A bench of Justice Gogoi and Justice Pant in the case titled as C.B.I.vs R.R. KISHORE on 10.03.2019, directed a peculiar question to be referred to the Constitution Bench. Now in the year 2019, the said question is under consideration.
A prosecution under the Prevention of Corruption Act, 1988 was sought to be questioned by the accused on the basis of the provisions contained in Section 6A(1) of the Delhi Special Police Establishment Act, 1946 which was brought in by an amendment in the year 2003 giving certain immunity to the officers of certain level.
The Delhi High Court before whom the challenge was brought answered the question by holding that the respondent accused was entitled to the benefit of the said provision. Accordingly, the High Court took the view that the matter required fresh consideration for grant of previous approval under Section 6A(1) of the Delhi Special Police Establishment Act, 1946. CBI approached the Supreme Court which found:
"The provisions of Section 6A(1) of the Delhi Special Police Establishment Act, 1946 has been held to be unconstitutional being violative of Article 14 of the Constitution of India by a Constitution Bench of this Court in Subramanian Swamy versus Director, Central Bureau of Investigation and another".
It also found "The judgment of the Constitution Bench is however silent as to whether its decision would operate prospectively or would have retrospective effect. Though a large number of precedents have been cited at the Bar to persuade us to take either of the above views, as would support the case of the rival parties, we are of the considered view that this question should receive the consideration of a Constitution Bench in view of the provisions of Article 145(3) of the Constitution of India".
Then the Supreme Court directed "For the aforesaid reasons and having regard to the provisions of Article 145(3) of the Constitution of India, we refer the aforesaid question to a larger bench for which purpose the papers may now be laid before the Hon'ble the Chief Justice of India on the administrative side".
Read the Order here:
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