An Analysis of Section 3 of the Delhi Special Police Establishment Act, 1946

Section 3 of the Delhi Special Police Establishment Act, 1946: Defining the Investigative Mandate of the CBI

Introduction

The Delhi Special Police Establishment Act, 1946 (hereinafter "DSPE Act") is a seminal legislation in India that provides the statutory basis for the constitution and operation of the Central Bureau of Investigation (CBI), originally the Delhi Special Police Establishment (DSPE). Within this Act, Section 3 holds a position of paramount importance as it empowers the Central Government to specify the offences or classes of offences that are to be investigated by the DSPE. This provision, therefore, forms the bedrock of the CBI's jurisdiction, delineating the scope of its investigative powers. This article seeks to provide a comprehensive analysis of Section 3 of the DSPE Act, examining its statutory contours, judicial interpretations, interplay with other provisions of the Act, and its overall impact on the administration of criminal justice in India, particularly concerning investigations of corruption and other serious crimes. The analysis will draw extensively upon the provided reference materials, including landmark judgments of the Supreme Court of India and various High Courts.

Statutory Framework of the Delhi Special Police Establishment Act, 1946

To understand the full import of Section 3, it is essential to view it within the broader statutory scheme of the DSPE Act.

Overview of the DSPE Act

The DSPE Act was enacted to "make provision for the constitution of a Special Police Force in Delhi for the investigation of certain offences 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 members of the said force in regard to the investigation of the said offences" (Preamble, DSPE Act, 1946, as cited in A.C Sharma v. Delhi Administration . (1973 SCC 1 726)).

Section 2: Constitution and Powers of Special Police Establishment

Section 2(1) of the DSPE Act authorizes the Central Government to constitute a special police force, the DSPE, for the investigation in any Union Territory of offences notified under Section 3. Members of this establishment are vested with the powers, duties, privileges, and liabilities of police officers of that Union Territory in relation to such investigations (Bhavesh Jayanti Lakhani v. State Of Maharashtra And Others (Supreme Court Of India, 2009); Central Bureau Of Investigation v. State Of Rajasthan And Others (1996 SCC 9 735)). As noted in THE STATE OF WEST BENGAL v. UNION OF INDIA (Supreme Court Of India, 2024), it is the Central Government that is empowered under Section 2 to constitute the DSPE.

Section 3: Offences to be Investigated by DSPE

Section 3 is the core provision defining the DSPE's subject-matter jurisdiction. It states: "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." (DSPE Act, 1946).

The Central Government exercises this power by issuing notifications specifying various offences under the Indian Penal Code, 1860, the Prevention of Corruption Act, 1988 (and its predecessor, the Prevention of Corruption Act, 1947), and other special statutes (A.C Sharma v. Delhi Administration . (1973 SCC 1 726)). These notifications can be quite extensive, covering a wide range of criminal activities, and can include attempts, abetments, and conspiracies related to the specified offences (A.C Sharma v. Delhi Administration . (1973 SCC 1 726)). The list of notified offences can be, and has been, expanded over time through subsequent notifications (A.C Sharma v. Delhi Administration . (1973 SCC 1 726)). The power under Section 3 is vested in the Central Government to specify which offences are to be investigated by the DSPE (THE STATE OF WEST BENGAL v. UNION OF INDIA (Supreme Court Of India, 2024); A.K Ganju v. Cbi (Delhi High Court, 2013)).

Section 4: Superintendence of DSPE

Section 4 deals with the superintendence of the DSPE. Originally vesting superintendence in the Central Government (A.C Sharma v. Delhi Administration . (1973 SCC 1 726)), this section was amended following the Supreme Court's directions in Vineet Narain And Others v. Union Of India And Another (1998 SCC 1 226). Currently, Section 4(1) vests the superintendence of the DSPE, insofar as it relates to the investigation of offences alleged to have been committed under the Prevention of Corruption Act, 1988, in the Central Vigilance Commission (CVC). For all other matters, the superintendence vests in the Central Government under Section 4(2) (THE STATE OF WEST BENGAL v. UNION OF INDIA (Supreme Court Of India, 2024)).

Section 5: Extension of Powers and Jurisdiction of DSPE to Other Areas

Section 5(1) empowers the Central Government to extend the powers and jurisdiction of the members of the DSPE to any area (including railway areas) in a State, not being a Union Territory, for the investigation of any offences or classes of offences specified in a notification under Section 3 (C.B.I., JAIPUR v. STATE OF RAJASTHAN (Supreme Court Of India, 1996); Bhavesh Jayanti Lakhani v. State Of Maharashtra And Others (Supreme Court Of India, 2009)). When such an order is made, members of the DSPE are deemed to be members of the police force of that area and are vested with their powers, functions, and privileges (Section 5(2), DSPE Act).

Section 6: Consent of State Government to Exercise of Powers and Jurisdiction

Crucially, Section 6 of the DSPE Act acts as a check on the powers under Section 5. It mandates that nothing contained in Section 5 shall be deemed to enable any member of the DSPE 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 (M. Balakrishna Reddy v. Director, Central Bureau Of Investigation, New Delhi . (2008 SCC 4 409); Kazi Lhendup Dorji v. Central Bureau Of Investigation And Others (1994 SCC SUPP 2 116)). This provision underscores the federal structure of India, respecting the primary role of State police in matters of law and order.

Judicial Interpretation and Application of Section 3 DSPE Act

Nature of Power under Section 3: Permissive, Not Exclusive

A foundational interpretation of Section 3 was provided by the Supreme Court in A.C Sharma v. Delhi Administration . (1973 SCC 1 726). The Court held that the DSPE Act, including Section 3, is permissive or empowering, intended merely to enable the DSPE to also investigate the specified offences. It does not confer sole or exclusive power on the DSPE to investigate these offences to the complete exclusion of the regular state police forces. The Court observed:

"Section 3 which empowers the Central Government to specify the offences to be investigated by the DSPE... does not confer sole power on DSPE to investigate into the offences mentioned therein to the complete exclusion of the regular police force." (A.C Sharma v. Delhi Administration . (1973 SCC 1 726), para 9, 14).

This principle was reiterated in Anil Kumar v. Gnct Of Delhi (Delhi High Court, 2015), which emphasized that the DSPE Act and the Prevention of Corruption Act are supplementary provisions designed to function harmoniously with existing regular police investigating agencies. The DSPE Act is "only permissive and empowers the members of DSPE also to investigate all the offences specified under Section 3 of the DSPE Act" (Central Bureau Of Investigation v. State Of Rajasthan And Others (Supreme Court Of India, 1996), citing A.C. Sharma).

Notification of Offences under Section 3

The Central Government's power to notify offences under Section 3 is a prerequisite for the DSPE to initiate any investigation. As established, these notifications can cover a wide array of offences. For instance, notifications have specified offences under the Indian Penal Code (e.g., Section 420 IPC, Section 120B IPC), the Prevention of Corruption Act, and even specialized statutes like the Foreign Exchange Regulation Act, 1973 (FERA) (A.C Sharma v. Delhi Administration . (1973 SCC 1 726); A.K Sirkar & Ors. v. State Of West Bengal & Ors. (Calcutta High Court, 1979); Central Bureau Of Investigation v. State Of Rajasthan And Others (1996 SCC 9 735)). Consolidated notifications listing all such offences are also issued (Central Bureau Of Investigation v. State Of Rajasthan And Others (1996 SCC 9 735)).

Interplay of Section 3 with Section 5 and Section 6

While Section 3 specifies *what* offences the DSPE can investigate, Sections 5 and 6 govern *where* (outside Union Territories) and *under what conditions* such investigations can occur.

Thus, a notification under Section 3 alone is insufficient for the DSPE to investigate in a State; it must be coupled with a Section 5 order and Section 6 consent (A.K Ganju v. Cbi (Delhi High Court, 2013); Central Bureau Of Investigation v. Ravi Shankar Srivastava, Ias And Another (2006 SCC 7 188)).

Section 3 and Investigations Directed by Higher Courts

An important exception to the requirement of State consent under Section 6 arises when investigations are directed by constitutional courts. The Supreme Court, in State Of West Bengal And Others v. Committee For Protection Of Democratic Rights, West Bengal And Others (2010 SCC CRI 2 401), held that the High Courts under Article 226 and the Supreme Court under Article 32 of the Constitution possess the extraordinary power to direct the CBI (DSPE) to investigate a cognizable offence committed within a State, even without the consent of that State government. This power is exercised to uphold fundamental rights and ensure justice, particularly when the impartiality or efficacy of the state police is questioned. Such directions, however, are to be used sparingly and in exceptional circumstances.

This contrasts with the powers of a Magistrate. In Central Bureau Of Investigation Through S.P, Jaipur v. State Of Rajasthan And Another (2001 SCC 3 333), the Supreme Court clarified that a Magistrate, acting under Section 156(3) of the Code of Criminal Procedure, 1973, cannot direct the CBI to conduct an investigation. The Magistrate's power under this section is limited to directing the officer-in-charge of a police station. The CBI, being a special establishment governed by the DSPE Act, does not fall under this category for the purpose of Section 156(3) CrPC, and the requirements of the DSPE Act, including consent under Section 6 (if applicable), must be fulfilled for the CBI to investigate.

Scope and Limitations of DSPE's Investigative Powers under Section 3

Specified Offences Only

The DSPE's authority to investigate is fundamentally tethered to the offences specified by the Central Government via notifications under Section 3. It cannot suo motu investigate offences not so notified.

Territorial Jurisdiction

As discussed, the DSPE's territorial jurisdiction for offences notified under Section 3 is bifurcated:

  • Union Territories: Direct jurisdiction under Section 2.
  • States: Jurisdiction is contingent upon an extension order under Section 5 by the Central Government and, critically, the consent of the State Government under Section 6. The members of the DSPE, even when operating in a State with consent, remain members of the force constituted in Delhi (A.K Sirkar & Ors. v. State Of West Bengal & Ors. (Calcutta High Court, 1979)).

Impact of Withdrawal of Consent (Section 6)

The Supreme Court in Kazi Lhendup Dorji v. Central Bureau Of Investigation And Others (1994 SCC SUPP 2 116) laid down a significant principle regarding the withdrawal of consent granted under Section 6. The Court held that the withdrawal of such consent by a State Government operates only prospectively. It does not affect ongoing investigations that were validly initiated by the DSPE for offences notified under Section 3, based on prior consent, before the date of withdrawal. This ensures that investigations lawfully commenced are not stymied midway by a subsequent change in the State Government's stance.

Section 3 and the Prevention of Corruption Act (PC Act)

Offences under the Prevention of Corruption Act, 1988, and its predecessor Act of 1947, are routinely notified under Section 3 of the DSPE Act, making the CBI the primary agency for investigating corruption cases involving central government employees and, in certain circumstances, state government employees or public servants with state consent or court direction. The judgment in Vineet Narain And Others v. Union Of India And Another (1998 SCC 1 226) was instrumental in ensuring the CBI's functional autonomy in investigating such cases, leading to the striking down of the "Single Directive" which required prior government sanction to investigate certain high-level officials for offences often notified under Section 3. Further, while Section 6A of the DSPE Act (inserted later) introduced a requirement for Central Government approval before initiating an inquiry or investigation under the PC Act against officers of the level of Joint Secretary and above (though Section 6A was subsequently struck down as unconstitutional by the Supreme Court in Subramanian Swamy v. Director, CBI & Anr. (2014) 8 SCC 682), the underlying offences themselves fall within the CBI's purview due to Section 3 notifications. The case of Manohar Lal Sharma v. The Principle Secretary & Others (2014 SCC 3 172) also touched upon Section 6A in the context of court-monitored investigations into PC Act offences, which are typically notified under Section 3.

Conclusion

Section 3 of the Delhi Special Police Establishment Act, 1946, is the linchpin that defines the subject-matter jurisdiction of the Central Bureau of Investigation. It grants the Central Government the crucial power to designate the specific offences or classes of offences that the DSPE is authorized to investigate. While this power is broad, its exercise, particularly for investigations within States, is carefully circumscribed by other provisions of the Act, notably Sections 5 and 6, which mandate Central Government orders for extension of jurisdiction and, more importantly, the consent of the concerned State Government.

Judicial pronouncements, particularly from the Supreme Court, have consistently interpreted Section 3 as permissive, allowing concurrent jurisdiction with state police forces, rather than granting exclusive investigative domain to the DSPE. The courts have also carved out an important exception for court-directed investigations, empowering constitutional courts to entrust cases to the CBI even without state consent in the interest of justice and enforcement of fundamental rights. The principle that withdrawal of state consent is prospective ensures the continuity of legitimate, ongoing investigations.

In essence, Section 3 of the DSPE Act, when read harmoniously with the entire legislative scheme and judicial interpretations, plays a vital role in the architecture of federal crime investigation in India. It enables a specialized central agency to tackle complex crimes, especially those involving corruption and inter-state ramifications, while attempting to balance the imperatives of effective investigation with the principles of federalism and state autonomy. Its enduring relevance is underscored by its continuous application in defining the CBI's mandate in the fight against crime and corruption.