# M. BALAKRISHNA REDDY v. DIRECTOR, CBI, NEW DELHI '(Criminal Appeal No. 491 of 2008)

- **Citation:** [2008] 4 S.C.R. 1154
- **Court:** Supreme Court of India
- **Decided:** 2008-03-14
- **Case number:** Criminal Appeal No. 491 of 2008
- **Bench:** C.K. Thakker, Dalveer Bhandari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-balakrishna-reddy-v-director-cbi-new-delhi-criminal-appeal-no-491-of-2008-24774
- **Pages:** 38

## Headnote

Delhi Special Police Establishment Act, 1946 - ss. 6, 5
~
and 3 - Consent of State Government to exercise powers and
,..
c ;urisdiction - Examination conducted by UPSC having head
office at Delhi - Commission of offence under the Penal Code
by Central Government employee at Bhopal in State of
Madhya Pradesh - Prosecution by CBI against employee
under the Delhi Act - Challenge to, on the ground that consent
D not given by State - Held: State Government of Madhya
Pradesh gave consent to Central Government as required u/
s 6 to enable the latter to invoke provisions of Delhi Act- Thus,
prosecution by CBI against employee under Delhi Act not
Without jurisdiction - Order of trial court as upheld by High
E Court suffers from no infirmity - Constitution of India, 1950 -
Article 166.
Constitution of India, 1950 - Article 166 - Conduct of the
business of the Government of a State - Nature and scope of
The Union Public Service Commission conducted
F examination in college at Bhopal. The appellant-Central
Government Employee appeared and was allegedly found
to be in possession of prewritten answer sheets, similar
to the answer sheets supplied by the Examination Board.
The confessional statement of the appellant was recorded.
G The matter was reported to UPSC Head Office at New
Delhi. A preliminary inquiry was instituted. The Secretary,
UPSC lodged a criminal case against the appellant for
offences punishable under sections 420, 471, 474, 467,
468 and 417 read with section 511 IPC. Charge-sheet was
H
1154
'
-f
M. BALAKRISHNA REDDY v. DIRECTOR, CBI,
1155
NEW DELHI
filed in the Court of Special Magistrate. Appellant raised A
preliminary objection before the Magistrat~ that since the
alleged offences had been committed at Bhopal in the
State of Madhya Pradesh, CBI had no power, authority or
jurisdiction to institute criminal proceedings; and that
before initiating proceedings under the Delhi Special B
Police Establishment Act, 1946, the consent of the State
Government was required which was not given by the
State. The preliminary objection was rejected. Aggrieved
appellant filed Revision. High Court dismissed the same.
Hence the present appeal.
c
Appellant contended that the High Court was wrong ·
in holding that the proceedings against the appellant
could have been initiated by CBI and that the Delhi Act
would apply for cognizance of offences committed by him
as a Central Government employee; that the direction D
issued by the High Court was ex facie erroneous; that
when alleged offence was committed by the appellant in
Bhopal in the State of Madhya Pradesh, Police Authorities
of the State alone could have initiated proceedings
against the accused; that before invoking the provisions E
of the Delhi Act, consent of the State Government is
mandatory; that the provision as to consent of the State
Government must be complied with in letter and spirit and
such consent should be in proper form as required by
law; that the consent required under the Act is of the 'State
F
Government'; that the provisions of Article 166 of the
Constitution are mandatory and before any action is
taken, they are required to be strictly complied with and if
the procedure laid down in the said Article is not followed,
such consent cannot be said to be legal, valid and in G
consonance with law and CBI does not get jurisdiction in
the matter; that the letter by the Deputy Secretary to the
Government of Madhya Pradesh to the Secretary, Ministry
of Home Affairs, Government of India, New Delhi which
purportedly records the consent of the State Government H
1156
SUPREME COURT REPORTS
[2008] 4 ·s.C.R.
A to the exercise of. powers and jurisdiction of the Delhi
State Po.lice Establishment to the State of Mad.hya
Pradesh is in the nat.u.re of 'inter-Departmental
communic~tion' by the Deputy Secretary to the State of
Madhya Pradesh tQ the Secretary to Central Government
B and cannot be regarded as consent under Sectioh 6 of
the Act; and that the orders passed by the Courts below

## Text

_Characters 0–39,759 of 72,297. This is a partial read: ask again with offset=39759 for what follows._

[2008] 4 S.C.R. 1154
A
M. BALAKRISHNA REDDY
v.
DIRECTOR, CBI, NEW DELHI
'(Criminal Appeal No. 491 of 2008)
8
MARCH 14, 2008
[C.K. THAKKER AND DALVEER BHANDARI, JJ.]
Delhi Special Police Establishment Act, 1946 - ss. 6, 5
~
and 3 - Consent of State Government to exercise powers and
,..
c ;urisdiction - Examination conducted by UPSC having head
office at Delhi - Commission of offence under the Penal Code
by Central Government employee at Bhopal in State of
Madhya Pradesh - Prosecution by CBI against employee
under the Delhi Act - Challenge to, on the ground that consent
D not given by State - Held: State Government of Madhya
Pradesh gave consent to Central Government as required u/
s 6 to enable the latter to invoke provisions of Delhi Act- Thus,
prosecution by CBI against employee under Delhi Act not
Without jurisdiction - Order of trial court as upheld by High
E Court suffers from no infirmity - Constitution of India, 1950 -
Article 166.
Constitution of India, 1950 - Article 166 - Conduct of the
business of the Government of a State - Nature and scope of
The Union Public Service Commission conducted
F examination in college at Bhopal. The appellant-Central
Government Employee appeared and was allegedly found
to be in possession of prewritten answer sheets, similar
to the answer sheets supplied by the Examination Board.
The confessional statement of the appellant was recorded.
G The matter was reported to UPSC Head Office at New
Delhi. A preliminary inquiry was instituted. The Secretary,
UPSC lodged a criminal case against the appellant for
offences punishable under sections 420, 471, 474, 467,
468 and 417 read with section 511 IPC. Charge-sheet was
H
1154
'
-f
M. BALAKRISHNA REDDY v. DIRECTOR, CBI,
1155
NEW DELHI
filed in the Court of Special Magistrate. Appellant raised A
preliminary objection before the Magistrat~ that since the
alleged offences had been committed at Bhopal in the
State of Madhya Pradesh, CBI had no power, authority or
jurisdiction to institute criminal proceedings; and that
before initiating proceedings under the Delhi Special B
Police Establishment Act, 1946, the consent of the State
Government was required which was not given by the
State. The preliminary objection was rejected. Aggrieved
appellant filed Revision. High Court dismissed the same.
Hence the present appeal.
c
Appellant contended that the High Court was wrong ·
in holding that the proceedings against the appellant
could have been initiated by CBI and that the Delhi Act
would apply for cognizance of offences committed by him
as a Central Government employee; that the direction D
issued by the High Court was ex facie erroneous; that
when alleged offence was committed by the appellant in
Bhopal in the State of Madhya Pradesh, Police Authorities
of the State alone could have initiated proceedings
against the accused; that before invoking the provisions E
of the Delhi Act, consent of the State Government is
mandatory; that the provision as to consent of the State
Government must be complied with in letter and spirit and
such consent should be in proper form as required by
law; that the consent required under the Act is of the 'State
F
Government'; that the provisions of Article 166 of the
Constitution are mandatory and before any action is
taken, they are required to be strictly complied with and if
the procedure laid down in the said Article is not followed,
such consent cannot be said to be legal, valid and in G
consonance with law and CBI does not get jurisdiction in
the matter; that the letter by the Deputy Secretary to the
Government of Madhya Pradesh to the Secretary, Ministry
of Home Affairs, Government of India, New Delhi which
purportedly records the consent of the State Government H
1156
SUPREME COURT REPORTS
[2008] 4 ·s.C.R.
A to the exercise of. powers and jurisdiction of the Delhi
State Po.lice Establishment to the State of Mad.hya
Pradesh is in the nat.u.re of 'inter-Departmental
communic~tion' by the Deputy Secretary to the State of
Madhya Pradesh tQ the Secretary to Central Government
B and cannot be regarded as consent under Sectioh 6 of
the Act; and that the orders passed by the Courts below
sho~ld b.e s~taside by quashing the pro.ceedirigs initiated ·
by CBI against the appellant.·
·
Respondents contended that the High Court
C considered the order dated 05.02.1957 in its proper
p~rspective and held that the State of Madhya Pradesh
had given consent as required by law under. section 6 of·
the Delhi Act; that the prosecution by CBI against the
appellant uhd~r the Delhi Act cannot be said to be without
D · jurisdicti.on;· and that th.e provisions of Article .166 are
directory and even if there is n.o strict compliance, the
action cannot be held illegal or invalid and the same ca~
be upheld providec:I there is .'substantial' compl.iance; · ·
E
. Dismis~in·g the a·ppeal, the Court
HELD: .. 1. Section 6 of the Delhi Special Police·
Establishment Act, 1946 ·requires consent ·of State·
Government for exercising powers and jurisdiction under
the Act by Special Police' Estabfishmerit to any area iri a
F State not being Union Territory or Railway. The plain
reading of s. 6 goes to show that for exercise of Jurisdiction
by the CBI in ·a State. (other.than l)nion Territory or Railway
Area), co·nsent of the State Government is· necessary.
Before ,the provisjons ·of the Delhi Act are invoked to:
G exe,rcise power and jurisdiction by Special Police
Establishment-in any State, t,he following conditions must
be fulfilled; (i) A notification must be issued by the Central
Government specifying the offences to be investigated
by Delhi Special Police Establishment (Section 3);. (ii) An
order .must be passed by the Central Government
H
'
• M. BALAKRISHNA REDDY v. DIRECTOR, CBI,
1157
NEW DELHI
extending the powers and jurisdiction of Delhi Special A
Police Establishment to any State in respect of the
offences specified under Secti<?n. 3 (Section 5); and (iii)
Consent of the State Government must be obtained for
the exercise of powers ·by Delhi Special Police
Establishment in the State (Section 6). [Paras 14 and 15] B
[1164-G; 1165-B-E]
2. Bare reading of Clause (1) of Article 166 of the
Constitution of India, 1950 makes it clear that all executive
actions of the Government of a State shou.ld be expressed
to be taken in the name of the Governor. Clause (2) C
provides for the authentication of the orders and other
instructions made and execpted in the nam.e of the
Governor. Clause (3) enables the Governor to make rules
for the more convenient transaction of the Government
of the State and for the allocation of business among the D
Ministers, usually known as 'Rules of Business' or
'Business Rules'. [para 22] [1169-E-F]
3.1 In the instant case, the first two cond!tions have
been complied with and the requisite material is on record
of the case. A notification required to be issued by the . E
Central Government under s. 3 of the Delhi Act specifying
offences under IPC as also under several other Acts has
been issued on September 7, 1989 and has been placed
by ttie respondent" on record alorig with the affidavit-inreply filed by. the Superintendent of Police, CBI, Bhopal.
F
The said notification covers inter alia, the. offences
punishable under ss. 417, 418, 420, 467, 468, 471, 474, 511,
IPC. Likewise, the Central Government passed an order
on February 18, 1963 as contemplated by Section 5 of the
Delhi Act extending the powers and jurisdiction of the G
members of Special Police Establishment to various
States including the State of Madhya Pradesh for the
investigation of offences specified in the Schedule
annexed to the said schedule. The Schedule specifies
various offences under IPC, the Prevention of Corruption
H
•
. ..
1158
SUPREME COURT REPORTS
[2008] 4 S.C.R.
l ,
"'
A Act and various other enactments. Thus, section 3 and 5
.of the Delhi Act have .been complied with. [Para 16]
).,
[1165-F-H; 1166-A-B]
3.2 The decision produced by the respondent along
B
with the counter-affidavit filed by the Superintendent of
Police, CBI, Bhopal clearly sets out all the particulars
required by Section 6 of the Delhi Act. It refers to the file/
reference number, name of the department, the authority
--4
from whom it was issued and communicated to the
concerned department of the Central Government.
c Therefore, it cannot be said that the State Government
had not granted consent under Section 6 of the Delhi
· Aet.[Para 69) [1190-8-C]
3.3 It would be an impermissible leap of logic to
r
~
D deduce to .formulate a rule of law that consent can never·
be accorded except by issuing a notification. [Para 70]
[1190-D]
)-
;
3.4 Section 3 of the Act refers to 'notification' and
requires the Central Government to issue notification
rE specifying offences or class of offences to be investigated
~
by Special Police Establishment. Section 5 uses the term
'order' and enables the Central Government to extend
)o
powers and jurisdiction of Special Police Establishment
r
to other areas not covered by the Act. Section 6 which
F speaks of consent of State Government for the exercise
of powers and jurisdiction of the Special Establishment
neither refers to 'notification' nor 'order'. It merely requires
y
consent of the State Government for the application of
the Delhi Act. Parliament advisedly and deliberately did
not specify the mode, method or manner for granting
G consent though in two preceding sections such mode
was provided. If it intended that such consent should be
~
in a particular form, it would certainly have provided the
form as it was aware of different forms of exercise of
power. Therefore, it depends on the facts of each case
)--
)
H whether the consent required bys. 6 of the Act has or has
'
M. BALAKRISHNA REDDY v. DIRECTOR, CBI,
1159
NEW DELHI
not been given by the State Government and no rule of A
),
universal application can be laid down. [Para 71]
[1190-E-H; 1191-A]
3.5 There is no doubt that the State of Mad.hya
Pradesh has given consent as envisaged by s. 6 of the
B
Delhi Special Police Establishment Act, 1946 and
prosecution instituted by CBI against the appellant cannot
~-
be said to be without jurisdiction. There is no infirmity in
the order passed by the trial Court and confirmed by the
,...
High Court. [Para 72] [1191-B]
Bachhittar Singh v. State of Punjab 1962 (3) SCR 713; c
C. B. /. v. Ravi Shankar Srivastava 2006 (7) SCC 188 -
distinguished.
Ujgar Singh and Anr. v. State of Punjab 1952 SCR 756;
Dattatreya Moreshwar Pangarkar v. State of Bombay and Ors.
D
1952 SCR 612; State of Bombay v. Purushottam Jog Naik
1
1952 SCR 674; P Joseph John v. State of Travancore-Cochin
1955 (1) SCR 1011; Swadeshi Cotton Mills Co. Lt<;J. v. State
':I
Industrial Tribunal, UP and Ors. 1962 (1) SCR 422; Major
·•
E.·G. Barsay v. State ·of Bombay 1962 (2) SCR 195; R.
E
Chitralekha and Anr v. State of Mysore and Ors. 1964 (6) SCR
368; State of Uttar Pradesh v. Om Prakash Gupta 1969 (3)
SCC 775; Gulabrao Keshavrao Patil and Ors. v. State of Gujarat
and Ors. 1996 (2) SCC 26; J.P Bansal v. State of Rajasthan
ans Anr. 2003 (5) SCC 134 - referred to.
F
'(
CRIMINAL APPELLATE JURISDICTION : Criminal
-
Appeal No. 491 of 2008.
From the Judgment and Order dated 2.1.2007 of the High
Court of Madhya Pradesh, Bench at Indore in Crl. Rev. No. 176/
2003.
G
Dr. Rajeev Dhawan, D. Rama Krishna Reddy and D.
Bharathi Reddy for the Appellant.
~
A. Sharan, A.S.G., B.B. Singh, Amit Anand Tiwari and P.
Parmeswaran for the Respondent.
H
1160
A
SUPREME COURT REPORTS
[2008] 4 S.C.R.
The Judgment of the Court was delivered by
C.K. THAKKER, J. 1. Leave granted.
2. The- present appeal is filed against an order passed by
Special Magistrate, CBI, Indore, Madhya Pradesh on December
B 17, 2002 in Criminal Case No. 1.155of2002 and confirmed by
the High Court of Madhya Pradesh (Indore Bench) on January
2, 2007 in Criminal Revision No. 176 of 2003.
3. Briefly stated the facts of the case are that the app.eHant
herein appeared in the examination conducted by the Union
C Public Service Commission ('UPSC' for short) in the year 1996 ·
at HamidiyaArts and Commerce College, Bhopal on November
1, 1996. It was alleged that the appellant was found to be in
possession of prewritten answer sheets which were similar, if
not identical, to the answer sheets supplied by the Examination
D Board. The appellant was taken out of the hall and a statement
was recorded in which he confessed to have prewritten answer
sheets with him. The matter was then reported to UPSC Head
Office at New Delhi. A preliminary inquiry was instituted and on
being prima facie satisfied about the allegations levelled, the
· E Secretary, UPSC, lodged a Criminal Case against the appellant
for offences punishable under Sections 420, 471, 474, 467, 468
and 417 read with Section 511 ofthe Indian Penal Code, 1860
('IPC' for short). A charge-sheet was filed in the Court of Special
Magistrate, Central Bureau of Investigation ('CBI' for short),
F
Indore.
4. The appellant r~i~d a preliminary objection contending
that the alleged offences'h~d been committed at Bhopal in the
State of Madhya Pradesh and CBI had no power, authority or
jurisdiction to institute <;:rimina! proceedings. It was also
G contended that before initiating· proceedings under the Delhi
Special Police Establishment Act, 1-946. (hereinafter referred to
as 'the Delhi Act'), consent of the State Government is required.
No such consent had been given by .the State of Madhya
Pradesh and the proceedih-gs initiated against the appellant by
H CBI were withoutjurtsdiction.
-i
y
)--
1
..
'
I
~
'
~ •'
i
M. BALAKRISHNA REDDY v. DIRECTOR, CBI,
1161
NEW DELHI [C.K. THAKKER, J.]
~
5. The learned Magistrate, by an order dated December A
17, 2002 rejected the preliminary objection. Being aggrieved
by the said order, the appellant preferred Revision under
Section 397 of the Code of Criminal Procedure, 1973 in the
High Court of Madhya Pradesh (Indore Bench), and as stated
above, the High Court dismissed the Revision Petition. The said 6
order is challenged by the appellant by filing the present appeal.
~
6. On March 8, 2007, notice was issued by this Court. On
....
August 6, 2007, the Registry was directed to place the matter
for final hearing. That is how the matter has been placed before
us.
c
7. We have heard learned counsel for the parties.
8. The learned counsel for the appellant raised several
contentions. It was submitted that the High Court was wrong in
holding that the proceedings against the appellant could have. D
been initiated by CBI. It was contended that the direction issued
by the High Court was ex facie erroneous. When alleged offence
was committed by the appellant in Bhopal in the State of Madhya
Pradesh, Police Authorities of the State alone could have
initiated proceedings against the accused. It was also submitted
E
that before invoking the provisions of the Delhi Act, consent of
the .State Government is mandatory and a condition precedent
for the exercise of power. The provision as. to consent of the
State Government must be complied with in letter and spirit and
t
such consent should be in proper form as required by law. Since F
'
y
the consent required under the Act is of the 'Stete Government',
_...
the prerequisites of Article 166 of the Cons~itution must be
observed. If the procedure laid down in the said Article is not
followed; the so called consent has no meaning. Such consent
cannot be said to be legal, valid and in consonance with law G
and CBI does not' get jurisdiction in the matter. It was also
submitted that the High Court was wholly wrong in upholding
the contention of CBI that it could have initiated prosecution since
the alleged offence had been committed in conduct of UPSC
Examination which had been conducted by its Delhi office which
H
•
1162
SUPREME COURT REPORTS
[2008] 4 S.C.R.
"
A
is the Head Quarter of UPSC and, hence, the Delhi Act was
)_
applicable. The High Court was again wrong in holding that since
...
the appellant was selected in Indian Forest Services
"' {-
Examination conducted by UPSC and he was in Indian Forest
Services since 1993 and was an officer of Central Government,
B the Delhi Act would apply for cognizance of offences committed
by him as a Central Government employee and CBI had power
;~
to prosecute him. The High Court, according to the learned
~
counsel, was not right in holding that the letter dated February
,
5, 1957 by the Deputy Secretary to the Government of Madhya
""'~
c Pradesh to the Secretary to the Government of India, Ministry of
Home Affairs could be termed and treated as 'consent' within
the meaning of Section 6 of the Delhi Act. It was, therefore,
submitted that the appeal deserves to be allowed by setting
aside the orders passed by the Courts below and by quashing
D the proceedings initiated by CBI against the appellant.
...
9. The learned counsel for the respondents, on the other
)
.,....
hand, supported the· order passed by the trial Court and
confirmed by the Revisional Court. It was submitted that the High
Court had considered the order dated February 5, 1957 in its
E proper perspective and held that the State of Madhya Pradesh
had given consent as required by law (Section 6 of the Delhi
Act) and prosecution by CBI against the appellant under the
Delhi Act cannot be said to be without jurisdiction.
F
10. We have given anxious consideration to the rival
~
submissions of the learned counsel of both. the sides. We have
also examined the relevant provisions of the Delhi Act, Article
'(
,, ,,
166 of the Constitution and case law cited by both the' parties
~
and we are of the view that by rejecting the preliminary objection
raised by the appellant, the Courts below have not committed
G any illega.lity or error of law and the appeal deserves to be
dismissed.
11. At the outset, we must frankly admit that the two factors
weighed with the High Court, namely, (i) the Head Office of the
;...
H
UPSC is located at New Delhi; and (ii) the appellant is an
.. ,t
•
_.
M. BALAKRISHNA REDDY v. DIRECTOR, CBI,
1163
NEW DELHI [C.K. THAKKER, J.]
employee of Central Government and on those grounds, the
A
,J
Delhi Act would be applicable have not impressed us. The said
grounds, in our opinion, do not confer jurisdiction on CBI to invoke
the Delhi Act. The main ground, therefore, which remains to be
considered is whether 'consent' as envisaged by Section 6 of
the Delhi Act has been given by the State Government of Madhya B
Pradesh to the Central Government so as to enable the latter to
invoke the provisions of the Delhi Act. For the said purpose, it
is necessary to bear in mind the relevant provisions of the Delhi
Act.
12. As the Preamble of the Act states, it is an Act to make c
provision for the constitution of a Special Police Force in Delhi
for the investigation of certain offences in the Union Territories
and for the extension to other areas of the powers and jurisdiction
of the members of the said force in regard to the investigation
~
of the said offences. Section 1 declares that the Act extends to D
the whole of India. Section 2 provides for constitution and powers
~
f
of Special Pol!ce Establishment. Section 3 enables the Central
Government to investigate offences by Special Police
Establishment. It reads thus:
3. Offences to be investigated by Special Police
E
Establishment:- The Central Government may, by
notification in the official gazette, specify the offences or
classes of offences which are to be investigated by the
Delhi Special Police Establishment.
13. Section 4 covers superintendence and administration
F
)'
of Special Police Establishment. Section 5 empowers the
Central Government to extend the powers and jurisdiction of
Special Police Establishment to States. The said section is also
relevant and may be reproduced;
G
5. Extgnsion 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
H
•
1164
SUPREME COURT REPORTS
[2008] 4 S.C.R.
tA
Territory, the powers 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.
B
(2) When by order under sub-section (1) the powers and
jurisdiction of members of the said Police establishment
are extended to any such area, a member thereof may,
isubject to any order which the Central Government may
~
make in this behalf, discharge the functions of a police
·""
c
officer in the area and shall, while so discharging such
functions, be deemed to be a member of the police force
of thatarea and be vested with the powers, functions and
privileges and be subject to the liabilities of a police officer
belonging to that police force
D
(3) Where any such order under sub-section (1) is made
in relation to any area, then, without prejudice to the
!f
provisions of sub-section (2), any member of the Delhi
~·
Special Police Establishment of or above the rank of SubInspector may, subject to any orders which the Central
E
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 in that area and
when so exercising such powers shall be deemed to be
F
an officer in charge of a police station discharging the
·-
functions ofsuch an officer within the limits of his station.
.
'
f
14. Section 6 is very important which requires consent of
i'
State Government for exercising powers and jurisdiction under
the Act by Special Police Establishment to any area in a State
G not being Union Territory or Railway. The said section, therefore,
may be quoted in extenso;
6. Consent of the State Government to exercise
powers and jurisdiction:- Nothing contained in Sec. 5
shall be deemed to enable any member of the Delhi Special
H
Police Establishment to exercise powers and jurisdiction
• M. BALAKRISHNA REDDY v. DIRECTOR, CBI,
1165
NEW DELHI [C.K. THAKKER, J.]
in any area in a State, not being a Union Territory or A
railway area without the consent of the Government of
that State.
15. Plain reading of the above provisions goes to show
that for exercise of jurisdiction by the CBI in a State (other than
B
Union Territory or Railway Area), consent of the State Government
is necessary. In other words, before the provisions of the Delhi
Act are invoked to exercise power and jurisdiction by Special
....
Police Establishment in any State, the following conditions must
be fulfilled;
c
(i)
A notification must be issued by the Central
Government specifying the offences to be
investigated by Delhi Special Police Establishment
(Section 3);
(ii)
An order must be passed by the Central Government D
i
extending the powers and jurisdiction of Delhi
l
Special Police Establishment to any State in respect
of the offences specified under Section 3 (Section
5); and
(iii) Consent of the State Government must be obtained
E
for the exercise of powers by Delhi Special Police
Establishment in the State (Section 6).
16. Now, so far as the first two conditions are concerned,
they have been complied with and the requisite material is on
F
'f
record of the case. A notification required to be issued by the
Central Government under Section 3 of the Delh_i Act specifying
offences under the Indian Penal Code (IPC) as also under
several other Acts has been issued on September 7, 1989 and
has been placed by the respondent on record along with the G
affidavit-in-reply filed by M.C .. Sahni, Superintendent of Police,
CBI, Bhopal. The said notification covers interalia, the offences
punishable under Sections 417, 418, 420, 467, 468, 471, 474,
511, IPC. Likewise, the Central Govenrment passed an order
on February 18, 1963 as contemplated by Section 5 of the Delhi
H
A
B
c
D
E
F
G
H
1166
SUPREME COURT REPORTS
[2008] 4 S.C.R.
Act extending the powers and jurisdiction of the members of
Special Police Establishment to various States including -the
State of Madhya Pradesh for the investigation of offences
specified in the Schedule annexed to the said schedule. The
Schedule specifies various offences under IPC including the
offences referred to hereinabove, offences under the Prevention
of Corruption Act and various other enactments. Thus, Section
3 and 5 of the Delhi Act have been complied with.
17. The question, therefore, which has to be considered
is whether the consent contemplated by Section 6 of the Delhi
Act has been given by the State Government. According to the
appellant, no such consent has been given by the State of
Madhya Pradesh: The counter argument on behalf of the
respondent is that such consent has been given by the State
Government which is reflected in the order dated February 5,
1957.
18. A copy of the letter addressed by the Deputy Secretary
to the Government of Madhya Pradesh to the Secretary, Ministry
of Home Affairs, Government of India, New Delhi has been
placed on record by the appellant, which reads thus;
'To
The Secretary,
Ministry of Home Affairs,
Govt. of India,
New Delhi.
Bhopal, dated 5th February, 1957
Sub: Consent of the State Government to the functioning
of the Special Police Establishment in the State.
Sir,
In continuation of this d~partment letter No. 20/12(11)/Home
Police dated the 29th December, 1956 on the above
subject, I am directed to state that this State Government
have no objection to the members of the Delhi State Police
•
)..
·r
.j
"'
~.
~·
•
~·
'
(
I
M. BALAKRISHNA REDDY v. DIRECTOR, CBI,
1167
NEW DELHI [C.K. THAKKER, J.]
....
-{
Establishment exercising powers and jurisdiction within
A
this state.
Yours faithfully,
Sd/-
P.N. MISHRA
B
DEPUTY SECRETARY TO THE GOVT."
19. The learned counsel for the appellant contended that
the above letter which purportedly records the consent of the
State Government to the exercise of powers and jurisdiction of
the Delhi State Police Establishment to the State of Madhya c
Pradesh is merely a letter and does not meet with the
requirements of Section 6 of the Delhi Act. The so called
'consent' reflected in the letter, hence, cannot be said to be
'consent' accorded by the State Government under the statute.
In other words, the contention is that the letter is in the nature of D
'inter-Departmental communication' by the Deputy Secretary to
the State of Madhya Pradesh to the Secretary to Central
Government and cannot be regarded as consent under Section
6 of the Act.
20. In the counter-affidavit filed by the Superintendent of E
Police, CBI, Bhopal, the deponent has stated that the consent
as required by Section 6 of the Delhi Act had been given by the
State of Madhya Pradesh to the Central Government. It was also
stated that the copy of the order, dated February 5, 1957
annexed to the Special Leave Petition by the petitioner F
i
(appellant herein) was not full and complete and did not contain
---/.
file/reference number, name of the department and the authority
from whom it was issued. The order, however, contains all such
information. The deponent has annexed the order as one of the
annexures (Annexure IV) to his reply and the same reads thus;
G
"SECRET
TRUE COPY
NO. G97/ll-Home/Police
Government of Madhya Pradesh
Home (Police) Department
H
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G
1168
SUPREME COURT REPORTS
From,
Shri RN. Mishra, IAS
Deputy Secretary to Govt.'
To,
The Secretary to the Govt. of India,
Ministry of Home Affairs,
NEW DELHI.
[2008] 4 S.C.R.
Bhopal, dated 5th February, 1957
Subject: Consent of the State Government to the functioning
of the Special Police Establishment in the State.
Sir,
In continuation of this department letter No. 20/12(11)/Home
Police, dated the 29th December, 1956 on the above
subject, I am directed to state that this State
Government have no objection to the members of
the Delhi Special Police Establishment exercising
powers and jurisdiction within this State.
Yours faithfully,
Sd/-
R.N. MISHRA
Deputy Secretary to the Gov~.
ATTESTED
(T.C. RAMANUJACHARI)
DEPUTY SECRETARY TO THE
GOVERNMENT OF INDIA"
(emphasis supplied)
21. The learned counsel for the appellant then submitted
that all executive actions of the Government of a State must be
taken in accordance with and as per the procedure laid down in
· Article 166 of the Constitution. Article 166 of the Constitution on
which strong reliance has been placed by the appellant reads
H thus;
•
;
I
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M. BALAKRISHNA REDDY v. DIRECTOR, CB_I,
1169
NEW DELHI [C.K. THAKKER, J.]
166. Conduct of business of the Government of a A
State.-
(1) All executive action of the Government of a State shall
be expressed to be taken in the name of the Governor.
(2) Orders and other instruments· made and executed in
B
the name of the Governor shall be authenticated in such
manner as may be specified in rules to be made by the
Governor, and the validity of an order on instruction which
is so authenticated shall not be called in question on the
ground that it is not an order or instrument made or c
executed by the Governor.
(3) The Governor shall make rules for the more convenient
transaction of the business of the Government of the State,
and for the allocation among Ministers of the said business
· in so far as it is not business with respect to which the D
Governor is by or under this Constitution required to act jn
his discretion.
22. Bare reading of Clause (1) of Article 166 of the
Constitution makes it clear that all executive actions of the
Government of a State should be expressed to be taken in the
E
name of the Governor. Clause (2) provides for the authentication
of the orders and other instructions made and executed in the
name of the Governor. Clause (3) enables the Governor to make
rules for the more convenient transaction of the Government of
the State and for the allocation of business among the Ministers,
F
usually known as 'Rules of Business' or 'Business Rules'.
23. The learned counsel for the appellant contended that
Article 166 of the Constitution deals with 'Conduct of
Government Business' and mandates that such business should G
be performed in the manner laid down in Article 166. To put it
differently, according to the learned counsel, the provisions of
Article 166 are mandatory and before any action is taken, they
are required to be strictly complied with. If the procedure
prescribed by Article 166 is not followed, the business cannot H
1170
SUPREME COURT REPORTS
[2008] 4 S.C.R.
A be said to be a 'business of the Government of the State' and
has no effect whatsoever.
24. The learned counsel for the respondents, on the other
hand, submitted that the provisions of Article 166 are directory
and even if there is no strict compliance, the action cannot be
8
held illegal or invalid and the same can be upheld provided there
is 'substantial' compliance.
'
25. Now, let us see how the provision (Article 166 of the
Constitution) has been interpreted by this Court.
C
26. Article 166 came up for interpretation before this Court
D
immediately after the Constitution came into force and continued
to come up for consideration from time to time. Let us examine
few leading cases wherein this Court had an occasion to deal
with the said provision.
. 27. In Ujgar Singh & Anr. V State of Punjab, 1952 SCR
756, an order of detention was made against the petitioner under
the Preventive Detention Act, 1950. The detenu challenged it in
this Court by invoking Article 32 of the Constitution. One of the
contentions raised on his behalf was that the grounds of
E detention did not purport to state that the authority making the
order was the Governor of the State.
28. The Constitution Bench of this Court, however,
negatived the contention. Interpreting Article 166 of the
F
Constitution, Chandrasekhara Aiyar, J. stated;
G
H
"Under section 3 of the Preventive Detention Act, the
authority to make the order is the State Government.
Section 166 ( 1) of the Constitution provides that all
executive action of the Government of a State shall be
expressed to be taken in the name of the Governor. The
orders of detention expressly state that the Governor
of Punjab was satisfied of their necessity and that
they were made by his order. The orders are signed
no doubt by the Home Secretary, but this is no defect.
The communication of the grounds need not be made
''
,,
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M. BALAKRISHNA REDDY v. DIRECTOR, CBI,
1171
NEW DELHI [C.K. THAKKER, J.]
directly by the authority making the order. Section 7
A
does not require this. The communication may be through
recognized channels prescribed by the administrative rules
of business".
(emphasis supplied)
29. In Dattatreya Moreshwar Pangarkar V State of
Bombay & Ors., 1952 SCR 612, the petitioner was detained
by an order passed by the District Magistrate, Surat in exercise
B
of powers conferred on him by the Preventive Detention Act,
1950. The petitioner moved this Court by filing a writ petition c
under Article 32 of the Constitution challenging the order of
detention. One of the contentions raised by the petitioner in this
Court was that the order of confirmation of detention by the State
Government was not in proper form inasmuch as it was not made
in the name of Governor as required by Clause (1) of Article D
166 of the Constitution.
30. The order passed by the Government read as under:
.
"Confidential letter
No. B. D. 11/1042-D (11) Home Department (Political) E
Bombay Castle, 28th April, 1951.
To
The District Magistrate,
Surat.
Subject :- Preventive Detention Act, 1950 - Review of
detention orders issued under the -
Reference your letter No. Pol. 1187 /P, dated the 23rd
February, 1951, on the subject noted above. ·
F
G
2. In accordance with section 9 of the Preventive Detention ·
Act, 1950, the case of detenu Shri Dattatreya Moreshwar
Pangarkar was placed before the Advisory Board which
has reported that there is sufficient cause for his detention:
Government is accordingly pleased to confirm the · H
•>
1172
SUPREME COURT REPORTS
[2008] 4 S.C.R.
A
detention order issued against the detenu. Please
~
inform the detenu accordingly and report compliance.
3. The case papers of the detenu are returned herewith.
Sd/-
B
G. K. Kharkar,
for Secretary to the
Government of Bombay,
Home Department".
c
(emphasis supplied)
31. It was urged on behalf of the detenu that the order of
Confirmation extracted hereinabove had not been made in
proper legal form and hence could not be said to be in
consonance with Article 166 ( 1) i.e. in the name of the Governor.
D Learned Attorney General, on the other hand, submitted that
the omission to make and authenticate an executive decision
in the form mentioned in Article 166 ( 1) of the Constitution did
not make the decision illegal. It was argued by the Attorney
General that there is distinction between the taking of an
E executive decision and giving formal expression to the decision
so taken. It was stated that usually executive decision is taken
on the office files by way of notings or endorsements made by
the Minister in charge and if every executive decision h.Ps to be
given a formal expression, the whole governmental machinery
would come to a standstill.
F
32. Accepting the argument, negativing the contention of
r
the detenu, holding the provision directory and relying on a
~
decision of the Federal Court in J." K. Gas Plant Manufacturing
Co. (Rampur) Ltd. & Ors. v. King-Emperor, 194 7 FCR 141,
G S.R. Das, J. stated;
"In my opinion, this contention of the learned AttorneyGeneral must prevail. It is well settled that generally
speaking the provisions of statute creating public
~
dutie~ are directory and those conferring private rights
H
are imperative. When the provisions of statute relate to
M. BALAKRISHNA REDDY v. DIRECTOR, CBI,
1173
NEW DELHI [C.K. THAKKER, J.]
the performance of a public duty and the case is such that A
to hold null and void acts done in neglect of this duty would
work serious general inconvenience or injustice to persons
who have no control over those entrusted with the duty and
at the same time would not promote the main object of the
legislature, it has been the practice of the Courts to hold
B
such provisions to be directory only, the neglect of them
not affecting the validity of the acts done".
(emphasis supplied)
33. His Lordship proceeded to say;
"Strict compliance with the requirements of Article 166
gives an immunity to the order in that it cannot be challenged
on the ground that it is not an order made by the Governor.
c
If, therefore, the requirements of that Article are not
compiled with, the resulting immunity cannot be D
claimed by the State. This, however, does not vitiate
the order itself. The position, therefore, is that while the
Preventive Detention Act requires an executive decision,
call it an order or an executive action for the conformation
ofanorderofdetention under Section 11 (1)thatActdoes E
not itself prescribe any particular form of expression of
that executive decision. Article 166 directs all execu·tive
action to be expressed and authenticated in the manner
therein laid down but an omission to comply with those
provisions does not render the executive action a nullity.
F
Therefore, all that the procedure established by laws
requires is that the appropriate Government must take a
decision as to whether the detention order should be
confirmed or not under Section 11 (1 ). That such a decision
has been in fact taken by the appropriate Government is G
amply proved on the record. Therefore, there has been, in
the circumstances of this case, no breach of the procedure
established by law and the present detention of the
petitioner cannot be called in question".
(emphasis supplied)
H
1174
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SUPREME COURT REPORTS
[2008] 4 S.C.R.
34. Agreeing with Justice Das, Mukherjea, J. said:
"The other contention raised by the learned AttorneyGeneral involves consideration of the question as to
whether the provision of article 166(1) of the Constitution
is imperative in the sense that non- compliance with it
would nullify or invalidate an executive action. The clause
does not undoubtedly lay down how an executive action of
the Government of a State is to be performed; it only
prescribes the mode in which such act is to be expressed.
The manner of expression is ordinarily a matter of form,
but whether a rigid compliance with a form is essential to
the validity of an act or not depends upon the intention of
the legislature. Various tests have been formulated in
various judicial decisions for the purpose of determining
whether a mandatory enactment shall be considered
directory only or obligatory with an implied nullification for
disobedience. It is unnecessary for our present purpose
to discuss these matters in detail.
In my opinion, article 166 of the Constitution which purports
to lay down the procedure for regulating business
transacted by the Government of a State should be read
as a whole. Under clause (3) the Governor is to make
rules for the more convenient transaction of such business
and·for allocation of the same among the Ministers in so
far as it does not relate to matters in regard to which the
Governor is required to act in his discretion. It is. in
accordance with these rules that business has to be
transacted. But whatever executive action is to be taken
by way of an order or instrument, it shall be expressed to
be taken in the name of the Governor in whom the executive
power of the State is vested and it shall further be
authenticated in the manner specified in the rules framed
by the Governor. Clauses (1) and (2) of article 166 in my
opinion are to be read together. Clause (1) cannot be
taken separately as an independent mandatory provision
detached from the provision of clause (2). While clause
,_
•
M. BALAKRISHNA REDDY v. DIRECTOR, CBI,
1175
NEW DELHI [C.K.