Civil Appeal Nos. 6249-6250 of 2001 in W.P. (Crl.) 24 of 2008, SLP (Crl.) No. 4096 of 2007 and W.P. (C) No. 573 of 2006. Case: State Of W. Bengal & Ors. Vs The Committee For P. D. R., W.B & Ors.. Supreme Court

Case Number:Civil Appeal Nos. 6249-6250 of 2001 in W.P. (Crl.) 24 of 2008, SLP (Crl.) No. 4096 of 2007 and W.P. (C) No. 573 of 2006
Party Name:State Of W. Bengal & Ors. Vs The Committee For P. D. R., W.B & Ors.
Counsel:For Appearing Parties: G.E. Vahanvati, S.G., B. Datta, ASG, K.K. Venugopal, Shyam Diwan, Uday U. Lalit, P.S. Narasimha, K. Radhakrishnan, Pravin Parekh, Sr. Advs., Tara Chandra Sharma, Neelam Sharma, Ankur Talwar, Kishan Datt, Ejaz Maqbool, Vikash Singh, Taruna Singh, Wasif Gilani, Amit S. Chauhan, K. Raghuvavacharyulu, Sridhar Potaraju, Julius...
Judges:K.G. Balakrishnan,R.V. Raveendran , D.K. Jain, JJ.
Issue:Delhi Special Police Establishment Act, 1946 - Sections 1(1), 2, 3, 4, 4(1), 5, 5(1) and 6; Arms Act, 1959 - Sections 25 and 27; Explosives Act, 1884 - Section 9B; Government of India Act, 1935; Indian Penal Code, 1860 - Sections 148, 149, 201, 302, 364, 436 and 448; Constitution of India - Articles 1, 13, 14, 19, 19(1), 21, 31C, 32, 142, 144, ...
Citation:AIR 2010 SC 1476, 2010 (2) KCCR 785, 2010 (1) KLT 723 (SC), 2010 (I) OLR 584 (SC) , RLW 2010 (1)SC 822, 2010 (2) SCALE 467, (2010) 3 SCC 571, 2010 (2) UJ 1047 (SC)
Judgement Date:February 17, 2010
Court:Supreme Court


D.K. Jain, J.

  1. The issue which has been referred for the opinion of the Constitution Bench is whether the High Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, can direct the Central Bureau of Investigation (for short "the CBI"), established under the Delhi Special Police Establishment Act, 1946 (for short "the Special Police Act"), to investigate a cognizable offence, which is alleged to have taken place within the territorial jurisdiction of a State, without the consent of the State Government.

  2. For the determination of the afore-stated important legal issue, it is unnecessary to dilate on the facts obtaining in individual cases in this bunch of civil appeals/special leave petitions/writ petitions and a brief reference to the facts in Civil Appeal Nos.6249- 6250 of 2001, noticed in the referral order dated 8th November, 2006, would suffice. These are:

    One Abdul Rahaman Mondal (hereinafter referred to as, "the complainant") along with a large number of workers of a political party had been staying in several camps of that party at Garbeta, District Midnapore, in the State of West Bengal. On 4th January, 2001, the complainant and few others decided to return to their homes from one such camp. When they reached the complainant's house, some miscreants, numbering 50-60, attacked them with firearms and other explosives, which resulted in a number of casualties. The complainant managed to escape from the place of occurrence, hid himself and witnessed the carnage. He lodged a written complaint with the Garbeta Police Station on 4th January, 2001 itself but the First Information Report ("the FIR" for short) for offences under Sections 148/149/448/436/364/302/201 of the Indian Penal Code, 1860 (for short "the IPC") read with Sections 25/27 of the Arms Act, 1959 and Section 9 (B) of the Explosives Act, 1884 was registered only on 5th January, 2001. On 8th January, 2001, Director General of Police, West Bengal directed the C.I.D. to take over the investigations in the case. A writ petition under Article 226 of the Constitution was filed in the High Court of Judicature at Calcutta by the Committee for Protection of Democratic Rights, West Bengal, in public interest, inter alia, alleging that although in the said incident 11 persons had died on 4th January, 2001 and more than three months had elapsed since the incident had taken place yet except two persons, no other person named in the FIR, had been arrested; no serious attempt had been made to get the victims identified and so far the police had not been able to come to a definite conclusion whether missing persons were dead or alive. It was alleged that since the police administration in the State was under the influence of the ruling party which was trying to hide the incident to save its image, the investigations in the incident may be handed over to the CBI, an independent agency.

  3. Upon consideration of the affidavit filed in opposition by the State Government, the High Court felt that in the background of the case it had strong reservations about the impartiality and fairness in the investigation by the State police because of the political fallout, therefore, no useful purpose would be served in continuing with the investigation by the State Investigating Agency.

    Moreover, even if the investigation was conducted fairly and truthfully by the State police, it would still be viewed with suspicion because of the allegation that all the assailants were members of the ruling party. Having regard to all these circumstances, the High Court deemed it appropriate to hand over the investigation into the said incident to the CBI.

  4. Aggrieved by the order passed by the High Court, the State of West Bengal filed a petition for special leave to appeal before this Court. On 3rd September, 2001 leave was granted. When the matter came up for hearing before a two-Judge Bench on 8th November, 2006, taking note of the contentions urged by learned counsel for the parties and the orders passed by this Court in The Management of Advance Insurance Co. Ltd. Vs. Shri Gurudasmal & Ors.1 and Kazi Lhendup Dorji Vs. Central Bureau of Investigation & Ors.2, the Bench was of the opinion that the question of law involved in the appeals was of great public importance and was coming before the courts frequently and, therefore, it was necessary that the issue be settled by a larger Bench. Accordingly, the Bench directed that the papers of the case be placed before the Hon'ble Chief Justice of India for passing appropriate orders for placing the matter before a larger Bench. When the matter came up before a three-Judge Bench, 1 1970 (1) SCC 633 2 1994 Supp (2) SCC 116 headed by the Hon'ble Chief Justice of India, on 29th August, 2008, this batch of cases was directed to be listed before a Constitution Bench. This is how these matters have been placed before us.

    The Rival Contentions:

  5. Shri K.K. Venugopal, learned senior counsel appearing on behalf of the State of West Bengal, referring to Entry 80 of List I of the Seventh Schedule to the Constitution of India; Entry 2 of List II of the said Schedule as also Sections 5 and 6 of the Special Police Act strenuously argued that from the said Constitutional and Statutory provisions it is evident that there is a complete restriction on Parliament's legislative power in enacting any law permitting the police of one State to investigate an offence committed in another State, without the consent of that State. It was urged that the Special Police Act enacted in exercise of the powers conferred under the Government of India Act, 1935, Entry 39 of List I (Federal Legislative List) of the Seventh Schedule, the field now occupied by Entry 80 of List I of the Seventh Schedule of the Constitution, replicates the prohibition of police of one State investigating an offence in another State without the consent of that State. It was submitted that Entry 2 of List II which confers exclusive jurisdiction on the State Legislature in regard to the police, the exclusive jurisdiction of a State Legislature cannot be encroached upon without the consent of the concerned State being obtained.

  6. Learned senior counsel submitted that the separation of powers between the three organs of the State, i.e. the Legislature, the Executive and the Judiciary would require each one of these organs to confine itself within the field entrusted to it by the Constitution and not to act in contravention or contrary to the letter and spirit of the Constitution.

  7. Thus, the thrust of argument of the learned counsel was that both, the federal structure as well as the principles of separation of powers, being a part of the basic structure of the Constitution, it is neither permissible for the Central Government to encroach upon the legislative powers of a State in respect of the matters specified in List II of the Seventh Schedule nor can the superior courts of the land adjure such a jurisdiction which is otherwise prohibited under the Constitution. It was urged that if the Parliament were to pass a law which authorises the police of one State to investigate in another State without the consent of that State, such a law would be pro tanto invalid and, therefore, the rule of law would require the courts, which are subservient to the Constitution, to ensure that the federal structure embodied in the Constitution as a basic principle, is not disturbed by permitting/directing the police force of a State to investigate an offence committed in another State without the consent of that State.

  8. Relying heavily on the observations of the Constitution Bench in Supreme Court Bar Association Vs. Union of India & Anr.3 to the effect that Article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly, learned counsel contended that when even Article 142 of the Constitution cannot be used by this Court to act contrary to the express provisions of law, the High Court cannot issue any direction ignoring the Statutory and Constitutional provisions. Learned counsel went to the extent of arguing that even when the State police is not in a position to conduct an impartial investigation because of extraneous influences, the Court still cannot exercise executive power of directing the police force of another State to carry out investigations without the consent of that State. In such a situation, the matter is best left to the wisdom of the Parliament to enact an appropriate legislation to take care of the situation. According to the learned counsel, till that 3 (1998) 4 SCC 409 is done, even such an extreme situation would not justify the Court upsetting the federal or quasi-federal system created by the Constitution.

  9. As regards the exercise of jurisdiction by a High Court under Article 226 of the Constitution, learned counsel submitted that apart from the fact that there is a significant difference between the power of this Court under Article 142 of the Constitution and the jurisdiction of the High Court under Article 226 of the Constitution because of territorial limitations under Article 226 (1) of the Constitution, a High Court is disentitled from issuing any direction to the authorities situated outside the territories over which it has jurisdiction. According to the learned counsel Clause (2) of Article 226 would have no application in a case, such as the present one, since the cause of action was complete at the time of filing the writ petition and the power under Clause (2) can be exercised only where there is a nexus between the cause of action which arises wholly or partly within the State and the authority which is situated outside the State. It was asserted that the CBI being a rank outsider, unconnected to the incident...

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