TaxTMI 
TaxTMI 
2008 (3) TMI 778
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....in possession of prewritten answer sheets which were similar, if not identical, to the answer sheets supplied by the Examination 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 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 of the 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), Indore. 4. The appellant raised a preliminary objection contending that the alleged offences had been committed at Bhopal in the State of Madhya Pradesh and CBI had no power, authority or jurisdiction to institute criminal proceedings. It was also contended that before initiating proceedings under the Delhi Special Police Establishment Act, 1946 (hereinafter referred to as 'the Delhi Act'), consent of the State ....
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....ppellant 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, 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 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 the proceedings initiated by CBI against the appellant. 6. 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 proper perspective and held that the State of Madhya Pradesh had given consent as required by law (Section 6 of ....
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....ent to States. The said section is also relevant and may be reproduced; 5. Extension of powers and jurisdiction of Special Police Establishment to other areas: (1) The Central Government may by order extend to any area including railway areas in a State not being a Union Territory, the 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. (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, subject to any order which the Central Government may make in this behalf, discharge the functions of a police officer in the area and shall, while so discharging such functions, be deemed to be a member of the police force of that area and be vested with the powers, functions and privileges and be subject to the liabilities of a police officer belonging to that police force (3) Where any such order under Sub-section (1) is made in relation to any area, then, without prejudice to the provisions of Sub-section (2), any membe....
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....er several other Acts has been issued on September 7, 1989 and has been placed by the respondent on record along with the affidavit-in-reply filed by M.C. Sahni, Superintendent of Police, CBI, Bhopal. The said notification covers inter alia, the offences punishable under Sections 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 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. 14. 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 ....
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.... The deponent has annexed the order as one of the annexures (Annexure IV) to his reply and the same reads thus; Secret True Copy No. G97/II-Home Policy Government of Madhya Pradesh Home (police) Department From, Shri R.N. Mishra, IAS Deputy Secretary to Govt. To, The Secretary to the Govt. of India, Ministry of Home Affairs, NEW DELHI. 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(II)/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 Govt. Attested (T.C. Ramanujachari) Deputy Secretary to the Government of India 18. 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 ....
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....d provided there is 'substantial' compliance. 22. Now, let us see how the provision (Article 166 of the Constitution) has been interpreted by this Court. Article 166 came up for interpretation before this Court 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. 23. In Ujgar Singhand 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 detention did not purport to state that the authority making the order was the Governor of the State. The Constitution Bench of this Court, however, negatived the contention. Interpreting Article 166 of the Constitution, Chandrasekhara Aiyar, J. stated; Under Section 3 of the Preventive Detention Act, the authority to make the order is the State Government. Article 166(1) of the Constitution provides that all executive action of the Go....
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....onance with Article 166(1) i.e. in the name of the Governor. 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 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 has to be given a formal expression, the whole governmental machinery would come to a standstill. 27. Accepting the argument, negativing the contention of the detenu, holding the provision directory and relying on a decision of the Federal Court in J. K. Gas Plant Manufacturing Co. (Rampur) Ltd. and Ors. v. King-Emperor 1947 FCR 141, S.R. Das, J. stated; In my opinion, this contention of the learned Attorney- General must prevail. It is well settled that generally speaking the provisions of statute creating public duties are directory and those conferring private rights ....
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....ch 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 e....
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....Court in P. Joseph John v. State of Travancore-Cochin (1956) ILLJ 235 SC. In Joseph John, a civil servant was removed from service after holding a departmental inquiry wherein the charges leveled against him were proved. The order of removal was upheld by the High Court. The delinquent approached this Court. One of the contentions raised by the employee was that the show cause notice issued to him was not in consonance with the provisions of Article 166 of the Constitution since it was not expressed to have been made in the name of Raj Pramukh. The notice was issued on behalf of the Government and was signed by the Chief Secretary of the United State of Travancore-Cochin who had under the Rules of Business framed by Rajpramukh was in charge of the portfolio of "Service and Appointments" at the Secretariat level in the State. 33. The Court referred to Dattatreya Moreshwar, wherein Clauses (1) and (2) of Article 166 were held to be directory and it was observed that non-compliance with them did not result in the order being invalid. It was further held that in order to determine whether there was compliance with those provisions all that was necessary to be seen was whether ....
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....as general consent was all that was required by law. Though it did not remark on the form in which such consent should be given, i.e. the letter, was correct or not, the fact that it could find nothing wrong with the consent raises a strong presumption in favour of the argument that a letter can be a means of granting consent by the State Government under Section 6. 38. Another important aspect of the case was construction of Article 77 of the Constitution. In Major Barsay, the appellant was a public servant who was prosecuted for an offence under the Prevention of Corruption Act, 1947. Section 6 of the said Act required sanction of the Central Government. The sanction accorded by the Government read thus; Now, therefore, the Central Government doth hereby accord sanction under Section 197 of the Criminal Procedure Code (Act V of 1898) and Section 6(1)(a) of the Prevention of Corruption Act, 1947 (II of 1947) to the initiation of proceedings to prosecute in a Court of competent jurisdiction the said Major E. G. Barsay and Shri H. S. Kochhar in respect of the aforesaid offences and other cognate offences punishable under other provisions of law. Sd. M. Gopala Me....
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.... or executed by the Governor. Any non-compliance with the provisions of the said rule does not invalidate the order, but it precludes the drawing of any such irrebuttable presumption. This does not prevent any party from proving by other evidence that as a matter of fact the order has been made by the appropriate authority. Article 77 which relates to conduct of business of the Government of India is couched in terms similar to those in Article 166 and the same principles must govern the interpretation of that provision. 43. In R. Chitralekhaand Anr. v. State of Mysore and Ors. [1964] 6 SCR 368, a Constitution Bench of this Court again had an occasion to consider a letter signed by the Under Secretary to the Government, Education Department of the State of Mysore to a Selection Board communicating the decision of the Government to prescribe interviews for admission into colleges. Validity of the said letter was challenged on the ground that it did not conform to the requirements of Article 166 of the Constitution as it was not expressed in the name of the Governor. 44. The letter sent by the Education Department to the Selection Committee reads thus; Sir, Su....
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.... of the Constitution. If the action of the Government and the order is duly authenticated as per Article 166(2) and the Business Rule 12, it is conclusive and irrebuttable presumption arises that decision was duly taken according to Rules. The letter of the Section Officer is not in conformity with Rule 12 and Article 166(1) and (2), though under Rule 13 he is one of the authorised officers to communicate the decision of the Government. In Major E.G. Barsay v. State of Bombay this Court held that if an order is issued in the name of the President and is duly authenticated in the manner prescribed in Article 77(2), there is an irrebuttable presumption that the order is made by the President. Whereby the order does not comply with the provisions of Article 77(2), it is open to the party to question the validity of the order on the ground that it was not an order made by the President and to prove that it was not made by the Central Government. Where the evidence establishes that the Dy. Secretary on behalf of the Central Government made the order a delegate, the order cannot be questioned. Therefore, it is necessary to show whether decision of the Government is according to Business ....
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....Constitution. The Constitution requires that action must be taken by the authority concerned in the name of the Governor. It is not till this formality is observed that the action can be regarded as that of the State. Constitutionally speaking, the Council of Ministers are advisers and as the Head of the State, the Governor is to act with the aid or advice of the Council of Ministers. Therefore, till the advice is accepted by the Governor, views of the Council of Ministers do not get crystallised into action of the State. (See: State of Punjab v. Sodhi Sukhdev Singh and Bachhittar Singh v. State of Punjab.) That being so, the first plea of the appellant is rejected. 50. We must, however, closely refer to two decisions of this Court on which strong reliance was placed by the learned counsel for the appellant. In Bachhittar Singh v. State of Punjab AIR 1963 SC 395, the Constitution Bench of this Court held that before Article 166 of the Constitution is invoked, essential ingredients laid down therein must be complied with. In Bachhittar Singh, the appellant, who was serving as Assistant Consolidation Officer in the State of Pepsu was dismissed from service after a department....
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.... competent to hear and decide an appeal from the order of the Revenue Secretary. Article 166(1) of the Constitution requires that all executive action of the Government of a State shall be expressed in the name of the Governor. Clause (2) of Article 166 provides for the authentication of orders and other instruments made and executed in the name of the Governor. Clause (3) of that Article enables the Governor to make rules for the more convenient transaction of the business of the Government and for the allocation among the Ministers of the said business. What the appellant calls an order of the State Government is admittedly not expressed to be in the name of the Governor. But with that point we shall deal later. What we must first ascertain is whether the order of the Revenue Minister is an order of the State Government i.e., of the Governor. In this connection we may refer to Rule 25 of the Rules of Business of the Government of PEPSU which reads thus: Except as otherwise provided by any other Rule, cases shall ordinarily be disposed of by or under the authority of the Minister incharge who may by means of standing orders give such directions as he thinks fit for the di....
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....until such advice is accepted by the Governor whatever the Minister or the Council of Ministers may say in regard to a particular matter does not become the action of the State until the advice of the Council of Ministers is accepted or deemed to be accepted by the Head of the State. Indeed, it is possible that after expressing one opinion about a particular matter at a particular stage a Minister or the Council of Ministers may express quite a different opinion, one which may be completely opposed to the earlier opinion. Which of them can be regarded as the "order" of the State Government? Therefore, to make the opinion amount to a decision of the Government it must be communicated to the person concerned. In this connection we may quote the following from the judgment of this Court in the State of Punjab v. Sodhi Sukhdev Singh [1961] 2 SCR 371. Mr Gopal Singh attempted to argue that before the final order was passed the Council of Ministers had decided to accept the respondent's representation and to reinstate him, and that, according to him, the respondent seeks to prove by calling the two original orders. We are unable to understand this argument. Even if the Counc....
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....ed upon by the appellant is a recent case in C.B.I. v. Ravi Shankar Srivastava 2006 CriLJ 4050 . In that case, CBI instituted criminal proceedings against the accused. The accused challenged the First Information Report (FIR) in the High Court by invoking Section 482 of the Code of Criminal Procedure, 1973 inter alia contending that the consent given by the State Government under Section 6 of the Delhi Act for investigation of offences by Delhi Special Police Establishment and for operation of the Delhi Act to the State was withdrawn by the State and CBI had no power to initiate criminal proceedings. The High Court upheld the contention. CBI approached this Court. 60. Allowing the appeal and setting aside the order of the High Court, this Court held that there was no notification revoking the earlier one granting the consent. The letter on which great emphasis had been laid by the accused did not indicate as to under what authority such letter had been written. It was also not established that the person was authorized to take such decision. It did not meet with the requirements of Article 166 of the Constitution and could not, even conceptually be said to be a notification. ....