Document Fragment View

Matching Fragments

62. The next submission of the petitioners is that, in any event, the CBI has no authority or jurisdiction to carry out investigation in the FIR/RC in the State of Himachal Pradesh, since the said State has not granted its consent to such investigation in the State. This submission is founded upon the provisions contained in the Delhi Special Police Establishment Act, 1946 (DSPE Act) and the constitutional framework in relation to exercise of power of investigation of offences which may have been committed in one of the constituent States of the Indian federation. On this aspect, Mr. Kapil Sibal, learned Senior Counsel has advanced his submissions. Mr. Sibal submits that historically the DSPE Act was enacted to constitute a special police force for the Chief Commissioners Province of Delhi, for the investigation of certain offences committed in connection with matters concerning departments of the Central Government. The Act also seeks to lay down the procedure for the superintendence and administration of the DSPE - popularly known as CBI, and for extension to other areas in British India of the powers and jurisdiction of members of the said force in regard to investigation of offences. Mr. Sibal has drawn the attention of the Court to Sections 5 and 6 of the DSPE Act, which read as follows:

74. Mr. Dogra submits that the DSPE Act is a Central piece of legislation which provides for creation of special police force for Union Territories. He submits that the Act provides for the extension of power and jurisdiction of the said special police force to other States only after a specific order in that regard is issued, which always is subject to the consent of such State as provided under Section 6 of the said Act.

75. Mr. Dogra challenges the very creation of CBI, and doubts whether the same can be termed as a special police force contemplated under DSPE Act, so as to extend its jurisdiction and power to another State. He places reliance upon the reasoning recorded in a judgment rendered by the Gauhati High Court in Sh. Navendra Kumar vs. Union of India & Anr., 2013 Cri LJ 5009, which is currently stayed by the Supreme Court, to submit that CBI cannot be termed as a special police force, and it cannot exercise power and jurisdiction unless the State concerned gives consent under Section 6 of the DSPE Act. He relies on Shree Chamundi Mopeds Ltd. vs. Church of South India Trust Association CSI Cinod Secretariat, Madras, (1992) 3 SCC 1, to submit that mere stay of the operation of the judgment by the Supreme Court does not tantamount to quashing of the said judgment, and that the said judgment can be relied upon.

94. Mr. Patwalia submits that the CBI through its "Special Police Establishment Division" investigates the offences under the Delhi Special Police Establishment Act, 1946. Section 2(1) of the DSPE Act provides for the constitution of a Special Police Force for investigation of offences notified under Section 3 of the DSPE Act. Section 2(2) of the Act provides the powers of police officers to the members of SPE/CBI in respect of Union Territories. In respect of Union Territories, the Parliament has the power to enact laws for subjects covered even under the List II of the Seventh Schedule of the Constitution. Entry 80 of the List I empowers the Parliament to enact laws to extend the jurisdiction of a police force of a State to another State, with the consent of that State Government. Sections 5 and 6 of the DSPE Act have been enacted in exercise of the legislative power conferred by the aforesaid Entry. Thus, the creation of the DSPE/CBI is relatable to the powers of the Parliament under Entry 2 of the List II (in respect of a Union Territory) and Entry 80 of List I. The SPE Division of CBI investigates criminal offences in exercise of its power conferred by the DSPE Act, 1946. As far as "Union Territories" and "Railway Areas" are concerned, CBI is a regular police force, like police force of any State/UT, constituted under The Police Act, 1861. Hence, for exercising the police powers in UTs, CBI does not need to obtain consent from the concerned UT administration under Section 6 of DSPE Act, 1946. In the present case, Mr. Patwalia submits, the petitioner no. 1 was serving as a public servant at Delhi, which is a Union Territory and hence, CBI has the jurisdiction - like the local police force, to investigate the cases under the PC Act in the Union Territory.

13. Further since the check period constitutes of the period during the postings with State Government as well as some tenure of the Central Deputation, I am of the view that it was sufficient for the investigating agency, which is CBI in the present case, to choose either mode of investigation, that is to say, to either seek consent of the State Government under section 6 DSPE Act or abide by section 3 of the DSPE Act and seek consent of the Central Government. From the pleadings of the CBI, it is revealed that it chose to follow the mandate under section 3 DSPE Act since the check period included the period of central deputation as well as due to the fact that on the date of registration of RC, the Petitioner had ceased to be under the control of the Government of West Bengal nor was he managing the affairs of the Government of West Bengal".