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11. Relying on the exposition of the Constitution Bench in Subramanian Swamy vs. Director, Central Bureau of Investigation & Anr.4, it is urged that the principle underlying the declaration of provisions such as Section 6A of the 1946 Act being ultra vires, must apply to the proviso which is part of notification being an executive instruction classifying offenders differently for treatment thereunder, including investigation of offences and prosecution for offences, according to their status in life on account of being employed in connection with the affairs of the Government of Bihar. That is impermissible and cannot be 4 (2014) 8 SCC 682 countenanced as it defeats the purpose of finding prima facie truth into the allegations of the specified crime, as every person accused of committing the same offence is to be dealt with in the same manner in accordance with law, which is equal in its application to everyone. The alleged acts of commission and omission of the appellant in the State of Bihar would not alter the substratum of the offence or crime in question stated to have been committed to defraud the Government undertaking (BRBCL) and resultantly siphoning of its funds within the Union Territory of Delhi (National Capital Territory of Delhi).

23. Even otherwise, the proviso has the effect of differentiating and classifying offenders differently for treatment thereunder, including investigation of offences and prosecution for offences on the basis of being public servant employed in connection with the affairs of the Government of Bihar. The power bestowed on special police force in terms of Sections 2 and 3 of the 1946 Act cannot be undermined by an executive instruction in the form of proviso. Dealing with a similar challenge to a statutory provision ­ Section 6A of the Act, the Constitution Bench of this Court in Subramanian Swamy (supra) held that sub­Section (1) thereof was invalid and violative of Article 14 of the Constitution. In paragraphs 61 and 68 of the said decision, the Court noted thus:­ “61. The essence of police investigation is skillful inquiry and collection of material and evidence in a manner by which the potential culpable individuals are not forewarned. The previous approval from the Government necessarily required under Section 6­A would result in indirectly putting to notice the officers to be investigated before the commencement of investigation. Moreover, if CBI is not even allowed to verify complaints by preliminary enquiry, how can the case move forward? A preliminary enquiry is intended to ascertain whether a prima facie case for investigation is made out or not. If CBI is prevented from holding a preliminary enquiry, at the very threshold, a fetter is put to enable CBI to gather relevant material. As a matter of fact, CBI is not able to collect the material even to move the Government for the purpose of obtaining previous approval from the Central Government.