JUDGMENT
Hari Lal Agrawal, J.
1. All these four cases which have been referred to Division Bench, have been heard together as a common question of law arises in them, namely, as to whether the Delhi Special Police Establishment, commonly known as C. B. I., had any authority to investigate the cases instituted against the petitioners of these cases for offences alleged to have been committed by them under different clauses of Section 5 (1) of the Prevention of Corruption Act, 1947 and some sections of the Indian Penal Code, on the ground that the said Police Establishment had no legal authority in this regard in the absence of a legal consent by the State Government as required Under Section 6 of the Delhi Special Police Establishment Act, 1946 (Act XXV of 1946). All these cases are being disposed of herewith. All the cases against petitioners J. N. Sahay, S. K. Bhattacharjee and K. K. Malhotra along with various other accused persons are pending for trial in the Court of the Special Judge, C. B. I. (South Bihar), Patna. The petitioners at different stages of the proceedings on different dates made applications before the said trial Judge for dropping the proceedings and discharging them on the plea that the cognizance of the cases against them was invalid being based on the charge sheets submitted by an illegal investigating agency and as such the trial could not proceed in law.
2. I may now very briefly indicate the facts of the cases in relation to the petitioners in all these applications.
J.N. Sahay: He was an Assistant Electrical Engineer (Technical), in the Bihar State Electricity Board and at the relevant time, i. e., in the year 1969, was posted at Bhagalpur in the Electric Works Division. On 1-1-1969 a first information report was lodged by Shri J. P. Sharma, S. P./C. B. I./S. P E./C. I. A. XI, New Delhi, alleging that he and various other officers, in criminal conspiracy with each other, had committed various offences punishable under various provisions of Section 5 of the Prevention of Corruption Act read with Section 120 B of the Indian Penal Code, during the period of 1964 to 1967. It appears that two cases were registered before the learned Special Judge and after a protracted investigation, charge-sheet was submitted on 10-3-75 and cognizance was taken on 14-3-75 in both the cases, giving rise to two applications filed by him. On 5-5-78 this petitioner-filed separate petitions in both the cases to the effect that before the charges were framed against him, he should be heard on the legal question indicated above, namely, the absence of a legal consent Under Section 6 of the 1946 Act and the learned Judge by the impugned orders passed on the same day (22-5-79), following the decision of a learned single Judge of this Court in the case of Tarak Nath Roy v. State of Bihar 1979 BBCJ (HC) 61, held that although the ‘consent’ was “not legal and proper as observed by” this Court in the above case, no prejudice could be said to have been caused to him on account of the investigation in question and accordingly he ordered for framing of charges on the next date fixed. The petitioner has accordingly come to this Court against these orders.
K. K. Malhotra: This petitioner was an officer in M/s. Bharat Coking Coal Ltd., Dhanbad, a public undertaking, wholly owned and managed by the Government of India, A first information report was lodged on 25-11-75 by Shri N. N. Singh, Inspector of D. S. P. E. against him and six other persons for offences under various sections of the Indian Penal Code and some provisions of. Section 5 of the Prevention of Corruption Act. Charge-sheet was, however, submitted only against three persons including this petitioner on 1-4-77 and cognizance was taken en the same date. Charges were framed on 10-3-79 by the Special Judge. On discharging him on same and similar grounds as done by the other petitioner, but the learned Judge by his order dated 5-7-1979 rejected the petition taking the view that apart from the fact that the objection was belated, and although there might be some technical flaw in the consent conveyed to the Home Ministry by the Government of Bihar, the irregularity, if any, was removed by the issuance of the notification dated 22-2-1979 of the State of Bihar signifying the consent of the State Government Under Section 6 of the D. S. P. E. Act authorising the officers of the Delhi Special Police Establishment to exercise powers and functions of investigation within the State of Bihar. This petitioner has thus come to this Court.
S. K. Bhattacharjee: At the relevant time he was employed as the Mining Adviser to the Managing Director, Bokaro Steel Project, Bokaro. Earlier he was working at Bhilai Project as the Superintendent, Ore, Mines and Quarries. The first information report against this petitioner was drawn up on 27-12-1974 by Shri N. K. Singh, S. P.. C. I. A, T, New Delhi in regard to offences Under Section 5 (2) read with Section 5 (1) (e) of the Prevention of Corruption Act. After investigation of the case by the Central Bureau of Investigation (for short “C. B. I.”), charge-sheet was submitted on 20-8-1976 before the Special Judge, C. B. I., North Bihar and cognizance was purported to have been taken on 30-8-1976. The case was subsequently transferred to the Special Judge, C. B. I. (South), Patna. This petitioner had come to this Court earlier against the order for framing of charges against him on the ground that he being no longer a “public servant”, could not be proceeded against before the Special Judge. This plea was rejected by my learned brother and it was held that a person could be tried in terms of Sections 5 (1) (e) and 5 (2) of the 1947 Act even after he ceases to be a public servant. Some directions were also given with respect to the period for which charges could be framed. The petitions were however, rejected since the cognizance itself had not been taken by that time and, therefore, the matter was sent back with certain observations. Cognizance was taken thereafter on 25-4-1978 Under Sections 5 (1) (e) and 5 (2) of the 1947 Act and then subsequently charges were also framed on 29-5-1978. This petitioner too filed an application on 25-1-1979 for his discharge on similar grounds as the other two petitioners, for, want of consent of the State Government Under Section 6 of the 1946 Act. The learned trial Judge, following the decision of this Court in Tarak Nath Roy’s case 1979 BBCJ (HC) 61 (supra), rejected the plea and also in view of the subsequent notification dated 22-2-1979, already referred to above, held that the irregularity, if any, was removed. Accordingly this petitioner has also come up to this Court.
3. Before taking up the main question raised in these cases as already indicated, namely, the lack of a valid consent Under Section 6 of the 1946 Act, it would be necessary to notice the legislative history of the relevant statute. As an aftermath of outbreak of the World War II, various unscrupulous and anti-social persons, both officials and non-officials, indulged in activities enriching themselves dishonestly at the cost of public and Government, The Government of India accordingly set up a central organisation for investigating offences relating to such transactions and the Delhi Special Police Establishment was set up in 1941 by an executive order under the administration of a Deputy Inspector General of Police with headquarters at Lahore, for the purposes of investigating cases of corruption connected with matters relating firstly only to the War Department. It appears that some doubt was raised about the jurisdiction and powers of investigation of offences by this Establishment and consequently an Ordinance being Ordinance No. 22 of 1943 was promulgated constituting a Special Police Force for the investigation of certain offences committed in connection with the Departments of Central Government with powers to investigate such offences wherever committed in British India. This Ordinance was issued under the powers conferred Under Sections 102 (1) and and 126-A (b) of the Government of India Act, 1935, but inasmuch as the Proclamation of Emergency was revoked with effect from 1st April, 1946, the Ordinance lapsed by the end of September, 1946, i. e., after the period of six months from the date of the said revocation in view of the restrictions contained in Sub-section (4) of Section 102. Since, however, the efficacy and advantages of this organisation were realised, it was considered expedient and necessary to continue this Police Establishment and, therefore, the Ordinance was replaced by the Delhi Special Police Establishment Ordinance No. 22 of 1946 which was subsequently replaced by Act XXV of 1946 which came into force on 19th November, 1946. After the Act came into force the superintendence of the Special Police Establishment was transferred to the then Home Department of the Government of India and its jurisdiction was extended to cover all the Departments of the Government of India.
Originally the investigation by the Special Police Establishment was intended to apply only to “certain offences committed in connection with matters concerning departments of the Central Government”. Section 3 of the Act authorises the Central Government “by notification in the official gazette to specify the offences or classes of offences committed in connection with matters concerning Departments of Central Government…to be investigated by the Delhi Special Police Establishment”. Section 5 of this Act authorised the Central Government to extend to any area (including Railway areas) in British India, outside the Chief Commissioner’s province of Delhi, aside “the powers and jurisdiction of members of the Delhi Special Police Establishment for investigation of any offence or classes of offences specified in a notification Under Section 3” by an order. On making of such an order the authority of the members of this Police Establishment were to be extended to any such area where they could discharge the functions of a Police Officer and were to be deemed to be members of the Police Force of that area vested with all the powers, functions and privileges, subject, however, to the liabilities of a Police Officer belonging to that Police Force.
4. The original Act of 1946 was subsequently amended in the years 1950, 1952 and also thereafter. Some of the amendments were formal in nature necessitated on account of the adaptation of laws and orders of 1953 and 1956 making mutatis mutandis changes and alterations. The important changes were, however, introduced by the Amending Act No. 26 of 1952 by which the restrictions in the long title and Preamble and Section 3 of the Act, which purported to apply the provisions of the Act only the State of Delhi for the investigation of certain offences committed in connection with the matters concerning Departments of the Central Government only, were omitted thereby enlarging the powers of the Central Government to specify offences or class of offences to be investigated by the Delhi Special Police Establishment with respect to the department beyond the Departments of the Government of India; and under the Act as it stands after the above amendments, its jurisdiction now extends to all the States and Union territories. But the authority to exercise powers and jurisdiction in any area in a State (not being a Railway area) is subject to the consent of the State Government concerned. This restriction is contained in Section 6 of the Act and it prescribes that “nothing contained in S, 5 shall be deemed to enable any member of the D. S. P. E. to exercise powers and jurisdiction in any area in a State without the consent of the Government of that State.”
It is this provision which provides the foundation for the questions raised by the petitioners of these cases.
The provision for consent was necessitated on account of the provisions contained in the Government of India Act, 1935 as well as the Constitution of India. List II of the Vllth Schedule of the Government of India Act as well as of the Constitution put the ‘police’ under the State List (then provincial legislative list and Entry No. 39 of List I (Federal legislative list) corresponding to Entry No. 80 of the present List I (Union list), contemplated that “extension of the powers and jurisdiction of the 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” could not be done “elsewhere without the consent of the Governor of the province or the Chief Commissioner, as the case may be”. Similar is the provision with mutatis mutandis changes in Entry No. 80 of the Union list of the present Constitution in view of Article 246 of the Constitution of India. It is, therefore, manifest and was rightly conceded to by the learned Attorney General, appearing for the opposite party, that giving of con-; sent by the State of Bihar was a condition precedent for application of the provisions of the 1946 Act within the State ‘territory.
5. The above discussions at once brings us to the consideration of the main question as to whether consent was given by the State of Bihar for the exercise of powers and jurisdiction by the Delhi Special Police Establishment within its territory or any part thereof. At this very stage I may also state that the Central Bureau of Investigation at Delhi with several divisions, was constituted by the Government of India by notification dated 1st April, 1963 for investigation of crimes being handled by the Delhi Special Police Establishment including specially important cases under the Defence of India Act and with respect to various other types of crimes and criminals and other difficult criminal cases, having all India or inter-State ramifications or of particular importance from the social point of view.
In exercise of the powers contained Under Section 5 of the 1946 Act the Central Government extended the powers and jurisdiction of the members of the Delhi Special Police Establishment to the various States from time to time, also specifying the various offences for their investigation. It was not, however, disputed before us that the offences which were investigated by the investigating agency were not covered by such a notification.
6. Before, however, entering into the main question elaborately I may do better to dispose of a small argument, though advanced with some force by Shri Balbhadra Prasad Singh appearing on behalf of one of the petitioners, namely, Santosh Kumar Bhattacharjee, in Criminal Revision No. 732 of 1979. The argument was based on the provisions contained in Section 92 of the Government of India Act, which required a notification to be published by the Governor of a province for application of an Act of the Federal Legislature to an excluded area or partially excluded area. He argued that the document which was filed on 27-6-1981 by the opposite party, along with the supplementary counter-affidavit at page 43 was only a ‘draft for approval’ of the said notification and no document was filed to prove the actual publication of the notification. As the publication of the notification was a sine qua non for the application of the notification Under Section 5, we called upon the counsel appearing for the opposite party to find out the actual position and to file the gazette publication if any. Accordingly the required gazette publication was filed which shows that the notification in question was published in the Bihar Gazette dated 8th January, 1947 directing that Act XXV of 1946 shall apply t0 the Chotanagpur Division and to the Santhal Parganas. It would be convenient to mention at this very place that the cases against two of the petitioners, namely, K. K. Malhotra and S. K. Bhattacharjee, fall within the territories of the said notified area. After the filing of the Gazette publication Shri Singh had to give up this point.
I may also mention that the question canvassed before us has been also considered by two learned single Judges of this Court on two occasions which were brought to our notice one in the case of Tarak Nath Roy 1979 BBCJ (HC) 61 (supra) and the other in an unreported case being Cr. Misc. No. 4471 of 1979 (Alok Kumar Ghose v. State of Bihar) disposed of on 16-5-1980. There is an apparent conflict between the two cases. In the reported decision while Shamsul Hasan, J. on the materials placed before him, held that the “consent in terms of Section 6 of the 1946 (Act) has not been given or shown to have been given in this case. In this situation officers of the Delhi Special Police Establishment have no jurisdiction to investigate into the case”, C. N. Tiwary, J, in Alok Kumar Ghose’s case took a contrary view and held that “there is ample evidence on record to prove that decision had in fact been taken by the appropriate authority to give consent to the exercise of power and jurisdiction by the members of the D. S. P. E. in this State”. With respect to Tarak Nath Roy’s case which was cited in the latter case, Tiwary. J. purported to distinguish that decision. He observed that the decision was based “on finding of fact which will not be binding on another single Judge before whom more facts and materials may be placed in this regard. Some of the materials which have been placed before me, do not appear to have been placed before his Lordship”.
7. We have already seen that the Special Police Establishment in question was initially set up for the purpose of investigating cases of corruption connected with the matters relating to the War Department. Later on, its scope and jurisdiction was enlarged and certain offences committed in connection with the Department of Central Government were also put within its jurisdiction; firstly within the limited territory and then throughout the country when the provisions were given the shape of Act XXV of 1946. We have also seen how by subsequent amendments its net was thrown wider and wider. While considering the question of consent it has to be kept in mind as was also fairly conceded by the learned Attorney General that fresh consent of the State Government was necessary when the amendment of 1952 was introduced in the Act making it all pervading i. e., extending its application and jurisdiction over the employees of the State Government also, after breaking the limitations and its confinement only to the departments of the Central Government.
8. ‘Consent’ has not been defined anywhere under the Act in question, but the Indian Contract Act defines it Under Section 13 as follows:
Two or more persons are said to consent when they agree upon the same thing in the same sense.
It cannot be disputed and as was put by the learned Attorney General that ‘consent’ is a question of fact and it can be either expressed or implied, but whereas according to the contention of the learned Attorney General consent could be given by the State Government at any stage, according to Shri Balbhadra Prasad Singh, who, if I may say so, advanced the main argument on this subject on behalf of the petitioners, it could be given only after the 1946 Act was promulgated as according to Shri Singh some correspondence which has been filed on behalf of the opposite party to establish the case of giving consent by the State of Bihar, might prove only the agreement of the State Government to the promulgation of such a legislation simply supporting the laudableness of its purpose and objects without, however, consenting or agreeing thereby to subject its own employees to the investigating jurisdiction of an outside agency or establishment. There may be some force in this contention but it has to be tested with reference to the documents themselves as the agreement between the parties (here the two Governments) must be ‘upon the same thing in the same sense’.
Let us now see as to whether this basic requirement for valid consent has been fulfilled by the various documents in the shape of notifications and correspondence.
9. All the relevant correspondence between the Central Government and the State of Bihar has been filed on behalf of the opposite party along with the counter-affidavit and the supplementary counter-affidavit. They also produced the original file containing the said correspondence for our perusal. The first document in point of time is a letter dated 9th of May, 1946 by the Deputy Secretary to the Government of India (Home Department) to all the provincial Governments informing that the life of Ordinance No, 22, (preceding Act No. XXV of 1946), was limited and it was considered necessary that the Special Police Force should continue to function even after that date and this object could only be achieved through a fresh legislation “first under Entry No. 3, List II of 7th Schedule to the Government of India Act, in order to create a Police Force within the Chief Commissioner’s province of Delhi and then under Entry No. 39 of the first list…in order to extend the powers and jurisdiction of the members of that Force to any area in another Chief Commissioner’s province or any Governor’s province, with the consent of the Chief Commissioner or the Government of that province, as the ease may be.”
This communication further recited in unequivocal terms that “before undertaking legislation on these lines the Government of India would be glad to receive the views of the provincial Governments under Entry 39 of List I of the 7th Schedule to the Government of India Act, 1935”. This letter was put up before the Chief Minister, who was then called as ‘Prime Minister’, by his Secretariat suggesting “to readily agree with the Govt. of India’s present proposal” as corruption cases were difficult to handle and, therefore, “Government may agree with the proposed procedure and give its consent to action under Entry 39 of List I of Schedule VII of the Government of India Act.” This proposal of the office was agreed to by the then Prime Minister of the State by his endorsement dated 28-5-1946. The agreement was then duly communicated to the Central Government by a telegram dated 1-6-1946.
In my view, this amounts to a complete consent of the State Government in the eye of law within the meaning of Section 6 of the Act inasmuch as there was sufficient indication in the communication of the Home Department that the Central Government wanted the consent of the State Government not only for the sake of my moral support for this laudable legislation but specifically wanted the consent in terms of Entry No. 39 of List I of the 7th Schedule, and once such a consent was specifically given with full knowledge of the implications in pursuance of the said Entry No. 39. in my view, it would be futile and too late in the day to contend that this could not amount to a valid consent in terms of Section 6. I also do not find any substance in the contention raised by Shri Balbhadra Prasad Singh that the consent could be accorded only after the Act had been promulgated. As I do not see any point of objection, particularly in the domain of law, as to why a consent could not be solicited by the Central Government even at the stage when the legislation was on the anvil so that on coming into force of the Act the Central Government or the State Governments may entrust the investigation of the important cases to this Police Establishment. The Government had already the experience of the working of this Police Establishment and was aware that there were many cases which had inter-State territorial complexion and, therefore, it might have been thought well in advance to have the consent of the provincial Governments for extending the territorial jurisdiction of the Special Police Establishment.
But this consent in any view of the matter would not solve the problem inasmuch as at the time this consent was given, the Act was directed only against the Departments of the Central Government and when the scope of the Act was subsequently enlarged and expanded so as to apply to the Departments of the State Governments exposing the employees to the perils of an investigation by a more sophisticated and competent investigating machinery, a fresh consent of the State Government was certainly called for.
10. It has, therefore, to be seen as to whether after the amendment of Act XXV of 1946 in the year 1952 there was any fresh consent of the State Government. It appears that this aspect of the matter was not raised in either of the cases which came to this Court, already referred to above. In the reported decision, however, reference has been made only to one letter after the telegraphic communication dated 1-6-1946 (referred to in paragraph 9 ante), i. e., a letter dated 29-1-1957 of Shri C. R, Vaidyanathan, the then Under Secretary to the Government of Bihar, in response to a letter dated 6-11-1956 of the Under Secretary to the Government of India (Shri K. B. Mandalekar). It was addressed to all the State Governments, but the letter of Shri Mandalekar called for a fresh consent only on the ground of re-organisation of the States, With reference to this letter, in the un-reported judgment Tiwary, J. has said that no fresh consent was called for on this account as there was no increase in the territorial constitution of the State. This, as a fact, however, seems to be incorrect as Seraikella and Kharasawan were amalgamated with the State of Bihar after the 1946 Act. The letter of Shri Vaidyanathan which has been also referred to by Hasan, J. in the reported decision reads as follows:
I am directed to refer to para 3 of letter No. 6/45/56 AVD, dated the 6th November, 1956, from the Ministry of Home Affairs on the above subject and to communicate fresh consent of the State Government to the functioning of the Special Police Establishment in Bihar for the purpose of the Delhi Special Police Establishment,
Yours faithfully,
Sd. C. R. Vaidyanathan
29-1-57
Under-Secretary to the Government.” The learned Judge, as already indicated earlier, held that this did not amount to the requisite consent within the meaning f Section 6 of the 1946 Act inasmuch as “no material signifying the consent of the State Government as was evidenced on the earlier occasion, was produced and, therefore, this consent at best could be said to be a communication of Shri Vaidyanathan in his personal capacity”. Tiwary, J. in his judgment, on consideration of this aspect of the matter has tried to distiguish this case on the ground that all the necessary facts were not placed in the above case, but earlier in para, 10 of his judgment he had already differed from Hasan. J. as would appear from his this observation:
Therefore, the authorisation in Sri Vaidyanathan’s letter is sufficient compliance with the provisions of Section 6 of the Act.
11. I feel myself inclined to fall in line with the reasoning of Tiwary, J. It is clearly stated in the letter of Shri Vaidyanathan that he was directed to communicate fresh consent of the State Government to the functioning of the Special Police Establishment in the State of Bihar. The learned Attorney General, therefore, rightly contended that apart from the fact that the tenor of this letter prima facie indicated that it could not be said to be a communication of Shri Vaidyanathan in his personal capacity as he sent the communication under the direction”, and the direction must be of the competent authority. He also contended that the Court should lean in relying upon the presumption that the official act must be presumed to have been done in a regular manner, particularly in view of the fact that nothing had been proved to the contrary and a long time had elapsed since the date of the communication. In the affidavit of Shri Vaidyanathan, a copy of which was filed in Tarak Nath Roy’s case 1979 BBCJ (HC) 61 and before us as well, Shri Vaidyanathan asserted that he had communicated the “consent of the Government” to the Government of India by the aforesaid letter and further that the expression “By Order of the Governor of Bihar” was not used by him to his aforesaid communication as it was neither necessary nor the practice to use such phraseology when the consent was communicated in a letter form. I, however, find myself unable to agree with Hasan, J. that simply because the details of the order of consent of the State Government in this regard were not produced as it was not available on the records, the communication of Shri Vaidyanathan would not amount to a consent of the State of Bihar. The subsequent conduct of the State Government in this regard also is in keeping with the case of the consent. Apart from the fact that the State Government constituted special Courts for trial of the offences committed in the State of Bihar, it also sent officers on deputation in the Special Police Establishment and accorded all facilities such as providing accommodation, transport and the like.
Apart from the above letter there are subsequent documents which, in any view of the matter, should be sufficient to clinch the issue. There was one letter of the Government of India (Ministry of Home Affairs), dated 21st of May, 1955 addressed to all the State Governments desiring fresh consent. This letter finds mention in the reply given on behalf of the State of Bihar dated 18-8-1955 communicating fresh consent of the State Government to the functioning of the Special Police Establishment in Bihar. The fact of the amendment of the parent Act several times is also clearly mentioned in this letter which was filed as Annexure M in the case before Tiwary, J. and noticed by him. Then there is another letter of 8th December, 1967 by Shri S. V. Sohoni, then the Chief Secretary of the State of Bihar with respect to a notification of the Central Government as Annexure ‘N’ in the above case. The Chief Secretary said as follows:
I am directed to state that on re-examination the State Government have decided to give consent to the extension of the jurisdiction and powers of the S. P. E. to investigate the offences under the sections referred to in your letter quoted above.
This was addressed to the Joint Secretary, Ministry of Home Affairs, Government of India.
12. In view of foregoing discussions and the documents referred to above, 1 have no manner of doubt or hesitation to hold that the State of Bihar had given an; unequivocal consent for application of the provisions of the 1946 Act in the whole of the State of Bihar.
13. With reference to certain other ancillary arguments advanced in challenge of these documents that the same were not expressed in terms of Article 166 of the Constitution of India or the rules of Executive Business, suffice it may to refer to an early decision of the Supreme Court in State of Bombay v. Purushottam Jog Naik wherein it was held that what the Court has to see is whether the substance of requirement of Article 166 (1) is there or not, This decision was followed by the Supreme Court in a later decision in the case of E. G. Barsay v. State of Bombay and on an argument advanced of a similar nature, it was again observed that any non-compliance with the provisions of the said Rules did not invalidate the order. In this case Subba Rao, J. who delivered the judgment for the Court, also referred with approval the observations of Das, J. in Dattatraya Moreshwar v. State of Bombay that the provisions of the said Article 166 are only directory and not mandatory. Several cases have been referred by Subba Rao, J. in this case to repulse the thrust on the vires of such orders on similar grounds.
The learned Attorney General advanced yet another argument on the question of consent and it was that even assuming for the sake of argument that none of these documents constituted a valid consent within the meaning of Section 6 of the Act, the conduct of the State Government in establishing Courts and affording all facilities of men and material and subjecting its officers to the decision of the C. B. I. for investigation in particular, would amount to an implied consent. For the view that I have taken above that the documents in question do constitute a direct and explicit consent in the eye of law, there is no necessity of basing the decision on this aspect of the matter but the argument of implied consent has also substance and does lend support to the case of main consent.
14. The cases relating to J. N. Sahay, however, stand on a still lower pedestal. The learned Attorney General tried to steer clear from the main attack on the documents signifying consent and argued that in any view of the matter, there was direct evidence to show that the State Government had given consent to the Central Government for investigation of the specific offences alleged to have been committed by this petitioner. It was accordingly contended that if a specific request was made by the State Government to the Central Government for making investigation with respect to the offences committed by any particular person, giving details of the offences committed by him, it amounted that the State Government was consenting to the investigation by the agency of the Special Police Establishment, to exercise all powers of the investigating agency throughout the area which may be related with the offences in question alleged to have been committed by the person concerned and thus it amounted to the giving of consent with respect to those particular area(s).
learned Counsel appearing for this petitioner, however, tried to combat this argument on the ground that there could be no such “casewise” or “personwise” consent and that the consent could be either for the whole or any part of a State.
15. I do not find any force in this contention advanced by learned Counsel for the petitioner in this regard. All that is contemplated either by entry 39 of the 1935 Act or for that matter, Entry 80 of the Constitution of India referred to earlier, is that a Police Force belonging to any part other than the part where it is called upon to investigate any case, cannot do so unless its powers to investigate were extended by obtaining the consent of the concerned State over whose territory the members of the Police Force belonging to an outside agency were to put their feet. It is not possible to read in Section 6 to support the reasoning and argument of learned Counsel for the petitioner that the consent of the State Government cannot be given in relation to an ‘area’ in this manner and that it must be with respect to the whole of the State or any part of the same as such. It goes without saying that offences by an accused are committed in relation to a geographical area or places and, therefore, once a consent is given for investigating particular offences committed by any particular person, obviously and as a matter of necessary corollary, it would amount to giving consent for the investigation over the entire area and confer jurisdiction for making investigation with reference to the entire area over which the offences committed by any particular person are spread over.
16. In the counter-affidavit in question it. has been stated that when the activities of this petitioner came to the light of the Electricity Department of the Government of Bihar, the then Chief Secretary Shri S. V. Sohoni on the request of the Department concerned, put a note before the Chief Minister to get “the entire bunglings investigated by the C. B. I.” and the then Chief Minister Shri Mahamaya Prasad Sinha while agreeing with the proposal also suggested for consulting the Deputy Chief Minister and the Minister incharge of Electricity Department. The aforesaid notes have been filed along with the counter-affidavit as Annexures A and B.
The file was thereafter put up before Shri Karpoori Thakur, the then Deputy Chief Minister, who too agreed with the proposal of the Chief Secretary and thereafter the Chief Minister endorsed th<; said proposal for getting the case investigated by the C. B. I. The entire note sheet has been filed as Annexure C. The Minister for Electricity also ultimately accorded his approval and thereafter Shri Sohoni on 8-10-67 wrote a letter to Shri L. P. Singh, the then Secretary to the Government of India. Ministry of Home Affairs conveying the decision and consent of the State Government to get the case investigated by the C, B. I., by his letter dated 8/lOth Oct., 1967 (Annexure E). An audit of the Stores and account of the Electrical Works Division was thereafter carried out under the orders of the Central Govt. and the matter again then passed through the Governor (Annexure G, dated 18-7-1968), the State having gone in the mean time under President's rule.
17. In view of the above facts, therefore, I have no manner of doubt that in any view of the matter and taking the least line of resistance, the argument advanced on behalf of this petitioner regarding the invalidity of the investigation conducted by the C. B. I. in his cases on the ground of absence of valid consent as required Under Section 6 of the 194G Act must be rejected as the above documents clearly prove a direct consent of the State Government.
I also find ample support for the above view from the case of E. G. Barsay 1961 (2) Cri LJ 828 (SC) (supra).
18. The learned Attorney General had also contended that ‘investigation’ was simply a process to collect evidence against an accused and Under Section 8 of the Criminal Law Amendment Act, 1952 a Special Judge was empowered to take cognizance oi an offence without the accused being committed to him for trial. In the other words, he adopted the same line of argument which was done on behalf of the State of Bihar in Tarak Nath Roy’s case 1979 BBCJ (HC) 61 (supra) and that was that if cognizance is based on a police report which is the result of an investigation without any legal authority, the trial en its basis cannot be vitiated unless it is shown that such an investigation has brought about a miscarriage of justice. This contention was accepted by Hasan, J in Tarak Nath’s case where reliance was put on the observations in the case of H. N. Rishbud v. State of Delhi . Without entering into any elaborate discussion. I would quote the said observations which read as follows:
A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190, Cr. P. C. as the-material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190, Cr. P. C. is one cut of a group of sections under the heading ‘Conditions requisite for initiation of proceedings.
Proceeding further, the Supreme Court observed:
…it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity … cognizance so taken is only in the nature of error in a proceeding antecedent to the trial. To such a situation Section 537. Cr. P. C. (old) is attracted.
The learned Attorney General tried to gain strength from a subsequent Government notification published in the Bihar Gazette, Extraordinary, dated the 10th July, 1979, being S.O. No. 1137, reading as follows:
In exercise of the powers conferred by Section 6 of the Delhi Special Police Establishment Act. 194(5 (Act XXV of 194(5), the Governor of Bihar is pleased to signify his consent to the exercise of the powers and jurisdiction by the members of the Delhi Special Police Establishment in the whole of the State of Bihar in respect of investigation of the following offences and classes of offences:
** ** ** ** [VI/M2-104/79-H(P)1 By order of the Governor of Bihar, P. SINHA, Special Secretary to Government.
This document is the last word on the question of consent, meeting all possible attacks with respect to the earlier documents signifying consent. The learned Attorney General’s argument was that all that could be done if the argument advanced on behalf of the petitioners could be accepted, was that the Court would direct a re-investigation and inasmuch as in view of the subsequent notification of 10th July 1979, re-investigation would be done by the same agency, namely, the C. B, I., no benefit would flow to any of the petitioners.
On the question of prejudice, the only argument that was advanced by Mr. Balbhadra Prasad Singh was that the Investigating authority has not referred to the various materials sought to be produced by his client which, if examined in proper context, would have absolved him from any criminal liability.
In my opinion, the investigating agency has to find out such materials which would prima facie support a complaint for sending up an accused for trial and not to go into the niceties of complicated questions and as to the possibility of the success of the defence case. I. therefore, feel satisfied that in any view of the matter the petitioners have singularly failed to prove any element of prejudice on account of the so-called unauthorised investigation by the agency in question in their cases and as such on this score also the applications have got to fail.
19. All the points raised by the learned Counsel for the petitioners have thus been found to be devoid of any substance. The applications are accordingly dismissed. Since the matter has already been sufficiently delayed at different stages, the trial court is directed to conclude the hearing of these cases with all possible speed.
Uday Sinha, J.
20. I agree.