# CASE DETAILS CBI v. R.R. KISHORE

- **Citation:** 2023 INSC 817
- **Court:** Supreme Court of India
- **Decided:** 2023-09-11
- **Case number:** Criminal Appeal No. 377 of 2007
- **Bench:** Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S. Oka, Vikram Nath, J.K. Maheshwari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/case-details-cbi-v-r-r-kishore-36624
- **Pages:** 52

## Headnote

Issues for consideration:
Section 6A(1) of the Delhi Special Police Establishment Act, 1946
(DSPE Act) required approval of the Central Government to conduct
inquiry or investigation into any off ence alleged to have been committed
by senior Government offi cers under the Prevention of Corruption Act,
1988; and provided a kind of immunity to such offi cers. Whether there
could be a deprivation of such immunity by a retrospective operation of
a judgment of the Court, in the context of Article 20 of the Constitution
of India, was the moot question that arose for determination in the
present case.
The question was whether the declaration made by a Constitution
Bench of the Supreme Court, in the case of Subramanian Swamy vs.
Director, Central Bureau of Investigation and another, that Section 6A
of the DSPE Act being unconstitutional, can be applied retrospectively in
context with Article 20 of the Constitution. The following three corollary
questions also arose for consideration namely: Whether Section 6A of the
DSPE Act was part of procedure or it introduced a conviction or sentence;
Whether Article 20(1) of the Constitution had any bearing or relevance in the
context of declaration of Section 6A of the DSPE Act as unconstitutional and
Whether the declaration of Section 6A of the DSPE Act as unconstitutional
and violative of Article 14 of the Constitution would have a retrospective
eff ect or would apply prospectively from the date of its declaration as
unconstitutional.
SUPREME COURT REPORTS
[2023] 13 S.C.R.
2
Delhi Special Police Establishment Act, 1946 (DSPE Act) - s.6A -
Nature of - A part of procedure or introduced a conviction or sentence.
Held: Section 6A of the DSPE Act does not lay down or introduce
any conviction for any off ence - It is a procedural safeguard only which
is enumerated in Section 6A of the DSPE Act with regard to making of an
investigation or enquiry of an off ence under the Prevention of Corruption
Act, 1988 - Section 6A of the DSPE Act also does not lay down any
sentence nor does it alter any existing sentence for an off ence - s.6A of
the DSPE Act is a part of the procedure only in the form of a protection to
senior government servants - It does not introduce any new off ence nor it
enhances the punishment or sentence. [Paras 23 and 24]
Constitution of India - Art.20 - Applicability of, in context of s.6A
of the Delhi Special Police Establishment Act, 1946.
Held: Article 20(1) of the Constitution has no applicability either to
the validity or invalidity of Section 6A of the DSPE Act. [Para 36]
Delhi Special Police Establishment Act, 1946 - s.6A - Declaration
of s.6A as unconstitutional - Whether would have a retrospective
eff ect or would apply prospectively from the date of its declaration as
unconstitutional - Constitution of India - Art. 13(2) and Part III.
Held: Once a law is declared to be unconstitutional, being violative
of Part-III of the Constitution, then it would be held to be void ab initio,
still born, unenforceable and non est in view of Article 13(2) of the
Constitution and its interpretation by authoritative pronouncements - Thus,
the declaration made by the Constitution Bench in the case of Subramanian
Swamy will have retrospective operation - Section 6A of the DSPE Act is
held to be not in force from the date of its insertion i.e. 11.09.2003. [Para 43]
Constitution of India - Art.20(1) - Protection from retrospective
Ex post facto law - Explained.
Held: Sub-article (1) of Article 20 of the Constitution consists of two
parts - The fi rst part prohibits any law that prescribes judicial punishment
for violation of law with retrospective eff ect. Sub-article (1) to Article 20
of the Constitution does not apply to civil liability, as distinguished from
punishment for a criminal off ence - Further, what is prohibited is conviction
3
or sentence for any off ence under an ex post facto law, albeit the trial itself is
not prohibited - Trial under a procedure diff erent from the one when a

## Text

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[2023] 13 S.C.R. 1 : 2023 INSC 817
1
CASE DETAILS
CBI
v.
R.R. KISHORE
(Criminal Appeal No. 377 of 2007)
SEPTEMBER 11, 2023
[SANJAY KISHAN KAUL, SANJIV KHANNA,
ABHAY S. OKA, VIKRAM NATH AND
J.K. MAHESHWARI, JJ.]
HEADNOTES
Issues for consideration:
Section 6A(1) of the Delhi Special Police Establishment Act, 1946
(DSPE Act) required approval of the Central Government to conduct
inquiry or investigation into any off ence alleged to have been committed
by senior Government offi cers under the Prevention of Corruption Act,
1988; and provided a kind of immunity to such offi cers. Whether there
could be a deprivation of such immunity by a retrospective operation of
a judgment of the Court, in the context of Article 20 of the Constitution
of India, was the moot question that arose for determination in the
present case.
The question was whether the declaration made by a Constitution
Bench of the Supreme Court, in the case of Subramanian Swamy vs.
Director, Central Bureau of Investigation and another, that Section 6A
of the DSPE Act being unconstitutional, can be applied retrospectively in
context with Article 20 of the Constitution. The following three corollary
questions also arose for consideration namely: Whether Section 6A of the
DSPE Act was part of procedure or it introduced a conviction or sentence;
Whether Article 20(1) of the Constitution had any bearing or relevance in the
context of declaration of Section 6A of the DSPE Act as unconstitutional and
Whether the declaration of Section 6A of the DSPE Act as unconstitutional
and violative of Article 14 of the Constitution would have a retrospective
eff ect or would apply prospectively from the date of its declaration as
unconstitutional.
SUPREME COURT REPORTS
[2023] 13 S.C.R.
2
Delhi Special Police Establishment Act, 1946 (DSPE Act) - s.6A -
Nature of - A part of procedure or introduced a conviction or sentence.
Held: Section 6A of the DSPE Act does not lay down or introduce
any conviction for any off ence - It is a procedural safeguard only which
is enumerated in Section 6A of the DSPE Act with regard to making of an
investigation or enquiry of an off ence under the Prevention of Corruption
Act, 1988 - Section 6A of the DSPE Act also does not lay down any
sentence nor does it alter any existing sentence for an off ence - s.6A of
the DSPE Act is a part of the procedure only in the form of a protection to
senior government servants - It does not introduce any new off ence nor it
enhances the punishment or sentence. [Paras 23 and 24]
Constitution of India - Art.20 - Applicability of, in context of s.6A
of the Delhi Special Police Establishment Act, 1946.
Held: Article 20(1) of the Constitution has no applicability either to
the validity or invalidity of Section 6A of the DSPE Act. [Para 36]
Delhi Special Police Establishment Act, 1946 - s.6A - Declaration
of s.6A as unconstitutional - Whether would have a retrospective
eff ect or would apply prospectively from the date of its declaration as
unconstitutional - Constitution of India - Art. 13(2) and Part III.
Held: Once a law is declared to be unconstitutional, being violative
of Part-III of the Constitution, then it would be held to be void ab initio,
still born, unenforceable and non est in view of Article 13(2) of the
Constitution and its interpretation by authoritative pronouncements - Thus,
the declaration made by the Constitution Bench in the case of Subramanian
Swamy will have retrospective operation - Section 6A of the DSPE Act is
held to be not in force from the date of its insertion i.e. 11.09.2003. [Para 43]
Constitution of India - Art.20(1) - Protection from retrospective
Ex post facto law - Explained.
Held: Sub-article (1) of Article 20 of the Constitution consists of two
parts - The fi rst part prohibits any law that prescribes judicial punishment
for violation of law with retrospective eff ect. Sub-article (1) to Article 20
of the Constitution does not apply to civil liability, as distinguished from
punishment for a criminal off ence - Further, what is prohibited is conviction
3
or sentence for any off ence under an ex post facto law, albeit the trial itself is
not prohibited - Trial under a procedure diff erent from the one when at the
time of commission of an off ence, or by a court diff erent from the time when
the off ence was committed is not unconstitutional on account of violation of
sub-article (1) to Article 20 of the Constitution - It may be diff erent, if the
procedure or the trial is challengeable on account of discrimination under
Article 14 of the Constitution or violation of any other fundamental right -
The right under fi rst part of sub-article (1) to Article 20 of the Constitution
is a very valuable right, which must be safeguarded and protected by the
courts as it is a constitutional mandate.[Paras 27 and 28]
Constitution of India - Art.13 - Word "void" - Interpretation and
meaning of - Words and Phrases.
Held: Under Article 13(1) all existing laws prior to the commencement
of the Constitution, insofar as they are inconsistent with the provisions of
Part-III, would be void to the extent of inconsistency - Further, according
to Article 13(2), the State is prohibited from making any law which takes
away or abridges the rights conferred by Part-III and further that any
law made in contravention of this clause would be void to the extent of
contravention - Article 13(2) prohibits making of any law so it would be
relating to laws made post commencement of the Constitution, like the case
at hand - In the present case, as it has been held that Section 6A of DSPE
Act is violative of Article 14 of Part III of the Constitution, as such, the
same would be void - The word "void" has been interpreted in a number
of Supreme Court judgments beginning 1951 till recently and it has been
given diff erent nomenclature such as 'non est', 'void ab initio' 'still born'
and 'unenforceable'. [Para 41]
LIST OF CITATIONS AND OTHER REFERENCES
Subramanian Swamy v. Director, Central Bureau of Investigation and
another (2014) 8 SCC 682: [2014] 6 SCR 873 - clarifi ed.
Keshavan Madhava Menon v. The State of Bombay [1951] SCR 228;
Behram Khurshed Pesikaka v. The State of Bombay [1955] 1 SCR 613;
Rao Shiv Bahadur Singh and another v. State of Vindhya Pradesh [1953]
SCR 1188; The State of Manipur & Ors. v. Surjakumar Okram & Ors. 2022
CBI v. R.R. KISHORE
SUPREME COURT REPORTS
[2023] 13 S.C.R.
4
SCC Online SC 130; Mahendra Lal Jaini v. The State of Uttar Pradesh and
Others AIR 1963 SC 1019:[1963] 1 Suppl. SCR 912; Deep Chand v. The
State of Uttar Pradesh and Others [1959] 2 SCR Suppl. 8 and M.P.V.
Sundararamier and Co. v. The State of Andhra Pradesh & Another
[1958] SCR 1422 - relied on.
Sajjan Singh v. The State of Punjab [1964] 4 SCR 630; Union
of India v. Sukumar Pyne [1966] 2 SCR 34; Municipal Committee,
Amritsar and others v. State of Punjab and Others (1969) 1 SCC 475
: [1969] 3 SCR 447; I.C. Golaknath & Ors. v. State of Punjab and Anr.
[1967] 2 SCR 762; Managing Director, ECIL, Hyderabad and Others
v. B. Karunakar and Others (1993) 4 SCC 727 : [1993] 2 Suppl. SCR
576; M.A. Murthy v. State of Karnataka and Others (2003) 7 SCC
517 : [2003] 3 Suppl. SCR 327; Transmission Corporation of A.P. v.
C.H. Prabhakar and Others (2004) 5 SCC 551 : [2004] 2 Suppl. SCR
759; Hardeep Singh v. State of Punjab (2014) 3 SCC 92 : [2014] 2
SCR 1; H.N. Rishbud and Inder Singh v. The State of Delhi [1955] 1
SCR 1150; Fertico Marketing and Investment Private Limited and
Others v. Central Bureau of Investigation and Another (2021) 2 SCC
525 : [2020] 12 SCR 956; Rattiram and Others v. State of Madhya
Pradesh (2013) 12 SCC 316 : [2013] 2 SCR 1003; State of Karnataka
v. Kuppuswamy Gownder and Others AIR 1987 SC 1354 : [1987] 2
SCR 295; A.C. Sharma v. Delhi Administration (1973) 1 SCC 726 :
[1973] 3 SCR 477; Ashok Kumar Gupta and Another v. State of U.P.
and Others (1997) 5 SCC 201 : [1997] 3 SCR 269; Assistant Excise
Commissioner, Kottayam and Others v. Esthappan Cherian and Another
2021 (10) SCALE 308; Prabhu Dayal Deorah v. District Magistrate
(1994) 1 SCC 103; Mohan Lal v. State of Punjab (2018) 17 SCC 627
: [2018] 9 SCR 1006; Varinder Kumar v. State of Himachal Pradesh
(2020) 3 SCC 321 : [2019] 2 SCR 707; Rao Shiv Bahadur Singh v.
State of Vindhya Pradesh (1953) 2 SCC 111 : [1954] SCR 1098; T.
Barai v. Henry Ah Hoe, (1983) 1 SCC 177 : [1983] 1 SCR 905; Pratap
Singh v. State of Jharkhand (2005) 3 SCC 551 : [2005] 1 SCR 1019;
State of Bombay v. F.N. Balsara [1951] 1 SCR 682; Vineet Narain
and Others v. Union of India and Another (1998) 1 SCC 226 : [1997]
6 Suppl. SCR 595; State of West Bengal v. S.K. Ghosh [1963] 2 SCR
111; Rattan Lal v. State of Punjab [1964] 7 SCR 676; G.P. Nayyar v.
State (Delhi Administration) (1979) 2 SCC 593 : [1979] 2 SCR 816;
5
Soni Devrajbhai Babubhai v. State of Gujarat and Others (1991) 4 SCC
298 : [1991] 3 SCR 812; and Securities and Exchange Board of India
v. Ajay Agarwal (2010) 3 SCC 765 : [2010] 3 SCR 70 - referred to.
Hopt v. People of the Territory of Utah 110 US 574 (1884); Duncan
v. State 152 US 377 (1894); Gibson v. Mississippi 162 US 565 (1896);
Thompson v. State of Missouri 171 US 380 (1898); John Mallett v. State
of North Carolina 181 US 589 (1901); John Rooney v. State of North
Dakota 196 US 319 (1905); Beazell v. State of Ohio Chatfield 269 US
167 (1925); Dobbert v. Florida 432 US 282 (1977); Smith et al v. Doe
et al 538 US 84 (2003); Kaiser Aluminium and Chemical Corporation
v. Bonjorno 494 US 827 (1990); Phillips v. Eyre (1870) LR 6 QB 1
and Calder v. Bull 1 L Ed 648 : 3 US (3 Dall) 386 (1798) - referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
377 of 2007.
From the Judgment and Order dated 05.10.2006 of the High Court of
Delhi at New Delhi in CRLR No.366 of 2006.
With
Criminal Appeal No. 2763 of 2023.
Appearances:
Tushar Mehta, S.G., S.V. Raju, ASG, Arvind Datar, Amit Desai,
Arunabh Chowdhary, Sr. Advs., Ankur Talwar, Rajat Nair, Ashutosh
Ghade, Ms. Sairica S. Raju, Annam Venkatesh, Kanu Agrawal, Shreeyash
U. Lalit, Nakul Chengappa K.K., Shantnu Sharma, Madhav Sinhal, Pratyush
Srivastava, Bhuvan Kapoor, A.K. Sharma, Ankur Chawla, Bhanoo Sood,
Aamir Khan, Shivam Tandon, Rahul Unni Krishnan, Pranav Deish, Arush
Matlotia, Sarvesh Singh Baghel, Ms. Kalyani Lal, Jayant Mohan, Mohit
Gupta, Karan Kumar Gogna, Akshay Sahni, Ms. Pallavi Langar, Ms. Prerna
Mahajan, Ashish Jha, Himanshu Tyagi, Ashutosh Kumar Sharma, Ms. Harsh
Lata, Rahul Pratap, Advs. for the appearing parties.
Dr. R.R. Kishore, Respondent in Person.
CBI v. R.R. KISHORE
SUPREME COURT REPORTS
[2023] 13 S.C.R.
6
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
VIKRAM NATH, J.
Crl. Appeal No.377/2007.
1. This Constitution Bench has been constituted to consider whether
the declaration made by a Constitution Bench of this Court, in the case of
Subramanian Swamy vs. Director, Central Bureau of Investigation and
another1, that Section 6A of the Delhi Special Police Establishment Act,
19462 being unconstitutional, can be applied retrospectively in context with
Article 20 of the Constitution.
2. Necessary facts relevant for the purposes of this case are stated
hereunder:
2.1 The appellant-Central Bureau of Investigation3 after registering the
First Information Report at 02:00 pm on 16.12.2004 for off ences under the
Prevention of Corruption Act, 19884 laid a trap in the evening on the same
day wherein the respondent is said to have accepted bribe to set the things
right for the radiologist conducting Pre-Natal test to determine the sex of the
foetus in contravention of the Pre-natal Diagnostic Techniques (Regulation
and Prevention of Misuse) Act, 1994. The respondent applied for discharge,
inter alia, amongst others on the ground that the trap which was a part of
the enquiry/investigation had been laid without the previous approval of
the Central Government as provided under Section 6A of the DSPE Act.
2.2. The Special Judge, CBI, rejected the application for discharge
vide order dated 30.04.2006 which was carried in revision before the High
Court and was registered as Criminal Revision Petition No.366 of 2006.
Learned Single Judge of the High Court vide judgment dated 05.10.2006
framed three questions for consideration namely:
1
(2014) 8 SCC 682
2
In short 'DSPE Act'
3
In short, "CBI"
4
In short "PC Act, 1988"
7
1. What is the background with regard to Section 6A of the DSPE Act?
2. Did the CBI acted in contravention of Section 6A(1)?
3. If yes, does it mean that the entire trial, consequent upon an illegal
investigation, is vitiated?
It answered question No.2 in favour of the respondent and further with
respect to question No.3 left it open for the competent authority to take the
decision and further proceed with reinvestigation and in case sanction is not
granted, to notify the Special Judge, CBI, to close the case. The operative
part of the order is in paragraph 29 of the judgment which is reproduced
hereunder:
"29. It follows that if, at the initial stage of trial, the illegality of
investigation is brought to the notice of the court and yet the Trial
Court continues with the trial then, such proceedings would be
liable to be set aside by the High Court in exercise of its revisional
jurisdiction. In this case, in view of the discussion above, it is clear
that the provisions of Section 6 A(1) of the Prevention of Corruption
Act, 1988 are mandatory and not merely directory. The investigation
carried out in contravention of such provisions is, therefore, clearly
illegal, in violation of a statutory requirement. The dismissal of the
discharge application moved on behalf of the petitioner means that
the trial would continue. This cannot be permitted in view of the
discussion above. Because, then the court would be turning a blind
eye and a deaf ear to the illegality in investigation which has been
brought to its notice at the earliest stage. However, it also does not
mean that the petitioner is entitled to a discharge and the closure of the
case against him. As pointed out in Rishbud's case and Mubarak Ali's
case, reinvestigation is to be ordered in the context of the provisions of
section 6A of the said Act. While the fi le is to be kept pending before
Special Judge, approval of the Central Government is to be sought
for investigation. If approval is accorded then the matter shall be
reinvestigated as per prescribed procedure and the material gathered
in such re-investigation shall be placed before the Special Judge for
further proceedings in accordance with law. If the approval is not
given by the Central Government, then the same shall be notifi ed to
the Special Judge who shall then close the case."
CBI v. R.R. KISHORE
[VIKRAM NATH, J.]
SUPREME COURT REPORTS
[2023] 13 S.C.R.
8
2.3. The CBI, feeling aggrieved by the judgment of the Delhi High Court,
has preferred the present appeal substantially on the ground that Section 6A(2)
of DSPE Act would be applicable and not Section 6A(1) thereof. The High
Court erred in holding that Section 6A(1) was applicable.
2.4. The said appeal is pending since 2007. During the pendency
of the appeal Section 6A(1) of the DSPE Act was held to be invalid and
violative of Article 14 of the Constitution by a Constitution Bench vide
judgment dated 06.05.2014 in the case of Subramanian Swamy (supra).
Paragraph 99 of the said report which makes the above declaration is
reproduced hereunder:
"99. In view of our foregoing discussion, we hold that Section 6A(1),
which requires approval of the Central Government to conduct any
inquiry or investigation into any off ence alleged to have been committed
under the PC Act, 1988 where such allegation relates to: (a) the
employees of the Central Government of the level of Joint Secretary and
above, and (b) such offi cers as are appointed by the Central Government
in corporations established by or under any Central Act, government
companies, societies and local authorities owned or controlled by the
Government, is invalid and violative of Article 14 of the Constitution.
As a necessary corollary, the provision contained in Section 26(c) of
Act 45 of 2003 to that extent is also declared invalid."
3. What the Constitution Bench did not decide was whether the
declaration of Section 6A(1) of the DSPE Act to be violative of Article 14 of the
Constitution would have retrospective eff ect or it would apply prospectively.
4. The appeal was taken up on a number of occasions and argued from
both sides. Relying upon the judgments regarding retrospective or prospective
applicability of the said declaration, the appellant-CBI would submit that once
Section 6A(1) has been declared to be violative of Article 14, the judgment
of the High Court deserves to be set aside and the prosecution should be
allowed to continue with the proceedings from the stage of rejection of
discharge application. On the other hand, the respondent would submit that
the judgment in the case of Subramanian Swamy (supra) could not have
any retrospective operation and therefore, no fault could be found with the
judgment of the High Court and the appeal deserves to be dismissed.
9
5. At a particular stage, this Court felt that the Union of India should
be made a party and should be heard. It accordingly suo moto issued notices
vide order dated 27.04.2012 and the Union of India was required to fi le an
affi davit. The Union of India fi led an affi davit dated 05.10.2012. However,
the same was permitted to be withdrawn by order dated 29.01.2013.
Thereafter, the Union of India fi led another affi davit in February, 2013.
The matter was thereafter taken up on 10.03.2016 when this Court, after
recording the submissions advanced by the rival parties and considering
the importance of the question and also the fact that the retrospectivity or
prospectivity of the judgment in the case of Subramanian Swamy (supra)
could only be dealt with by a Constitution Bench, directed that the matter
be placed before the Chief Justice of India on the administrative side for
constituting an appropriate Bench. Paragraph 7 of the order dated 10.03.2016
framed the question for determination and the same is reproduced hereunder:
"7. The provisions of Section 6A(1), extracted above, do indicate that
for offi cers of the level of Joint Secretary and above a kind of immunity
has been provided for. Whether there can be a deprivation of such
immunity by a retrospective operation of a judgment of the Court,
in the context of Article 20 of the Constitution of India, is the moot
question that arises for determination in the present case."
6. As the order of reference also briefl y deals with the necessary facts
and also the reasons for referring the issue to the Constitution Bench, it would
be appropriate to reproduce the complete order dated 10.03.2016. It reads as
follows:
"1. A prosecution under the Prevention of Corruption Act, 1988 was
sought to be questioned by the respondent accused on the basis of
the provisions contained in Section 6A(1) of the Delhi Special Police
Establishment Act, 1946 which was brought in by an amendment in the
year 2003. Section 6A(1) of the Delhi Special Police Establishment Act,
1946 is in the following terms:
"6A. Approval of Central Government to conduct inquiry or
investigation.-(1) The Delhi Special Police Establishment shall
not conduct any inquiry or investigation into any off ence alleged
to have been committed under the Prevention of Corruption Act,
1988 (49 of 1988) except with the previous approval of the Central
CBI v. R.R. KISHORE
[VIKRAM NATH, J.]
SUPREME COURT REPORTS
[2023] 13 S.C.R.
10
Government where such allegation relates to- (a) the employees
of the Central Government of the Level of Joint Secretary and
above; and (b) such offi cers as are appointed by the Central
Government in corporations established by or under any Central
Act, Government companies, societies and local authorities owned
or controlled by that Government."
2. The Delhi High Court before whom the challenge was brought
answered the question by holding that the respondent accused was
entitled to the benefi t of the said provision. Accordingly, the High Court
took the view that the matter required fresh consideration for grant
of previous approval under Section 6A(1) of the Delhi Special Police
Establishment Act, 1946. Aggrieved, the C.B.I. is in appeal before us.
3. We have heard the learned counsels for the parties as also the
respondent who appears in person.
4. The provisions of Section 6A(1) of the Delhi Special Police
Establishment Act, 1946 has been held to be unconstitutional being
violative of Article 14 of the Constitution of India by a Constitution
Bench of this Court in Subramanian Swamy versus Director, Central
Bureau of Investigation and another [(2014) 8 SCC 682]. The judgment
of the Constitution Bench is however silent as to whether its decision
would operate prospectively or would have retrospective eff ect. Though
a large number of precedents have been cited at the Bar to persuade us
to take either of the above views, as would support the case of the rival
parties, we are of the considered view that this question should receive
the consideration of a Constitution Bench in view of the provisions of
Article 145(3) of the Constitution of India.
5. In fact, in Transmission Corporation of A.P. versus Ch. Prabhakar and
others [(2004) 5 SCC 551], the precise question that has arisen before
us had been referred to a Constitution Bench. Paragraphs 15 and 21
dealing with the said question read as follows:
"15. Whether constitutional guarantee enshrined in clause
(1) of Article 20 is confi ned only to prohibition against conviction
for any off ence except for violation of law in force at the time of
commission of the act charged as an off ence and subjection to a
11
penalty greater than that which might have been infl icted under
the law in force at the time of commission of off ence or it also
prohibits legislation which aggravates the degree of crime or makes
it possible for him to receive the same punishment under the new
law as could have been imposed under the prior law or deprives
the accused of any substantial right or immunity possessed at the
time of the commission of the off ence charged is a moot point to
be debated.
(underlining is ours)
***
21. However, as the interpretation of Article 20 as to its
scope and ambit is involved in these proceedings, we refer the
question formulated in para 15 of this order to a larger Bench for
consideration."
However, the Constitution Bench in Transmission Corporation of A.P.
versus Ch. Prabhakar and others [(2010) 15 SCC 200] declined to
answer the question as in the meantime there were certain amendments to
the statute in question and, therefore, the issues referred were understood
to have become academic. The very same issues have been cropped up
before us in the present proceedings.
6. We have considered it necessary to make the present reference for
the reason that in the case of Transmission Corporation of A.P. versus
Ch. Prabhakar and others [(2004) 5 SCC 551] one of the questions
referred is whether the scope and ambit of Article 20 of the Constitution
of India is to be understood to be protecting the substantial rights or
the immunity enjoyed by an accused at the time of commission of the
off ence for which he has been charged.
7. The provisions of Section 6A(1), extracted above, do indicate that for
offi cers of the level of Joint Secretary and above a kind of immunity has
been provided for. Whether there can be a deprivation of such immunity
by a retrospective operation of a judgment of the Court, in the context of
Article 20 of the Constitution of India, is the moot question that arises
for determination in the present case.
CBI v. R.R. KISHORE
[VIKRAM NATH, J.]
SUPREME COURT REPORTS
[2023] 13 S.C.R.
12
8. For the aforesaid reasons and having regard to the provisions of Article
145(3) of the Constitution of India, we refer the aforesaid question to a
larger bench for which purpose the papers may now be laid before the
Hon'ble the Chief Justice of India on the administrative side."
7. In the above backdrop, the matter has been placed before this Bench
and has been heard at length on the question referred.
SLP(Crl.) No.4364 of 2011
8. Leave granted.
9. This appeal has been fi led by the appellant assailing the correctness
of the judgment and order of the Bombay High Court passed in Criminal
Application No.1913 of 2010, titled Manjit Singh Bali vs. Central Bureau of
Investigation dated 29.11.2010. By the above order, the Bombay High Court
dismissed the petition praying for quashing of the FIR registered by CBI against
the petitioner therein under Sections 7 and 8 of the PC Act, 1988. In this case,
an FIR was registered on 18.02.2010 based on a complaint dated 16.02.2010.
A raid was conducted on 24.02.2010, during which the petitioner therein was
arrested and cash was recovered from his car. In this case also the issue is as
to whether in the facts of the said case, Section 6A(1) of DSPE Act would be
applicable or Section 6A(2) thereof would be applicable.
ARGUMENTS:
A. For CBI:
10. Shri Tushar Mehta, learned Solicitor General appearing for the
appellant-CBI in Criminal Appeal No.377 of 2007 made detailed submissions
which are briefl y summarized hereunder:
10.1. Section 6A of the DSPE Act is a mere procedural provision and not
a penal provision as such would not attract Article 20(1) of the Constitution.
Article 20 of the Constitution applies only to those provisions of law in force,
violation of which results in conviction and resultantly awarding sentence.
Procedural issues like statutory protection during trial, a provision providing for
a particular Court to try the off ence would not have any bearing while invoking
Article 20 of the Constitution.
10.2. Article 20 of the Constitution would have no applicability in
determining whether the declaration made in the case of Subramanian Swamy
13
(supra) would be prospective or retrospective. The protection provided under
Article 20 of the Constitution against ex post facto law extends and confi nes
only to conviction and sentence and would have no relevance for procedural
aspects and also would not have any applicability to the powers exercised during
the course of the investigation. He enlisted the following aspects in this respect:
(a) Article 20 is limited in application wherein distinct off ences
are created subsequently;
(b) The other aspect of Article 20 is debarring infl iction of greater
penalty, post commission of the off ence;
(c) Section 6A did not decriminalise PC Act off ences and removal
of the said provision, therefore, does not create a new off ence;
(d) Section 6A did not provide any blanket immunity against
anti-corruption laws and therefore, removal of the same does not
create a new off ence;
(e) Section 6A did not create any vested right which can be said
to be covered by Article 20;
(f) Declaration of Section 6A as invalid and unconstitutional is
through a judicial order and not a legislative measure.;
10.3. Reliance is placed upon the following judgments in support of the
above propositions:
(1) Rao Shiv Bahadur Singh and another Vs. State of Vindhya
Pradesh5;
(2) State of West Bengal Vs. S.K. Ghosh6;
(3) Sajjan Singh Vs. The State of Punjab7;
(4) Rattan Lal Vs. State of Punjab8;
(5) Union of India Vs. Sukumar Pyne9;
5
(1953) SCR 1188
6
(1963) 2 SCR 111
7
(1964) 4 SCR 630
8
(1964) 7 SCR 676
9
(1966) 2 SCR 34
CBI v. R.R. KISHORE
[VIKRAM NATH, J.]
SUPREME COURT REPORTS
[2023] 13 S.C.R.
14
(6) G.P. Nayyar Vs. State (Delhi Administration)10;
(7) Soni Devrajbhai Babubhai Vs. State of Gujarat and Others11;
(8) Securities and Exchange Board of India Vs. Ajay Agarwal12;
10.4. Referring to Section 6A of the DSPE Act, it was submitted that the
same is not a penal provision and it does not create a new off ence nor does it
increase the punishment for an existing off ence, which existed on the date of
the commission of off ence.
10.5. Prior to insertion of Section 6A in the DSPE Act, similar provision
was existing in Single Directive No.4.7(3) requiring prior sanction to
investigation. This Court in the case of Vineet Narain and Others Vs. Union
of India and Another13, amongst other larger issues was also testing the
validity of the Single Directive No.4.7(3). This Court held in the said case that
by administrative instructions the statutory powers could not be intermeddled
or impeded. It accordingly declared Single Directive No.4.7(3)(i) as invalid.
10.6. As a result of such declaration Section 6A was introduced in
the DSPE Act in the year 2003 vide Section 26(c) of the Central Vigilance
Commission Act, 2003 w.e.f. 11.09.2003.
10.7. Section 6A of the DSPE Act, undeniably does not create a
new off ence nor does it obliterate the off ence. The Constitution Bench in
Subramanian Swamy's case (supra) noted that the classifi cation made in
Section 6A neither eliminates public mischief nor achieves some positive
public good and, therefore, the classifi cation was held to be discriminatory
and violative of Article 14 of the Constitution as it side-tracks the fundamental
objects of the PC Act, 1988 to deal with corruption.
10.8. Shri Mehta commenting upon Section 6A of the DSPE Act enlisted
the following short conclusions:
(a)
It is not a provision creating an off ence or providing immunity
from an off ence under which anyone can be punished;
10 (1979) 2 SCC 593
11 (1991) 4 SCC 298
12 (2010) 3 SCC 765
13 (1998) 1 SCC 226
15
(b) The said provision did not exempt applicability of anti-corruption
laws to offi cers above the rank of Joint Secretary;
(c)
It was a mere executive safety mechanism; It was a mere initial
protective net of a particular kind which this Hon'ble Court
declared as unconstitutional;
(d) The said provision did not seek to create individual rights or
immunities rather was, as was the submission of the Union of India
in Subramanian Swamy (supra), a provision which was aimed at
protecting bona fi de actions for ensuring honest decisions/advice
in governmental functioning.
(e)
It was not aimed as an immunity or substantive exclusion from
application of laws, rather was a preliminary check provided in
order to ensure honest offi cials are not unnecessarily harassed.
(f)
It cannot be termed as a substantive procedural provision nor is it
a substantive penal provision.
(g) At best, Section 6A of the DSPE Act was purely technical,
procedural precondition, which was preliminary in nature and was
to be exercised prior to the stage of investigation.
10.9. It is settled proposition that declaration of unconstitutionality
renders a law to be non est, void ab initio or unenforceable, as the case may
be, subject to the legislature to cure the basis of the said unconstitutionality.
Reliance was placed upon the following judgments of this Court in his context:
(1) Keshavan Madhava Menon Vs. The State of Bombay14;
(2) Behram Khurshed Pesikaka Vs. The State of Bombay15;
(3) M.P.V. Sundararamier and Co. Vs. The State of Andhra Pradesh
& Another16;
(4) Deep Chand Vs. The State of Uttar Pradesh and Others17;
14 1951 SCR 228
15 (1955) 1 SCR 613
16 1958 SCR 1422
17 1959 SCR Suppl. (2) 8
CBI v. R.R. KISHORE
[VIKRAM NATH, J.]
SUPREME COURT REPORTS
[2023] 13 S.C.R.
16
(5) Mahendra Lal Jaini Vs. The State of Uttar Pradesh and Others18;
(6) Municipal Committee, Amritsar and others Vs. State of Punjab
and Others19;
(7) The State of Manipur & Ors. Vs. Surjakumar Okram & Ors.20;
10.10. The common opinion culled out from the various opinions
rendered in the above judgments is that such declaration makes the law
unenforceable and such unenforceability relates back. It was, thus, submitted
that judgment in the case of Subramanian Swamy (supra) relates back to
the point when Section 6A was inserted in the DSPE Act.
10.11. Further submission is that a decision of this Court enunciating a
principle of law is applicable to all cases irrespective of its stage of pendency
as it is assumed that what is enunciated by this Court is in fact the law
from inception. There can be no prospective overruling unless expressly
indicated in clear and positive terms. If the Constitution Bench in the case
of Subramanian Swamy (supra) had any intentions of declaring that the
same would be prospective in application, then the same should have been
specifi cally and discretely stated therein. In absence of such declaration, the
natural assumption is that the same is retrospective applying the Blackstonian
theory of precedence.
10.12. Reference was made by Shri Mehta to the cases of I.C.
Golaknath & Ors. Vs. State of Punjab21 and Anr. and Managing Director,
ECIL, Hyderabad and Others Vs. B. Karunakar and Others22 for the
proposition that prospective overruling is to be exercised as an exception in
rare circumstances and such power should be seldom exercised. He has further
placed reliance upon a judgment of this Court in the case of M.A. Murthy
Vs. State of Karnataka and others23 for the proposition that if prospective
overruling is not specifi cally provided in the decision, it would not be open
for Courts in future to declare such a decision to be prospective in nature. If
18 AIR 1963 SC 1019
19 (1969) 1 SCC 475
20 2022 SCC Online SC 130
21 (1967) 2 SCR 762
22 (1993) 4 SCC 727
23 (2003) 7 SCC 517
17
prospective applicability of a decision is not provided in the said decision,
then it is presumed that it will have retrospective eff ect and declaration of any
law as invalid would be unenforceable and non-existent from the statute book
from the time of its inception. The judgment in the case of Subramanian
Swamy (supra) would, therefore, operate retrospectively and at least would
be unenforceable ab initio.
10.13. The next submission is that the judgment in the case of
Transmission Corporation of A.P. Vs. C.H. Prabhakar and Others24 would
also not be of any help to the respondent as under the American position
of protection against 'ex post facto' laws, removal of a provision similar
to Section 6A of the DSPE Act would not be hit. Reference is made to the
following judgments:
(1) Hopt Vs. People of the Territory of Utah25;
(2) Duncan Vs. State26;
(3) Gibson Vs. Mississippi27;
(4) Thompson Vs. State of Missouri28; 171 US 380 (1898)
(5) John Mallett Vs. State of North Carolina29;
(6) John Rooney Vs. State of North Dakota30;
(7) Beazell Vs. State of Ohio Chatfi eld31;
(8) Dobbert Vs. Florida32;
(9) Smith et al Vs. Doe et al33;
B: For Union of India:
24 (2004) 5 SCC 551
25 110 US 574 (1884
26 152 US 377 (1894)
27 162 US 565 (1896)
28 171 US 380 (1898)
29 181 US 589 (1901)
30 196 US 319 (1905)
31 269 US 167 (1925)
32 432 US 282 (1977)
33 538 US 84 (2003)
CBI v. R.R. KISHORE
[VIKRAM NATH, J.]
SUPREME COURT REPORTS
[2023] 13 S.C.R.
18
11. Shri S.V. Raju, learned Additional Solicitor General of India made
submissions on behalf of the Union of India. His submissions are briefl y
summarized as follows:
11.1. Merely because the Court takes time to decide the matter or merely
because the challenge to statutory provisions is made subsequently, it would
not make an unconstitutional statutory provision legal or constitutional even if
such provision has operated for some time till it is struck down by the Court.
Such a violation is void ab initio, as settled by a large number of decisions of
this Court. It is only rarely that in some cases in order to obviate the hardships
and on equitable grounds, this Court had protected an action taken under an
unconstitutional statute. However, that does not mean that the statute was not
unconstitutional or bad during the period it was on the statute book.
11.2. Prohibition under Section 6A of the DSPE Act is against conducting
any enquiry or investigation. Referring to the defi nition of "enquiry" in Section
2(g) of the Code of Criminal Procedure, 197334, it was submitted that the
enquiry commences after charge-sheet is fi led and is a forerunner to the trial.
Reliance was placed upon the case of Hardeep Singh Vs. State of Punjab35,
in particular, reference has been made to paragraphs 27, 29 and 39 of the report.
11.3. Further referring to the defi nition of the word "investigation" in
Section 2(h) of Cr.P.C., it was submitted that the prohibition contained in
Section 6A of the DSPE Act relates to the prohibition from collecting evidence
in an enquiry or during the investigation.
11.4. Referring to the case of Subramanian Swamy (supra) it is
submitted that there could be two situations prior to the judgment in the
aforesaid case i.e. prior to May, 2014; (i) where evidence is already gathered
as part of investigation or (ii) where evidence is not gathered because of the
prohibition contained in Section 6A of the DSPE Act. Placing reliance upon
a judgment of this Court in H.N. Rishbud and Inder Singh Vs. The State
of Delhi36, wherein, while answering the fi rst question, this Court held that
the prohibition contained in Section 5(4) of the Prevention of Corruption
34 In short 'Cr.P.C.'
35 (2014) 3 SCC 92
36 (1955) 1 SCR 1150
19
Act, 194737 was mandatory in nature whereas while answering the second
question, this Court held that trial following an investigation conducted in
violation of Section 5(4) of the PC Act, 1947 would not be illegal. It was
submitted that where a Magistrate has already taken cognizance upon an
investigation, conducted without the approval under Section 6A of the DSPE
Act, the Court can act on evidence collected during such investigation and
the proceedings would not be vitiated in the absence of any prejudice both
actual and pleaded with respect to such evidence. Reference has been made
to the following judgments:
(i) Fertico Marketing and Investment Private Limited and Others
Vs. Central Bureau of Investigation and Another38;
(ii) Rattiram and Others Vs. State of Madhya Pradesh39;
(iii) State of Karnataka Vs. Kuppuswamy Gownder and Others40;
11.5. It is further submitted that where investigation was not conducted
and where the Magistrate has not taken cognizance, the Investigating Agency
can conduct further investigation and collect evidence which earlier it was
not able to do due to the bar of Section 6A of the DSPE Act. However, such
further investigation would be subject to Section 17(A) of the PC Act, 1988. It
was, thus, submitted that after judgment in the case of Subramanian Swamy
(supra), the prohibition contained in Section 6A of the DSPE Act having
seized the CBI could investigate the matter subject to Section 17(A) of the
PC Act, 1988 wherever applicable. There would be no requirement to obtain
approval under Section 6A of the DSPE Act.
11.6. The provisions under Section 6A of the DSPE Act do not confer
any immunity from prosecution. Assuming that Section 6A of the DSPE Act
was in operation prior to the judgment in the case of Subramanian Swamy
(supra), it could not bar investigation by an Agency other than those covered
by the DSPE Act. Reference was made to the judgment of this Court in the
case of A.C. Sharma Vs. Delhi Administration41. Further submission is that
37 In short, "PC Act, 1947"
38 (2021) 2 SCC 525
39 (2013) 12 SCC 316
40 AIR 1987 SC 1354
41 (1973) 1 SCC 726
CBI v. R.R. KISHORE
[VIKRAM NATH, J.]
SUPREME COURT REPORTS
[2023] 13 S.C.R.
20
a trial on the basis of a private complaint relating to corruption cases would be
maintainable and there would be no immunity in such cases by virtue of Section
6A of the DSPE Act.
11.7. It was next submitted that Article 20(1) of the Constitution would
have no application in this case as investigation is only part of the procedure
for collecting evidence and it neither amounts to conviction nor to sentence.
Reliance was placed upon a judgment of this Court in the case of Rao Shiv
Bahadur Singh (supra).
C: Dr. R.R. Kishore - respondent in person in Crl.A.No.377 of 2007:
12. The respondent, Dr. R.R. Kishore has throughout represented himself
in person and has argued the matter at length before us.