TMI Blog2008 (3) TMI 778X X X X Extracts X X X X X X X X Extracts X X X X ..... 417, 418, 420, 467, 468, 471, 474, 511, IPC. Likewise, the Central Government passed an order on February 18, 1963 as contemplated by Section 5 of the Delhi Act extending the powers and jurisdiction of the members of Special Police Establishment to various States including the State of Madhya Pradesh for the investigation of offences specified in the Schedule annexed to the said schedule. The Schedule specifies various offences under IPC including the offences referred to hereinabove, offences under the Prevention of Corruption Act and various other enactments. Thus, Section 3 and 5 of the Delhi Act have been complied with. The counter argument on behalf of the respondent is that such consent has been given by the State Government which is reflected in the order dated February 5, 1957. The learned counsel for the appellant then submitted that all executive actions of the Government of a State must be taken in accordance with and as per the procedure laid down in Article 166 of the Constitution. Bare reading of Clause (1) of Article 166 of the Constitution makes it clear that all executive actions of the Government of a State should be expressed to be taken in the name of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he facts of each case whether the consent required by Section 6 of the Delhi Act has or has not been given by the State Government and no rule of universal application can be laid down. Thus, there is no doubt that the State of Madhya Pradesh has given consent as envisaged by Section 6 of the Delhi Act and prosecution instituted by CBI against the appellant cannot be said to be without jurisdiction. We see no infirmity in the order passed by the trial Court and confirmed by the High Court. The appeal, hence, deserves to be dismissed and we accordingly do so. Appeal is dismissed accordingly. - C.K. Thakker And Dalveer Bhandari, JJ. For the Appellant : Rajeev Dhawan, Sr. Adv., D. Rama Krishna Reddy and D. Bharathi Reddy, Advs. For the Respondents : A. Sharan, ASG, B.B. Singh, Amit Anand Tiwari and P. Parmeswaran, Advs. JUDGMENT C.K. THAKKER, J. 1. Leave granted. 2. The present appeal is filed against an order passed by Special Magistrate, CBI, Indore, Madhya Pradesh on December 17, 2002 in Criminal Case No. 1155 of 2002 and confirmed by the High Court of Madhya Pradesh (Indore Bench) on January 2, 2007 in Criminal Revision No. 176 of 2003. 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns. It was submitted that the High Court was wrong in holding that the proceedings against the appellant could have been initiated by CBI. It was contended that the direction issued by the High Court was ex facie erroneous. When alleged offence was committed by the appellant in Bhopal in the State of Madhya Pradesh, Police Authorities of the State alone could have initiated proceedings against the accused. It was also submitted that before invoking the provisions of the Delhi Act, consent of the State Government is mandatory and a condition precedent for the exercise of power. The provision as to consent of the State Government must be complied with in letter and spirit and such consent should be in proper form as required by law. Since the consent required under the Act is of the 'State Government', the prerequisites of Article 166 of the Constitution must be observed. If the procedure laid down in the said Article is not followed, the so called consent has no meaning. Such consent cannot be said to be legal, valid and in consonance with law and CBI does not get jurisdiction in the matter. It was also submitted that the High Court was wholly wrong in upholding the contenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, do not confer jurisdiction on CBI to invoke the Delhi Act. The main ground, therefore, which remains to be considered is whether 'consent' as envisaged by Section 6 of the Delhi Act has been given by the State Government of Madhya Pradesh to the Central Government so as to enable the latter to invoke the provisions of the Delhi Act. For the said purpose, it is necessary to bear in mind the relevant provisions of the Delhi Act. 9. As the Preamble of the Act states, it is an Act to make provision for the constitution of a Special Police Force in Delhi for the investigation of certain offences in the Union Territories and for the extension to other areas of the powers and jurisdiction of the members of the said force in regard to the investigation of the said offences. Section 1 declares that the Act extends to the whole of India. Section 2 provides for constitution and powers of Special Police Establishment. Section 3 enables the Central Government to investigate offences by Special Police Establishment. It reads thus: 3. Offences to be investigated by Special Police Establishment:-The Central Government may, by notification in the official gazette, specify the offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a State, not being a Union Territory or railway area without the consent of the Government of that State. 12. Plain reading of the above provisions goes to show that for exercise of jurisdiction by the CBI in a State (other than Union Territory or Railway Area), consent of the State Government is necessary. In other words, before the provisions of the Delhi Act are invoked to exercise power and jurisdiction by Special Police Establishment in any State, the following conditions must be fulfilled; (i) A notification must be issued by the Central Government specifying the offences to be investigated by Delhi Special Police Establishment (Section 3); (ii) An order must be passed by the Central Government extending the powers and jurisdiction of Delhi Special Police Establishment to any State in respect of the offences specified under Section 3 (Section 5); and (iii) Consent of the State Government must be obtained for the exercise of powers by Delhi Special Police Establishment in the State (Section 6). 13. Now, so far as the first two conditions are co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HRA DEPUTY SECRETARY TO THE GOVT. 16. The learned counsel for the appellant contended that the above letter which purportedly records the consent of the State Government to the exercise of powers and jurisdiction of the Delhi State Police Establishment to the State of Madhya Pradesh is merely a letter and does not meet with the requirements of Section 6 of the Delhi Act. The so called 'consent' reflected in the letter, hence, cannot be said to be 'consent' accorded by the State Government under the statute. In other words, the contention is that the letter is in the nature of 'inter-Departmental communication' by the Deputy Secretary to the State of Madhya Pradesh to the Secretary to Central Government and cannot be regarded as consent under Section 6 of the Act. 17. In the counter-affidavit filed by the Superintendent of Police, CBI, Bhopal, the deponent has stated that the consent as required by Section 6 of the Delhi Act had been given by the State of Madhya Pradesh to the Central Government. It was also stated that the copy of the order, dated February 5, 1957 annexed to the Special Leave Petition by the petitioner (appellant herein) was not ful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Constitution makes it clear that all executive actions of the Government of a State should be expressed to be taken in the name of the Governor. Clause (2) provides for the authentication of the orders and other instructions made and executed in the name of the Governor. Clause (3) enables the Governor to make rules for the more convenient transaction of the Government of the State and for the allocation of business among the Ministers, usually known as 'Rules of Business' or 'Business Rules'. 20. The learned counsel for the appellant contended that Article 166 of the Constitution deals with 'Conduct of Government Business' and mandates that such business should be performed in the manner laid down in Article 166. To put it differently, according to the learned counsel, the provisions of Article 166 are mandatory and before any action is taken, they are required to be strictly complied with. If the procedure prescribed by Article 166 is not followed, the business cannot be said to be a 'business of the Government of the State' and has no effect whatsoever. 21. The learned counsel for the respondents, on the other hand, submitted that the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orm inasmuch as it was not made in the name of Governor as required by Clause (1) of Article 166 of the Constitution. 25. The order passed by the Government read as under: Confidential letter No. B. D. II/1042-D (11) Home Department (Political) Bombay Castle, 28th April, 1951. To The District Magistrate, Surat. Subject:- Preventive Detention Act, 1950 - Review of detention orders issued under the - Reference your letter No. Pol. 1187/P, dated the 23rd February, 1951, on the subject noted above. 2. In accordance with Section 9 of the Preventive Detention Act, 1950, the case of detenu Shri Dattatreya Moreshwar Pangarkar was placed before the Advisory Board which has reported that there is sufficient cause for his detention. Government is accordingly pleased to confirm the detention order issued against the detenu. Please inform the detenu accordingly and report compliance. 3. The case papers of the detenu are returned herewith. Sd/- G. K. Kharkar, for Secretary to the Government of Bombay, Home Department. 26. It was urged on behalf of the detenu that the order of confirmation extracted hereinabove had not been made in proper lega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particular form of expression of that executive decision. Article 166 directs all executive action to be expressed and authenticated in the manner therein laid down but an omission to comply with those provisions does not render the executive action a nullity. Therefore, all that the procedure established by laws requires is that the appropriate Government must take a decision as to whether the detention order should be confirmed or not under Section 11 (1). That such a decision has been in fact taken by the appropriate Government is amply proved on the record. Therefore, there has been, in the circumstances of this case, no breach of the procedure established by law and the present detention of the petitioner cannot be called in question. 29. Agreeing with Justice Das, Mukherjea, J. said: The other contention raised by the learned Attorney-General involves consideration of the question as to whether the provision of article 166(1) of the Constitution is imperative in the sense that non- compliance with it would nullify or invalidate an executive action. The clause does not undoubtedly lay down how an executive action of the Government of a State is to be performed; it only p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f expression, nor to suggest that ingenious experiments regarding the permissible limits of departure from the language of a statute or of the Constitution would be worthwhile, but the Court must look into the 'substance' of Article 166 and not the 'form' of order. 31. The Court stated: The short answer in this case is that the order under consideration is 'expressed' to be made in the name of the Governor because it says 'By order of the Governor'. One of the meanings of 'expressed' is to make known the opinions or the feelings of a particular person and when a secretary to Government apprehends a man and tells him in the order that this is being done under the orders of the Governor, he is in substance saying that he is acting in the name of the Governor and, on his behalf, is making known to the detenu the opinion and feelings and orders of the Governor. In our opinion, the Constitution does not require a magic incantation which can only be expressed in a set formula of words. What we have to see is whether the substance of the requirements is there. 32. It is profitable to refer at this stage, to a decision of larger Bench of sev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... become illegal or void ab initio. Only a burden is thrown on the authority passing the order to satisfy the Court by other means that conditions precedent were complied with. 36. In Major E.G. Barsay v. State of Bombay 1961 CriLJ 828, the question was whether statutory consent was required for every individual member of the Delhi Police Establishment or a general consent was enough. In that case, the Home Department of the Government of Bombay addressed a letter to the Government of India on August 13, 1949 which read thus: ...I am directed to state that this Government re-affirms, with reference to Section 6 of the Delhi Special Police Establishment Act, 1946, the consent given for an indefinite period under its letter No. 5042/4-D, dated the 6th November, 1946 to the members of the Delhi Special Police Establishment exercising powers and jurisdiction in the area of the province of Bombay. 37. Though the Court was not directly deciding the question whether a letter could be treated as valid consent, but whether separate consent was required for every individual member of the Delhi Police Establishment or general consent was enough. The Court nonetheless held the consent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 166 of the Constitution which relates to conduct of business of the Government of a State. It was contended that there was non-compliance with Clause (1) of Article 77 inasmuch as the executive action of granting sanction was not expressed to have been taken in the name of the President. The sanction was, therefore, void. 42. The Court noted that Article 77 was corresponding to Article 166 which was subject to judicial scrutiny by the Court in various cases. Then referring to those cases and rejecting the contention, the Court said; The foregoing decisions authoritatively settled the true interpretation of the provisions of Article 166 of the Constitution. Shortly stated, the legal position is this : Article 166(1) is only directory. Though an impugned order was not issued in strict compliance with the provisions of Article 166(1), it can be established by evidence aliunde that the order was made by the appropriate authority. If an order is issued in the name of the Governor and is duly authenticated in the manner prescribed in Clause (2) of the said Article, there is an irrebuttable presumption that the order or instrument is made or executed by the Governor. Any no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lid. 47. In Gulabrao Keshavrao Patil and Ors. v. State of Gujarat and Ors. (1996) 2 SCC 26, the question of interpretation of Article 166 of the Constitution came up for consideration in a matter under the Land Acquisition Act, 1894. The Court considered previous cases and said: ...Article 166(1) and (2) expressly envisage authentication of all the executive actions and shall be expressed to be taken in the name of the Governor and shall be authenticated in such manner specified in the rules made by the Governor. Under Article 166(3), the Governor is authorised to make the rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business insofar as it is not business with respect to which the Governor is by or under the Constitution required to act in his discretion. In other words, except in cases when the Government in his individual discretion exercises his constitutional functions, the other business of the Government is required to be conveniently transacted as per the Business Rules made by Article 166(3) of the Constitution. If the action of the Government and the order is duly authenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t order in terms of Article 166, has to be adjudicated from the factual background of each case. Strong reliance was placed by learned counsel for the appellant on L.G. Chaudhari to contend that for all practicable purposes the decision of the Cabinet has to be construed as a government order, because three of the decisions taken by the Cabinet have been implemented. As noted above, learned counsel for the State took the stand that neither in the writ petition nor before the High Court, the Cabinet decision itself was produced. In fact, the Cabinet memorandum and the order of the Cabinet show that no decision was taken to pay any compensation. In this connection reference is made to the Cabinet memorandum dated 18-3-1993 and Decision 57 of 1999. It was further submitted that even if it is conceded for the sake of argument that such decision was taken, the same cannot be enforced by a writ petition. We need not delve into the disputed question as to whether there was any Cabinet decision, as it has not been established that there was any government order in terms of Article 166 of the Constitution. The Constitution requires that action must be taken by the authority concerned in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he noting could be said to be 'remarks' or 'order' but it was not in dispute that it was never formally communicated to the appellant apart from the fact that it was not expressed in the name of Governor. The case of the appellant himself was that the 'order' was 'orally' communicated to him by the Revenue Minister. 53. The question before the Court was whether the 'noting' made by the Revenue Minister could be said to be an 'order', and whether the provisions of Article 166 of the Constitution could be said to have been complied with. 54. Dismissing the appeal and drawing distinction between the noting, remarks or opinion expressed by a Minster on file and an order made by the Government, the Constitution Bench stated; What we have now to consider is the effect of the note recorded by the Revenue Minister of PEPSU upon the file. We will assume for the purpose of this case that it is an order. Even so the question is whether it can be regarded as the order of the State Government which alone, as admitted by the appellant, was competent to hear and decide an appeal from the order of the Revenue Secretary. Article 166(1) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmal order modifying the decision of the Revenue Secretary was ever made. Until such an order is drawn up the State Government cannot, in our opinion, be regarded as bound by what was stated in the file. As along as the matter rested with him the Revenue Minister could well score out his remarks or minutes on the file and write fresh ones. 56. The Court concluded; The business of State is a complicated one and has necessarily to be conducted through the agency of a large number of officials and authorities. The Constitution, therefore, requires and so did the Rules of Business framed by the Rajpramukh of PEPSU provide, that the action must be taken by the authority concerned in the name of the Rajpramukh. It is not till this formality is observed that the action can be regarded as that of the State or here, by the Rajpramukh. We may further observe that, constitutionally speaking, the Minister is no more than an adviser and that the head of the State, the Governor or Rajpramukh, is to act with the aid and advice of his Council of Ministers. Therefore, until such advice is accepted by the Governor whatever the Minister or the Council of Ministers may say in regard to a particu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter of Order since the Minister could change his mind and delete the remarks. Moreover, the decision must also be communicated to the person concerned which was absent in the case. To us, therefore, ratio laid down in Bachhittar Singh does not help the appellant. 58. It is also interesting to note at this stage that in subsequent cases, Bachhittar Singh was relied upon for the proposition that in that case, the Constitution Bench of this Court held the provisions of Article 166 of the Constitution mandatory. This Court, however, did not uphold the argument and distinguished it on facts. For instance, in Chitralekha, the Constitution Bench held Article 166 'directory'. As to Bachhittar Singh, the majority observed that in that case, the order signed by the Revenue Minister was never communicated to the party and, therefore, it was held that there was no effective order. (See also State of Bihar v. Kripalu Shankar; Gulabrao Keshavrao Patil v. State of Gujarat; J.P. Bansal v. State of Rajasthan). 59. Another decision heavily relied upon by the appellant is a recent case in C.B.I. v. Ravi Shankar Srivastava 2006 CriLJ 4050 . In that case, CBI instituted criminal proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt by issuing a notification. 64. A closer scrutiny of the relevant provisions of the Delhi Act also add credence to the view which we are inclined to take. Section 3 refers to 'notification' and requires the Central Government to issue notification specifying offences or class of offences to be investigated by Special Police Establishment. Section 5 uses the term 'order' and enables the Central Government to extend powers and jurisdiction of Special Police Establishment to other areas not covered by the Act. Section 6 which speaks of consent of State Government for the exercise of powers and jurisdiction of the Special Establishment neither refers to 'notification' nor 'order'. It merely requires consent of the State Government for the application of the Delhi Act. Parliament, in our considered opinion, advisedly and deliberately did not specify the mode, method or manner for granting consent though in two preceding sections such mode was provided. If it intended that such consent should be in a particular form, it would certainly have provided the form as it was aware of different forms of exercise of power. It, therefore, depends on the facts o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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