V.K. Bali, C.J.
1. A.K. Surendran, an Environmental Engineer of the Kerala State Pollution Control Board as claimed by the petitioner, who is one of the Director of M/s.Canon Granites Private Limited demanded bribe from him. On 28.5.2005, the information regarding demand for bribe was lodged. On the same day at about 2 p.m., the Dy.S.P., V.A.C.B., received Rupees Two Lakhs and also the petitioner's mobile phone. The currency notes were smeared with Phenolphthalein powder, which were entrusted back to the petitioner, who went to Sreebhavan Hotel, Ollur with the cash. Mr. Rajendran was present there. The petitioner showed the slip containing the writing 'to be given over to Rajagopalan Nambiar at Madras'. On the other side of the slip, the car number of the petitioner was also shown. The petitioner handed over the amount to Mr. Rajendran, who checked the same. Petitioner came out of the hotel and gave a signal to the police party waiting outside. The third respondent, Deputy Superintendent of Police accompanied by other police officials entered the hotel, took the statements of Rajendran and Gopalan and recovered the amount paid by the petitioner. While so, the 5th respondent made a telephone call to the reception counter at the hotel. The proceedings of the police were complete by the midnight of that day. When despite the facts as mentioned above, the vigilance officials were not taking any effective steps in investigating the crime, the petitioner filed a writ in this court under Article 226 of the Constitution of India seeking entrustment of the investigation of the case to Central Bureau of Investigation. We need not go into the detailed facts as to in what circumstances the 5th respondent had demanded money from the petitioner and how the 5th respondent had settled payment of money through Rajendran, as all these facts have been given in detail by the learned Single Judge.
2. The learned Single Judge after taking into consideration the entire facts and circumstances of the case and also the counter affidavit filed by the respondents while examining the issue as to whether the present was a fit case investigation of which should be transferred to C.B.I., came to the firm conclusion that the 5th respondent had deliberately been let off on flimsy grounds by the officer who conducted the re-investigation in V.C.No. 21 of 2000 and further that the conclusion in the earlier part of Ext.P4 were also equally perverse. The learned Single Judge in the ultimate analysis found that the agency which already investigated the matter was not doing its duty and in fact was helping the 5th respondent. The learned Single Judge observed that this was one of those cases, where the High Court should exercise its extra ordinary jurisdiction under Article 226 of the Constitution, to entrust the case to the C.B.I. for investigation. The prayer made by the petitioner as mentioned above was allowed in a well considered detailed judgment passed by the learned Single Judge dated 24th February, 2006. It is against this order that the 5th respondent has filed the present Writ Appeal.
3. When the appeal came up for motion hearing on 23rd March, 2006, on the contention raised by the counsel for the appellant, we passed the following order:
Learned Counsel for the appellant contends that one of the points raised in this case is subject matter of debate and decision by the Honourable Supreme Court. The point as to whether the High Court in the powers vested under Article 226 of the Constitution of India can order CBI enquiry under Delhi Special Police Establishment Act, 1946, without the consent and concurrence from the concerned Government.
The matter was adjourned sine die with liberty to apply after the Supreme Court decides the matter. The counsel for the appellant, when the matter came up for hearing on 5th June, 2006, informed the court that the Honourable Supreme Court has not decided the matter yet and prayed that the matter be listed for hearing after the Supreme Court decides the point mentioned in the order dated 23rd March, 2006. On 12th September, 2006, Mr. Sreekumar, learned standing counsel for the C.B.I., handed over a copy of the order passed by the Supreme Court in New Swadeshi Mills of Ahamadabad Ltd. and Manjushree Textile, Ahamadabad and Anr. v. Shri S.Sen and Ors. Civil Appeal Nos.807-08 of 1975 dated July 8,1996 and urged that the Special Leave Petition which involved one of the points raised by the appellant as noted in the earlier interim orders passed by this Court now stood covered against the appellant, far before when it was stated by learned Counsel for the appellant to be pending. A copy of the order was handed over to the Court, which was placed on record. Learned Counsel for the appellant sought time for arguments. Thus the matter came up for final hearing on 22nd September, 2006.
4. Mr. Ramakumar, learned Counsel for the appellant contends that the Delhi Special Police Establishment Act, 1946 was enacted for the investigation of certain offences by the C.B.I., a special police force. For conducting an investigation in any area in a State, Section 6 of the Act aforesaid, requires consent of the State Government and as in the present case, the State of Kerala had not given the consent for investigation of the matter by C.B.I., the High Court in its jurisdiction vested under Article 226 of the Constitution could not transgress a statutory provision and therefore, till such the State was to give consent, the learned Single Judge could not order investigation by the C.B.I..With a view to appreciate the contention of the learned Counsel, it would be appropriate to notice the provisions of Section 6 of the Act aforesaid. The same reads as follows:
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.
By virtue of Section 5 of the Act aforesaid, the Central Government may by way of an order extend to any area (including Railway areas) in a State not being a Union Territory, the powers and jurisdiction of members of the Delhi Special Police Establishment for investigation of any offences or classes of offences specified in a notification under Section 3. The power of the Central Government to extend to any area the powers and jurisdiction of members of Delhi Special Police Establishment would require the consent of the State Government as under Section 6 such investigation cannot be done in any State, without the consent of the Government of that State.
5. We are of the firm view that only when the Central Government may extend to any area the power and jurisdiction of members of Delhi Special Police Establishment for investigation of any offence that it will require the consent of the concerned State Government. No such consent is required if investigation of the crime is to be entrusted to the C.B.I. by the High Court in exercise of the powers vested under Article 226 of the Constitution of India. This precise matter came up for debate before the Honourable Supreme Court in State of West Bengal and Ors. v. Sampat Lai and Ors. : 1985CriLJ516 . It is no doubt true that the learned Counsel appearing for the parties including the Additional Solicitor General conceded that while Section 6 of the Act requires a consent of the State Government before exercise of powers and jurisdiction by the members of the Delhi Special Police Establishment, but when a direction is given by the Court in an appropriate case, consent under Section 6 of the Act would not be a condition precedent to compliance with the Court's direction, but the contention of Mr. Ramakumar that this judgment should not bind this Court as the finding to the effect aforesaid came to be recorded on a concession of parties does not appear to be correct, as in the very next line, the Supreme Court has observed as follows:
In our considered opinion, Section 6 of the Act does not apply when the Court gives a direction to the CBI to conduct an investigation and counsel for the parties rightly did not dispute this position.
The observation as extracted above would leave no doubt that the Supreme Court was of the clear view that no consent of State Government is required when the High Court may give a direction under Article 226 of the Constitution of India.
6. In all fairness to Mr. Ramakumar, learned Counsel for the appellant, we may mention that for the proposition canvassed by him as noted above he has relied upon the decisions of the Honourable Supreme Court in Mariam Rasheeda v. State of Kerala 1998 (1) KLT 835(SC) and Kazi Lhendup Dorji v. Central Bureau of Investigation and Ors. 1994 Supp. (2) SCC 116. The counsel placed reliance upon the following observation of the Supreme Court in Mariam Rasheeda v. State of Kerala (supra):
However, in view of Section 6, the powers and jurisdiction conferred under Section 5 can be exercised in the extended area only with the consent of the Government concerned.
The facts of this case would reveal that Government of Kerala on receipt of the report of the Director General of Police issued a notification on 2nd December, 1994 by which its consent to the extension of powers and jurisdiction of the members of the Delhi Special Police Establishment in the whole of the State of Kerala was accorded with regard to the investigation of a crime. Pursuant to the notification aforesaid, the C.B.I. did investigate the matter, but ultimately filed its report in final form under Section 173(2) of the Code of Criminal Procedure on April 16, 1996 before the Magistrate praying for discharge of all the accused persons, as according to it, the allegations of espionage were not proved and they were false. The Government of Kerala then withdrew the consent given earlier to the C.B.I. to investigate the crime. This was challenged by the accused by way of Writ Petition which was dismissed. In the appeal preferred by the accused against the judgment of the High Court, the question that came up for determination was as to whether the finding of the High Court that notification of withdrawing consent as valid could be sustained or not. For the purpose of determining the issue as mentioned above, the Honourable Supreme Court in paragraph 14 referred to the preamble and relevant provisions of the Act and it is while making a mention of Section 6, it has been observed as reproduced above. All that has been said is that in view of Section 6, the powers and jurisdiction conferred under Section 5 can be exercised in the extended area only with the consent of the Government concerned.
7. The question involved in Kazi Lhendup Dorji v. Central Bureau of Investigation and Ors. (supra) was as to whether it was permissible to withdraw the consent given by the State Government under Section 6 of the Act whereby a member of the Delhi Special Police Establishment was enabled to exercise the power and jurisdiction for investigation of the specified offences and if so, what is the effect of such withdrawal of consent on matters pending investigation on the basis of such consent on the date of withdrawal. One of the issues that came before the Court on the submission made by Shri. Hedge, counsel appearing for the State of Sikkim pertained to validity of Section 6 of the Act on the ground that DSPE is a police force of the Union Territory and Parliament does not have the legislative competence to make a law providing for extension of powers and jurisdiction of members of a police force belonging to a Union Territory to any area outside the Union Territory. While considering this contention, the Supreme Court observed as follows:
The contention urged by Shri Hegde about the legislative competence of Parliament to enact Sections 5 and 6 of the Act stands concluded by the decision of the Constitution Bench of this Court in Advance Insurance Co. Ltd. v. Gurudasmal : [1970]3SCR881 wherein the expression 'State' in Entry 80 of List I in the Seventh Schedule to the Constitution has been construed to include 'Union Territory' in view of the definition of 'State' contained in Section 3(58) of the General Clauses Act and it has been held that members of police force belonging to the Union Territory can have their powers and jurisdiction extended to another State provided the Government of that State consents.
Mr. Ramakumar has relied upon the above extracted observations of the Supreme Court but this Court is of the firm view that the said observations of the Supreme Court have no connection whatsoever and are thus not at all relevant for the proposition of law in hand. There was no discussion with regard to the power of the High Court to issue a writ ordering investigation of a crime by the C.B.I. when the concerned State Government had not given its consent.
8. Mr. Ramakumar also relied upon the judgments of the Supreme Court in State of Karnataka v. Union of India : [1978]2SCR1 and Secretary, Minor Irrigation and Rural Engineering Services, U.P. And Ors. v. Sahngoo Ram Arya and Anr. : 2002CriLJ2942 . In our view, these judgments have no relevance to the issue as mentioned above.
Finding no merit, we dismiss this Writ Appeal.