis of FIR registered by the CBI pursuant to information

received from a reliable source alleging as follows: ­

“A reliable source information has been received that
Bhartiya Rail Bijlee Company Limited (BRBCL), a
subsidiary of NTPC Ltd. is constructing four units of 250
MW at Nabinagar in Aurangabad District (Bihar). The
joint venture project has been developed by Bhartiya Rail
Bijlee Company Limited (BRBCL) with NTPC having 74
percent share, while the Ministry of Railways with the
remaining 26 percent. Indian Railways would get 90
percent and the state of Bihar would get ten percent of
the power generated from BRBCL’s plants. The
construction work of BRBCL was proposed in the 2005­06
Union Budget and the Central Govt. approved the
company in February 2007 but work on the plant was
delayed due to land acquisition problems at Nabinagar.
Actual work on BRBCL power plants started in 2008­09.
The four units of BRBCL plant are proposed to be
3

constructed on around 1,500 acres of land at Nabinagar
and all of them are to be completed at a revised cost of
around Rs.8,100 crore.

2. Information further revealed that large scale
corruption and siphoning of government funds has taken
place in the land acquisition for the plant of Bhartiya Rail
Bijlee Company Limited (BRBCL) by the BRBCL officials
in criminat connivance with Local District Administration.
A specific instance has been formed by source in this
regard pertaining to acquisition of tL.57 acre land of
Khata No.12, plot No.1, of Mauja Kajrine for the Thermal
Power Project at Nabinagar in the District of Aurangabad
(Bihar). The proposal to acquire land has already been
approved by the State Government of Bihar along with the
compensation amount payable to the owner of the
acquired lands.

3. Information also revealed that initially vide letter
No.452, dated 22.06.2015, Circle Officer, Nabinagar
informed Chief Executive Officer, BRBCL, Nabinagar that
there was no claimant for land 7.09 acre pertaining to
Khata No.12, plot No.1 of Mauja Kajrine. In this regard
BRBCL issued a letter to Circle Officer, Nabinagar on
15.01.2016 that company had no objection if aforesaid
left out land was transferred to company (BRBCL).

4. It has been further revealed by a source that Shri C.
Shiv Kumar, CEO, BRBCL, Nabinagar entered into a
criminal conspiracy with Shri Kanwal Tanuj, District
Magistrate, Aurangabad District (Bihar), other unknown
officers/officials of BRBCL, local District Administration
and Shri Gopal prasad singh (now deceased). In
furtherance of the said criminal conspiracy, Shri Kanwal
Tanuj, District Magistrate, Aurangabad District (Bihar)
got false documents of Khata No.12, plot No.1 of Mauja
Kajrine prepared in respect of one shri Gopal prasad
singh (now deceased) s/o Late Kesho Prasad singh, R/o­
Nabinagar District­ Aurangabad (Bihar). Some false
receipts of Lagan for the period 1988­89 to 2016­17, some
other related papers/returns of above land shown to be
purchased from Shri Mukund Lal (Jamindar), who was
never jamindar (Land lord) of the area were prepared and
submitted for claim/compensation in the name of Gopal
Prasad Singh (now deceased).

5. It was then fraudulently directed by Shri Kanwal
Tanuj, DM, Aurangabad that 7.45 acre land in Khata
No.12, Plot No.1 of Mauja Kajrine be recorded in the name
of Shri Gopal Prasad Singh (now deceased) and the matter
4

may be further processed accordingly. Circle Officer,
Nabinagar sent a letter No.74, dated 11.03.2017 to Chief­
Executive officer BRBCL for purchasing of the land from
the owner Shri Gopal Prasad Singh (now deceased), Circle
Officer, Nabinagar thereafter issued another letter dated
25.03.2017 to BRBCL recalling his previous letter dated
22.06.2015 and informed that 7.45 acres out of the total
land in Khata No.12, plot No.1 of Mauja Kajrine has been
registered in name of Shri Gopal Prasad Singh. The circle
officer further informed BRBCL that 6.545 acres falling in
the Ash Dyke area in the above mentioned plot was being
earmarked/acquired for the BRBCL and directed the
BRBCL to purchase the said land from the owner Shri
Gopal Prasad Singh and 0.905 acres from the Govt. Land
was being transferred to BRBCL for the purpose of the
plant.

6. Source information also revealed that as per
procedure possession of land is taken in the presence of
land owners after identification of their land but when
BRBCL officers along with other officers visited the site on
11 & 12.04.2017 for possession of the aforesaid land, the
claimant Gopal prasad singh (now deceased) allegedly
could not identify his own land and many villagers, who
gathered there opposed that the said land was not owned
by Shri Gopal Prasad Singh (now deceased). In this regard
a video/CD was also prepared at the spot. In furtherance
of the conspiracy, vide letter 1707 dated 26.05.2017 Shri
Kanwal Tanuj, DM, Aurangabad thereafter directed
BRBCL to make payment of compensation for the land
(Khata No.12, Plot No.1, of Mauja Kajrine) to Gopal
Prasad Singh (now deceased) within 48 hours. Vide letter
No.151, dated 12.06.2017 Shri C. Shiv Kumar, CEO,
BRBCL, Nabinagar made payment of Rs.2,07,84,583/­ to
Shri Gopal Prasad Singh (now deceased) despite having
the knowledge that Shri Gopal Prasad Singh could not
identify the land and many villagers who had gathered
there opposed that the said land was not owned by Shri
Gopal Prasad Singh (now deceased).

7. Source has further informed that an a/c. Payee
Cheque No.382774, dated 29.05.2017 for
Rs.2,07,84,583/­ was issued from account
No.30450307785 by Bhartiya Rail Bijlee Co. Ltd. in favour
of Shri Gopal Prasad Singh (now deceased) and same was
credited in a/c number 6082000100097579 of Shri Gopal
Prasad Singh (now deceased) maintained in SBI,
Nabinagar branch, District­Aurangabad (Bihar). This
amount was transferred via RTGS/SBINR520170529 in
5

this account and subsequently the money was withdrawn.
Thus, BRBCL was caused a wrongful loss to the tune of
Rs.2,07,84,5831­ and corresponding wrongful gain to
themselves.

8. The above facts and circumstances prima­facie
disclose commission of offences punishable U/s. 120­B,
420, 467, 468 & 471 IPC and Section 73(2) r/w Section
13
(1) (d) of the P.C. Act, 1988 against Shri C. Shiv
Kumar, CEO, BRBCL Nabinagar, Shri Kanwal Tanuj, DM,
Aurangabad and other unknown public servants of
BRBCL and local administration and other private
persons.

A Regular case is, therefore, registered and
entrusted to Shri Pramod Kumar, Dy. Supdt. of police
CBI, AC­I, New Delhi Supdt. of Police, CBI/AC­I, New
Delhi for investigation and report.”

5. As aforesaid, the appellant filed writ petition for quashing of

the said FIR on the ground that it does not disclose any criminal

offence against the appellant and for a declaration that it has

been lodged against the appellant (a State Government

employee), without prior permission of the State Government and

was thus in violation of Section 6 of the Delhi Special Police

Establishment Act, 1946 (for short, “the 1946 Act”). In other

words, the FIR has been registered without jurisdiction and is

void ab initio.

6. The High Court after considering the grounds of challenge,

proceeded to hold that BRBCL is an “affiliate” or “associate” in

relation to National Thermal Power Company (NTPC) Ltd. and the

Railways respectively. The registered office of BRBCL was in the
6

Union Territory of Delhi (National Capital Territory of Delhi) and

the allegation regarding defrauding the said undertaking (BRBCL)

and siphoning of funds had occurred in the Union Territory of

Delhi (National Capital Territory of Delhi). The funds for

implementation of the project through BRBCL were provided by

the Central Government in terms of the Union Budget proposed

in the year 2005­06. The High Court then concluded that

criminal conspiracy for committing the offence was thus hatched

at Delhi and for all these reasons, the CBI was competent to

register FIR at Delhi and to carry on investigation in that regard.

Additionally, the High Court referred to the notification dated

19.2.1996 issued by the State Government of Bihar according

consent to all members of the Delhi Special Police Establishment

(for short, “the DSPE”) to exercise powers and jurisdiction under

the 1946 Act in the whole of the State of Bihar in respect of the

stated offences. The said notification reads thus: ­

“NO.3/Vividh­6019/96
Government of Bihar
Home (Police) Department
Notification

Patna the February, 1996
7

O.O. No.____________/­ In exercise of the powers conferred
by section 6 of the Delhi Special Police Establishment Act.
1945 (Act XXV of 1945), and in supersession of all
previous notifications on the subject the Governor of
Bihar is pleased to accord his consent to all members of
the Delhi Special Police Establishment to exercise powers
and jurisdiction under the said Act in whole of the State
of Bihar in respect of the investigation of the followings:­

(a) Offences committed in connection with the affairs of
the Govt. of India, Local authority subject to the control of
the Government of India or any corporation, company or
Bank owned or controlled by the Govt. of India.

(i) punishable under the prevention of corruption Act,
1947 (Act 2 of 1947);

(ii) punishable under Section 403, 406, 407, 408, 409,
411, 412, 413, 414, 417, 418, 419, 420, 465, 466, 467,
468, 471 and 477­A of the Indian Penal Code (45 of 1860);
and

(iii) attempts, abetments and conspiracies in relation to,
or in connection with the offences mentioned in clause (i)
and (ii) above any other offence committed in the course
of the same transaction arising out of the same facts.

(b) offences punishable under the Central Acts
specified in the Annexure appended hereto,
Provided that where public servants employed in
connection with the affairs of the Government of Bihar
and persons employed in connection with the affairs of
any local authority subject to the control of the
Government of Bihar or any corporation, company or
Bank owned or controlled by the Government of Bihar or
any institution receiving or having received any financial
aid from the Government of Bihar are concerned in
offences referred to in items a(i) to (iii) and (b) above, the
prior consent of the State Government shall be obtained
for the investigation of any such offence by the Delhi
Special Police Establishment.

File No.1/Vividh­6019/96)
By order of Governor of
Bihar

Sd/­­­
(D.P. Maheshwari)
8

Commissioner & Secretary
Home Department”

The High Court negatived the argument of the appellant that the

proviso in the said notification restricted the general consent

accorded by the State. It was urged by the appellant that the

purport of the proviso was to make it amply clear that no consent

was given by the State Government in terms of Section 6 of the

1946 Act to authorise the members of the DSPE to exercise

powers and jurisdiction under the 1946 Act in respect of offences

in which public servants employed in connection with the affairs

of the Government of Bihar were allegedly involved. Investigation

in respect of such cases could be undertaken only after taking

prior consent of the State Government of Bihar and not

otherwise.

7. The High Court noted that it was not the case of the

appellant that the offences referred to in the subject FIR were not

covered by the notification issued by the Central Government in

terms of Section 3 of the 1946 Act. The High Court held that the

investigation in the present case had begun in respect of affairs

of an agent of a public sector undertaking and the Central

Government through Ministry of Railways with regard to
9

siphoning of funds by the agent entering into a criminal

conspiracy with some persons who incidentally reside outside the

Union Territory. Investigation qua them could be proceeded by

the CBI without the consent of the concerned State Government

where the co­accused resided. The High Court in paragraphs 46

and 48 noted thus: ­

“46. Once the offences or the classes of offences are
covered under the notification issued by the Central
Government in terms of Section 3 and the offences alleged
are said to be in respect of the funds of the government
being siphoned through its agent which is a corporate
body and a government company through its Chief
Executive Officer and the registered office of the said
corporate body is in the Union Territory of Delhi, the
institution of the FIR as well as the investigation taken up
pursuant thereto cannot be stopped and no consent of the
government of Bihar would be required to investigate the
persons involved in commission of the offence. Such
person may be an officer working in connection with the
affairs of the State of Bihar, but where the offences
alleged are in connection with the funds of the
Government of India through its agent a government
company having its registered office at Union Territory of
Delhi, it would be immaterial that any other person
involved in commission of the said offence is working in
connection with the affairs of the State Government. In
the facts of the present case, this Court is of the
considered opinion that no consent of the State
Government in terms of Section 6 of the DSPE Act, 1946
would be required.

xxx xxx xxx

48. Even though learned Senior counsel representing
the petitioner submits that in the present case the
B.R.B.C.L. cannot be said to be a company owned or
controlled by the Central Government, this Court is of the
considered opinion that first part of the notification dated
19.02.1996 in so far as it states that the consent of the
government is in respect of the investigation of the offence
10

committed in connection with the affairs of the
Government of India, local authority subject to the control
of the Government of India, local authority subject to the
control of the Government of India or any Corporation,
Company or Bank owned and controlled by the
Government of India cannot be given a narrow meaning.”

While dealing with the proviso in the subject notification dated

19.2.1996, the High Court in paragraphs 57 and 58 observed

thus:­

“57. The proviso to the notification dated 19.02.1996
issued by the Government of Bihar cannot come to the
rescue of the petitioner in the present set of facts and
circumstances where the C.B.I. while investigating a case
involving a government company who is acting as an
agent of the public sector undertaking and Ministry of
Railways finds that some more persons including those
who are public servants presently working and serving
under the Government of Bihar are also involved in the
conspiracy which has an ultimate effect of causing
unlawful loss to the principal for which the agent is
working, no individual consent would be required in
terms of Section 6 of the D.S.P.E. Act.

58. The contention of the learned Senior Counsel
based on the proviso part of the notification dated
19.02.1996 could have been worth consideration if it
could have been shown to this Court that the entire
alleged offence in respect of which the C.B.I. has
assumed jurisdiction to investigate relate to an affairs of
the State of Bihar. This Court would, therefore, reiterate
that in the facts situation of the present case no consent
at all would be required from the Government of Bihar.”

The High Court accordingly rejected the challenge put forth by

the appellant and dismissed the writ petition being devoid of

merit.

11

8. The appellant has reiterated the grounds urged before the

High Court and would contend that CBI could not have registered

the FIR much less investigated the same without prior consent of

the State of Bihar in that regard. The notification dated

19.2.1996 does not authorise the CBI to register cases against

the public servants employed in connection with the affairs of the

Government of Bihar. In support of this submission, reliance has

been placed on the decisions in State of West Bengal & Ors.

vs. Committee for Protection of Democratic Rights, West

Bengal & Ors.1, Ms. Mayawati vs. Union of India & Ors. 2 and

M. Balakrishna Reddy vs. Director, Central Bureau of

Investigation, New Delhi3. It is urged that the interpretation by

the High Court regarding the purport of the subject notification

dated 19.2.1996 is flawed; and, is in teeth of the express

stipulation in the proviso thereof. It is urged that any other view

would result in impacting the federal structure of the country,

which is the basic feature of the Constitution of India. Further,

the general consent accorded by the State of Bihar vide stated

notification is a conditional one for exercise of powers and

1 (2010) 3 SCC 571
2 (2012) 8 SCC 106
3 (2008) 4 SCC 409
12

jurisdiction by the officials of the DSPE. The appellant has

drawn our attention to the expression “may” used in Sections 3

and 5 of the 1946 Act in contradistinction to the expression

“shall” in Section 6 and would urge that the requirement of prior

unambiguous consent of the State Government is the pre­

requisite and sine qua non to empower the officials of the DSPE.

The appellant has also pointed out that the nature of allegation

in the FIR against the appellant disregards the factual

background in which the declaration in favour of Gopal Prasad

Singh regarding the land bearing Khata No. 12, Plot number 1 of

Mauja Kajrain was issued after due evaluation of his claim in the

hierarchy of administrative set up right from Anchal Amin upto

Additional District Magistrate, which process went on from 1971

as is manifest from the official record. It is thus urged that the

alleged act of the appellant was done in official capacity and was

protected by Section 79 of the IPC. The CBI ought to have

undertaken preliminary enquiry before rushing to register the

FIR on the basis of source information. Even for that reason, the

action of CBI cannot be countenanced ­ not being in conformity

with the CBI Manual. It is urged that the FIR does not disclose

any offence qua the appellant and that it was registered without
13

offering any explanation for the inordinate delay. Finally, it is

urged that the registration of FIR itself was barred by Section 6 of

the 1946 Act read with notification dated 19.2.1996.

9. The State of Bihar has supported the claim of the appellant

on the question of law by contending that Policing is a State

subject under Entry 2 List II of Schedule VII of the Constitution.

Hence, having due regard to the federal structure recognised

under the Constitution, provision such as Section 6 of the 1946

Act has been incorporated. According to the State, combined

reading of Sections 2, 3, 5 and 6 of the 1946 Act would show that

DSPE has jurisdiction to investigate offences notified under

Section 3 in any Union Territory; the use of the expression “may”

in Sections 3 and 5 is indicative that it is only an enabling

provision, enabling the Central Government to extend the area of

operation of DSPE to any area in the State by an order. The

order under Section 5, however, is made subject to the condition

predicated in Section 6, namely, it would come into effect only

after consent of the concerned State Government is accorded.

For, Section 6 uses the expression “shall”, which is suggestive of

the fact that the said requirement is mandatory in nature and
14

without such prior consent of the State, DSPE would not get

jurisdiction to enter upon investigation of the specified offences

and exercise its powers and jurisdiction in any area of a State.

As regards the notification dated 19.2.1996, it is urged by the

State that it is a general consent, making it amply clear that prior

consent to investigate cases against the public servants employed

in connection with the affairs of the Government of Bihar is

essential. That requirement has not been dispensed with in

terms of the proviso in the subject notification. It is always open

to the State to accord partial consent on the terms specified in

the notification. As the State is variously concerned about the

actions of its employees including the subject of Policing being a

State subject, it is urged that the DSPE ought to have intimated

the State about the acts of commission and omission of the

officers of the State, so that the State could have examined the

same and resorted to appropriate action as per law. The State is

also relying on the exposition in Committee for Protection of

Democratic Rights, West Bengal (supra). It is urged by the

State that no consent has been obtained by the DSPE in terms of

the proviso, although the allegations in the FIR registered by
15

them against the appellant who is a State Government employee

are in connection with the affairs of the State.

10. The learned Additional Solicitor General appearing for the

CBI has adopted the reasons noted by the High Court. He has

urged that the occupation/residence of one of the accused cannot

come in the way of DSPE to carry on the investigation in respect

of offence of conspiracy to defraud the Government of India

undertaking whose registered office is at Delhi and moreso

because the siphoning of funds of the undertaking has been

committed within the territory of Delhi. The investigation of such

a case cannot be regarded as in respect of an offence

independently committed by the public servant employed in

connection with the affairs of the Government of Bihar as such.

As a result, no consent of any State to investigate such an office

would be necessary. As a matter of fact, no State would have

jurisdiction to enquire into or investigate the offence committed

in relation to the Government of India undertaking registered in

the territory of Delhi. Similarly, only the Courts in Delhi would

have jurisdiction to take cognizance of the stated offence. In

such a situation, the occupation or status of the accused or his
16

residence cannot be the basis to constrict the powers of the

investigating agency (DSPE) in any manner. It is urged that if the

argument of the appellant is accepted, that would have serious

implications. For, in cases where the DSPE during the course of

investigation of specified crimes committed in Union Territory is

confronted with the accused employed/residing in different

States, it would require the DSPE to obtain consent of every such

State wherever the accused resides and is an employee of that

State. That cannot be the intention of law in empowering the

special police establishment (DSPE) to investigate specified and

notified offences committed within the Union Territory. The

harmonious and purposive construction of the provisions of the

1946 Act, in particular Section 5 thereof, would be to confine the

consent of the State Government under Section 6 in respect of

investigation of crime exclusively committed within the

jurisdiction of that State. In other words, no consent would be

required in respect of specified offence(s) committed within the

Union Territory, which could be investigated only by the DSPE

under Sections 2 and 3 of the 1946 Act throughout India. Any

other interpretation would render the dispensation regarding

investigation of specified offences committed within the Union
17

Territory otiose. This is moreso because the State would have no

jurisdiction to investigate such offence committed within the

jurisdiction of the Union Territory. Resultantly, the question of

obtaining consent of the State merely because one of the accused

involved in the offence happens to be residing in that State or is a

public servant of that State, is not contemplated by law. It is also

urged that the proviso to the subject notification dated 19.2.1996

has the effect of defeating the purpose for which special

legislation has been enacted and dispensation thereunder for

investigation of specified offences is established.

11. Relying on the exposition of the Constitution Bench in

Subramanian Swamy vs. Director, Central Bureau of

Investigation & Anr.4, it is urged that the principle underlying

the declaration of provisions such as Section 6A of the 1946 Act

being ultra vires, must apply to the proviso which is part of

notification being an executive instruction classifying offenders

differently for treatment thereunder, including investigation of

offences and prosecution for offences, according to their status in

life on account of being employed in connection with the affairs of

the Government of Bihar. That is impermissible and cannot be
4 (2014) 8 SCC 682
18

countenanced as it defeats the purpose of finding prima facie

truth into the allegations of the specified crime, as every person

accused of committing the same offence is to be dealt with in the

same manner in accordance with law, which is equal in its

application to everyone. The alleged acts of commission and

omission of the appellant in the State of Bihar would not alter the

substratum of the offence or crime in question stated to have

been committed to defraud the Government undertaking (BRBCL)

and resultantly siphoning of its funds within the Union Territory

of Delhi (National Capital Territory of Delhi).

12. Our attention is also invited by the learned Additional

Solicitor General to a recent decision of the Delhi High Court in

Anand Agarwal vs. Union of India & Ors.5, which has upheld

the stand taken by the CBI that requirement of consent of the

State is premised on the basis that the specified offence or

offences committed and under investigation, have taken place in

the State (outside the Union Territory). The Delhi High Court has

agreed with the view taken by the High Court of Judicature at

Patna in the impugned judgment. It is urged that the appeal be

dismissed being devoid of merit.

5 (2018) SCC Online Del 11713
19

13. After cogitating over the rival submissions, the core issue

which arises for consideration in the present case is: whether the

proviso in the stated notification dated 19.2.1996 would come in

the way of the officials of DSPE to register FIR and carry on

investigation of specified offences committed within the Union

Territory (National Capital Territory of Delhi), to which the 1946

Act applies?

14. The 1946 Act has been enacted to make provision for

constitution of a special police force in Delhi for the investigation

of certain offences (committed) 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 the

members in regard to the investigation of the said offences. This

Act applies to the whole of India. Section 2 of the 1946 Act

enables the Central Government to constitute a special force to

be called DSPE for the investigation in any Union Territory of

specified offences notified under Section 3. Section 3 of the 1946

Act enables the Central Government, by notification in the official

gazette to specify the offences or classes of offences which are to

be investigated by the DSPE. It is not in dispute that the offences
20

referred to in the subject FIR are so specified by the notification

issued under Section 3.

15. The consequence of establishing a special police force under

Section 2 is to empower the members of the said police force to

exercise all the powers, duties, privileges and liabilities

throughout the Union Territory in relation to the investigation of

specified offences, which police officers of that Union Territory

have in connection with the investigation of offences committed

therein. By virtue of sub­Section (3) of Section 2 of the 1946 Act,

any member of the said establishment of or above the rank of

Sub­Inspector may, subject to any orders which the Central

Government may make in this behalf, exercise in any Union

Territory any of the powers of the officer in charge of a police

station in the area in which he is for the time being and when so

exercising such powers shall, subject to any such orders, 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.

Resultantly, specified offences committed within the Union

Territories are required to be investigated exclusively by the

special police force constituted for that purpose.
21

16. The purport of Section 5 of the 1946 Act is to enable the

Central Government to extend the powers and jurisdiction of

members of the DSPE for the investigation of any offence or class

of offences specified in the notification under Section 3, in a State

not being a Union Territory. Such extension of powers and

jurisdiction of members of the special police force becomes

necessary in respect of specified offences “committed outside the

jurisdiction of the Union Territory” referred to in Sections 2 and 3

of the 1946 Act. However, in keeping with the federal structure

of the Constitution which is fundamental to the Constitution,

consent of such a State has been made essential, as predicated

in Section 6 of the 1946 Act. Sections 5 and 6 of the 1946 Act

read thus: ­

“5. Extension of powers and jurisdiction of special
police establishment to other areas.—(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 sub­section (1) the powers
and jurisdiction of members of the said police
establishment are extended to any such area, a member
thereof may, subject of 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 a police force of that area and be vested with the
22

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 sub­section (1) is
made in relation to any area, then, without prejudice to
the provisions of sub­section (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 incharge of a police station discharging the
functions of such an officer within the limits of his
station.

6. Consent of State Government to exercise of
powers and jurisdiction.—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.”

Such a consent may not be necessary regarding the investigation

by the special police force (DSPE) in respect of specified offences

committed within Union Territory and other offences associated

therewith. That may be so, even if one of the accused involved in

the given case may be residing or employed in some other State

(outside the Union Territory) including in connection with the

affairs of the State/local body/corporation, company or bank of

the State or controlled by the State/institution receiving or

having received financial aid from State Government, as the case

may be. Taking any other view would require the special police

force to comply with the formality of taking consent for
23

investigation even in relation to specified offence committed

within Union Territory, from the concerned State merely because

of the fortuitous situation that part of the associated offence is

committed in other State and the accused involved in the offence

is residing in or employed in connection with the affairs of that

State. Such interpretation would result in an absurd situation

especially when the 1946 Act extends to the whole of India and

the special police force has been constituted with a special

purpose for investigation of specified offences committed within

the Union Territory, in terms of notification issued under Section

3 of the 1946 Act.

17. This Court in M. Balakrishna Reddy (supra) expounded

the purport of Sections 3, 5 and 6 of the 1946 Act and observed

in paragraph 19 as under: ­

“19. Plain reading of the above provisions goes to show
that for exercise of jurisdiction by CBI in a State (other
than Union Territory or Railway area), consent of the
State Government is necessary. In other words, before the
provisions of the Delhi Act are invoked to exercise power
and jurisdiction by Special Police Establishment in any
State, the following conditions must be fulfilled:

(i) A notification must be issued by the Central
Government specifying the offences to be
investigated by Delhi Special Police Establishment
(Section 3);

(ii) An order must be passed by the Central
Government extending the powers and jurisdiction
24

of Delhi Special Police Establishment to any State
in respect of the offences specified under Section 3
(Section 5); and

(iii) Consent of the State Government must be
obtained for the exercise of powers by Delhi Special
Police Establishment in the State (Section 6).”

This judgment dealt with a case where offence was committed in

the State of Madhya Pradesh in the year 1996, which had already

accorded consent under Section 6, but the accused at the time

when the case was registered, was working in a different State i.e.

the State of Uttar Pradesh. The challenge in that case was to the

order which according to the appellant therein, did not fulfil the

elements of Section 6 of the 1946 Act. That challenge came to be

negatived by this Court in paragraphs 69 and 71 of the reported

judgment, in the following words: ­

“69. In the present case, the decision produced by the
respondent along with the counter­affidavit filed by the
Superintendent of Police, CBI, Bhopal clearly sets out all
the particulars required by Section 6 of the Delhi Act. It
refers to the file/reference number, name of the
department, the authority from whom it was issued and
communicated to the department concerned of the
Central Government. It, therefore, cannot be said that the
State Government had not granted consent under Section
6
of the Delhi Act.

xxx xxx xxx

71. A closer scrutiny of the relevant provisions of the
Delhi Act also add credence to the view which we are
inclined to take. Section 3 refers to “notification” and
requires the Central Government to issue notification
specifying offences or class of offences to be investigated
by Special Police Establishment. Section 5 uses the term
“order” and enables the Central Government to extend
25

powers and jurisdiction of Special Police Establishment to
other areas not covered by the Act. Section 6 which
speaks of consent of the State Government for the
exercise of powers and jurisdiction of the Special
Establishment neither refers to “notification” nor “order”.
It merely requires consent of the State Government for the
application of the Delhi Act. Parliament, in our considered
opinion, advisedly and deliberately did not specify the
mode, method or manner for granting consent though in
two preceding sections such mode was provided. If it
intended that such consent should be in a particular
form, it would certainly have provided the form as it was
aware of different forms of exercise of power. It, therefore,
depends on the facts of each case whether the consent
required by Section 6 of the Delhi Act has or has not been
given by the State Government and no rule of universal
application can be laid down.”

18. The High Court, in the present case, after analysing the

material on record clearly found that BRBCL was a Government

undertaking and the project undertaken by it was funded by the

Central Government and that it had its registered office in the

Union Territory of Delhi (National Capital Territory of Delhi),

where the offence of defrauding the undertaking (BRBCL) and

siphoning of its funds was allegedly committed. We see no

reason to deviate from the opinion so recorded by the High Court.

19. The appellant, however, would rely on the allegations in the

subject FIR to contend that the role of the appellant at best is in

respect of certain official duty in connection with the affairs of the

Government of Bihar. This submission overlooks the substratum

of the allegations in the FIR, as registered by the CBI against the
26

CEO of BRBCL – Shri C. Sivakumar and the appellant being co­

accused (party to the conspiracy) regarding defrauding the

Government of India undertaking (BRBCL) having its registered

office at Delhi (Union Territory) and siphoning of its funds. The

alleged role played by the appellant may be a means to facilitate

the commission of crime of defrauding and siphoning of funds.

The FIR in that sense is not limited to an offence of manipulation

of official records of the State of Bihar as such, but is about the

means used by the different actors who were party to the

conspiracy in defrauding the Government of India undertaking

(BRBCL) and siphoning of its funds.

20. Indisputably, the registered office of BRBCL is within the

jurisdiction of Union Territory of Delhi (National Capital Territory

of Delhi) and allegedly the offence has been committed at Delhi,

for which reason the Delhi Court will have jurisdiction to take

cognizance thereof. To put it differently, the offence in question

has been committed outside the State of Bihar. The investigation

of the stated offence may incidentally transcend to the territory of

State of Bihar because of the acts of commission and omission of

the appellant who is resident of that State and employed in
27

connection with the affairs of the State of Bihar. That, however,

cannot come in the way of special police force (DSPE) from

investigating the offence committed at Delhi and has been so

registered by it and is being investigated. Had it been an offence

limited to manipulation of official record of the State and

involvement of officials of the State of Bihar, it would have been a

different matter. It is not the case of the appellant or the State of

Bihar that even an offence accomplished at Delhi of defrauding of

the Government of India undertaking (having registered office at

Delhi) and siphoning of the funds thereof at Delhi can be

investigated by the State of Bihar. If the State police has had no

jurisdiction to investigate the offence in question, as registered,

then, seeking consent of the State in respect of such offence does

not arise. Any other approach would render the special

provisions of the 1946 Act otiose.

21. In any case, the respondent­State having granted general

consent in terms of Section 6 of the 1946 Act vide notification

dated 19.2.1996, it is not open to it to argue to the contrary. The

respondent­State cannot be allowed to approbate and reprobate.
28

22. Indeed, the said notification contains a proviso, which

predicates that if any public servant employed in connection with

the affairs of the Government of Bihar is concerned in offences

being investigated by the special police force pursuant to the

notification, prior consent of the State Government qua him shall

be obtained. This proviso must operate limited to cases or

offences which have been committed within the territory of the

State of Bihar. If the specified offence is committed outside the

State of Bihar, as in this case in Delhi, the State police will have

no jurisdiction to investigate such offence and for which reason

seeking consent of the State to investigate the same would not

arise. In our opinion, the stated proviso will have no application

to the offence in question and thus the Delhi special police

force/DSPE (CBI) must be held to be competent to register the

FIR at Delhi and also to investigate the same without the consent

of the State.

23. Even otherwise, the proviso has the effect of differentiating

and classifying offenders differently for treatment thereunder,

including investigation of offences and prosecution for offences

on the basis of being public servant employed in connection with
29

the affairs of the Government of Bihar. The power bestowed on

special police force in terms of Sections 2 and 3 of the 1946 Act

cannot be undermined by an executive instruction in the form of

proviso. Dealing with a similar challenge to a statutory provision

­ Section 6A of the Act, the Constitution Bench of this Court in

Subramanian Swamy (supra) held that sub­Section (1) thereof

was invalid and violative of Article 14 of the Constitution. In

paragraphs 61 and 68 of the said decision, the Court noted

thus:­

“61. The essence of police investigation is skillful
inquiry and collection of material and evidence in a
manner by which the potential culpable individuals are
not forewarned. The previous approval from the
Government necessarily required under Section 6­A
would result in indirectly putting to notice the officers
to be investigated before the commencement of
investigation. Moreover, if CBI is not even allowed to
verify complaints by preliminary enquiry, how can the case
move forward? A preliminary enquiry is intended to
ascertain whether a prima facie case for investigation is
made out or not. If CBI is prevented from holding a
preliminary enquiry, at the very threshold, a fetter is put
to enable CBI to gather relevant material. As a matter of
fact, CBI is not able to collect the material even to move
the Government for the purpose of obtaining previous
approval from the Central Government.

xxx xxx xxx

68. Can it be said that the classification is based on
intelligible differentia when one set of bureaucrats of Joint
Secretary level and above who are working with the
Central Government are offered protection under Section
6
­A while the same level of officers who are working in the
States do not get protection though both classes of these
officers are accused of an offence under the PC Act, 1988
and inquiry/investigation into such allegations is to be
carried out. Our answer is in the negative. The provision
in Section 6­A, thus, impedes tracking down the
corrupt senior bureaucrats as without previous
approval of the Central Government, CBI cannot even
30

hold preliminary inquiry much less an investigation
into the allegations. The protection in Section 6­A has
propensity of shielding the corrupt. The object of
Section 6­A, that senior public servants of the level of
Joint Secretary and above who take policy decision must
not be put to any harassment, sidetracks the fundamental
objective of the PC Act, 1988 to deal with corruption and
act against senior public servants. CBI is not able to
proceed even to collect the material to unearth prima facie
substance into the merits of allegations. Thus, the object
of Section 6­A itself is discriminatory. That being the
position, the discrimination cannot be justified on the
ground that there is a reasonable classification
because it has rational relation to the object sought to
be achieved.”
(emphasis supplied)

The thrust of this exposition is that every person committing the

same offence is to be dealt with in the same manner in

accordance with law, which is equal in its application to

everyone. The discrimination or differentiation must be founded

on pertinent and real differences as distinguished from irrelevant

and artificial ones. In paragraph 70, the Court went on to

observe that every public servant against whom there is a

reasonable suspicion of commission of a crime or there are

allegations of an offence under the PC Act has to be treated

equally and similarly under law.

24. Suffice it to observe that the proviso contained in the stated

notification dated 19.2.1996 cannot be the basis to disempower

the special police force/DSPE (CBI) from registering the offence

committed at Delhi to defraud the Government of India
31

undertaking (BRBCL) and siphoning of its funds and having its

registered office at Delhi. Allegedly, the stated offence has been

committed at Delhi. If so, the Delhi Courts will have jurisdiction

to take cognizance thereof. The State police (State of Bihar)

cannot investigate the specified offences committed and

accomplished at Delhi, being outside the territory of the State of

Bihar. It must follow that the consent of the State of Bihar to

investigate such offence is not required in law and for which

reason, the special police force would be competent to carry on

the investigation thereof even if one of the accused allegedly

involved in the commission of stated offence happens to be

resident of the State of Bihar or employed in connection with the

affairs of the Government of Bihar and allegedly committed

associated offences in that capacity. In other words, consent of

the State under Section 6 cannot come in the way or constrict the

jurisdiction of the special police force constituted under Section 2

to investigate specified offences under Section 3 of the 1946 Act

committed within the Union Territories. Indeed, when the Court

of competent jurisdiction proceeds to take cognizance of offence

and particularly against the appellant, it may consider the

question of necessity of a prior sanction of the State of Bihar qua
32

its official(s) as may be required by law. That question can be

considered on its own merits in accordance with law.

25. For the view that we have taken, it may not be necessary for

us to analyse the decisions relied upon by the parties, which in

our opinion, do not pertain to the question under consideration

regarding the effect of the proviso contained in the notification

dated 19.2.1996.

26. In view of the above, this appeal must fail and the same is

accordingly dismissed. Pending interlocutory applications, if any,

shall also stand disposed of.

…………………………….J.

(A.M. Khanwilkar)

…………………………….J.

(Dinesh Maheshwari)
New Delhi;

April 24, 2020.



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