Jammu & Kashmir High Court
Major General (Retd.) V.K.Sharma vs Central Bureau Of Investigation on 7 February, 2024
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
h475
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on : 01.02.2024
Pronounced on : 07.02.2024
CRMC No.248/2016
CrlM No.1851/2923 & 314/2019
IA No.1/2016
1. Major General (Retd.) V.K.Sharma, VSM
Aged 60 years
Son of Shri Vishwa Mitter Sharma,
R/o P-3954 Sector-23
HUDA Gurgaon-122017
2. Kiran Sharma, Aged 53 years
Wife of Major General (Retd.) V.K.Sharma,
R/o P-3954 Sector-23
HUDA Gurgaon-122017
...Petitioner(s)
Through:- Mr. Rajinder Singh Jamwal, Advocate
V/s
Central Bureau of Investigation,
Rail Head Complex, Jammu
Through Superintendent of Police
...Respondent(s)
Through:- Ms. Monika Kohli, Advocate
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
JUDGMENT
1. The petitioners in this petition are the accused facing trial in a
criminal case titled Central Bureau of Investigation v. V.K.Sharma and
another before the Court of learned Special Judge Anti-corruption (CBI
Cases), Jammu ["the trial Court"] arising out of FIR No.RC0042014A0001
under Section 5(1)(e) of the Jammu & Kashmir Prevention of Corruption
Act, Svt. 2006 ["2006 Act"] read with Section 109-B RPC. They are
aggrieved of and have challenged the presentation of criminal challan
before the trial Court on the ground that Central Bureau of Investigation
["CBI"], a special police establishment constituted under Section 2 of the
Delhi Special Police Establishment Act, 1946 ["DSPE Act"] has no
jurisdiction to investigate the offence under Section 5(1)(e) of the 2006 Act
unless a prior consent of the State Government in terms of Section 6 is
obtained by the CBI. Reliance is placed on Sections 3, 5 and 6 of the DSPE
Act to support this contention.
2. Per contra, the stand of the CBI and the State respondent is that
there is general consent given by the State Government in terms of Section
6 for investigation of the offences punishable under the Jammu & Kashmir
Prevention of Corruption Act, 2006. Reliance is placed by the respondent
on a communication of the Government of Jammu & Kashmir bearing
No.S-253/57-PD dated 07.05.1958. The respondents submit that since there
is general consent given by the State for investigation of offences
punishable under the 2006 Act, as such, no fresh consent is required to be
given by the State Government for investigating an offence which may
have been incorporated in the 2006 Act by an amendment made subsequent
to the issuance of communication dated 07.05.1958.
3. Having heard learned counsel for both sides and perused the material
on record, following short but interesting question arises for adjudication:-
"Whether the general consent given by the erstwhile
Government of Jammu & Kashmir vide its communication
dated 07.05.1958 for investigation of offences punishable
under the Jammu & Kashmir State Prevention of
Corruption Act, 2006 is applicable and holds good for
authorizing DSPE/CBI to investigate an offence under
Section 5(1)(e) of the 2006 Act, which came to be
incorporated in the year 1983 by Jammu & Kashmir
Prevention of Corruption(Amendment) Act, 1983?.
4. Before adverting to the rival contentions, it would be appropriate to
set out Sections 2, 3, 5 and 6 of the DSPE Act, which read thus:-
"2. Constitution and powers of special police establishment.--(1)
Notwithstanding anything in the Police Act, 1861 (5 of 1861), the
Central Government may constitute a special police force to be called
the Delhi Special Police Establishment for the investigation in any
Union territory of offences notified under section 3. (
(2) Subject to any orders which the Central Government may make in
this behalf, members of the said police establishment shall have
throughout any Union territory, in relation to the investigation of such
offences and arrest of persons concerned in such offences, all the
powers, duties, privileges and liabilities which police officers of that
Union territory have in connection with the investigation of offences
committed therein.
(3) Any member of the said police establishment of or above the rank
of Sub-Inspector may, subject to any orders which the Central
Government may make in this behalf, exercise in any Union territory
any of the powers of the officer in charge of a police station in the
area in which he is for the time being and when so exercising such
powers shall, subject to any such orders as aforesaid, be deemed to be
an officer in charge of a police station discharging functions of such
an officer within the limits of his station.
3. Offences to be investigated by special police establishment.--The
Central Government may, by notification in the Official Gazette,
specify the offences or classes of offences, which are to be
investigated by the Delhi Special Police Establishment.
4. ...............
5. Extension of powers and jurisdiction of special police
establishment to other areas.--(1) The Central Government may by
order extend to any area (including Railway areas) 4 [in 5 [a State, not
being a Union territory]] the powers and jurisdiction of members of
the Delhi Special Police Establishment for the investigation of any
offences or classes of offences specified in a notification under section
3. (2) When by an order under sub-section (1) the powers and
jurisdiction of members of the said police establishment are extended
to any such area, a member thereof may, subject to any orders which
the Central Government may make in this behalf, discharge the
functions of a police officer in that area and shall, while so
discharging such functions, be deemed to be a member of the police
force of that area and be vested with the powers, functions and
privileges and be subject to the liabilities of a police officer belonging
to that police force. 1 [(3) Where any such order under sub-section (1)
is made relation to any area, then, without prejudice to the provisions
of sub-section (2), any member of the Delhi Special Police
Establishment of or above the rank of Sub-Inspector may, subject to
any orders which the Central Government may make in this behalf,
exercise the powers of the officer in charge of a police station in that
area and when so exercising such powers, shall be deemed to be an
officer in charge of a police station discharging the functions of such
an officer within the limits of his station.]
[6. Consent of State Government to exercise of powers and
jurisdiction.--Nothing contained in section 5 shall be deemed to
enable any member of the Delhi Special Police Establishment to
exercise powers and jurisdiction in any area in a State, not being a
Union territory or railway area], without the consent of the
Government of that State."
5. It is not in dispute that the Central Bureau of Investigation is a
special police force constituted by the Central Government in the exercise
of powers conferred upon it under Section 2 of the DSPE Act, which
exercises its jurisdiction for investigation, in any Union Territory, of
offences notified under Section 3. As is apparent from a reading of Section
3, the Central Government is also empowered to specify by notification in
the government gazette the offences or classes of offences which can be
investigated by the CBI. Section 5 further provides and confers upon the
Central Government power to extend by order the power and the
jurisdiction of the members of DSPE/CBI to any area (including railway
areas) in a State, not being a UT. However, Section 6 places a rider on the
exercise of powers and jurisdiction by the DSPE/CBI in any area in a State,
which is not a Union Territory or railway area unless there is prior consent
obtained from the government of that State.
6. From a reading of Sections 2, 3, 5 and 6 together, it is clearly borne
out that Special Police Establishment/CBI is primarily constituted for
investigation of various offences notified under Section 3 in any Union
Territories of India. The Central Government is, however, empowered to
extend the power and jurisdiction of DSPE/CBI to any area including
railway area in a State but the exercise of this power and jurisdiction by the
DSPE/CBI would be subject to the consent of the Government of that
State.
7. It is not in dispute before me that in terms of Section 6 there is a
general consent given by the Government of Jammu & Kashmir of the then
State for investigation of various offences punishable under the repealed
J&K State Ranbir Penal Code and offences punishable under different
enactments including offences punishable under the 2006 Act. The general
consent letter issued by the Government of Jammu & Kashmir dated
07.05.1958, the relevant extract whereof is set out below, would make the
position abundantly clear. Relevant extract of communication dated
07.05.1958 is reproduced hereunder:-
"I am directed to say that the Government of Jammu & Kashmir
consents to the Delhi Special Police Establishment exercising powers
and jurisdiction in the State of Jammu & Kashmir for the investigation
of the following offences specified in the Notification of the
Government of India in the Ministry of Home Affairs, Nos.(a)7/9/56-
AVD dated the 9th April, 1958 regarding (1) and (2) below and (b)
7/5/55-AVD dated 6-11-56 amended from time to time issued under
Section 3 of the Delhi Special Police Establishment Act, 1946 (25 of
1946), namely :
(1)..................
(2) Offences punishable under the Jammu and Kashmir State
Prevention of Corruption Act, 2006 (XIII of 2006);
..........."
8. On the basis of the consent given by the then State Government
under Section 6 of the DSPE Act, the Government of India in the exercise
of the powers conferred by Subsection (1) of Section 5 of the DSPE Act
issued a notification bearing No.25/7/60-AVD dated 10th April, 1961,
which was later on replaced by another notification bearing No.25/3/60-
AVD I dated 1st April, 1964. As per the notification dated 01.04.1964
issued by the Government of India under Subsection (1) of Section 5 of the
DSPE Act, the powers and jurisdiction of members of the Delhi Special
Police Establishment were extended to the State of Jammu and Kashmir for
investigation of offences specified in the Scheduled which included the
offences punishable under the Jammu and Kashmir State Prevention of
Corruption Act, 2006 (13 of 2006). For reference, the relevant extract of
the notification dated 01.04.1964 is reproduced hereunder:-
"In exercise of the powers conferred by sub-section (1) of Section 5 of
the Delhi Police Establishment Act, 1946 (25 of 1946), and in
supersession of the Order of the Government of India in the Ministry of
Home Affairs No.25/7/60-AVD, dated the 10th February 1961, the
Central Government hereby extends the powers and jurisdiction of
members of the Delhi Special Police Establishment to the State of
Jammu and Kashmir for the investigation of offences specified in the
Schedule annexed hereto.
Schedule
(a). ....................
(b) Offence punishable under the Jammu and Kashmir State
Prevention of Corruption Act 2006 (13 of 2006);
................................."
9. The argument of learned counsel for the petitioners is essentially
edificed on the expression "as amended from time to time" used in the
general consent letter dated 07.05.1958 given by the Government of
Jammu & Kashmir to the Government of India, Ministry of Home Affairs.
He submits that the offences, which were punishable under 2006 Act as
amended upto 07.05.1958 were alone subject to investigation by
DSPE/CBI and the consent of the Government of Jammu & Kashmir was
only restricted to such offences. He argues that the offences like the
offence punishable under Section 5(1)(e), which was inserted in 2006 Act
by way of amendment in the year 1983, were not amenable to the
investigative jurisdiction of the DSPE/CBI.
10. Per contra, learned counsel for the respondent submits that once
there was consent for investigation of offences punishable under the 2006
Act, the same was to hold good for the offences subsequently inserted in
the 2006 Act by way of amendments including Section 5(1)(e), which was
inserted in the year 1983 by way of amendment.
11. I have given my thoughtful consideration to the rival contentions and
am of the considered view that answer to the question formulated in the
wake of rival arguments of the parties, turns upon the interpretation of the
general consent dated 07.05.1958 issued by the Government of Jammu &
Kashmir in favour of the Government of India, Ministry of Home Affairs.
12. The relevant extract of the consent dated 07.05.1958 has already
been reproduced herein above and a careful perusal whereof would clearly
indicate that the then Government of Jammu & Kashmir conveyed its
consent to the Government of India, Ministry of Home Affairs for exercise
of powers and jurisdiction of investigation of specified offences under
different legislations. Apart from this, the Government of Jammu &
Kashmir also consented to the DSPE/CBI exercising powers and
jurisdiction in the State of Jammu & Kashmir for investigation of offences
punishable under the 2006 Act, as amended from time to time. The
expression "as amended from time to time" in the context of offences
punishable under the 2006 Act would not mean the amendments made in
the 2006 Act upto the issuance of consent letter i.e. 07.05.1958, as is
contended by the learned counsel appearing for the petitioners. Once there
is a general consent by the Government of Jammu & Kashmir given to the
DSPE/CBI to exercise powers and jurisdiction in the State of Jammu &
Kashmir in respect of offences punishable under the 2006 Act, there is no
requirement in law to give fresh consent as and when a new offence is
created or some provision is modified by way of amendment in the 2006
Act. The word "as amended from time to time" rather has a wide
amplitude and import and its meaning cannot be restricted to the
amendments made in the 2006 Act only upto 07.05.1958 ignoring the
amendments made subsequent thereto.
13. This issue has been considered and dealt with, though, not in much
detail, by a Coordinate Bench of this court in the case of Kumar Avinav v.
Union of India and others, 2023(1) Crimes J&K 455. The observations
of the Bench which are relevant for our purpose are made in para-32, which
for facility of reference, is reproduced hereunder:-
"32. It has further been contended by learned counsel for the petitioners
that some of the offences like offences relating to conspiracies are not
mentioned in the consent letter dated 7th May, 1958 and even the new
offences created under the Jammu and Kashmir State Prevention of
Corruption Act, 2006 are not included therein. It is to be noted that
subsequent to the consent letter dated 7th May, 1958, another consent
letter has been issued by the Government of Jammu and Kashmir on 8th
December, 1963, which was necessitated due to addition of certain more
offences in the notification under Section 3 and order under Section 5 of
the DSPE Act. Vide the said consent letter, the consent has been
accorded to the issuance of such notification/order and in these
notification/order even the abetments, attempts and conspiracies relating
to all categories of offences mentioned in those notification/order have
been incorporated. So far as the offences punishable under the Jammu
and Kashmir State Prevention of Corruption Act are concerned, all the
offences are included in both the consent letters, therefore, all offences
punishable under the said Act as amended from time to time would come
within the purview of the consent letters. The argument of learned
counsel for the petitioner in this regard is, therefore, without any merit."
14. That apart, the Central Government while issuing notification dated
01.04.1964 and extending the powers and jurisdiction of members of the
DSPE to the State of Jammu and Kashmir for the investigation of offences
specified in the Schedule of the notification did not use the expression "in
respect of J&K State Prevention of Corruption Act or other legislations as
amended from time to time. Obviously, this was not done by the Central
Government as it was clearly understood that once the powers and
jurisdiction of DSPE have been extended to the State of Jammu & Kashmir
for investigation of offences under the entire Jammu & Kashmir State
Prevention of Corruption Act, 2006 on the basis of the consent given by the
State Government, this is a foregone conclusion that DSPE was having
powers and jurisdiction to investigate all the offences incorporated in the
2006 Act including those which may be inserted in the Act subsequently by
way of legislative amendments.
15. It is the plea of the learned counsel for the petitioners that in case of
offence under State Ranbir Penal Code, a fresh consent was accorded by
the Government of Jammu and Kashmir in terms of letter dated 18.12.1963
for offences which were notified later by the Central Government under
Section 5(1) of the DSPE Act on 01.04.1964 and, therefore, in respect of
offence under Section 5(1)(e) of the 2006 Act also a similar fresh consent
by the State Government was sine qua non for conferring jurisdiction and
powers on the CBI to investigate the offence. There is no substance in the
argument and the same deserves to be rejected. This is so because as is
apparent from a reading of the general consent letter dated 07.05.1958, the
Government of Jammu & Kashmir had consented to the DSPE/CBI
exercising powers and jurisdiction in the State of Jammu & Kashmir for
investigation of the specified offences of the State Ranbir Penal Code and
not all the offences under the State Ranbir Penal Code and, therefore, if any
new offence in the State Ranbir Penal Code was to be added in notification
under Section 3 of the DSPE Act, a fresh consent from the Government of
Jammu & Kashmir was required. This, however, is not so in the case of
offences punishable under the 2006 Act. The State Government's consent
for investigation of offences punishable under the 2006 Act is already
given vide communication dated 07.05.1958 and as has been explained
herein above, once consent is given by the State Government for
investigation by the offences punishable under the 2006 Act by the CBI in
the territory of Jammu & Kashmir, such consent will hold good for any
amendment carried in the 2006 Act and for the new offence(s), if any,
created by such amendment(s).
16. To reiterate, the scope of expression "as amended from time to time"
cannot be restricted only to the amendments carried out upto 7th May, 1958.
The expression has a wider scope and amplitude and, therefore, is required
to be construed accordingly.
17. For the foregoing discussion, I find no merit in this petition and the
same is, accordingly, dismissed along with connected applications. Interim
direction, if any, shall stand vacated.
(Sanjeev Kumar)
Judge
JAMMU.
07.02.2024
Vinod, PS
Whether the order is speaking : Yes
Whether the order is reportable: Yes
