Madras High Court
A.Ashok Anand vs State Represented By on 29 October, 2014
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.10.2014 CORAM: THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN Criminal O.P. No.22500 of 2014 A.Ashok Anand ... Petitioner vs. 1.State represented by the Deputy Superintendent of Police, CBI, ACB, Chennai. ... Respondent / Complainant 2.C.Anandane ... Respondent / 1st Accused PRAYER : Criminal Original Petition filed under Section 482 of the Code of Criminal Procedure, praying to quash the charge sheet and all further proceedings in Spl.CC No.1 of 2008 pending on the file of the Special Judge (Under the Prevention of Corruption Act) at Puducherry as illegal and non est in law. For Petitioner : Mr.V.T.Gopalan, Senior Counsel, for Mr.S.Ashok Kumar For 1st Respondent : Mr.N.Chandrasekaran, Spl.Public Prosecutor (CBI Cases), For 2nd Respondent : Mr.A.Ramesh, Senior Counsel, for Mr.G.Krishnakumar O R D E R
The petitioner is the second accused in Special C.C.No.1 of 2008 on the file of the Special Judge (Under the Prevention of Corruption Act), Puducherry. He filed the above petition under Section 482 of the Code of Criminal Procedure to quash the charge sheet filed in Special C.C.No.1 of 2008.
2. Mr.V.T.Gopalan, learned Senior Counsel appearing for the petitioner submitted that the second respondent/first accused is an employee of the Government of Puducherry and he is not the employee of the Central Government and therefore, in respect of any offence alleged to have been committed by the second respondent/first accused under the provisions of Prevention of Corruption Act can be investigated only by the State Police and the first respondent police has no jurisdiction to investigate the case and therefore, the entire case is vitiated and hence, the charge sheet is liable to be quashed.
3. The learned Senior Counsel submitted that as per Section 3(58) of the General Clauses Act, 1897, State as respects any period after the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean a State specified in the First Schedule to the Constitution and shall include a Union territory and therefore, Puducherry being a Union territory is also to be treated and construed as a State. As per Entry 80 of the Union list contained in the Constitution, the police of one State cannot exercise powers in any area outside the State without the consent of the Government of the State in which such area is situated and as per Section 3(58) of the General Clauses Act, 1897, Puducherry, has to be construed as a State and therefore, in respect of any offence alleged to have been committed by the employees of the Government of Puducherry under the provisions of Prevention of Corruption Act, the first respondent has no jurisdiction without the consent of the Government of Puducherry. Admittedly, consent was not obtained and therefore, the entire investigation is vitiated and the usurpation of power by the first respondent is illegal and therefore, the charge sheet is liable to be quashed. He further submitted that a Notification dated 14.2.1989 was issued under Article 239 (1) of the Constitution of India by the President of India by which the power was conferred on the State Government under the Prevention of Corruption Act to exercise all powers and discharge functions under that Act. He therefore, submitted that by the aforesaid Notification, the administrator, Lieutenant Governor or Chief Commissioner are empowered to exercise the powers and discharge the functions of the State Government under the Prevention of Corruption Act and therefore, the first respondent has no power to investigate the offences punishable under the Prevention of Corruption Act against the employees of the Union territory without getting permission from the Union territory. He also referred to the Notification of the Ministry of Home Affairs in G.O.Ms.No.1, dated 20.11.2000 whereby the Lieutenant Governor of Puducherry was pleased to authorise the Inspector of Police, Vigilance and Anti-Corruption Police, Puducherry to investigate any offence punishable under the Prevention of Corruption Act, 1988 except for offence referred in clause (e) of Sub-Section (1) of Section 13, which shall not be investigated without the orders of the Superintendent of Police, Vigilance and Anti-Corruption Police Unit, Puducherry. He therefore submitted that even under G.O.Ms.No.1 dated 20.11.2000, the Lieutenant Governor has not exercised powers of the State Government under the Prevention of Corruption Act against the second respondent/first accused by ordering investigation and therefore, the investigation made by the first respondent is illegal. He also submitted that no Notification was issued by the Central Government under Section 2(2) of the Delhi Special Police Establishment Act, 1946 applicable to the Union territory of Puducherry in relation to the offences under the Prevention of Corruption Act and in the absence of any Notification issued under Section 2(2) of the Delhi Special Police Establishment Act, the assumption of jurisdiction by the first respondent is illegal. He further submitted that even if any Notification were issued earlier to the Notification issued by the President under Article 239(1) of the Constitution of India dated 14.2.1989, such Notification will not have any force. The learned Senior Counsel therefore submitted that when a Notification is issued under Article 239(1) of the Constitution of India empowering the Lieutenant Governor to exercise all powers and discharge functions of the State Government under the Prevention of Corruption Act, the first respondent cannot exercise any jurisdiction in respect of the offences punishable under the Prevention of Corruption Act against the employees of the Union territory and admittedly, the second respondent/first accused is the employee of the Union territory and hence, the investigation is illegal and therefore, the charge is liable to be quashed.
4. In support of his submission, the learned Senior Counsel relied upon the following judgments:-
1Government of NCT Delhi Versus All India Central Civil Accounts, JAO's Association and others [(2002) 1 Supreme Court Cases 344] 2 Sushil Flour Dal & Oil Mills Versus Chief Commissioner and others [(2000) 10 Supreme Court Cases 593] 3 Jagmittar Sain Bhagat and others Versus Director, Health Services, Haryana and others [(2013) 10 Supreme Court Cases 136] 4 The Management of Advance Insurance Co.Ltd., Versus Shri Gurudasmal and others [1970 (1) Supreme Court Cases 633] 5 State of West Bengal and others Versus Committee for Protection of Democratic Rights, West Bengal and others [(2010) 3 Supreme Court Cases 571] 6 State (NCT of Delhi) Versus Navjot Sandhu alias Afsan Guru [(2005) 11 Supreme Court Cases 600]
5. Mr.N.Chandrasekaran, learned Special Public Prosecutor (CBI Cases) filed a detailed counter and submitted that both the CBI and the State Anti-Corruption Police Unit of Puducherry are having concurrent jurisdiction to investigate into the offences punishable under the Prevention of Corruption Act, 1988 and therefore, there is no need to get consent from the Government of Puducherry for the offences committed within that territory punishable under the Prevention of Corruption Act, 1988. He further submitted that under Section 2(1) of the Delhi Special Police Establishment Act, 1946, the Central Government may constitute a Special Police Force to be called as Delhi Special Police Establishment for investigation in any Union territory pertaining to offences involved under Section 3 of the Delhi Special Police Establishment Act, 1946 and therefore, Puducherry being a Union territory comes within the control of the first respondent and the first respondent is having jurisdiction to investigate the offences punishable under the Prevention of Corruption Act. He further submitted that as per Section 2(2) of the Delhi Special Police Establishment Act, 1946, the powers of investigation of such offences and arrest of persons concerning such offences shall be subject to any orders of the Central Government may make in that behalf and as per the Notification dated 14.2.1989 issued by the Ministry of Home Affairs, additional power was given to the State police to exercise all powers and discharge functions under the Prevention of Corruption Act 1988 and the said Notification which was issued under Article 239(1) of the Constitution of India dated 14.2.1989 did not exclude the power given to the first respondent as per Section 2(1) of the Delhi Special Police Establishment Act, 1946. He therefore submitted that the first respondent has also got jurisdiction and therefore, the contention of the learned Senior Counsel for the petitioner that the first respondent has no jurisdiction to investigate the case punishable under the Prevention of Corruption Act cannot be accepted.
6. In support of his contention, the learned Special Public Prosecutor (CBI Cases) relied upon the following judgments:-
1The Management of Advance Insurance Co.Ltd., Versus Shri Gurudasmal and others [ 1970 (1) Supreme Court Cases 633 : AIR 1970 (1) Supreme Court 1126] 2 A.C.Sharma versus Delhi Administration [AIR 1973 Supreme Court 913]
7. Having heard the learned Senior Counsel for the petitioner and the learned Special Public Prosecutor (CBI Cases) for the first respondent, the point for consideration in this petition is as follows:-
Whether the first respondent CBI has got power to investigate any offences punishable under the Prevention of Corruption Act committed by the officials of the Union Territory of Puducherry within the Union territory of Puducherry without the consent of the Union Territory of Puducherry?
8. In order to appreciate the contention of the learned Senior Counsel, Mr.V.T.Gopalan, we will have to see the Constitution before and after the seventh amendment. Before the seventh amendment to the Constitution came into force, The Constitution specifies States as Part A B C and some Union territories were specified in Part D in the first Schedule. By virtue of the Constitution (seventh amendment) Act, 1956, a distinction between Part A and B was abolished and all States are shown in the first Schedule under the heading The States and Part C States and Part D territories are all shown as Union territories.
9. Entry 80 of the Union list reads as follows:-
80. Extension of the powers and jurisdiction of members of a police force belonging to any State to any area outside that State, but not so as to enable the police of one State to exercise powers and jurisdiction in any area outside that state without the consent of the Government of the State in which such area is situated; extention of the powers and jurisdiction of members of a police force belonging to any State to railway areas outside that State.
10. In the case of the Management of Advance Insurance Co.Ltd., Versus Shri Gurudasmal and others [AIR 1970 (1) Supreme Court 1126 : 1970 (1) Supreme Court Cases 633], this issue has been dealt with elaborately and Section 3 (58) of the General Clauses Act, 1897 was also considered and it is held as follows:-
16. ... . After the Seventh Amendment, India is a Union of States (Art. 1) and the territories thereof are specified in the First Schedule. Then there are Union Territories which are mentioned separately. There is thus a distinction between 'States' and 'Union territories' which cannot be lost sight of. When the definition cannot be made applicable owing to the context or the subject, the word 'State' refers to States in the First Schedule only. Such an occasion arose in T. M. Kanniyan v. Income-Tax Officer Pondicherry and Anr.[1968] 2 S.C.R. 103 at 108]. and Bachawat J. explained Art. 246 by holding that the definition of 'State' in two parts in the adapted section 3(58) of the General Clauses Act was repugnant to the subject and context of Art. 246. There is nothing in the subject or context of Entry 80 of the Union List which can be said to exclude the application of the definition in s. 3(58). Indeed the Part C States were expressly mentioned in Entry No. 39 of the Federal List of the Government of India Act, 1935 (after its amendment in 1947) and thus before the Seventh Amendment the definition of State (subject to the subject or context) included Part C States. Therefore, the definition of 'State' in s. 3(58) in the General Clauses Act after the adaptation in 1956 applies and includes Union Territories in Entry 80 of the Union List. It is further held in the same judgment at Paragraph 20 as follows:-
20. Now the scheme of the Constitution is that the Union territories are centrally administered and if the words 'belonging to' mean belonging to a part of India, the expression is equal to a police force constituted to function in an area. In this way the Delhi Police Establishment means a police force constituted and functioning in the Union territory of Delhi. Previously the same force functioned in the Chief Commissioner's Province of Delhi, then in Part C State of Delhi and now it functions in the Union territory of Delhi. Further, in Paragraph 21, it has been held as follows:-
21. It is no doubt true that the words are susceptible of the other meaning also but so long as the words are capable of bearing the meaning we have given, it is not necessary to discover another meaning under which the whole scheme would become void. Provisions of law must be read as far as is possible with a view to their validity and not to render them invalid. In our judgment the expression 'belonging to' only conveys the meaning that it is a police force constituted and functioning in one area which may be authorised to function in another area. The change from for to in makes no difference because both expressions fit in with the meaning of the phrase belonging to in the Entry. We see no force in this argument also.
11. In the judgment reported in (1968) 2 S.C.R. 103 [T.M.Kanniyan versus Income Tax Officer, Pondicherry and another], the law has been made clear as follows:-
Parliament has plenary power to legislate for the Union territories with regard to any subject. With regard to Union territories there is no distribution of legislative power. Article 246(4) enacts that "Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List." In R.K. Sen v. Union ([1966] 1 S.C.R. 430, 433). it was pointed out that having regard to Art. 367, the definition of "State" in s. 3(58) of the General Clauses Act, 1897 applies for the interpretation of the Constitution unless there is anything repugnant in. the subject or context. Under that definition, the expression "State" as respects any period after the commencement of the Constitution (Seventh Amendment) Act, 1956 "shall mean a State specified in the First Schedule to the Constitution and shall include a Union territory.' But this inclusive definition is repugnant to the subject and con text of Art. 246. There, the expression "State" means the State specified in the First Schedule. There is a distribution of legislative power between Parliament and the legislatures of the States Exclusive power to legislate with respect to the matters enumerated in the State List is assigned to the legislatures of the States established by Part VI. There is no distribution of legislative power with respect to Union territories. That is why Parliament is given power by Art. 246(4) to legislate even with respect to matters enumerated in the State List. If the inclusive definition of "State" in s. 3(58) of the General Clauses Act were to. apply to Art. 246(4), Parliament would have no power to legislate for the Union territories with respect to matters enumerated in the State List and until a legislature empowered to legislate on those matters is created under Art. 239A for the Union territories, there would be no legislature competent to legislate on those matters; moreover, for certain territories such as the Andaman and Nicobar Islands no legislature can be created under Art. 239A, and for such territories there can be no authority competent to legislate with respect to matters,enumerated in the State List. Such a construction is repugnant to the subject and context of Art. 246. It follows that in view of Art. 246(4), Parliament has plenary powers to make laws for Union territories on all matters....
The President can thus make regulations under Art. 240 with respect to a Union territory occupying the same field on which Parliament can also make laws. We are not impressed by the argument that such overlapping of powers would lead to. a clash between the President and Parliament. The Union. territories. are centrally administered through the President acting through an administrator. In the cabinet system of Government the President acts on the advice of the Ministers who are responsible Parliament.
12. Therefore, from the above judgments, it has been made clear that there is a distinction between the States and Union territories and the definition of State in Section 3(58) of the General Clauses Act after the adaptation of the Seventh Amendment in 1956 applies and includes Union Territories in Entry 80 of the Union List. In Paragraph 20 of the judgment referred to above, it is held that the Delhi Police Establishment mean a police force constituted and functioning in the Union Territory of Delhi. As per Section 2(1) of the Delhi Special Police Establishment Act 1946, the Delhi Special Police Establishment is constituted for making investigation in any Union territory of offences involved under Section 3 of that Act. It is not in dispute that offences under the Prevention of Corruption Act is one of the offences included under Section 3 of the Delhi Special Police Establishment Act 1946. Therefore, having maintained the distinction between the State and Union Territory, the Delhi Special Police Establishment Act authorises the Delhi Special Police Establishment to investigate in respect of any offences committed in any Union Territory in respect of offences included in Section 3, and therefore, the first respondent has got jurisdiction to investigate.
13. The argument of the learned Senior Counsel Mr. V.T.Gopalan that by virtue of Notification dated 14.2.1989 issued by the President, the Police establishment under the Union Territory alone has got jurisdiction and the CBI will not have jurisdiction cannot also be accepted for the following reasons.
14. Notification dated 14.2.1989 issued by the President under Article 239 (1) of the Constitution of India is as follows:-
S.O.125(E):- In pursuance of clause (1) of Article 239 of the Constitution, the President hereby directs that subject to his control and until further orders, the Administrator of every Union territory (whether known as Administrator, Lieutenant Governor or Chief Commissioner) shall, in relation to the Union Territory concerned, also exercise all the powers and discharge functions of the State Government under the Prevention of Corruption Act, 1988 (No.49 of 1988).
15. A reading of the above extract would make it clear that the Administrator of every Union Territory has been given additional power to exercise all the powers and discharge functions of the State Government under the Prevention of Corruption Act and by that Notification, the power of CBI, as per Section 2(1) of the Delhi Special Police Establishment Act, was not taken away. This is evident by the use of adverb also in the said Notification dated 14.2.1989. To make it clear, the Administrator of every Union Territory shall in relation to the Union Territory concerned, also exercise all the powers and discharge functions of the State but for the Notification, the Administrator of every Union Territory does not have such powers under the Prevention of Corruption Act and by virtue of the Notification dated 14.2.1989, they were also given the power and to discharge the functions under the Prevention of Corruption Act and that does not mean that the power given to the CBI under Section 2(1) of the Delhi Special Police Establishment Act was taken away by virtue of the Notification. It is also made clear in the judgment reported in (2002) 1 Supreme Court Cases 344 supra and at Paragraph 8, it has been held as follows:-
8. ... The position in law is clear that though the Union Territories are centrally administered under the provisions of Article 239 of the Constitution, they do not become merged with the Central Government and they form part of no State and yet are the territories of the Union, as has been held by this Court in Satya Dev Bushahri vs. Padam Dev [AIR 1954 SC 587 : (1955) 1 SCR 549] and NDMC vs. State of Punjab [(1997) 7 SCC 339]. Thus, it must be held that the Union Territory does not entirely lose its existence as an entity though large control is exercised by Union of India.
16. In the judgment reported in (2013) 10 Supreme Court Cases 136 relied upon by the learned Senior Counsel appearing for the petitioner, it has been held that if a court/tribunal inherently lacks jurisdiction, acquiescence of party equally should not be permitted to perpetrate and perpetuate defeating of the legislative animation and jurisdiction cannot be conferred with the consent of the parties or by superior Courts and conferment of jurisdiction is a legislative function. According to me, there is no dispute with respect to the above dictum but the law laid down in that case cannot be made applicable to the facts of this case having regard to the reasons stated above.
17. Similarly, the judgments reported in (2010) 3 Supreme Court Cases 571 and (2005) 11 Supreme Court Cases 600 cannot also be applied to the facts of this case and they were rendered in different contexts.
18. In this connection, it is pertinent to refer to the law laid down by the Hon'ble Supreme Court in the judgment reported in AIR 1973 Supreme Court 913 supra, at Paragraph 14, it is held as follows:-
14. ... In this connection it may not be out of place also to point out that the function of investigation is merely to collect evidence and any irregularity or even illegality in the course of collection of evidence, can scarcely be considered by itself to affect the legality of the trial by an otherwise competent court of the offence so investigated. In H. N. Rishabud & Inder Singh v. State of Delhi(1955) 1 SCR 1150 = (AIR 1955 SC 196) it was held that an illegality committed in the course of investigation does not affect the competence and jurisdiction of the court for trial and where cognizance of the case has in fact been taken and the case has proceeded to termination the invalidity of the preceding investigation does not vitiate the result unless miscarriage of justice, has been caused thereby.
19. As already stated even after the Constitution (Seventh Amendment) Act 1956, distinction between States and Union Territories is maintained and even though as per Section 3(58) of the General Clauses Act, the State includes Union Territories, that does not mean that Union Territory has to be construed as State and therefore, as per Entry 80 Union List without consent of the Puducherry Government, the first respondent cannot investigate the offences committed in that territory, and such argument cannot be accepted.
20. As stated supra, the CBI has got power to investigate the offences involved under Section 3 of the Delhi Special Police Establishment Act and by virtue of Notification dated 14.2.1989 under Article 239(1) of the Constitution of India, the Lieutenant Governor is also empowered to exercise all the powers and discharge functions and therefore, in respect of the offences punishable under the Prevention of Corruption Act, the CBI has got concurrent jurisdiction to conduct investigation and therefore, the investigation done by the first respondent is legal.
In the result, this Criminal O.P. is dismissed.
29.10.2014 Index: yes Internet: yes asvm To
1. The Special Judge (Under the Prevention of Corruption Act), Puducherry.
2.The Deputy Superintendent of Police, CBI, ACB, Chennai.
3.The Special Public Prosecutor (CBI Cases), High Court, Madras.
R.S.RAMANATHAN, J.
(asvm) Criminal O.P. No.22500 of 2014 29.10.2014