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8. The appellant has reiterated the grounds urged before the High Court and would contend that CBI could not have registered the FIR much less investigated the same without prior consent of the State of Bihar in that regard. The notification dated 19.2.1996 does not authorise the CBI to register cases against the public servants employed in connection with the affairs of the Government of Bihar. In support of this submission, reliance has been placed on the decisions in State of West Bengal & Ors. vs. Committee for Protection of Democratic Rights, West Bengal & Ors.1, Ms. Mayawati vs. Union of India & Ors. 2 and M. Balakrishna Reddy vs. Director, Central Bureau of Investigation, New Delhi3. It is urged that the interpretation by the High Court regarding the purport of the subject notification dated 19.2.1996 is flawed; and, is in teeth of the express stipulation in the proviso thereof. It is urged that any other view would result in impacting the federal structure of the country, which is the basic feature of the Constitution of India. Further, the general consent accorded by the State of Bihar vide stated notification is a conditional one for exercise of powers and 1 (2010) 3 SCC 571 2 (2012) 8 SCC 106 3 (2008) 4 SCC 409 jurisdiction by the officials of the DSPE. The appellant has drawn our attention to the expression “may” used in Sections 3 and 5 of the 1946 Act in contradistinction to the expression “shall” in Section 6 and would urge that the requirement of prior unambiguous consent of the State Government is the pre­ requisite and sine qua non to empower the officials of the DSPE. The appellant has also pointed out that the nature of allegation in the FIR against the appellant disregards the factual background in which the declaration in favour of Gopal Prasad Singh regarding the land bearing Khata No. 12, Plot number 1 of Mauja Kajrain was issued after due evaluation of his claim in the hierarchy of administrative set up right from Anchal Amin upto Additional District Magistrate, which process went on from 1971 as is manifest from the official record. It is thus urged that the alleged act of the appellant was done in official capacity and was protected by Section 79 of the IPC. The CBI ought to have undertaken preliminary enquiry before rushing to register the FIR on the basis of source information. Even for that reason, the action of CBI cannot be countenanced ­ not being in conformity with the CBI Manual. It is urged that the FIR does not disclose any offence qua the appellant and that it was registered without offering any explanation for the inordinate delay. Finally, it is urged that the registration of FIR itself was barred by Section 6 of the 1946 Act read with notification dated 19.2.1996.

9. The State of Bihar has supported the claim of the appellant on the question of law by contending that Policing is a State subject under Entry 2 List II of Schedule VII of the Constitution. Hence, having due regard to the federal structure recognised under the Constitution, provision such as Section 6 of the 1946 Act has been incorporated. According to the State, combined reading of Sections 2, 3, 5 and 6 of the 1946 Act would show that DSPE has jurisdiction to investigate offences notified under Section 3 in any Union Territory; the use of the expression “may” in Sections 3 and 5 is indicative that it is only an enabling provision, enabling the Central Government to extend the area of operation of DSPE to any area in the State by an order. The order under Section 5, however, is made subject to the condition predicated in Section 6, namely, it would come into effect only after consent of the concerned State Government is accorded. For, Section 6 uses the expression “shall”, which is suggestive of the fact that the said requirement is mandatory in nature and without such prior consent of the State, DSPE would not get jurisdiction to enter upon investigation of the specified offences and exercise its powers and jurisdiction in any area of a State. As regards the notification dated 19.2.1996, it is urged by the State that it is a general consent, making it amply clear that prior consent to investigate cases against the public servants employed in connection with the affairs of the Government of Bihar is essential. That requirement has not been dispensed with in terms of the proviso in the subject notification. It is always open to the State to accord partial consent on the terms specified in the notification. As the State is variously concerned about the actions of its employees including the subject of Policing being a State subject, it is urged that the DSPE ought to have intimated the State about the acts of commission and omission of the officers of the State, so that the State could have examined the same and resorted to appropriate action as per law. The State is also relying on the exposition in Committee for Protection of Democratic Rights, West Bengal (supra). It is urged by the State that no consent has been obtained by the DSPE in terms of the proviso, although the allegations in the FIR registered by them against the appellant who is a State Government employee are in connection with the affairs of the State.

10. The learned Additional Solicitor General appearing for the CBI has adopted the reasons noted by the High Court. He has urged that the occupation/residence of one of the accused cannot come in the way of DSPE to carry on the investigation in respect of offence of conspiracy to defraud the Government of India undertaking whose registered office is at Delhi and moreso because the siphoning of funds of the undertaking has been committed within the territory of Delhi. The investigation of such a case cannot be regarded as in respect of an offence independently committed by the public servant employed in connection with the affairs of the Government of Bihar as such. As a result, no consent of any State to investigate such an office would be necessary. As a matter of fact, no State would have jurisdiction to enquire into or investigate the offence committed in relation to the Government of India undertaking registered in the territory of Delhi. Similarly, only the Courts in Delhi would have jurisdiction to take cognizance of the stated offence. In such a situation, the occupation or status of the accused or his residence cannot be the basis to constrict the powers of the investigating agency (DSPE) in any manner. It is urged that if the argument of the appellant is accepted, that would have serious implications. For, in cases where the DSPE during the course of investigation of specified crimes committed in Union Territory is confronted with the accused employed/residing in different States, it would require the DSPE to obtain consent of every such State wherever the accused resides and is an employee of that State. That cannot be the intention of law in empowering the special police establishment (DSPE) to investigate specified and notified offences committed within the Union Territory. The harmonious and purposive construction of the provisions of the 1946 Act, in particular Section 5 thereof, would be to confine the consent of the State Government under Section 6 in respect of investigation of crime exclusively committed within the jurisdiction of that State. In other words, no consent would be required in respect of specified offence(s) committed within the Union Territory, which could be investigated only by the DSPE under Sections 2 and 3 of the 1946 Act throughout India. Any other interpretation would render the dispensation regarding investigation of specified offences committed within the Union Territory otiose. This is moreso because the State would have no jurisdiction to investigate such offence committed within the jurisdiction of the Union Territory. Resultantly, the question of obtaining consent of the State merely because one of the accused involved in the offence happens to be residing in that State or is a public servant of that State, is not contemplated by law. It is also urged that the proviso to the subject notification dated 19.2.1996 has the effect of defeating the purpose for which special legislation has been enacted and dispensation thereunder for investigation of specified offences is established.

5 (2018) SCC Online Del 11713

13. After cogitating over the rival submissions, the core issue which arises for consideration in the present case is: whether the proviso in the stated notification dated 19.2.1996 would come in the way of the officials of DSPE to register FIR and carry on investigation of specified offences committed within the Union Territory (National Capital Territory of Delhi), to which the 1946 Act applies?

14. The 1946 Act has been enacted to make provision for constitution of a special police force in Delhi for the investigation of certain offences (committed) in the Union Territories, for the superintendence and administration of the said force and for the extension to other areas of the powers and jurisdiction of the members in regard to the investigation of the said offences. This Act applies to the whole of India. Section 2 of the 1946 Act enables the Central Government to constitute a special force to be called DSPE for the investigation in any Union Territory of specified offences notified under Section 3. Section 3 of the 1946 Act enables the Central Government, by notification in the official gazette to specify the offences or classes of offences which are to be investigated by the DSPE. It is not in dispute that the offences referred to in the subject FIR are so specified by the notification issued under Section 3.