The petitioners had filed a petition under section 482 CrPC being aggrieved of an FIR registered by CBI under section 5(1)(e) of J&K Prevention of Corruption Act, 2006 and presentation of Challan on the ground that Central Bureau of Investigation [“CBI”], a special police establishment constituted under Section 2 of the Delhi Special Police Establishment Act, 1946 [“DSPE Act”] has no jurisdiction to investigate the offence under Section 5(1)(e) of the 2006 Act unless a prior consent of the State Government in terms of Section 6 is obtained by the CBI while placing reliance on Sections 3, 5 and 6 of the DSPE Act to support this contention.
The stand of the CBI and the State respondent was that there is general consent given in terms of section 6 of DSPE Act by the then State Government for investigation of the offences punishable under the Jammu & Kashmir Prevention of Corruption Act, 2006 while referring to a communication of the Government of Jammu & Kashmir bearing No.S-253/57-PD dated 07.05.1958. As such, no fresh consent is required to be given by the State Government for investigating an offence which may have been incorporated in the 2006 Act by an amendment made subsequent to the issuance of communication dated 07.05.1958.
On the basis of the consent given by the then State Government under Section 6 of the DSPE Act, the Government of India in the exercise of the powers conferred by Subsection (1) of Section 5 of the DSPE Act issued a notification bearing No.25/7/60-AVD dated 10th April, 1961, which was later on replaced by another notification bearing No.25/3/60- AVD I dated 1st April, 1964. As per the notification dated 01.04.1964 issued by the Government of India under Subsection (1) of Section 5 of the DSPE Act, the powers and jurisdiction of members of the Delhi Special Police Establishment were extended to the State of Jammu and Kashmir for investigation of offences specified in the Schedule which included the offences punishable under the Jammu and Kashmir State Prevention of Corruption Act, 2006 (13 of 2006).
Taking note of Sections 2, 3, 5 and 6 of DSPE Act the court held that Special Police Establishment/CBI is primarily constituted for investigation of various offences notified under Section 3 in any Union Territory of India.
The petitioner argued the expression “as amended from time to time” used in the general consent letter dated 07.05.1958 given by the Government of Jammu & Kashmir to the Government of India, Ministry of Home Affairs includes only those offences, which were punishable under 2006 Act as amended upto 07.05.1958. Such offences were alone subject to investigation by DSPE/CBI and the consent of the Government of Jammu & Kashmir was only restricted to such offences.
while adjudicating upon the question of whether the CBI lacks jurisdiction to investigate offenses under Section 5(1)(e) of the Jammu & Kashmir Prevention of Corruption Act 2006 without prior consent from the State Government as per Section 6, with reference to Sections 3, 5, and 6 of the DSPE Act, held that the State Government’s consent for investigation under the 2006 Act, granted on 07.05.1958, is a general consent that extends to any future amendments in the Jammu & Kashmir Prevention of Corruption Act. The phrase “as amended from time to time” is not limited to pre-1958 amendments but includes all future changes, and there is no requirement of fresh consent as and when a new offense is created, or some provision is modified by way of amendment in the 2006 Act.
The court also considered the judgment passed by the coordinate bench in “Kumar Avinav v. Union of India and others, 2023(1) Crimes J&K 455” which had considered and dealt with the similar issue.
The court further observed that the Central Government while issuing notification dated 01.04.1964 and extending the powers and jurisdiction of members of the DSPE to the State of Jammu and Kashmir for the investigation of offences specified in the Schedule of the notification did not use the expression “in respect of J&K State Prevention of Corruption Act or other legislations as amended from time to time”. Obviously, this was not done by the Central Government as it was clearly understood that once the powers and jurisdiction of DSPE have been extended to the State of Jammu & Kashmir for investigation of offences under the entire Jammu & Kashmir State Prevention of Corruption Act, 2006 on the basis of the consent given by the State Government, this is a foregone conclusion that DSPE was having powers and jurisdiction to investigate all the offences incorporated in the 2006 Act including those which may be inserted in the Act subsequently by way of legislative amendments.
