Order
1. A public interest litigation was filed before the Calcutta High Court by the Committee for Protection of Democratic Rights, seeking relief, amongst others, regarding the investigation in Garbeta Police Case No. 3 of 2001 arising out of the written complaint lodged by one Abdul Rahaman Mondal on 4-1-2001, to be forthwith handed over and conducted by the Central Bureau of Investigation (CBI). It was alleged that on 4-1-2001 at 10.30 p.m some miscreants attacked with firearms and other explosives as a result of which 11 persons had died and the FIR was lodged on 5-1-2001. Although in the incident 11 persons had died on 4-1-2001 and more than three months had lapsed, yet all the accused persons named in the FIR were not arrested except two. Eleven persons were said to have died as alleged in the FIR but no serious attempts were made to identify those persons said to have died in the incident. According to the statement of Abdul Rahaman, 5 persons had died but no serious attempts were made to identify those 11 or 5 persons said to have died in the incident, though the police had registered a case under Section 302 IPC, etc. Three months had elapsed and the police had not been able to come to a definite conclusion whether those persons were dead or alive. The High Court observed that in the background of the case, it has strong reservations about the impartiality and fairness in the investigation by the State Police because of the political implications and, therefore, in the opinion of the High Court no useful purpose would be served in continuing the investigation by the State Investigation Agency and even if the investigation is made by the State agency, it would be looked at with reservation and suspicion because of the allegation that all the assailants were members of a ruling party. Therefore, it was considered all the more necessary to do justice in the case and to maintain impartiality and fairness in the investigation and to uphold the rule of law the High Court thought it appropriate that the inquiry be conducted by an independent agency, that is, Central Bureau of Investigation (CBI).
2. Aggrieved by the order passed by the Division Bench of the High Court directing investigation to be conducted by CBI, the State of West Bengal filed petition for special leave to appeal before this Court. Notice was issued by this Court on 12-7-2001 and leave was granted on 3-9-2001.
3. It is submitted by the learned Senior Counsel, Shri K.K Venugopal, that the High Court could not have exercised powers of directing investigation in the crime committed and FIR lodged within the territorial jurisdiction of the State of West Bengal by CBI without the consent of the State Government of West Bengal. With all fairness, the learned Senior Counsel has brought to our notice the reference order made in Haryana Mahila Sangathan v. Union of India on 10-3-1989, whereby a two-Judge Bench of this Court referred the question of law to a larger Bench, preferably a Bench comprising of five learned Judges, that whether the Court can order CBI to investigate a cognizable offence, which is alleged to have taken place in the State, without the consent of the State Government and without any notification or order issued by the State Government, conferring powers on CBI to investigate any case in the State.
4. On 8-7-1996 the matters were placed before the Constitution Bench and on the basis of the submissions made by the Senior Counsel appearing therein that the question of law involved in those matters is covered against him by the judgments of this Court in Advance Insurance Co. v. Gurudasmal (1970) 1 SCC 633, (1970) 3 SCR 881 and in Kazi Lhendup Dorji v. CBI 1994 Supp (2) SCC 116. Thereupon, the appeals and the connected matters including WPs (Crl.) Nos. 531-36 of 1988 were dismissed with no costs.
5. Learned Senior Counsel for the appellants urges that the matters, wherein the question was referred, had been dismissed on the basis of concession made by the Senior Counsel appearing therein and, in fact, the cases on the basis of which concession was made have no application to the question involved in reference on the facts stated in those cases themselves and, therefore, an important question of law of public importance is still to be adjudicated and answered.
6. The Delhi Special Police Establishment Act, 1946 (25 of 1946) has been enacted in exercise of the powers conferred under the Government of India Act, 1935 (Entry 39 of List I, Seventh Schedule and Entry 3 of List II, Seventh Schedule). The said entries read as under:
Entry 39 of List I
“39. Extension of the powers and jurisdiction of members of a police force belonging to any part of British India to any area in another Governor's Province or Chief Commissioner's Province, but not so as to enable the police of one part to exercise powers and jurisdiction elsewhere without the consent of the Government of the Province or the Chief Commissioner as the case may be; extension of the powers and jurisdiction of members of a police force belonging to any unit to railway areas outside that unit.”
Entry 3 of List II
“3. Police, including railway and village police.”
Relevant entries on similar subject under the Constitution of India are Entry 80 of List I, Seventh Schedule and Entry 2 of List II, Seventh Schedule, which read as follows:
Entry 80 of List I
“80. Extension of the powers and jurisdiction of members of a police force belonging to any State to any area outside that State, but not so as to enable the police of one State to exercise powers and jurisdiction in any area outside that State without the consent of the Government of the State in which such area is situated; extension of the powers and jurisdiction of members of a police force belonging to any State to railway areas outside that State.”
Entry 2 List II
“2. Police (including railway and village police) subject to the provisions of Entry 2-A of List I.”
Entry 2-A of List I reads as under:
“2-A. Deployment of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any State in aid of the civil power; powers, jurisdiction, privileges and liabilities of the members of such forces while on such deployment.”
7. By virtue of these entries, the legislative power to provide for the police force of one State to exercise the powers and jurisdiction in any area outside the State can only be done with the consent of the Government of that particular State in which such area is situated except the police force belonging to any State to exercise power and jurisdiction to railway areas outside that State. Submission of the learned Senior Counsel is that when the legislative power for exercise of jurisdiction by the members of the police force belonging to the State has been restricted by the Constitution, unless a consent is obtained from the State in whose area the power and jurisdiction is to be exercised, it would not be open for any authority to exercise or direct it to be exercised those powers by the police force without the consent of that State concerned.
8. In Advance Insurance Co. v. Gurudasmal (1970) 1 SCC 633, (1970) 3 SCR 881, it is apparent from the facts stated at SCR p. 888 which read as under:
“8. After the passing of the 1946 Act a number of notifications succeeded which notified the offences which the Special Police Establishment could investigate. On 6-11-1956 (Notification No. 7/5/55-AVD) was issued under Section 3 of the Act of 1946. It enabled the Special Police Establishment to investigate inter alia offences under Sections 409 and 477-A of the Indian Penal Code. A memorandum (No. M/1260/6554-V dated 2-7-1960) shows that the Government of Maharashtra consented to the Delhi Special Police Establishment exercising powers and jurisdiction in the State of Maharashtra in respect of offences mentioned in notifications of the Government of India dated 6-11-1956, 12-2-1957, 21-6-1957 and 27-8-1957. The first notification has been referred to already.”
The consent of the State of Maharashtra was given to investigate the matter in the State. From this fact, it is evident that question of investigation by CBI in the State of Maharashtra without consent of the State was not the question involved in that case.
9. In Kazi Lhendup Dorji v. CBI 1994 Supp (2) SCC 116 the question really involved was whether the consent given at the time of commencement of the investigation can be later on withdrawn to take away the jurisdiction of CBI to investigate the matter. The statement of facts clearly spells out the question involved in that case when the Court said:
“… the question whether it is permissible to withdraw the consent given by the State Government under Section 6 of the Delhi Special Police Establishment Act, 1946 whereby a member of the Delhi Special Police Establishment (DSPE) was enabled to exercise powers and jurisdiction for the investigation of the specific offences in any area in the State and, if so, what is the effect of such withdrawal of consent on matters pending investigation on the basis of such consent on the date of withdrawal.”
Therefore, it is apparent that the question involved in that case was not whether CBI can exercise the jurisdiction and powers in other State without the consent of that State.
10. It is also contended that although under Section 5(2) of the Delhi Special Police Establishment Act, 1946, the powers and jurisdiction of the members of the Delhi Special Police Establishment are extended, subject to any order which the Central Government may make, for discharging the functions of a police officer of that area and while discharging such functions he shall be deemed to be a member of the police force of that area and would be vested with the powers, functions and privileges, and would be subjected to the liabilities of a police officer belonging to that police force, but by virtue of Section 6, those powers and jurisdiction can be exercised by the members of the Delhi Special Police Establishment with the consent of the Government of that State. That being the position, whether order could be passed by the courts directing investigation by CBI in a particular State without the consent of that State. Thus, the question is whether a court can order the Central Bureau of Investigation (CBI), an establishment created under the Delhi Special Police Establishment Act, 1946, to investigate a cognizable offence which is alleged to have taken place in a State without the consent of that State Government on the face of statutory limitations.
11. In our opinion, the question of law involved is of great public importance and frequently coming before the courts and, therefore, it is necessary that it is settled by a larger Bench. Thus, the question “Whether the court can order CBI established under the Delhi Special Police Establishment Act, 1946 to investigate a cognizable offence which is said to have taken place within the territory of a State without the consent of that State Government?”, is referred to a larger Bench. We, therefore, direct that the papers may be placed before the learned Chief Justice of India for passing appropriate orders.