TMI Blog1998 (4) TMI 546X X X X Extracts X X X X X X X X Extracts X X X X ..... aint of Shri Vijayan another case was registered by Vanchiyoor Police Station (Crime No. 246 of 1994) against her ( Mariyam Rasheeda) and Fouzia Hassan [appellant in the Criminal Appeal arising out of S.L.P. (Crl.) No. 503 of 1998] for offences punishable under Sections 3 and 4 of the Indian Officials Secrets Act, 1923 ('IOS' Act for short) on the allegation that in collusion with some Indians and foreigners they had committed acts prejudicial to the safety and sovereignty of India. 5. Initially both the cases were investigated by Shri Vijayan but later on a special team of State police officials, headed by Shri C.B. Mathew, Deputy Inspector General (Crimes ), and including Shri Vijayan, was constituted to investigate into the same. In course of the investigation S. Nambi narayanan (appellant in Criminal appeal No. 493 of 1997), two senior scientists working with the Indian Space Research Organisation ('I.S.R.O.' for short), a labour contracter, K. Chandrasekhar (appellant in Criminal Appeal No. 494 of 1997), an authorised representative of a Russian Firm in India, besides the above tow ladies were arrested. 6. While the investigation was in progress, Shri Mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tigation. On completion of investigation in the former the C.B.I. submitted charge- sheet (challan) against Mariyam Rasheeda on December 4, 1994, which culminated in an order of acquittal recorded in her favour by the Chief Judicial Magistrate, Cochin on November 11, 1996. As regards the latter the C.B.I. filed its report in final from under Section 173 (2) of the Code of Criminal Procedure ('Code' for short) on April 16, 1996 before the same Magistrate praying for discharge of all the accused persons as, according to it, the allegations of espionage were not proved and they were false. The report was accepted and the accused-appellants were discharged. Thereafter on June 27, 1996 the Government of Kerala issued a notification withdrawing t he consent earlier given to the C.B.I. to investigate Crime No. 246/94 ( R.C. No.11/S/1194). The said notification along with its explanatory note reads as under:- In pursuance of the provisions of Section 6 of the Delhi Special Police Establishment Act, 1946 ( Central Act 25 of 1946), the Government of Kerala hereby withdraw their consent accorded as per notification No. 66329/SSA 3/94/Home, dated the 2nd December, 1994 for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to order further investigation by its Police Officers into the allegations which had already been investigated into by the C.B.I. Accordingly, they prayed for quashing of the notification dated June 27, 1996, as amended by the notification dated July 8, 1996. In supporting the accused - appellants , the C.B.I. first submitted that as the consent given under Section 6 of the Delhi Special Police Establishment Act ('Act' for short) fell in the category of conditional legislation, the question of withdrawal could not and did not arise for the powers conferred thereunder had exhausted themselves with the initiation of Investigation by it. It next submitted that in case any further evidence surfaced, the Government of Kerala could only refer the same to the C.B.I. for it was alone competent to further investigate into the matter. By its judgment dated November 27, 1996 the High Court of Kerala dismissed the writ petitions on the ground that the matter of giving or withholding of consent under Section 6 of t he Act was an executive active of the State Government and the said Act was not a piece of conditional legislation. According to the High Court Section 21 of the General Cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 3. The members of the Said establishment of or above rank of sub Inspector are empowered, subject to any order which the Central Government may make in this behalf, to exercise any of the powers of the officer in charge of a police station in the area in which he is for the time being, and when so exercising such powers shall, subject to any such orders as aforesaid, be deemed to be an officer in charge of a police station discharging the functions of such an officer within the limits of his station. Section 3 empowers the Central Government to specify the offence or offences or classes of offences which are to be investigated by the Delhi Special Police Establishment i.e. C.B.I, by issuing notifications in the Official Gazette. Under Section 5, the Central Government can extend the powers of the Delhi Special Police Establishment to any other part of the Country for the investigation of any offences or classes of offences specified in a notification issued under Section 3. Once such an order is made under sub-section (1) of Section 5 the members of the establishment shall be deemed to be the members of the police force of the extended area and will be vested with powers, f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbers of the Delhi Special Police establishment exercising powers and jurisdiction within the State of Kerala in respect of the offences specified in the above notification, and submitted that the notification dated December 2, 1994 granting consent ( and for that matter withdrawal thereof) only for Investigating into No. 246/94 was redundant for by virtue of the earlier letter of general consent, the C.B.I. was competent to investigate into all offences mentioned in the notification dated November 6, 1956 including the offences in question. His main submission, however, was that once a consent was given by a State Government empowering the C.B.I. to investigate into an offence, the former could not withdraw the same. In support of this contention he relied upon the judgement of this Court in Kazi Lhendup Dorji vs. Central Bureau of Investigation [ 1994 Supp (2) SCC 116]. His last submission was that the withdrawal of the consent was clearly a malafide action on the part of the Government of Kerala. To bring home this contention, he relied upon certain facts and circumstances appearing on record, to which we will refer at the appropriate stage. 17. The learned counsel appearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have to decide under Section 186 of the Code as to which of those Courts would try the offence. He contended that Section 186 of the Code clearly demonstrates that while the law does not contemplate parallel trials for the same offence in different Courts it does clearly envisage parallel or simultaneous investigations of the Same offence by police officials of different States. He reiterated that since the law does not prohibit simultaneous investigation by different investigation agencies into the same offence if each one of them has been conferred powers of investigation, the issuance of an order under Section 5(1) of the Act along with the consent of the State Government under Section 6 thereof would only mean that the officers of the C.B.I. can also investigate into that offence. To buttress his contention he drew our attention to the judgment of t he Court in A.C. Sharma v. Delhi Administration [(1973) 1 SCC 726]. In that case the following question came up for consideration (as formulated by this Court in paragraph 6 of the judgment:- This short but important question with far reaching effect, if the appellant's contention were to prevail, requiring our decision is, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial powers and since grant of consent under Section 6 of the Act was merely an administrative power withdrawal thereof would be permissible under that section. 22. We are constrained to say that the entire argument Mr. Shanti Bhushan centring round Section 156, read with Chapter XIII, of the Code is fallacious; and the fallacy lies in the basic premise on which he sought to build his argumentations edifice. In the present appeals, we are not concerned with the question of initiation of parallel or simultaneous investigation by two different agencies, viz. C.B.I. and state police in two separate cognizable cases registered at two different places over on and the same offence. We are also not concerned with the question whether both C.B.I. and Kerala Police have/had jurisdiction to initiate investigation into the offences in questions [answer to which has already been given in the case of A.C. Sharma (supra)]. Indeed, the question that falls for our determination is altogether different: and that is, when the investigation into an offence is transferred and entrusted to C.B.I. for investigation pursuant to consent given under Section 6 of the Act and the C.B.I. has not only start ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anuary 7, 1987, withdrawing the consent was in violation of the provisions of the Act. In contesting the petition Shri Bhandari (who was arrayed as Respondent No. 4 therein) contended, inter alia, that the consent given under Section 6 of the Act could be rescinded under Section 21 of the General Clauses Act, 1897. In allowing the petition this court held;- Coming to the conclusion urged by Shri Jethmalani on merits it may be mentioned that Section 21 of the General Clauses Act does not confer a power to issue an order having retrospective operation. Therefore, even if we proceed on the basis that Section 21 of the General Clauses Act is applicable to an order passed under Section 6 of the Act, an order revoking an order giving consent under Section 6 of the Act can have only prospective operation and would not affect matters in which action has been initiated prior to the issuance of the order of revocation. The impugned notification dated 7-1-1987, has to be construed in this light. If thus construed it would mean that investigation which was commenced by CBI prior to withdrawal of consent under the impugned notification dated 7-1- 1987, had to be completed and it was not af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xxx (7) xxx xxx xxx (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge if the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) and (6) shall, as far as may be, apply in relation to such report or report as they apply in relation to a report forwarded under sub- section (2) 25. From a plain reading of the above Section it is evident that even after submission of police report under sub- section (2) on completion of investigation, the police has a right of 'further' investigation under sub-section 08) but not fresh investigation' or 're-investigation'. That the Government of Kerala was also conscious of this position is evident from the fact that though initially it stated in the Explanatory Note of their notification dated June 27, 1996 (quoted earlier) that the consent was being withdrawn in public interest to order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the following facts and circumstances as appearing on the record:- (i) while requesting the Director General of Police, Thiruvananthapuram, to transfer the case to C.B.I. for investigation by his letter dated 30.11.94, Shri Mathew, the Deputy Inspector General of Police (who, as noticed earlier, impleaded himself as a respondent in the writ petitions filed by the accused - appellants in the High Court) Stated as under:- (1) The incidents of this case are spread over the three states of Kerala, Tamilnadu and Karnataka and foreign locations like Colombo and Male. (2) There is reason to believe that strategically important information about the IAF/Armed Forces (R D Wing ) have been passed on by the espionage chain to unfriendly countries. The complicity of senior military personnel is very likely. The State police may not be able to question them, conduct search in their office, etc. (3) There is information (not fully authenticated) about the involvement of a senior officer. Due to the above mentioned reasons, I do not think the Special Team now in charge of the case could be able to do full justice to the case. This is a fit case to be transferred to the Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Kerala police and the Intelligence Bureau of the Central Government, in its (C.B.I.'s) anxiety to establish that the statements of the accused - appellants recorded by the Kerala Police and the Intelligence Bureau could not be accepted as correct. He also drew out attention to pages 7 to 15 of the counter affidavit filed by Shri T.P. Sen Kumar, Deputy Inspector General of Police, Kerala ( In Criminal Appeal No. 491 of 1997) , wherein detailed reasons have been given for not accepting the police report submitted by the C.B.I. and for the State Government's decision to withdraw the consent. After having gone through the relevant averments made in those pages we find that the main endeavour of Shri Sen Kumar has been to demonstrate that the conclusions arrived at by the C.B.I. from the materials collected during investigation were wrong and not that the investigation was ill directed or that the materials collected in course thereof were insufficient or irrelevant. If the State Government found that the conclusions drawn by the C.B.I. were not proper, the only course left to the State Government, in our opinion, was to ask the Central Government to take a different view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssions to their houses for study purposes. In these circumstances, the allegation that Nambai Narayan and Sasikumaran might have passed on the documents to a third party, is found to be false. It further appears that at the instance of C.B.I, a committee of senior Scientists was constituted to ascertain whether any classified documents of the organisation were stolen or found missing and their report shows that there was no such missing documents. There cannot, therefore, be any scope for further Investigation in respect of purported espionage activities in that organisation in respect of which only the Kerala police would have jurisdiction to investigate; (iv) The Government of India, by supporting the case of the writ petitioners ( the accused - appellants) in the High Court, and filing some of these appeals in this Court and an affidavit connection therewith has, in no uncertain terms, made it abundantly clear that they are satisfied with the investigation conducted by the C.B.I. and they strongly oppose any attempt on the part of the State Government to further investigate into the matter by its police. Inspite thereof the State Government has had been pursuing the matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is sufficient evidence to proceed against the said Mariyam Rasheeda for the offence u/s 3 and 4 of the official Secrets Act and for the purpose of further investigation, her continued presence in India is absolutely necessary and that she is likely to abscond and act in a manner prejudicial to the defence of India and the security of India, unless detained. NOW THEREFORE the Government of Kerala hereby order that the aforesaid Smt. Mariyam rasheeda be detained under section 3(1)(a) and (b) of the National Security Act, 1980 ( Act No. 65 of 1980) in the Central Prison, Viyyoor, Thrissur. (emphasis supplied) If before taking up further investigation an opinion has already been formed regarding the guilt of the accused and, that too, at a stage when the commission of the offence itself is yet to be proved, it is obviously that the investigation can not and will not be fair and its outcome appears to be a foregone conclusion. 27. From the above facts and circumstance we are constrained to say that the issuance of the impugned notification does not comfort with the known pattern of a responsible Government bound by rule of law. this is undoubtedly a matter of concern and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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