HARI LAL AGRAWAL, J. -
(1.)ALL these four cases which have been referred to Division Bench, have been heard together as a common question of law arises in them, namely, as to whether the Delhi Special Police Establishment, commonly known as C. B. I., had any authority to investigate the cases instituted against the petitioners of these cases for offences alleged to have been committed by them under different clauses of Section 5(1) of the Prevention of Corruption Act, 1947 and some sections of the Indian Penal Code, on the ground that the said Police Establishment had no legal authority in this regard in the absence of a legal consent by the State Government as required under Section 6 of the Delhi Special Police Establishment Act, 1946 (Act XXV of 1946). All these cases are being disposed of herewith.
All the cases against petitioners J.N. Sahay, S.K. Bhattacharjee and K.K. Malhotra along with various other accused persons are pending for trial in the Court of the Special Judge, C. B. I. (South Bihar), Patna. The petitioners at different stages of the proceedings on different dates made applications before the said trial Judge for dropping the proceedings and discharging them on the plea that the cognizance of the cases against them was invalid being based on the charge sheets submitted by an illegal investigating agency and as such the trial could not proceed in law.
(2.)I may now very briefly indicate the facts of the cases in relation to the petitioners in all these applications. J.N. Sahay : - He was an Assistant Electrical Engineer (Technical), in the Bihar State Electricity Board and at the relevant time, i.e., in the year 1969, was posted at Bhagalpur in the Electric Works Division. On 1.1.1969 a first information report was lodged by Shri J.P. Sharma, S. P./C. B. I./S. P E./C. I. A. XI. New Delhi, alleging that he and various other officers, in criminal conspiracy with each other, had committed various offences punishable under various provisions of Section 5 of the Prevention of Corruption Act read with Section 120B of the Indian Penal Code, during the period of 1964 to 1967. It appears that two cases were registered before the learned Special Judge and after a protracted investigation, charge -sheet was submitted on 10 -3 -75 and cognizance was taken on 14 -3 -75 in both the cases, giving rise to two applications filed by him. On 5 -5 -78 this petitioner -filed separate petitions in both the cases to the effect that before the charges were framed against him, he should be heard on the legal question indicated above, namely, the absence of a legal consent under Section 6 of the 1946 Act and the learned Judge by the impugned orders passed on the same day (22 -5 -79), following the decision of a learned single Judge of this Court in the case of Tarak Nath Roy v. State of Bihar, (1979 BBCJ (HC) 61), held that although the 'consent' was "not legal and proper as observed by" this Court in the above case, no prejudice could be said to have been caused to him on account of the investigation in question and accordingly he ordered for framing of charges on the next date fixed. The petitioner has accordingly come to this Court against these orders.
K.K. Malhotra : This petitioner was an officer in M/s. Bharat Coking Coal Ltd., Dhanbad, a public undertaking, wholly owned and managed by the Government of India. A first information report was lodged on 25 -11 -75 by Shri N.N. Singh, Inspector of D. S. P. E. against him and six other persons for offences under various sections of the Indian Penal Code and some provisions of Section 5 of the Prevention of Corruption Act. Charge sheet was, however, submitted only against three persons including this petitioner on 1 -4 -77 and cognizance was taken on the same date. Charges were framed on 10 -3 -79 by the Special Judge. On discharging him on same and similar grounds as done by the other petitioner, but the learned Judge by his order dated 5.7.1979 rejected the petition taking the view that apart from the fact that the objection was belated, and although there might be some technical flaw in the consent conveyed to the Home Ministry by the Government of Bihar, the irregularity, if any, was removed by the issuance of the notification dated 22.2.1979 of the State of Bihar signifying the consent of the State Government under Section 6 of the D. S. P. E. Act authorising the officers of the Delhi Special Police Establishment to exercise powers and functions of investigation within the State of Bihar. This petitioner has thus come to this Court.
S.K. Bhattacharjee : At the relevant time he was employed as the Mining Adviser to the Managing Director, Bokaro Steel Project, Bokaro. Earlier he was working at Bhilai Project as the Superintendent, Ore, Mines and Quarries. The first information report against this petitioner was drawn up on 27.12.1974 by Shri N.K. Singh, S. P. C. I. A, 'I', New Delhi in regard to offences under Section 5(2) read with Section 5(1)(e) of the Prevention of Corruption Act. After investigation of the case by the Central Bureau of Investigation (for short "C. B. I."), charge -sheet was submitted on 20.8.1976 before the Special Judge, C. B. I., North Bihar and cognizance was purported to have been taken on 30.8.1976. The case was subsequently transferred to the Special Judge, C. B. I. (South), Patna. This petitioner had come to this Court earlier against the order for framing of charges against him on the ground that he being no longer a "public servant", could not be proceeded against before the Special Judge. This plea was rejected by my learned brother and it was held that a person could be tried in terms of, Sections 5(1)(e) and 5(2) of the 1947 Act even after he ceases to be a public servant. Some directions were also given with respect to the period for which charges Could be framed. The petitions were however, rejected since the cognizance itself had not been taken by that time and, therefore, the matter was sent back with certain observations. Cognizance was taken thereafter on 25.4.1978 under Sections 5(1)(e) and 5(2) of the 1947 Act and then subsequently charges were also framed on 29.5.1978. This petitioner too filed an application on 25.1.1979 for his discharge on similar grounds as the other two petitioners. for, want of consent of the State Government under Section 6 of the 1946 Act. The learned trial Judge, following the decision of this Court in Tarak Nath Roy's case (1979 BBCJ (HC) 61) (supra), rejected the plea and also in view of the subsequent notification dated 22.2.1979, already referred to above, held that the irregularity, if any, was removed. Accordingly this petitioner has also come up to this Court.
Before taking up the main question raised in these cases as already indicated, namely, the lack of a valid consent under Section 6 of the 1946 Act, it would be necessary to notice the legislative history of the relevant statute. As an aftermath of outbreak of the World War II, various unscrupulous and anti -social persons, both officials 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 of a Deputy Inspector General of Police with headquarters at Lahore, for the purposes of investigating cases of corruption connected with matters relating firstly only to the War Department. It appears that some doubt was raised about the jurisdiction and powers of investigation of offences by this Establishment and consequently an Ordinance being Ordinance No. 22 of 1943 was promulgated constituting a Special Police Force for the investigation of certain offences committed in connection with the Departments of Central Government with powers to investigate such offences wherever committed in British India. This Ordinance was issued under the powers conferred under Sections 102(1) and 126 -A(b) of the Government of India Act, 1935, but inasmuch as the Proclamation of Emergency was revoked with effect from 1st April, 1946, the Ordinance lapsed by the end of September, 1946, i.e., after the period of six months from the date of the said revocation in view of the restrictions contained in Sub -Section (4) of Section 102. Since, however, the efficacy and advantages of this organisation were realised, it was considered expedient and necessary to continue this Police Establishment and, therefore, the Ordinance was replaced by the Delhi Special Police Establishment Ordinance No. 22 of 1946 which was subsequently replaced by Act XXV of 1946 which came into force on 19th November, 1946. After the Act came into force the superintendence of the Special Police Establishment was transferred to the then Home Department of the Government of India and its jurisdiction was extended to cover all the Departments of the Government of India. Originally the investigation by the Special Police Establishment was intended to apply only to certain offences committed in connection with matters concerning departments of the Central Government". Section 3 of the Act authorises the Central Government "by notification in the official gazette to specify the offences or classes of offences committed in connection with matters concerning Departments of Central Government. to be investigated by the Delhi Special Police Establishment". Section 5 of this Act authorised the Central Government to extend to any area (including Railway areas) in British India, outside the Chief Commissioner's province of Delhi, aside "the powers and jurisdiction of members of the Delhi Special Police Establishment for investigation of any offence or classes of offences specified in a notification under Section 3" by an order. On making of such an order the authority of the members of this Police Establishment were to be extended to any such area where they could discharge the functions of a Police Officer and were to be deemed to be members of the Police Force of that area vested with all the powers, functions and privileges, subject, however, to the liabilities of a Police Officer belonging to that Police Force.
(3.)THE original Act of 1946 was subsequently amended in the years 1950, 1952 and also thereafter. Some of the amendments were formal in nature necessitated on account of the adaptation of laws and orders of 1953 and 1956 making mutatis mutandis changes and alterations. The important changes were, however, introduced by the Amending Act No. 26 of 1952 by which the restrictions in the long title and Preamble and Section 3 of the Act, which purported to apply the provisions of the Act only the State of Delhi for the investigation of certain offences committed in connection with the matters concerning Departments of the Central Government only, were omitted thereby enlarging the powers of the Central Government to specify offences or class of offences to be investigated by the Delhi Special Police Establishment with respect to the department beyond the Departments of the Government of India; and under the Act as it stands after the above amendments, its jurisdiction now extends to all the States and Union territories. But the authority to exercise powers and jurisdiction in any area in a State (not being a Railway area) is subject to the consent of the State Government concerned. This restriction is contained in Section 6 of the Act and it prescribes that "nothing contained in Section 5 shall be deemed to enable any member of the D. S. P. E. to exercise powers and jurisdiction in any area in a State without the consent of the Government of that State." It is this provision which provides the foundation for the questions raised by the petitioners of these cases.
The provision for consent was necessitated on account of the provisions contained in the Government of India Act, 1935 as well as the Constitution of India. List II of the VIIth Schedule of the Government of India Act as well as of the Constitution put the 'police' under the State List (then provincial legislative list) and Entry No. 39 of List I (Federal legislative list) corresponding to Entry No. 80 of the present List I (Union list), contemplated that "extension of the powers and jurisdiction of the members of a police force belonging to any part of British India to any area in another Governor's province or Chief Commissioner's province" could not be done "elsewhere with cut the consent of the Governor of the province or the Chief Commissioner, as the case may be". Similar is the provision with mutatis mutandis changes in Entry No. 80 of the Union list of the present Constitution in view of Article 246 of the Constitution of India. It is, therefore, manifest and was rightly conceded to by the learned Attorney General, appearing for the opposite party, that giving of consent by the State of Bihar was a condition precedent for application of the provisions of the 1946 Act within the State territory.