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1999 DIGILAW 624 (MAD)

Ravindran v. C. B. I.

1999-07-08

K.A.MOHAMMED SHAFI

body1999
ORDER: The 1st accused in C.C.No.526 of 1992 on the file of the Chief Judicial Magistrate’s Court, Ernakulam has filed this revision petitioner challenging the order dated 13.7.1995 passed in M.P.No.4946 of 1995. 2. The petitioner along with the co-accused are standing trial before the lower court for the offences punishable under Ss.465,466, 473 and 474 of I.P.C. read with Sec.l20-B of I.P.C. on the basis of the charge-sheet laid by the Special Police Establishment, C.B.I. in Crime Case No.R.C. 39(S)/ 89 and R.C. 40 (S)/ 89. After appearance of the accused and charge was framed by the lower court, the petitioner herein filed M.P.No.4946 of 1995 seeking acquittal alleging that the investigation in this case was conducted without jurisdiction and therefore, all the proceedings arising out of that investigation are bad in law. Therefore, he sought to drop the entire proceedings and to acquit him contending that the entire proceedings is ab initio void. The lower court found that the investigation in this case was conducted by the C.B.I. observing the formalities and the mandatory provisions of the Delhi Special Police Establishments Act and dismissed the petition. Hence this revision is filed by the 1st accused challenging that order. 3. The counsel for the revision petitioner submitted that the investigation in this case is conducted by the C.B.I. without the consent of the State Government as required under Sec.6 of the Delhi Special Police Establishment Act, 1946 and therefore, the investigation is null and void and as such the subsequent proceedings in the case are absolutely illegal. 4. Sec.3 of the Delhi Special Police Establishment Act stipulates that the Central Government may, by notification in the Official Gazette, specify the offence or class of offences which are to be investigated by the Delhi Special Police Establishment. Sec.5 of the Act provides for extension of powers and jurisdiction of Special Police Establishment to the other areas which reads as follows: “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 or Railway area, 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 Sec.3. (2) When by an order under Sub-sec.(1), the powers and jurisdiction of members of the said Police Establishment are extended to any such area, a member there of may, subject to any order 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 to 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. (3) Where any such order under Sub-sec.(1) is made in relation to any area, then without prejudice to the provisions of Sub-sec.(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-in-charge of a police station discharging the functions of such an officer within the limits of his station.” Sec.6 of the Act deals with the consent of the State Government to exercise the powers and jurisdiction which reads as follows: “6. Nothing contained in Sec.5 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a Part A State or Part-B State, not being a Railway area without the consent of the Government of that State.” Therefore, the counsel for the revision petitioner submitted that even after the notification issued by the Central Government under Sec.5 of the Act, the consent of the State Government is necessary for the C.B.I. to exercise their power and jurisdiction within the States. According to him, no notification is issued by the State of Kerala empowering the C.B.I. to exercise their power and jurisdiction to investigate the above case. Therefore, the investigation in this case is void ab initio. 5. According to him, no notification is issued by the State of Kerala empowering the C.B.I. to exercise their power and jurisdiction to investigate the above case. Therefore, the investigation in this case is void ab initio. 5. The counsel for the revision petitioner submitted that even though the Kerala Government had consented as provided under Sec.6 of the Act and the consent was published in the Official Gazette in accordance with the notifications issued by the Central Government under Secs.3 and 5 of the Act dated 6.11.1956, 12.2.1957, 21.6.1957 and 12.1.1961, after the establishment and constitution of C.B.I. on 1.1.1963 and notification issued by the Government of India on 18.2.1963 under Secs.3 and 5 of the Act in supersession of the notification dated 6.11.1856 as amended, no consent is given by the Government of Kerala in respect of the notification dated 18.2.1963. 6. Though the counsel for the C.B.I. as well as the Public Prosecutor for the Government of Kerala asserted that the Government of Kerala has issued letter of consent after the notification was published by the Central Government on 18.2.1963, as in respect of the consent given by them in accordance with the previous notifications issued by the Government of India under Secs.3 and 5 of the Act, the consent letter issued by the Government of Kerala after the notification dated 18.2.1963 issued by the Government of India could not be traced in spite of earnest efforts. This Court had afforded more than sufficient time to the C.B.I. as well as the Government of Kerala to trace out that notification and produce before the Court. At least the C.B.I. filed an affidavit before this Court sworn by the Inspector of C.B.I. A.C.B., Bangalore to the effect that the letter or consent issued after the notification dated 18.2.1963 issued by the Government of India superseding the earlier notification dated 6.11.1956 as amended could not be traced out in spite of earnest efforts, though the gazette notification republishing the same in Kerala Gazette dated 18.12.1956 was traced. The counsel for the C.B.I. submitted that the republication of the notification issued by the Government of India in the Kerala Gazette presupposes the consent given by the Government of Kerala, and the entire conduct of the Kerala Government from the year 1963 up to this date establishes that the consent was given by the Government of Kerala with respect to the notification issued by the Government of India under Secs.3 and 5 of the Act on 18.2.1963 superseding the earlier notifications. 7. It is vehemently contended by the counsel for the petitioner that consent under Sec.6 of the Act is with respect to the jurisdiction of the C.B.I. to investigate a case in Kerala which goes to the very root of the matter and therefore, express consent is necessary and consent cannot be inferred or presumed. According to him, there cannot be any implied consent regarding such vital matter pertaining to the very jurisdiction of the C.B.I. to investigate a case. 8. The counsel for the C.B.I. submitted that the express consent by the Government of Kerala as provided under Sec.6 of the Act and the notification issued by the Kerala Government in that behalf could not be traced. He also submitted that the subsequent conduct of the Government of Kerala for the last many years also establishes that the consent as required under Sec.6 of the Act is given by the Government of Kerala and nobody has raised any objection regarding the competency and jurisdiction of C.B.I. to investigate the offences enumerated under Sec.3 of the Act in the notification issued by the Government of India in the year 1963 in supersession of the previous notifications issued by the Government of India. He also argued that merely because of the fact that the notification issued by the Government of Kerala expressing consent with regard to the notification dated 18.2.1963 issued by the Government of India could not be traced, it cannot be contended that the Government of Kerala has not consented a per that notification dated 18.2.1963 issued by the Government of India and the C.B.I. has no jurisdiction to register and investigate the cases in Kerala. Along with the affidavit dated 24.6.1999 filed by the C.B.I., copy of the notification issued by the Government of India dated 6.11.1956 and the consent given by the Government of Kerala to that notification on 14.12.1985 are produced as Annexure-II and I respectively. Annexure-II is the copy of the notification issued by the Government of India dated 6.11.1956 published in the Kerala Gazette dated 18.12.1956. Annexure-III produced is the notification dated 18.2.1963 issued by the Government of India republished by the Government of Kerala in the Kerala Gazette dated 23.4.1963. It is submitted by the Public Prosecutors as well as the counsel for the C.B.I. that the notification dated 18.2.1963. issued by the Government of India is republished by the Government of Kerala after according the necessary sanction as required under Sec.6 of the Act and from the copy of the notification produced it has to be inferred that the Government of Kerala has complied with the requirements under Sec,6 of the Act. 9. In the decision in Major E.G.Barasay v. State of Bombay, A.I.R. 1961 S.C. 1762, the Supreme Court has held that substantial compliance of the provisions of Sec.6 of the Delhi Special Police Establishment Act is sufficient. 10. In the decision J.N.Sahay v. State of Bihar, 1982 Crl.L.J. 410, a Division Bench of the Patna Court has observed as follows: “I, however, find myself unable to agree with Hasan, J. that simply because the details of the order of consent of the State Government in this regard were not produced as it was not available on the records, the communication of Shri. Vaidavanthan would not amount to a consent of the State of Bihar. The subsequent conduct of the State Government in this regard also is in keeping with the case of the consent. Apart from the fact that the State Government constituted special courts for trial of the offences committed in the State of Bihar, it also sent officers on deputation in the Special Police Establishment and accorded all facilities such as providing accommodation, transport and the like”. 11. In the decision in N.Konappa v. Delhi Special Police Establishment, Bangalore, I.L.R. (1975)25 Karn. Apart from the fact that the State Government constituted special courts for trial of the offences committed in the State of Bihar, it also sent officers on deputation in the Special Police Establishment and accorded all facilities such as providing accommodation, transport and the like”. 11. In the decision in N.Konappa v. Delhi Special Police Establishment, Bangalore, I.L.R. (1975)25 Karn. 146, a Division Bench of the Karnataka High Court has observed as follows: 18.....Even if it be assumed that the above conclusion of ours is unacceptable, in our opinion there is ample evidence produced on behalf of the respondent which would indicate that the State Government, subsequent to the letter of consent earlier reproduced, had been responsible for certain acts which would not have had any legal effect had there not been a consent as per Sec.6 of the Delhi Act, had in fact in mind the earlier consent accorded by it... 19. “It is undisputed that the Central Government had extended the jurisdiction of the Delhi Special Police to the State of Mysore (Now Karnataka) by means of an appropriate notification issued under Sec.5 of the Delhi Act. By two notifications, both dated 3rd February, 1959, the State Government appointed the City Magistrate, Bangalore, who is the one who has made the committal order in question as Special Magistrate to try offences investigated and instituted by the Delhi Special Police Establishment, in exercise of the power conferred on it under Sec.14, Criminal Procedure Code and the Sessions Judge, Bangalore, as a Special Judge to try the cases instituted by the Special Police Establishment........The conduct of the Government in issuing these notifications cannot be explained except on the hypothesis that the Government had already consented to or acquiesced in exercise of jurisdiction by the Delhi Police Establishment in this State.” 12. The Government of Kerala not only permitted the C.B.I. to register and investigate cases in respect of the offences enumerated in the notification issued by the Central Government dated 18.2.1963 under Sec.3 of the Act and deputed its officers to work in the Special Police Establishment, but constituted the Chide Judicial Magistrate, Ernakulam, as the Magistrate empowered to deal with the cases investigated by the C.B.I. by conferring jurisdiction all over Kerala in the year 1984. Likewise Special Sessions Courts were also established at Ernakulam to try the offences investigated by the C.B.I. and those courts have been functioning for the last many years. If in fact, no such consent as required under Sec.6 of the Act was conferred by the Government of Kerala, the C.B.I. would not have been competent to investigate all those cases investigated by them in all these years and special courts would not have been constituted by the Kerala Government with jurisdiction to try and dispose of the cases investigated by the C.B.I. in Kerala. Therefore, the subsequent conduct on the part of the Government of Kerala in all these years after the notification dated 18.2.1963 issued by the Central Government under Secs.3 and 5 of the Act clearly establishes that the Government of Kerala has accorded consent as contemplated under Sec.6 of the Act or at least acquiesced the jurisdiction of the C.B.I. to investigate the cases in Kerala in respect of the offences enumerated in those notifications issued by the Central Government. Therefore, the contention raised by the petitioner that the very initiation of proceedings and investigation in this case against him is illegal or ab initio void or want of consent of the Government of Kerala as provided under Sec.6 of the Act, is not substantial and the lower court rightly held so. 13. The counsel for the petitioner submitted that notification under Sec.6 of the D.S.P.E. Act in respect of each case to be investigated by the C.B.I. is necessary and admittedly no such notification is issued by the Government of Kerala empowering the C.B.I. register and investigate the above case, the investigation in this case is null and void. 14. Sec.6 of the Delhi Special Police Establishment Act contemplates consent of the State Government to exercise jurisdiction by the Central Bureau of Investigation to investigate the offences enumerated under Sec.3 of the Act in the areas specified by the Government of India by notification under Sec.5 of the Act. 14. Sec.6 of the Delhi Special Police Establishment Act contemplates consent of the State Government to exercise jurisdiction by the Central Bureau of Investigation to investigate the offences enumerated under Sec.3 of the Act in the areas specified by the Government of India by notification under Sec.5 of the Act. Therefore, if the State Government has consented under Sec.6 of the Act to the C.B.I. to exercise their jurisdiction as Station House officers within the areas in the State notified under Sec.5 of the Act by the Government with regard to the individual cases for investigation by the C.B.I. within those areas is warranted and the general consent given by the state is sufficient to empower the C.B.I. to exercise their jurisdiction within those areas. Therefore, the contention of the petitioner that the registration of the crime and investigation of the case by the C.B.I. against him and the co-accused is illegal and ab initio void for want of specific consent given of the Act in respect of this specific case is absolutely unsustainable. 15. The counsel for the petitioner submitted that the practice hitherto followed by the Government of Kerala has been to give consent to the C.B.I. investigate any particular cases by issuing separate notification under Sec.6 of the Act. Therefore, according to him, realising the fact that such specific notification is necessary to empower the C.B.I. to investigate in each and every particular case, such a procedure of issuing specific notification respect of the specific cases is being followed by the Government of Kerala. 16. The counsel for the petitioner submitted that in spite of the fact that the Supreme Court directed investigation by the C.B.I. in a particular case, the Government of Kerala has issued notification under Sec.6 of the D.S.P.E. Act empowering the C.B.I., to investigate the case. Therefore, according to him, individual notification in respect of every ease under Sec.6 of the Act is necessary to cloth the C.B.I. with the power and jurisdiction to investigate the cases in Kerala State. In support of this contention he relied upon the decision in Maniyeri Madhavan v. Sub-Inspector of Police, (1994)1 S.C.C. 536 . In that case in a proceeding before the Supreme Court under Art.136 of the Constitution of the Apex Court directed the C.B.I. to conduct investigation. In support of this contention he relied upon the decision in Maniyeri Madhavan v. Sub-Inspector of Police, (1994)1 S.C.C. 536 . In that case in a proceeding before the Supreme Court under Art.136 of the Constitution of the Apex Court directed the C.B.I. to conduct investigation. The Government of Kerala accorded consent to the C.B.I. to exercise their powers and jurisdiction under Sec.6 of the D.S.P.E. Act. When the matter came up before the Supreme Court, the Apex Court has observed as follows: “As regards jurisdiction of the members of the Delhi Special Police Establishment, we do not think the procedure under Sec.6 need be followed where this Court exercises jurisdiction under Art. 142 of the Constitution. Even otherwise, we find a notification has been issued by Government of Kerala to the following effect.” 17. From the above observations made by the Supreme Court in the above decision, it is clear that when the Supreme Court directed investigation by the C.B.I. while exercising jurisdiction under Art.142 of the Constitution, no consent of the State Government under Sec.6 of the D.S.P.E. Act is necessary, In that case, since direction was given by the Supreme Court to the C.B.I. to conduct investigation, in a proceeding under Art.136 of the Constitution. Consent by the State Government was warranted under Sec.6 of the Act and accordingly consent was granted by the Government of Kerala. 18. It has to be noted that when a case is registered by the local police and when the investigation is entrusted to the G.B.I. specific consent by the State Government of Kerala is necessary to empower or to confer jurisdiction upon the C.B.I. to investigate the case registered by the local police in order to avoid parallel proceedings in respect of the very same offences. Due to the fact that in cases registered by the local police the C.B.I. is discharging the functions of the Police Officer in charge of the police Station, any difficulty in the investigation due to the concurrent jurisdiction exercised by the local police as well as the C.B.I. should be avoided. Due to the fact that in cases registered by the local police the C.B.I. is discharging the functions of the Police Officer in charge of the police Station, any difficulty in the investigation due to the concurrent jurisdiction exercised by the local police as well as the C.B.I. should be avoided. On the other hand, when the case is registered by the C.B.I. themselves in exercise of the jurisdiction conferred upon them under Sec.5 of the D.S.P.E. Act, they alone exercise the power and jurisdiction to investigate the case and there is no question of any parallel investigation or conflict with regard to the jurisdiction exercised by the C.B.I. and the local police with regard to the investigation in that case. Therefore, in cases registered and investigated by the C.B.I. as empowered by the Central Government under Sec.5 of the D.S.P.E. Act and consent given by the State Government, no separate or individual consent with regard to each case to be investigated by the C.B.I. is necessary and such consent of the State Government is only necessary when investigation is entrusted to the C.B.I. in respect of the cases registered by the local police and not by the direction of the Supreme Court under Art.142 of the Constitution. 19. It is clear from the forgoing discussions that the Government of Kerala has accorded sanction to the C.B.I. under Sec.6 of the Delhi Special Police Establishment Act in pursuance of the notification issued by the Government of India under Secs.3 and 5 of the Act dated 18.2.1963 and therefore, the contention of the petitioner that the investigation in this case is illegal and ab initio void for want of consent given by the Government of Kerala to investigate the case is absolutely unsustainable. 20. Hence, the order passed by the lower court is confirmed and this revision petition is dismissed.