ARINDAM GHOSH Vs. UNION OF INDIA

LAWS(CAL)-2021-3-57

HIGH COURT OF CALCUTTA

Decided on March 31,2021

ARINDAM GHOSH Appellant

VERSUS

UNION OF INDIA Respondents

JUDGEMENT

- (1.) This is a public interest litigation moved by a learned advocate. He invites this Court to adjudicate upon a very substantial but extremely sensitive point of law. Whether the Delhi Special Police Establishment Act, 1946 under which the Central Bureau of Investigation acts, can be applied to investigate the alleged offences under various provisions of the Indian Penal Code and the Prevention of Corruption Act, 1988 mentioned in the prayers of the writ application? Mr. Jishnu Saha, learned senior advocate for the petitioner submits that under Section 3 of the said Act the Central Government has the power to notify the offences which are to be investigated by the Delhi Special Police Establishment. Under Section 5 the Central Government has the power to extend to any area the power and jurisdiction of the establishment for investigation of any offence specified in a notification under Section 3 of the Act. However, Section 6 provides that the power under Section 5 cannot be exercised in a State not being an Union Territory or a railway area without the consent of the Government of the State. On 16th November, 2018, by notification the State Government withdrew its consent signified on 2nd August, 1989, under Section 6 of the said Act. Mr. Saha refers to M. Balakrishna Reddy -vs- Director, Central Bureau of Investigation, New Delhi, reported in (2008) 4 SCC 409, paragraph 19 where the Supreme Court has stated the following: '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 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)' Hence, the Central Bureau of Investigation has got no power or authority to investigate the offences mentioned in the prayer of the writ application, he submitted. Mr. Abhratosh Majumdar, learned Additional Advocate General to the State of West Bengal made submissions which were in line with the above legal grounds urged by Mr. Saha. None appears for the Central Government or the Central Bureau of Investigation. A substantial question has been raised, which deserves to be tried. We admit the writ application. For the time being we are not considering an interim order but reserve the same to be considered in the presence of the central government respondents on the returnable date for this application, for the following reasons: (i) This bench is sitting for a single day today to hear exceptionally urgent matters; (ii) The interim order can be more properly considered in the presence of the central government respondents; (iii) The investigation complained of has been going on for some time; (iv) A very delicate situation has been created with the commencement of the election process. We direct this application to appear before the regular bench on its next sitting for taking public interest litigation. ;

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