# David Mario Denis v. Union of India & Ors

- **Citation:** (2023) 2 ILRA 858
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-21
- **Case number:** Criminal Misc. Writ Petition No. 481 of 2023
- **Bench:** Devendra Kumar Upadhyaya, Narendra Kumar Johari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/david-mario-denis-v-union-of-india-ors-49750
- **Pages:** 16

## Headnote

Criminal Law - Constitution of India,1950
- Article - 21, 32, 166, 226, - Prevention of
Corruption Act, 1947 - Sections 7, 7(a) &
13 - Indian Penal Code, 1860 - Sections
120-(B), 342, 386, 409, 411, 420, 467,
468, 471, 504 & 506, - Delhi Special Police
Establishment Act, 1942 - Sections 3, 5 &
6 - Writ Petition - challenging the validity of
Notification issued by Govt. of India & consent
of St. of UP - Powers & Jurisdiction - petitioner
who is complainant - First Information Report
registered in UP - However, Investigation of
reported offence may travel to the territories of
other St.s - court finds that, in the case of
'Committee for Protection of Democratic Rights'
the Hon'ble Supreme Court held that power to
extent the jurisdiction of C.B.I. to investigate a
reported crime in other St.s can be exercised by
the Central Government - question is not as to
whether an accused or victim has any right to
seek transfer reported crime; rather the point is
that the reported crime should be investigated
in most fair and impartial manner - nothing has
been brought on record to substantiate that
transfer of F.I.R. in this case for investigation to
CBI has been made to derail investigation - St.
Government along with its consent to Central
Government for making an order extending
powers and jurisdictions of CBI to investigate
F.I.R. in case is proper - Writ petition fails - and
is dismissed.(Para - 30, 36, 44, 46, 47)

Writ Petition Dismissed. (E-11)

List of Cases cited: -

## Text

_Characters 0–39,822 of 55,403. This is a partial read: ask again with offset=39822 for what follows._

858 INDIAN LAW REPORTS ALLAHABAD SERIES
of offence. Hon'ble Apex Court, as
discussed above, has held that undue
harshness should be avoided taking into
account
the
reformative
approach
underlying in criminal justice system.

20. In view of the above, the findings
of facts by the Court below are not
disturbed. However, as far as punishment is
concerned, we substitute the same to 10
years'
rigorous
imprisonment
with
remission. Fine and default sentence is
maintained. If the accused/appellant has
undergone the period of incarceration, the
accused/appellant be set forthwith, if not
wanted in any other case. The default
sentence to start after ten years' of
incarceration with remission.

21. In view of the above, the appeal is
partly allowed. Judgment and order passed
by the learned Sessions Judge shall stand
modified to the aforesaid extent. Record be
sent back to the Court below forthwith.
----------
(2023) 2 ILRA 858
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.02.2023

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE NARENDRA KUMAR JOHARI, J.

Criminal Misc. Writ Petition No. 481 of 2023

David Mario Denis ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Rajat Gangwar, Ashmita Singh

Counsel for the Respondents:
A.S.G.I., Deepanshu Dass, G.A., Shiv P.
Shukla
Criminal Law - Constitution of India,1950
- Article - 21, 32, 166, 226, - Prevention of
Corruption Act, 1947 - Sections 7, 7(a) &
13 - Indian Penal Code, 1860 - Sections
120-(B), 342, 386, 409, 411, 420, 467,
468, 471, 504 & 506, - Delhi Special Police
Establishment Act, 1942 - Sections 3, 5 &
6 - Writ Petition - challenging the validity of
Notification issued by Govt. of India & consent
of St. of UP - Powers & Jurisdiction - petitioner
who is complainant - First Information Report
registered in UP - However, Investigation of
reported offence may travel to the territories of
other St.s - court finds that, in the case of
'Committee for Protection of Democratic Rights'
the Hon'ble Supreme Court held that power to
extent the jurisdiction of C.B.I. to investigate a
reported crime in other St.s can be exercised by
the Central Government - question is not as to
whether an accused or victim has any right to
seek transfer reported crime; rather the point is
that the reported crime should be investigated
in most fair and impartial manner - nothing has
been brought on record to substantiate that
transfer of F.I.R. in this case for investigation to
CBI has been made to derail investigation - St.
Government along with its consent to Central
Government for making an order extending
powers and jurisdictions of CBI to investigate
F.I.R. in case is proper - Writ petition fails - and
is dismissed.(Para - 30, 36, 44, 46, 47)

Writ Petition Dismissed. (E-11)

List of Cases cited: -

1. Kanwal Tanuj Vs St. of Bihar & ors. ( 2020
vol. 20 SCC 531),

2. St. of W.B. & ors. Vs Committee for Protection
of Democratic Rights, W.B. & ors. (2010 Vol. 3
SCC 571),

3. Anand Agarwal Vs U.O.I. & ors. (2018 SCC
OnLine Del. 11713).

(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.)

1. By instituting these proceedings
under Article 226 of the Constitution of
2 All. David Mario Denis Vs. Union of India & Ors.
859
India
the
petitioner,
who
is
the
complainant/informant
of
the
First
Information Report bearing No.0310 of
2022 lodged on 29.10.2022 at Police
Station-Indira
Nagar,
District-Lucknow,
under sections 342, 386, 504, 506 of I.P.C.
and section 7 of Prevention of Corruption
Act (offences under sections 409, 411, 420,
467, 468, 471 & 120-B of I.P.C. and
sections 7A, 8 and 13 of Prevention of
Corruption Act have been subsequently
added during course of investigation),
assails the validity of consent accorded by
the State of Uttar Pradesh under section 6
of Delhi Special Police Establishment Act,
1942 (hereinafter referred to as 'DSPE Act')
by means of an order dated 29.12.2022 for
investigation of the said F.I.R. by Central
Bureau of Investigation (herein after
referred to as 'the CBI').

The petitioner has also challenged the
notification/order
issued
by
the
Government of India under section 5 of the
DSPE Act whereby the powers and
jurisdiction of the members of Delhi
Special Police Establishment have been
extended to the whole of State of Uttar
Pradesh for investigating into the F.I.R.
No.0310 of 2022, dated 29.10.2022.

Another prayer made in this petition is
that the State-respondents may be directed
to get the investigation of the F.I.R. dated
29.10.2022 conducted by the Special Task
Force, Uttar Pradesh.

Heard Shri Ajay Tiwari, learned
Senior Advocate assisted by Shri Rajat
Gangwar
and
Ms.
Ashmita
Singh,
Advocates for the petitioner, Shri S. B.
Pandey, learned Deputy Solicitor General
of India, assisted by Shri Deepanshu Dass
for the Union of India, Shri Kuldeep Pati
Tripathi, leaned Additional Government
Advocate for the State of Uttar Pradesh and
Shri Shiv P. Shukla, learned counsel
representing the CBI. We have also perused
the records available before us on this
petition.

2. Before delving into the competing
arguments made by the learned counsel
representing the respective parties, it would
be appropriate to note certain facts which
have led to filing of the instant writ
petition. On 29.10.2022 an F.I.R. bearing
No.0310 of 2022 was lodged by the
petitioner against two accused persons, (i)
Vinay Pathak, the then Vice Chancellor, Dr.
Bhimrao
Ambedkar
University,
Agra
(hereinafter referred to as 'University') and
(ii) Ajay Mishra, the Proprietor of a
Company
known
as
XLICT.
The
allegations in the First Information Report
as can be gathered from a perusal of the
same are that the petitioner is the Managing
Director of M/s DIGITEXT Technologies
India Private Ltd. and has been executing
certain works related to pre and post
examination conducted by the University
since the year 2014-2015 and that certain
bills of the petitioner were pending for the
work said to have been executed by him for
the academic years 2020-2021, 2021-2022.
As per further recital made in the First
Information Report, the petitioner made a
request personally to the then Vice
Chancellor of the University for clearing
the pending bills on which the Vice
Chancellor asked him to come to his
residence at Kanpur University where he
met the Vice Chancellor in the month of
February, 2022 and was told that the Vice
Chancellor gets 15% commission against
the payment of bills and that he will pass
the bills only once he is paid 15% amount
as commission. The First Information
Report further mentions that the petitioner
was further told that if he did not make
payment of the commission amount his
company shall be removed from the works
860 INDIAN LAW REPORTS ALLAHABAD SERIES
related to Agra University and other
Universities as has been done in Kanpur
University. The F.I.R. also states that the
Vice Chancellor further told the petitioner
that it is he who has been instrumental in
appointment of the Vice Chancellors of
eight Universities and that he had to pass
on money to the top and that he threatened
the petitioner on account of which he
agreed to pay 15% bill amount as
commission. In the F.I.R. it has further
been recited that the Vice Chancellor
thereafter gave him telephone number of
the other accused person, Ajay Mishra and
told him that after payment against the bills
are made he should deliver the amount of
commission to Ajay Mishra and it is only
then that petitioner's company shall be
engaged further. The petitioner in the F.I.R.
further stated that the Vice Chancellor
made the petitioner to speak to the other
accused, Ajay Mishra through Apple
Mobile and told him that the petitioner
shall contact him and further that he must
tell the petitioner as to how the amount of
commission was to be paid.

3. Further allegation in the F.I.R. is
that the petitioner thereafter contacted the
co-accused-Ajay Mishra who told him that
the bills have been cleared by the Vice
Chancellor and the amount has also been
credited in his account and that he must
now pay the commission. Petitioner further
stated in the F.I.R. that he paid some
amount to the co-accused, however, in the
month of April, 2022 the Vice Chancellor
again told the petitioner that he should meet
Ajay Mishra and deliver the amount of
commission and thereafter on the asking of
the co-accused Ajay Mishra the petitioner
transferred three amounts of Rs.51,62,500/-
,Rs.11,80,000 and Rs.10,98,875/- through
electronic mode in the bank account of
another
firm,
namely,
International
Business Forms, Alwar, Rajsthan. The
allegation in the F.I.R. further is that the
petitioner paid the co-accused Ajay Mishra
Rs.20 lakh and Rs.15,55,000 in cash. As
per the F.I.R., on account of the fact that
the petitioner failed to meet further demand
of bribe, his company was disengaged and
in place of his company the work was
awarded
to
co-accused Ajay
Mishra
through UPDESCO.

4. On 29.10.2022 itself by means of
an order passed by the Additional Director
General of Police (Law and Order), Uttar
Pradesh investigation of F.I.R. No.310 of
2022 was transferred to STF, Uttrar
Pradesh after seeking approval from the
competent authority as is disclosed by the
said order which has been annexed as
annexure-5 to the writ petition.

5.

The
accused-Vinay
Pathak
instituted the proceedings of Crminal Misc.
Writ Petition No.8079 of 2022 with the
prayer to quash the First Information
Report dated 29.10.2022, however, the said
writ petition was dismissed by this Court
by means of an order dated 15.11.2022.

6. It has been submitted on behalf of
the petitioner that the investigation of the
F.I.R. was going on appropriately and the
State of Uttar Pradesh while opposing the
Criminal Misc. Writ Petition No.8079 of
2022 filed by the accused-Vinay Pathak for
quashing of the First Information Report, in
its counter affidavit had clearly stated that
during course of investigation clinching
evidence had been collected against the
accused persons by the Investigating
Agency, namely, Special Task Force which
established
their
involvement
in
the
reported crime. Various paragraphs of the
counter affidavit filed by the State in Writ
petition No.8079 of 2022 have been
2 All. David Mario Denis Vs. Union of India & Ors.
861
extracted in the writ petition and our
attention has been drawn on behalf of the
petitioner that the State in the proceedings
of the said writ petition had clearly
apprised this Court of the fact inter alia that
investigation was being conducted by the
Investigating Officer in a fair manner and
that evidence collected and the recovery of
money from the co-accused established the
allegations made in the F.I.R. against the
petitioner of the said writ petition (Vinay
Pathak).

7. The investigation of the F.I.R. was
being conducted by STF, Uttar Pradesh,
however, the State Government vide order
dated 29.12.2022 accorded its consent for
extension of powers and jurisdiction of
C.B.I. for investigation of F.I.R dated
29.10.2022. On the aforesaid consent
accorded by the State Government, the
Central Government has extended the
powers of C.B.I. to the whole of State of
Uttar Pradesh for investigating the F.I.R.
dated 29.10.2022 by passing/issuing an
order/notification dated 06.01.2023. It is
the consent order dated 29.12.2022 of the
State Government under section 6 of DSPE
Act and the order dated 06.01.2023 of the
Government of India under section 5 of the
said Act which have been challenged in
these proceedings.

8. Shri Ajay Tiwari, learned counsel
appearing for the petitioner has vehemently
argued that once the STF, Uttar Pradesh
was conducting the investigation of the
F.I.R.
appropriately,
which
fact
was
admitted by the State of Uttar Pradesh in
the proceedings of Writ Petition No.8079 of
2022 filed by the accused, Vinay Pathak
with the prayer to quash the F.I.R, there
was no occasion for the State of Uttar
Pradesh to have consented for transfer of
investigation to the C.B.I.; neither was
there
any
such
occasion
for
the
Government of India to extend the powers
and jurisdiction of C.B.I. to investigate the
F.I.R. It has been contended on behalf of
the petitioner that the consent accorded by
the State of Uttar Pradesh and the order
passed by the Government of India
whereby the investigation of the F.I.R. has
been transferred from STF, Uttar Pradesh to
C.B.I. are devoid of relevant material
consideration and further that such an
action on the part of the respondents does
not have any rationale. He has further
stated that the material available on record
does not manifest any legally tenable
reason for transferring the F.I.R. and in fact
the impugned action on the part of the
respondents is against the federal scheme
of the Constitution.

9. Drawing our attention to Entry II of
List 2 in the Seventh Schedule and entry
80, List I in the said the Schedule of the
Constitution, it has been submitted by the
learned counsel for the petitioner that the
policing is a State subject and accordingly
in a situation where the investigation of the
F.I.R, which is lodged in Lucknow and
relates to certain transactions in connection
with the payment of bills raised by the
petitioner for executing certain works
awarded to him by Agra University at Agra,
was being conducted in right direction,
transferring the investigation to C.B.I.
without there being any legally tenable
reason is absolutely arbitrary and hence the
consent accorded for the said purpose by
the State Government and the order passed
by the Government of India in this regard
are liable to be set aside. Certain other
grounds have also been taken in the writ
petition
regarding
the
order
dated
29.12.2022 of the State Government being
in violation of Article 166 and the
notification
dated
06.01.2023
of
862 INDIAN LAW REPORTS ALLAHABAD SERIES
Government of India in violation of Article
77 of the Constitution of India.

10. The argument challenging the
impugned action on the part of the
respondents has, however, been primarily
premised on the ground that the impugned
action is in fact a manifestation of colourable
exercise of power for the reason that the
power and jurisdiction of transferring the
investigation of the F.I.R. in this case has not
been exercised for the purpose for which it is
available to the Government of India. The
other ground taken, which has been
emphasized on behalf of the petitioner, is that
in absence of any cogent reason for
transferring the investigation to the C.B.I.
consent of the State Government has been
accorded for the said purpose only with a
view to extend unlawful benefit to the
accused-persons and since the allegation
against one of the accused, Vinay Pathak,
who is the former Vice Chancellor of Agra
University, is that he had told the petitioner
that he had to give money to his superiors, as
such the entire impugned exercise of
transferring the investigation to C.B.I. has
been undertaken to stall, manipulate and
derail the investigation with the connivance
of the accused-Vinay Pathak.

11. Submission further on behalf of the
petitioner is that it is only in rare and
exceptional circumstances that any matter in
respect of which jurisdiction is that of the
State Government to investigate the F.I.R,
should be transferred to the C.B.I. for
investigation and that the State cannot have
unbridled or unchannalized powers to grant
its consent under section 5 of DSPE Act
otherwise every day the federal structure of
our Constitution shall be dented.

12. On behalf of the petitioner it has
also been contended that the matter at hand
since does not have any international or
inter-State ramifications as such transfer of
investigation in this case is unwarranted
and legally not tenable. On the basis of the
aforesaid submissions, it has been argued
by
Shri
Tiwari,
learned
counsel
representing
the
petitioner
that
the
impugned consent of the State Government
and
the
notification
issued
by
the
Government of India extending the powers
and jurisdiction to the members of Delhi
Special Police Establishment to investigate
the F.I.R. deserves to be quashed and
further that since the investigation of the
F.I.R. was being conducted appropriately
by the STF, Uttar Pradesh, a direction may
be issued to the said Investigating Agency
to conduct and conclude the investigation.

13. The prayers made in the writ
petition have been opposed in unison by the
learned counsel representing the Union of
India, learned State Counsel and learned
counsel representing the C.B.I. It has been
submitted by Shri S. B. Pandey, learned
counsel representing the Union of India
that on 29.12.2022 a reference was
received from the Government of Uttar
Pradesh for C.B.I. investigation of the
F.I.R. which was made in the proforma
prescribed for the said purpose as per the
guidelines issued by the government of
India,
Department
of
Personnel
and
Training vide its letter dated 22.11.2018.

14. Drawing our attention to the said
circular/letter dated 22.11.2018, it has been
submitted on behalf of the Government of
India that the said circular was issued for
the purposes of introducing Single Window
System in the Department of Personnel and
Training for receiving proposals for C.B.I.
investigation and according to the said
circular, the State Governments for the said
purpose are required to make the reference
2 All. David Mario Denis Vs. Union of India & Ors.
863
in a prescribed proforma which provides
for furnishing the relevant information and
documents so that appropriate decision on
such reference may be taken by the
Government of India. The said proforma
enclosed with the circular dated 22.11.2018
issued by the Department of Personnel and
Training, Government of India requires the
State Government to furnish various
informations
and
details
and
also
justification for transferring any criminal
matter to CBI for investigation which
included information as to whether the
matter has inter-State or transnational
ramifications.

15. Shri Pandey has stated that
reference made by the State Government
was
received
which
contained
the
requisite informations along with the
consent as per the requirement of section
6 of DSPE Act. He has further stated that
the justification for referring the matter to
the C.B.I. as mentioned by the State
Government in its reference to the
Government of India was that the case
has inter-state spread and ramification as
out of two companies of accused, Ajay
Mishra one i.e. XLICT is situated in
Lucknow, Uttar Pradesh and the other,
SOLITAIRE PRINTOTECH is situated in
Faridabad, Hariyana. It is also stated in
the said reference that the company IBF
of another co-accused Ajay Jain is located
in Alwar, Rajsthan and that XLICT has
been found to be printing question papers
of Munger University, Bihar, CSJM
University, Kanpur, Lucknow University,
Jamsedpur Women's University, Khwaja
Moinuddin
Chisti
Bhasa
University,
Lucknow, SGGU, Sarguja, Chattisgarh,
MSU, Azamgarh, LNMMU, Darbhanga,
Bihar
without
any
authorization.
Reference further stated that the actual
contract was with Solitaire Printotech,
Faridabad. It has been argued on behalf
of the Union of India that the reference
made by the State of U.P. was forwarded
to the C.B.I. by the Government of India
vide letter dated 05.01.2023 seeking its
comments
regarding
feasibility
of
undertaking the investigation of the case
and that the C.B.I. vide its letter dated
06.02.2023 submitted its feasibility for
taking up the investigation of the case
and
requested
the
Department
of
Personnel and Training, Government of
India to issue notification under section 5
of the DSPE Act. It has, thus, been stated
and argued on behalf of the Government
of India that on consideration of relevant
factors including the feasibility expressed
by the CBI to undertake the investigation
and justification provided by the State of
Uttar
Pradesh
for
transferring
the
investigation to the CBI, the Government
of India issued the notification dated
06.01.2023 under section 5 of the DSPE
Act and that there is no illegality in the
said notification for the reason that all
relevant factors have been taken into
account before issuing the notification.
Submission, thus, on behalf of the Union
of India is that the writ petition is liable
to to be dismissed at its threshold.

16. Shri Shiv P. Shukla, learned
counsel representing the CBI has admitted
that the CBI submitted its feasibility to the
Government of India for taking up the
investigation of the F.I.R. and that once the
investigation has been handed over to the
CBI, the CBI has re-registered the F.I.R. on
07.01.2023, under sections 386, 342, 504,
506, 409, 420, 467, 468, 471, and 120B of
I.P.C and section 7 of Prevention of
Corruption Act. The place of occurrence as
described
therein
are Agra,
Kanpur,
Lucknow and other places. It has, thus,
been stated that on re-registration of the
864 INDIAN LAW REPORTS ALLAHABAD SERIES
F.I.R. and the matter having been validly
transferred to the C.B.I., it is investigating
the reported crime.

17. On behalf of State of U.P. the
prayers made in the writ petition have been
opposed and it has been stated that having
inter-State ramification of the reported
crime, the State Government thought it
proper to make a request to the Central
Government to hand over the investigation
to the CBI and accordingly on relevant
considerations it accorded its consent under
section 6 of the DSPE Act on the basis of
which the Government of India issued
notification under section 5 of the said Act
and the matter is under investigation at
present by the CBI. Submission further on
behalf of the State of U.P. is that no one has
got
any
legal
right
to
insist
that
investigation of any reported crime be
conducted by a particular or specific
investigating agency and accordingly the
writ petition is misconceived which is
liable to be dismissed.

18. Shri Ajay Tiwari, learned counsel
representing the petitioner in rejoinder has
refuted the aforesaid submissions made by the
learned counsel representing the respondents
and has submitted vehemently that even if it is a
case which bears inter-State ramification, the
C.B.I. cannot proceed to investigate the matter
in absence of consent of the respective States as
per the requirement of section 6 of DSPE Act.
He has further stated that there is nothing on
record which reveals that the States other than
the State of Uttar Pradesh have given their
consent under section 6 of the DSPE Act and
accordingly assumption of investigation by the
CBI is bad in law which cannot be permitted to
proceed any further.

19. We have anxiously considered the
rival submissions made by the learned
counsel representing the respective parties
and have also perused the records available
on record of this writ petition as also
certain documents produced before us by
the
learned
counsel
representing
the
Government of India which will form part
of record of the writ petition.

20. The issue, which emerges on the
basis of pleadings available on record as
also on the basis of submissions made by
the
leaned
counsel
representing
the
respective parties, for our reconsideration
and answer are (i) as to whether in the facts
of the case consent accorded by the State
Government under section 6 of the DSPE
Act is vitiated, (ii) as to whether there
exists any justifiable/cogent reason which
justifies the notification issued by the
Government of India under section 5 of the
DSPE Act and (iii) as to whether consent of
the States other than the State of U.P. under
section 6 of the DSPE Act is mandatorily
required
before
the
CBI
assumes
jurisdiction to investigate the F.I.R. on the
basis
of
the
order
issued
by
the
Government of India on 06.01.2023.

21. Under the scheme of our
Constitution there may be some debate
about
the
basic
character
of
our
constitution, whether it is federal or quasi
federal (quasi unitary), however, the
legislative and executive powers of the
States and the Union of India which are coextensive are governed by the Seventh
Schedule appended to the Constitution of
India. It contains three lists, namely, List-IUnion List, List II-State List and List IIIConcurrent List. Depending upon the
subject matter falling in either of these
three
lists,
the
Parliament
and
the
respective State Legislatures are competent
to legislate on the subjects assigned to them
and accordingly the Central Government
2 All. David Mario Denis Vs. Union of India & Ors.
865
and the State Governments are also
empowered to exercise their executive
powers/authority.
Entry-2
of
List
II
mentions police (including railway and
village police) subject to provisions of
entry 2A of List 1. Entry 2A of List I
pertains to deployment of any armed force
of the Union or any other force subject to
the control of the Union or any contingent
or unit thereof in any State in aid of the
civil power; powers, jurisdiction, privileges
and liabilities of members of such forces
while on such deployment. Entry 80 of List
I mentions extension of powers and
jurisdiction of members of a police force
belonging to any State to any area outside
that State, but not so as to enable the police
of one State to exercise powers and
jurisdiction in any area outside that State
without the consent of the Government of
the State in which such area is situated;
extension of powers and jurisdiction of
members of a police force belonging to any
State to railway area outside that area.

22. We have to understand the scheme
of the DSPE Act, 1946 in the light of the
aforesaid entries in List-I and List-II of the
Seventh Schedule. Section 5 of DSPE Act
reads as under:-

5.
Extension
of
powers
and
jurisdiction of special police establishment
to
other
areas.-(1)
The
Central
Government may by order extend to any
area (including Railway areas) [in [a State,
not being a Union territory]] the power
and jurisdiction of members of the Delhi
Special Police Establishment for the
investigation of any offences or classes of
offences specified in a notification under
section 3.

(2) When by an order under subsection (1) the powers and jurisdiction of
members of the said police establishment
are extended to any such area, a member
thereof may, subject to any orders which
the Central Government may make in this
behalf, discharge the functions of police
officer in that area and shall, while so
discharging such functions, be deemed to
be a member of the police force of that area
and be vested with the powers, functions
and privileges and be subject to the
liabilities of a police officer belonging to
that police force.

[(3) Where any such order under subsection (1) is made relation to any area,
then, without prejudice to the provisions of
sub-section 2, any member of the Delhi
Special Police Establishment of or above
the rank of Sub-Inspector may, subject to
any orders which the Central Government
may make in this behalf, exercise the
powers of the officer in charge of a police
station in that area and when so exercising
such powers, shall 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 6 of DSPE Act is also
extracted herein below for ready reference:-

"[6. Consent of State Government to
exercise of powers and jurisdiction.-
Nothing contained in section 5 shall be
deemed 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.]"

23. As has been held by Hon'ble Supreme
Court in the case of Kanwal Tanuj vs. State
of Bihar and others, reported in (2020) 20
SCC 531, DSPE Act makes a provision for
establishing a Special Police Force in Delhi
for the investigation of certain offences in
866 INDIAN LAW REPORTS ALLAHABAD SERIES
the Union Territories and also for extension
to other areas of the powers and jurisdiction
of its members in regard to investigation of
certain
offences. The
DSPE Act
is
applicable to the entire India. Section 3 of
the Act enables the Central Government to
specify the offences or classes of offences
which are to be investigated by members of
this Force.

Section
5
enables
the
Central
Government to extend the powers and
jurisdiction of the members of DSPE for
investigation of any offence specified in the
notification issued under section 3 in a
State not being a Union Territory. In
keeping tune with the federal structure of
the Constitution, consent of such a State
has been made essential, as per requirement
of section 6 of DSPE Act for extending the
powers and jurisdiction of the members of
this force in respect of specified offences
said to be committed outside jurisdiction of
the Union Territory.

24. Paragraphs 16 and 18 of the
judgment in the case of Kanwal Tanuj
(supra) are quoted herein below:-

"16. The 1946 Act has been enacted
to make provision for constitution of a
Special Police Force in Delhi for the
investigation
of
certain
offences
(committed) in the Union Territories, for
the superintendence and administration
of the said force and for the extension to
other
areas
of
the
powers
and
jurisdiction of the members in regard to
the investigation of the said offences.
This Act applies to the whole of India.
Section 2 of the 1946 Act enables the
Central Government to constitute a
special force to be called DSPE for the
investigation in any Union Territory of
specified offences notified under Section
3. Section 3 of the 1946 Act enables the
Central Government, by notification in
the Official Gazette to specify the
offences or classes of offences which are
to be investigated by DSPE. It is not in
dispute that the offences referred to in
the subject FIR are so specified by the
notification issued under Section 3.

18. The purport of Section 5 of the
1946 Act is to enable the Central
Government to extend the powers and
jurisdiction of members of the DSPE for
the investigation of any offence or class
of offences specified in the notification
under Section 3, in a State not being a
Union Territory. Such extension of
powers and jurisdiction of members of
the
Special
Police
Force
becomes
necessary in respect of specified offences
"committed outside the jurisdiction of
the Union Territory" referred to in
Sections 2 and 3 of the 1946 Act.
However, in keeping with the federal
structure of the Constitution which is
fundamental to the Constitution, consent
of such a State has been made essential,
as predicated in Section 6 of the 1946
Act."

25. Hon'ble Supreme Court in the said
case of Kanwal Tanuj (supra) has also
opined that consent in terms of section 6
may not be necessary in respect of any
investigation by the members of DSPE in
relation to specified offences committed
within
the
Union
Territory.
Hon'ble
Supreme Court has further held that it may
be so even if one of the accused involved in
a given case may be residing or employed
outside the Union Territory, including in
connection
with
the
affairs
of
the
State/local body/corporation or a company
or a bank of the State or controlled by the
State/institution receiving financial aid
from the State Government. It has further
2 All. David Mario Denis Vs. Union of India & Ors.
867
been held that taking any other view will
require completion of formality of taking
consent for investigation even in relation to
specified offence committed within the
Union Territory from the State concerned
merely because of the fortuitous situation
that part of the associated offence is
committed in the other State. Their
Lordships in the said case have further held
that such interpretation would result in an
absurd situation especially keeping in view
the fact that the DSPE Act extends to the
whole of India and the DSPE has been
constituted with a special purpose. The
relevant extract occurring in paragraph 19
of the said judgment in the case of Kanwal
Tanuj (supra) is also extracted herein
below:-

"Such a consent may not be
necessary regarding the investigation by
the Special Police Force (DSPE) in
respect of specified offences committed
within the Union Territory and other
offences associated therewith. That may
be so, even if one of the accused involved
in the given case may be residing or
employed in some other State (outside
the
Union
Territory)
including
in
connection with the affairs of the
State/local body/corporation, company
or bank of the State or controlled by the
State/institution receiving or having
received financial aid from the State
Government, as the case may be. Taking
any other view would require the Special
Police
Force
to
comply
with
the
formality
of
taking
consent
for
investigation even in relation to specified
offence committed within the Union
Territory, from the State concerned
merely
because
of
the
fortuitous
situation that part of the associated
offence is committed in other State and
the accused involved in the offence is
residing in or employed in connection
with the affairs of that State. Such
interpretation would result in an absurd
situation especially when the 1946 Act
extends to the whole of India and the
Special Police Force has been constituted
with a special purpose for investigation
of specified offences committed within
the
Union
Territory,
in
terms
of
notification issued under Section 3 of the
1946 Act."

26. Thus, when we examine the
provisions of sections 3, 5 and 6 of the
DSPE Act as interpreted by Hon'ble
Supreme Court in the case of Kanwal
Tanuj (supra) what we find is that scheme
therein does not in any manner inpinge
upon the federal policy as envisaged by our
Constitution.

27. It is in the light of the aforesaid
legal principle that we need to address the
grounds raised by the petitioner impugning
the notification of the Government of India
extending the powers and jurisdiction of
Central
Bureau
of
Investigation
to
investigate the F.I.R. and also the consent
given for the said purpose by the State of
Uttar Pradesh.

28. It is true that prior to transfer of
the investigation to the C.B.I. with the
consent of the State Government the F.I.R.
was being investigated by the Special Task
Force, Uttar Pradesh under the orders
passed by the Additional Director General
of Police (Law and Order), however, it
appears that the State Government made a
reference to the Central Government for
extending the powers and jurisdiction of
CBI to investigate the F.I.R. in this case
considering various aspects, one of which
is that the reported crime has inter-State
ramifications. In the reference made by the
868 INDIAN LAW REPORTS ALLAHABAD SERIES
State Government on 29.12.2022 enclosing
therewith the consent as per requirement of
section 6 of DSPE Act, it has clearly been
stated that the case has inter-State spread
and
ramification.
The
exact
phrase
occurring in the reference made by the
State Government is "the case has interState spread and ramification".

29. The reference made by the State
Government further states that out of two
companies of Ajay Mishra one XLICT is
situated
in
Lucknow
U.P.
&
other
SOLITAIRE
PRINTOTECH
is
in
Faridabad Haryana and that the company
IBF of co-accused Ajay Jain is located in
Alwar, Rajsthan. It also mentions that Ajay
Mishra's company XLICT was found to be
printing
question
papers
of
Munger
University,
Bihar,
CSJM
University,
Kanpur, Lucknow University, Jamsedpur
Women's University, Khwaja Moinuddin
Chisti Bhasa University, Lucknow, SGGU,
Sarguja, Chattisgarh, MSU, Azamgarh,
LNMMU, Darbhanga, Bihar without any
authorization and that the actual contract
was with Solitaire Printotech, Faridabad.

30. Thus, the reason given by the
State Government in its reference made to
the Central Government while giving its
consent is that the case at hand has interState ramification. Hon'ble Supreme Court
in the case of State of West Bengal and
others vs. Committee for Protection of
Democratic Rights, West Bengal and
others, reported in (2010) 3 SCC 571 has
drawn certain conclusions in the context of
the Constitutional Scheme and one of such
conclusions is that in terms of Entry 2 of
List II of the Seventh Schedule on the one
hand and Entry 2-A and Entry 80 of List I
on the other, an investigation by another
agency is permissible subject to grant of
consent by the State concerned. Hon'ble
Supreme Court in the said case was dealing
with the jurisdiction of Constitutional
Courts under Article 32 and 226 of the
Constitution of India and has held that the
very width of the power under Articles 32
and 226 of the Constitution of India
requires caution in its exercise. In so far as
question of issuing direction to C.B.I. to
conduct
investigation
in
a
case
is
concerned, it has further been held that
such power under Articles 32 and 226 of
the
Constitution
must
be
exercised
sparingly, cautiously and in exceptional
circumstances and that such power can be
exercised where the incident may have
national and international ramifications or
where such an order may be necessary for
doing complete justice and enforcing the
fundamental rights. Taking a clue from
what has been held by Hon'ble Supreme
Court in the case of Committee for
Protection of Democratic Rights, West
Bengal and others (supra) it can safely be
held that power to extend the jurisdiction of
C.B.I. to investigate a reported crime in
other States can be exercised by the Central
Government in certain circumstances, one
of which is where the reported crime has
national,
international
or
inter-state
ramifications.

31. In this case, we have already
noticed that the State Government while
making the reference to the Central
Government
for
handing
over
the
investigation of the F.I.R. has clearly stated
that the matter at hand has inter-state
ramifications
and
has
given
reasons
therefor. The consent granted by the State
Government and the order issued by the
Central Government for extending the
power and jurisdiction of the C.B.I. to
investigate the F.I.R. in this case unless is
found to be vitiated on account of some
mala fide, we are of the view that the
2 All. David Mario Denis Vs. Union of India & Ors.
869
consent of the State Government and the
order passed by the Central Government
cannot be said to be legally untenable.

32. A submission has been made by
the learned counsel for the petitioner that
the State Government has abdicated its
power to the Government of India which
impinges upon the federal scheme of our
Constitution for the reason that policing is
primarily a State subject. In this regard we
may notice that no such objection regarding
interference in the jurisdiction of the State
Government to investigate a reported crime
touching upon the federal structure has
been made on behalf of the State of Uttar
Pradesh before us. In absence of any such
objection by the State Government and also
taking into consideration the fact that it was
on the reference made by the State
Government on 29.12.2022 that the Central
Government took a decision thereafter on
06.01.2023, that too, after procuring the
feasibility of investigation from the Central
Bureau of Investigation, we are unable to
agree with this submission made by the
learned counsel for the petitioner. We also
notice that the reference made by the State
Government on 29.12.2022 was in tune
with
the
guidelines
issued
by
the
Department of Personnel and Training,
Government of India vide its circular dated
22.11.2018 and the proforma enclosed
therewith.

33.