KANAYALAL Vs. STATE OF GUJARAT
HIGH COURT OF GUJARAT
STATE OF GUJARAT
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(1.)By the judgement and order dated 18th April, 1988, the respondent No. 5. Central Bureau of Investigation (CBI) was directed to undertake the investigation of the case and to submit its report in accordance with law. The CBI, Ahmedabad has addressed a letter to this Court stating that the CBI. Ahmedabad Branch is only competent to investigate the cases which are notified under Suction 3 of Delhi Special Police Establishment Act and such a notification under Section 3 of the Delhi Special Police Establishment Act is essential in this case and therefore it is necessary to issue a direction to the Central Government to issue such a notification.
(2.)Mr. M.D. Pandya, learned Public Prosecutor, appearing for the CBI has shown a letter dated 21st October, 1980 from Deputy Legal Advisor (II)/CBI to All Superintendents of Police, Special Police Establishment, Central Bureau of Investigation enclosing therewith a list of offences notified under S.3 of the Act and item No. 1 of the list shows several Sections of Indian Penal Code including Sections 302, 303, 304, 304-A, 307 and 308 of IPC. In view of this no notifications is required to be issued under S.3 of the Act.
(3.)Mr. Pandya further pointed out that under S.174 of Criminal Procedure Code whenever an investigation into suspected death is required to be carried out, it can be done only by the officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf. As far as Section 174 is concerned, it is a procedural Section and not a substantive Section defining or prescribing offences and Central Government cannot issue any notification under Section 3 of the Act for the purpose of Section 174 of Cr. P.C. In the case of State of W.B. v. Sampat Lal, reported in AIR 1985 SC 195 in para 13 the Supreme Court considered the question whether High Court could appoint CBI to inquire into the matter in absence of proper consent of the State Government and the Supreme Court observed as follows :
"One of the controversies which loomed large before the Division Bench of the Calcutta High Court was as to the appointment of the DIB, CBI to inquire into the matter in the absence of proper consent of the State Government. That question has not been recanvassed before us and it has been accepted by counsel for all the parties including the Additional Solicitor-General that while Section 6, of the Delhi Special Police Establishment Act, 1946 (Act for short) would require the consent of the State Government before jurisdiction under Section 5 of that Act is exercised by officers of that establishment. When a direction is given by the Court in an appropriate case consent envisaged under S.6 of the Act would not be a condition precedent to compliance with the Court's direction. In our considered opinion. S.6 of the Act dues not apply when the Court gives a direction to the CBI to conduct an investigation and counsel for the parties rightly did not dispute this position. In this view, the impugned order of the learned single Judge and the appellate decision of the Division Bench appointing DIG. CBI to inquire into the matter would not be open to attack for want of sanction under Section 6 of the Act."
Thus, it is clear that while a direction is given by the Court in an appropriate case, consent as envisaged under Section 6 of the Act is not a condition precedent to compliance with the Court's direction, and Section 6 of the Act does not apply when the Court gives a direction to CBI to conduct an investigation when the offences are already notified under Section 3, the powers and jurisdiction of the members of the CBI are extended and they discharge the functions of a police officer in that area and they are vested with powers, functions and privileges and are subject to the liabilities of a police officer belonging to the Delhi Special Police Establishment Act.
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