SUPREME COURT HOLDS SECTION 6A OF THE DELHI SPECIAL POLICE ESTABLISHMENT ACT 1946 AS UNCONSTITUTIONAL FROM THE DATE OF ITS INCEPTION

In a recent judgment dated 11-09-2023 passed by the Constitution Bench of 5 Judges, in the matter of CBI vs R.R. Kishore Criminal Appeal No. 377 of 2007, held that Section 6A of the Delhi Special Police Establishment Act 1946 (DSPE Act) as unconstitutional with retrospective effect i.e. 2003, when the said Act was amended.

The Constitution Bench was constituted to consider whether the Constitution Bench judgment in the case of Subramanian Swamy vs. Director, Central Bureau of Investigation and Another (2014) 8 SCC 682, which had declared Section 6A of DSPE Act to be unconstitutional, could be applied retrospectively in context with Article 20 of the Constitution of India[1].

The facts in brief are that the Central Bureau of Investigation (CBI) after registering an FIR on 16-12-2004 under the Prevention of Corruption Act 1988 (PC Act) laid a trap for catching a radiologist red-handed in conducting the banned pre-natal test to determine the sex of a foetus. Upon arrest, the Accused-Doctor applied for discharge on the ground that the investigation / inquiry was conducted without previous approval of the Central Government as provided under Section 6A of DSPE Act. The Special Judge, CBI rejected the Application and the Accused-Doctor went in Revision to the High Court. The High Court framed three questions for consideration, namely:

(1) What is the background with regard to Section 6A of the DSPE Act?

(2) Did the CBI act in contravention of Section 6A (1)?

(3) If yes, does it mean that the entire trial, consequent upon an illegal investigation, is vitiated?

The High Court considered the Question 2 in favor of the Respondent-CBI but the other Questions were left to be decided by a competent authority.

The High Court further held that in case sanction was granted to the CBI for pursuing the case, the CBI would have the power of re-investigation and in the event that sanction was refused, the Special Judge, CBI could close the case.

The operative part of the Order of the High Court is reproduced below for a better understanding of the Order:

“29. It follows that if, at the initial stage of trial, the illegality of investigation is brought to the notice of the court and yet the Trial Court continues with the trial then, such proceedings would be liable to be set aside by the High Court in exercise of its revisional jurisdiction. In this case, in view of the discussion above, it is clear that the provisions of Section 6 A(1) of the Prevention of Corruption Act, 1988 are mandatory and not merely directory. The investigation carried out in contravention of such provisions is, therefore, clearly illegal, in violation of a statutory requirement. The dismissal of the discharge application moved on behalf of the petitioner means that the trial would continue. This cannot be permitted in view of the discussion above. Because, then the court would be turning a blind eye and a deaf ear to the illegality in investigation which has been brought to its notice at the earliest stage. However, it also does not mean that the petitioner is entitled to a discharge and the closure of the case against him. As pointed out in Rishbud’s case and Mubarak Ali’s case, reinvestigation is to be ordered in the context of the provisions of section 6A of the said Act. While the file is to be kept pending before Special Judge, approval of the Central Government is to be sought for investigation. If approval is accorded then the matter shall be reinvestigated as per prescribed procedure and the material gathered in such re-investigation shall be placed before the Special Judge for further proceedings in accordance with law. If the approval is not given by the Central Government, then the same shall be notified to the Special Judge who shall then close the case.”

Aggrieved by the High Court Order, the CBI approached the Hon’ble Supreme Court on the ground that Section 6A (2) of DSPE Act would be applicable and not Section 6A (1).

The present Appeal has been pending since 2007 and during the pendency of the Appeal, the Constitution Bench, vide Judgment dated 06-05-2014, in the case of Subramanian Swamy (supra), held that Section 6A of DSPE Act was invalid. The Court in the Subramanian Swamy (supra) judgment held as follows:

“99. In view of our foregoing discussion, we hold that Section 6A(1), which requires approval of the Central Government to conduct any inquiry or investigation into any offence alleged to have been committed under the PC Act, 1988 where such allegation relates to: (a) the employees of the Central Government of the level of Joint Secretary and above, and (b) such officers as are appointed by the Central Government in corporations established by or under any Central Act, government companies, societies and local authorities owned or controlled by the Government, is invalid and violative of Article 14 of the Constitution. As a necessary corollary, the provision contained in Section 26(c) of Act 45 of 2003 to that extent is also declared invalid.”

The Constitution Bench in Subramanian Swamy (supra), however, while deciding the above issue did not decide whether the said declaration of Section 6A (1) of DSPE Act being violative of Article 14 of the Constitution would have retrospective effect or would apply prospectively. This matter was finally decided by the Supreme Court Constitution Bench in the present matter.

The Supreme Court referred to the history of obtaining the sanction for initiating an inquiry against certain categories of civil servants as being violative of Article 14 of the Constitution.

The Apex Court confined itself to the specific question as to whether the said declaration of Section 6A of DSPE Act being unconstitutional and violative of the Constitution would have a retrospective effect or would apply prospectively from the date when it was declared. Answering this question, the Court was of the view that taking prior sanction of the designated authority for initiating investigation against a public servant was already considered by the Supreme Court in the matter of Vineet Narain and Others Vs. Union of India and Another (1998) 1 SCC 226 and was struck down in the said matter. The Court concluded that a similar sanction was to be taken under Section 6A of the DSPE Act till it was declared and struck down as unconstitutional in the matter of Subramanian Swamy (supra) and held that the said declaration would apply retrospectively i.e. since its inception from 2003.

The Apex Court while ruling that the declaration of invalidity was to apply retrospectively, concluded as follows:

“44. As indicated in the earlier part of this judgment, this Court has not delved into the other issues and arguments not germane to the reference order.

45. Accordingly, the matters may be placed before the appropriate Bench to be heard and decided on merits.”

Shaurya Mani Pandey

Associate

The Indian Lawyer

 

[1] Article 20. Protection in respect of conviction for offences.—

(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

(2) No person shall be prosecuted and punished for the same offence more than once.

(3) No person accused of any offence shall be compelled to be a witness against himself.