CBI empowered with general consent to investigate offences in erstwhile State of J&K: HC

03/02/2023

JAMMU, Feb 2: Justice Sanjay Dhar of Jammu & Kashmir and Ladakh High Court holds that CBI is empowered with general consent to investigate offences in the erstwhile State of J&K.
While dismissing the bunch of petitions, Justice Sanjay Dhar observed that a common question of law as to whether the Central Bureau of Investigation is vested with jurisdiction to investigate offences committed within the territorial jurisdiction of erstwhile State of Jammu and Kashmir prior to its bifurcation into two Union Territories, has arisen in all these petitions. Besides laying challenge on the ground of jurisdiction of the CBI to investigate the offences, certain other grounds of challenge to the prosecution launched by Central Bureau of Investigation against the petitioners, which are peculiar to individual cases have also been raised by the petitioners. The petitions have been clubbed together on account of the fact that a common question of law has arisen as regards the jurisdiction of Central Bureau of Investigation to investigate offences committed in the erstwhile State of Jammu and Kashmir, as such for the present, by virtue of this judgment/order, it is proposed to deal with the said question of law only.
It has been contended by counsels appearing for the petitioners that the Central Bureau of Investigation lacks jurisdiction to investigate the FIRs which have been impugned in these petitions because no consent in terms of Section 6 of the Delhi Special Police Establishment Act (hereinafter referred to as DSPE Act) has been accorded by the erstwhile State of Jammu and Kashmir to the investigation of the instant cases. According to the petitioners, the Central Bureau of Investigation, before undertaking investigation of the impugned FIRs, was bound to obtain consent of the State Government in individual cases in terms of Section 6 of the DSPE Act and because the same has not been done, as such, the CBI lacks inherent jurisdiction to investigate the impugned FIRs and to file challan against the petitioners. It is also contended that notifications/orders in terms of Sections 3, 5 and 6 of DSPE Act are required to be issued in the same order in which these provisions have been incorporated in the Act, meaning thereby that in the first instance there has to be a notification under Section 3 which should be followed by an order under Section 5 and finally there has to be consent of the State Government in terms of Section 6 of the DSPE Act. It is contended that in the instant case, even if it is assumed that notifications/orders/consent have been issued by the relevant authorities, the same has not been done in the aforesaid order, which goes on to show that the provisions of DSPE Act have been observed in breach. It is also contended that under the provisions of Jammu and Kashmir Prevention of Corruption Act the offences are required to be investigated by the officers of Vigilance Organization, as such, the members of the CBI are not authorized to investigate offences under the aforesaid Act.
Justice Sanjay Dhar after hearing battery of lawyers for the petitioners whereas Advocate General DC Raina for the UT whereas TM Shamsi for the UOI, observed that a bare perusal of the contents would reveal that the Government of Jammu and Kashmir has accorded a general consent to CBI exercising its jurisdiction in the State of Jammu and Kashmir for investigation of offences mentioned in the aforesaid letter. Had it been a case of consent on case to case basis then the particulars of the case, the particulars of the FIR or the facts of the case regarding which the consent was accorded would have been mentioned in the said communication which is not the case. Merely because the Government of Jammu and Kashmir wants to read this communication in a particular manner does not mean that it conveys the said meaning. A communication or a document has to be read as a whole and contents thereof have to be given a plain construction. When a plain construction is given to the contents of the letter dated 7th May, 1958 one comes to the irresistible conclusion that it is a general consent and not a consent on case to case basis. It contains particulars of as many as thirteen categories of offences in respect of which Government of Jammu and Kashmir has accorded its consent in terms of Section 6 of the Act. It is not the case of the State Government that the person who has signed the said communication was not authorized to do so or that the said consent has been withdrawn at any stage by the competent authority. The stand of the Government of the Union Territory is that it is not a general consent. The said stand of the Government on the bare reading of the communication appears to be without any substance.
The above position further gets substantiated by the subsequent events. When the Government of India contemplated to include certain more offences in the notification under Section 3 and order under Section 5, a fresh communication was addressed by the Government of India to State Government on 22nd July, 1963 and annexed to the said communication were the draft notification (Under Section 3) and the draft order (Under Section 5). The Government of Jammu and Kashmir vide its communication dated 18th December, 1963 conveyed its consent to the issuance of these draft notifications/orders, thereby according its consent to the jurisdiction of CBI to investigate additional classes of offences as well. Both these consent letters, i.e., letters dated 7th May, 1958 and 18th December, 1963 have not been withdrawn and at least nothing is stated in the affidavit of the Government of Union Territory of Jammu and Kashmir in this regard, meaning thereby that both these communications conveying consent of the State Government were in force at the relevant time.
Court further observed that mere filing of affidavits in Court proceedings by officers of the State Government contending that there was no general consent given by the State Government would not nullify the effect of the communications already addressed by the competent authorities of the State Government to the Government of India according consent to the jurisdiction of CBI to investigate certain offences in the State of Jammu and Kashmir. The giving of consent by the State Government is exercise of the executive power of the Government. Ordinarily, such an order expressing the consent has to be by an authorized person under Article 166(2) of the Constitution. The letters of consent which are subject matter of the instant case clearly show that the same have been issued in the name of Government of Jammu and Kashmir. The State Government as defined in Section 3(60)(C) of General Clauses Act means the Governor. Therefore, these communications have been issued in exercise of powers under Article 166(2) of the Constitution. In order to withdraw these communications a similar method is required to be adopted by issuing communications authenticated by an authorized person under Article 166(2) of the Constitution. Filing of affidavits in Court proceedings or conveying answers to RTI queries without actually communicating to the Government of India that the consent has been modified or rescinded, does not mean that these letters of consent ceased to have effect. Thus, letters of consent dated 7th May, 1958 and 18th December, 1963 continued to remain in force on the relevant dates.
It has been contended that once fresh notification under Section 3 or order under Section 5 is issued, there has to be a fresh consent by the State Government in terms of Section 6, which in the instant case, according to learned counsel for the petitioners, is missing. The argument raised is without any merit for the reason that it would be contrary to all the principles to take the view that the State Government has to go on issuing new letters of consent merely because the Central Government chooses to issue a new notification under Section 3. In fact the State Government may refuse to issue a new letter of consent on the ground that it wants that the consent be restricted to the offences already notified only. By superseding notifications or orders, the Central Government may desire to include additional offences, to which the State Government may not wish to accord the consent. The letter of consent issued by the State Government remains valid until it is withdrawn in the manner provided under Article 166(2) of the Constitution and the same remains valid in respect of the offences to which the consent pertains.
Justice Sanjay Dhar further observed that the language of the two consent letters issued by the Government of Jammu and Kashmir, which admittedly have not been withdrawn, clearly suggests that a general consent was accorded by the State Government to the jurisdiction of CBI to investigate certain offences in the erstwhile State of Jammu and Kashmir. There are instances when the State Government has accorded consent to investigation of cases by CBI on case to case basis, but most of these cases pertain to matters involving transfer of investigation from local Police to CBI or the cases referred by Constitutional Courts to the CBI.
It has been contended by the Advocate General that the practice hitherto followed by the Government of Jammu and Kashmir has been to give consent to CBI to investigate any particular cases by issuing separate notifications under Section 6 of the Act. According to the learned counsel for the petitioners realizing the fact that such specific notification is necessary to empower the CBI to investigate each and every particular case a procedure of issuing specific notification in respect of specific cases is being followed by the Government of Jammu and Kashmir. Therefore, according to the counsel for the petitioners individual notification in respect of every case under Section 6 of the Act is necessary to cloth the CBI with power and jurisdiction to investigate the cases in the erstwhile State of Jammu and Kashmir.
Court observed that in the above context it has to be noted that when a case is registered by local Police and the State Government intends to transfer the investigation of the case to CBI there has to be a specific consent by the State Government to empower the CBI to investigate the case registered by the Police. This is to avoid parallel proceedings in respect of the very same offences. Once the CBI is entrusted with the investigation of such a case its members discharge the functions of the Police Officer Incharge of the Police Station, as such, in order to avoid any difficulty in investigation due to concurrent jurisdiction exercised by the local Police as well as the CBI a specific consent notification has to be issued by the State Government. In the face of the general consent accorded by the Government of Jammu and Kashmir to the jurisdiction of the CBI to investigate certain offences in the erstwhile State of Jammu and Kashmir no such specific consent is called for in the cases that are directly registered by the CBI as there is no question of any parallel investigation parallel investigation in such cases. Thus, no separate or specific consent with regard to each case to be investigated by the CBI is necessary and it is only in cases where the FIR has been registered by the local Police and the investigation is sought to be transferred by the CBI, a specific consent is required. This is what has been done by the State Government in most of the cases while issuing specific consent notification under Section 6 of the Act.
31. There may be a couple of instances where even in cases which have been directly registered by the CBI, the State of Jammu and Kashmir has accorded specific consent, but the same is superfluous in view of the fact that a general consent has been accorded by the Government as has been indicated herein before. A specific consent may also be required in a case in which subject matter of investigation is an offence which is not mentioned in the consent letter and the order issued under Section 5 of the Act.
It has further been contended by counsel for the petitioners that some of the offences like offences relating to conspiracies are not mentioned in the consent letter dated 7th May, 1958 and even the new offences created under the Jammu and Kashmir State Prevention of Corruption Act, 2006 are not included therein. It is to be noted that subsequent to the consent letter dated 7th May, 1958, another consent letter has been issued by the Government of Jammu and Kashmir on 8th December, 1963, which was necessitated due to addition of certain more offences in the notification under Section 3 and order under Section 5 of the DSPE Act. Vide the said consent letter, the consent has been accorded to the issuance of such notification/order and in these notification/order even the abetments, attempts and conspiracies relating to all categories of offences mentioned in those notification/order have been incorporated. So far as the offences punishable under the Jammu and Kashmir State Prevention of Corruption Act are concerned, all the offences are included in both the consent letters, therefore, all offences punishable under the said Act as amended from time to time would come within the purview of the consent letters. The argument of learned counsel for the petitioner in this regard is, therefore, without any merit, Court said.
Lastly, it has been argued by counsel for the petitioners that members of the CBI are not vested with jurisdiction to investigate offences under Jammu and Kashmir Prevention of Corruption Act, as a specialized agency, viz., Vigilance Organization has been created for investigation of offences under the said Act. The argument appears to be without any merit for the reason that once an order under Section 5 of the DSPE Act is issued extending the powers of CBI for investigation of any offences or classes of offences to a State, a member of the CBI discharging functions of a Police Officer in that State, is deemed to be a member of the Police Force of that area and he is vested with powers, functions and privileges etc. of a Police Officer belonging to that Police Force. Thus, once a member of the CBI is vested with jurisdiction to investigate offences under the Jammu and Kashmir Prevention of Corruption Act in the State of Jammu and Kashmir, he would exercise the same powers and privileges as are available to an officer of Vigilance Organization.
Court do not find any reason to depart from the consistent view taken by this Court that the erstwhile State of J&K has accorded a general consent to the exercise of jurisdiction of CBI to investigate certain classes of offences in the erstwhile State of Jammu & Kashmir and that the contention that CBI lacks jurisdiction to investigate these classes of offences in the erstwhile State of J&K, is without any merit.
Court observed that for the foregoing reasons the common question of law that has arisen in all these petitions is answered in the following mannerthe erstwhile State of Jammu and Kashmir has accorded general consent under Section 6 of the DSPE Act for exercise of jurisdiction by the CBI to investigate the offences mentioned in the consent letter dated 07.05.1958 read with letter dated 18.12.1963 and that these communications have not been withdrawn by a competent authority of the erstwhile State of Jammu and Kashmir. Thus, the Central Bureau of Investigation has jurisdiction to investigate the offences mentioned in the aforesaid two consent letters read with notification dated 01.04.1964 and order dated 01.04.1964 and directed the Registries of both the Wings of this High Court to delink all these petitions and list the same separately before the roster Bench for consideration on other legal grounds raised in the petitions on individual basis. Since the stay of proceedings before the Trial court was granted primarily on the ground of jurisdiction of the CBI to investigate the impugned FIRs, as such, having regard to the answer rendered by this Court to the said question of law, the stay of proceedings before the Trial court shall stand vacated. The matters be listed before the Registrar Judicial, Jammu and Registrar Judicial, Srinagar on 20.02.2023 for fixing of dates in individual cases.

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