Holding

An investigation commenced by the CBI with the State's consent cannot be halted by later withdrawal of that consent; "further investigation" is a continuation of the same inquiry, making the withdrawal of consent invalid.

Summary

The Kerala Government, after initially consenting to CBI investigation of espionage cases under Section 6 of the Delhi Special Police Establishment Act, later withdrew that consent to allow State Police to conduct a "further investigation". The Supreme Court held that once the CBI, acting on the State's consent, completes its investigation and files a report under Section 173(2) of the CrPC, the consent cannot be withdrawn to permit a fresh or parallel probe by the State Police. The term "further investigation" in Section 173(8) means a continuation of the same investigation, not a new one, and therefore the withdrawal of consent was invalid and malicious. The Court quashed the Kerala Government's notification withdrawing consent and ordered costs to be paid to the six accused. The decision also clarified that Section 21 of the General Clauses Act does not apply to the consent under Section 6, and that the CBI’s investigative power is concurrent, not exclusive, with the State Police.

Issues considered

The validity of a State Government's withdrawal of consent given under Section 6 of the Delhi Special Police Establishment Act after CBI has completed investigation and filed a report under Section 173(2) CrPC.
The meaning of "further investigation" under Section 173(8) of the Code of Criminal Procedure.
Whether Section 21 of the General Clauses Act, 1897 applies to the consent granted under Section 6 of the Delhi Special Police Establishment Act.
Whether the withdrawal of consent was a malafide exercise of power.

Legislation cited

Code of Criminal Procedure, 1973s. 173(2), s. 173(8)
Foreigners Act, 1946s. 14
General Clauses Act, 1897s. 21
National Security Act, 1980s. 3(1)(a), s. 3(1)(b)
Official Secrets Act, 1923s. 3, s. 4

Subjects

Delhi Special Police Establishment ActSection 6 consent withdrawalFurther investigationSection 173 CrPCGeneral Clauses ActMalafide exercise of powerCBI investigationState Police jurisdictionEspionage case

Judgment

A K. CHANDRASEKHAR ETC.
v.
THE STATE OF KERALA AND ORS.

APRIL 29, 1998

B [M.K. MUKHERJEE AND S.S. MOHAMMED QUADRI, JJ.]

Delhi Special Police Establishment Act, 1944-Section 6-
Investigation-Notification issued entrusting a case to CB.I. with consent
of the concerned State Government-CB.I. completed investigation and
C submitted final report under Section 173(2) Cr.P.C-Subsequent withdrawal
of consent by State Government for further investigation of case by State
police-Held, invalid & unsustainable in law.
Code of Criminal Procedure, 1973-S. 173(8)
'Further investigation '-Meaning of-Continuation of the earlier
D investigation-Not a fresh investigation or reinvestigation starting ab-inito,
wiping out the earlier investigation.
Words and phrases;
'Further Investigation' Meaning of in the context of Cr. P.C.
In pursuance of provisions of Section-6 of the Delhi Special Police
E Establishment Act, 1944 the Government of Kera la, issued notification on
02.12.1994 and entrusted the investigation to the CBI of Crime No. 225/94
and 246/94 of Vanchiyoor Police Station, involving charges of espionage
against the accused. CBI took up investigation and filed its final report in
final form under Section 173(2) Cr.P.C. The appellants were discharged on
acceptance of the final report of CBI as the allegations of espionage were
F not proved. Thereafter, by notification dated 27 June, 1996 which was followed
by amendatory notification dated 8 July, 1996, the Government of Kerala
withdrew the consent earlier given to CBI to investigate Crime No. 246/94,
for further investigation.
Aggrieved by the notification the six accused appellants herein filed
G separate Writ Petitions before Kera la High Court Which were dismissed.
It was held that the matter of giving or withholding of consent under'Section
6 of the act was an executive action of the State Government and Section 21
of the General Clauses Act, 1897 applied to the notification in question and
therefore, the withdrawal of consent cannot be said to be invalid.
In these appeals, the judgment of High Court is challenged by Director
H CBI, UOI and the six discharged accused persons.
72
K. CHANDRASEKHAR v. SA TE OF KERALA 73
Before this Court CBI and UOI (the appellants in Criminal Appeal No. A
494-497 of 1997) submitted that the provision under Section 6 of the act
having exhausted nothing remained for reversing the exercise of such a
power and thus the question of applying the provisions of Section 21 of the
General Clause Act could not arise.

The counsel on behalf of appellant in Criminal Appeal No. 491/97, B
relying on Kazi Lhendup Dorji 's, Case submitted that once consent was given
by a State Government empowering the CBI to investigate into an offence,
the former could not withdraw the same and the withdrawal of this consent
was a malafide action on the part of the government of Kera la,

The Respondents on the basis of law laid down in A. C. Sharma's, Case
c
submitted that the power of CBI to investigate into the offence in question
was not exclusive but concurrent with the State Police and also that Section
21 of the General Clauses Act was applicable to conferment of administrative
power only and not to conferment of judicial or quasi judicial powers and
since grant of consent under Section 6 of the Act was merely an D
, administrative power, withdrawal thereof would be permissible under that
section.

Allowing these appeals, this Court

HELD : 1. The investigation started by CBI with the consent of the E
State GovernD)ent concerned cannot be stopped midway by withdrawing the
consent; If any further investigation is to be made it is the C.B.I. alone which
can do so, for it was entrusted to investigate into the case by the State
Government. Therefore, the notification issued withdrawing the consent to
enable to State Police to further investigate into the case is invalid and F
unsustainable in law. The dictionary meaning of the word 'further' (when
used as an adjective) is 'additional', 'more', 'supplemental'. 'Further'
investigation therefore is the continuation of the earlier investigation and
not a fresh investigation or reinvestigation to be started ab-initio wiping out
the earlier investigation altogether, Sub-Section (8) clearly envisages that
on completion of further investigation the investigating agency has to forward G
to the Magistrate a 'further' report or reports-and not fresh report or
reports-regarding the 'further' evidence obtained during such investigation.
An investigation undertaken by CBI pursuant to a consent granted under
> Section 6 of the Act has to be completed, notwithstanding withdrawal of the
consent, and that 'further investigation' being a continuation of such
investigation which culminates in a further police r~port under sub-section H
74 SUPREME COURT REPORTS [1998] 3 S.C.R.

A (8) of Section 173, it necessarily means that withdrawal of consent would not
entitle the State Police, to further investigate into the case. (87-G; D-FJ
2. If it is assumed that the State Government had the requisite power
and authority to issue the impugned notification, still the same would be
liable to be quashed on the ground of malafide exercise of power, eloquent
B proof thereof being furnished by the facts and circumstances on the record.
[88-Af
3. In the present facts and circumstances the issuance of the impugned
notification does not comport with the known pattern of a responsible
Government bound by rule oflaw. (92-Hf
c 4. If before taking up further investigation an opinion has already
been formed regarding the guilt of the accused and, that too, at a stage when
the commission of the offence itself is yet to be proved, it is obvious that the
investigation can not and will not be fair-and its outcome appears to be a •
foregone conclusion. (92-GJ
D
Kazi Lhendup Dorji v. Central Bureau of investigation, [1994) Supp 2
SC 116; A.C. Sharma v. Delhi Administration, (1973) 1 SCC 726 and Jamuna
v. State of Bihar A.1.R., (1974) S.C. 1822, referred to.

Ram Lal Narang v. State, (1979) SCC Crl. 479, cited.
E
CRIMINAL APPELLATE JURISDICTIOl;:I : Criminal Appeal No.
489 of 1997 Etc. Etc.

From the Judgment and Order dated 27 .11.96 of the Kerala High Court
in O.P. No 12747 of 1996.
F
Altaf Ahmad, Additional Solicitor General, A.S. Nambiar, Shanti Bhushan,
R. Sathish, Prasanath Gandhi, Ms. Anne Mathew, Rakesh K. Sharma, M.P.
Vinod, P. Parmeswaran, Romy Chako, S.N. Terdol, S. Muralidhar, G: Prakash,
Ms. Beena Prakash, (M.K. Damodaran,) Genl. Kerala, A.X. Verghese and
M.K.D. Namboodiri for the appearing parties.
G
The Judgment of the Court was delivered by

M.K. MUKHERJEE, J. Leave granted in Special Leave petition (Cr!.)
No. 593of1998.

H 2. These appeals have been heard together as they are directed against
K. CHANDRASEKHARv. SATE OFKERALA [M.K. MUKHERJEE, J.] 75
one and the same judgment rendered by the Kerala High Court. Facts leading A
to these appeals are as under:

3. On October 20, 1994, Shri S. Vijayan, an Inspector of Police, then
attached to the Special Branch, Thiruvananthapuram, arrested and took into
custody Mariyam Rasheeda (appellant in Criminal Appeal No. 490 of 1997),
who came on a visit to India from Maldives, on the allegation that even after B
the expiry of her visa she continued to stay in India in breach of paragraph
7 of the Foreigners Order, 1948. for the above breach a case under Section
14 of the Foreigners Act, 1946 was registered against her by the Vanchiyoor
police Station (Crime No. 225 of 1994) and investigation taken up.

4. On November 13, 1994, on the complaint ofShri Vijayan another case C
was registered by Vanchiyoor Police Station (Crime No. 246of1994) against
her ( Mariyam Rasheeda) and Fouzia Hassan [appellant in the Criminal Appeal
arising out of S.L.P. (Crl.) No. 593 of 1998) for offences punishable under
Sections 3 and 4 of the Indian Officials Secrets Act, 1923 ('!OS' Act for short)
on the allegation that in collusion with some Indians and foreigners they had D
committed acts prejudicial to the safety and sovereignty of India.

5. Initially both the cases were investigated by Shri Vijayan but later.on
a special team of State police officials, headed by Shri C.B. Mathew, Deputy
Inspector General (Crimes), and including Shri Vijayan, was constituted to
investigate into the same. In course of the investigation S. Nambi Narayanan E
(appellant in Criminal appeal No. 492 of 1997) and D. Sasi Kumaran (appellant
in Criminal Appeal No. 493 of 1997), two senior scientists working with the
Indian Space Research Organisation ('l.S.R.O.' for short), S.K. Sharma (appellant
in Criminal Appeal No. 491 of 1997), a labour contracter, and K. Chandrasekhar
(appellant in Criminal Appeal No. 494 of 1997), an authorised representative F
of a Russian Firm in India, (besides the above two ladies) were arrested.

6. While the investigation was in progress, Shri Mathew sent a report
to the Director General of Police, Kerala on November 30, 1994 stating that
the special "team of State Police Officials was not adequately equipped to
conduct effective investigation into the two cases and praying for appropriate G
orders for getting the cases investigated by the Central Bureau of Investigation
( 'C.B.I.' for short).

7. On receipt of the report, the Director General of police recommended
to the Government of Kerala to entrust the investigation to the C.B.I.; and
accepting the above recommendati011 the Government of Kerala issued the H
76 SUPREME COURT REPORTS [1998] 3 S.C.R.

A following notification on December 2, 1994:

"In pursuance of the provisions of Section 6 of the Delhi Special
Police Establishment Act, 1944 (Central Act 25 of 1946) the Government
of Kerala hereby accord consent to the extension of powers and
jurisdiction of the members of the Delhi Special police Establishment
B in the Whole of the State of Kerala for investigation of Crime Nos.
225/94 and 246/94 ofVanchiyoor Police Station.

(By order of the Governor)
Sd C.P. Nair
Commissioner and
c Secretary to Govt. (Home)
Explanatory Note : (This does not form part of the notification be-
is intended to indicate its general purport).

Two cases in Crime Nos. 225/94 and 246/94 have been registered in
the Vanchiyoor Police Station under Section 70 of the foreigners
D Orders, 1948 read with Section 14 of the Foreigners Act, 1946 and
under Sections 3 and 4 of the Official Secrets Act, 1923 read with
Section 34 of l.P.C. involving inter alia charges of espionage of the
accused, so far arrested, two persons are nationals of Maldives. The
District General of Police has now brought to the notice of the
E Government that since the incidents of this case spread over to the
other States of India and foreign locations and also considering the
special nature of the crimes the above two cases may be transferred
to the Central Bureau of Investigation who are better equipped and
also have the advantage of being a Central Police Investigating outfit.
After carefully considering the request, Government have decided
F that the cases in Crime Nos. 225/94 and 246/94 ofVanchiyoor Police
Station may be transferred to the Central Bureau of Investigation.
Hence the notification."

8. Following the above notification, C.B.I. re-registered the above cases
G as R.C. NO. I O/S/1994 atJd R.C. No. I J/S/1994 respectively and took up
investigation. On completion of investigation in the former the C.B.I. submitted
charge-sheet ( challan) against Mariyam Rasheeda on December 4, 1994, which
culminated in an order of acquittal recorded in her favour by the Chief Judicial
Magistrate, Cochin on November 11, 1996. As regards the latter the C.B.I. filed
its report in final from under Section 173 (2) of the Code of Criminal Procedure
H ('Code' for short) on April 16, 1996 before the same Magistrate praying for
K. CHANDRASEKHAR v. SATE OF KERA LA [M.K. MUKHERJEE, J.] 77
discharge of all the accused persons as, according to it, the allegations of A
espionage were not proved and they were false. The report was accepted and
the accused-appellants were discharged.

9. Thereafter on June 27, 1996 the Government of Kerala issued a
notification withdrawing the consent earlier given to the C.B.l. to investigate
Crime No. 246/94 ( R.C. No.11/S/1194). The said notification along with its B
explanatory note reads as under:-

"Jn pursuance of the provisions of Section 6 of the Delhi Special
Police Establishment Act, 1946 ( Central Act 25 of 1946), the Government
of Kerala hereby withdraw their consent accorded as per notification C
No. 66329/SSA 3/94/Home, dated the 2nd December, 1994 for the
extension of the powers and jurisdiction of the members of the Delhi
Special Police Establishment in the whole of the State of Kerala of
investigating Crime No. 246/94 of Vanchiyoor Pol lee Station.

By order of the Governor
D
M .. MOHANKUMAR
Additional Chief Secretary
Explanatory Note : (This does not term part of the notification but
is included to indicate its general purpose).

The two cases in Crime Nos. 225 of 1994 and 246/94 registered in E
the Vanchiyoor Police Station under Section 7 of the Foreigners order
1948 read with Section 14 of the Foreigners Act, 1946 and under
Section 3 and 4 of the Official Secrets Act, 1923 and Section 34 of IPC,
invoking charges of espionage had been transferred to CBI for
investigation considering the special nature of the cases as per the F
Government Notification No. 66329/SSA 3/94/Home, dated the 2nd
December, 1994 CR. No. 246/94 ofVanchiyoor Police Station has now
been referred as not proved, and a closure report submitted to the
Court by the CBI. Government Consider it necessary in public interest
to order a reinvestigation of the case by a special team of State Police
Officers. Hence this notification." G
This was followed by an amendatory notification issued on July 8, 1996,
which reads as under:-

"In the Explanatory Note to notification No. 27707/SSA -3/96/ Home,
dated the 27th June, 1996 published as Extra-ordinary Gazette No. 823 H
78 SUPREME COURT REPORTS [1998] 3 S.C.R.

A dated6.7.1996.

(i) for the words referred as not proved occurring in the ;;econd
sentence read 'referred by the CBI as not proved and false:, and

(ii) for the words "a re-investigation of the case" occurring in the
B third sentence read " further investigation of the case".

IO. Aggrieved by the notification withdrawing the consent so as to
enable a special team of State Police Officers to further investigate into Crime
No. 246/94, the six accused - appellants presented separate writ petitions
C before the Kerala High Court in which the State of kerala, represented by the
Chief Secretary, the Secretary (Home Department), Government of Kerala and
C.B.I. were arrayed as respondent Nos. I ,2 and 3 respectively. Later on. Shri
Vijayan, and K. Nandni, an Advocate, got themselves impleaded as
respondents in those writ petitions. During hearing of the petitions it was,
inter alia, contended on behalf of the accused-appellants that the Government
D of Kerala was not competent to order further investigation by its Police
Officers into the allegations .which had already been investigated into by the
C.B.I. Accordingly, they prayed for quashing of the notification dated June
27, 1996, as amended by the notification dated July 8, I 996. In supporting the
accused -appellants , the C.B.I. first submitted that as the consent given
E under Section 6 of the Delhi Special Police Establishment Act ('Act' for short)
fell in the :::ategory of conditional legislation, the question of withdrawal could
not and did not arise for the powers conferred thereunder had exhausted
themselves with the initiation of Investigation by it. It next submitted that in
case any further evidence surfaced, the Government of Kerala could only refer
the same to the C.B.I. for it was alone competent to further investigate into
F the matter. By its judgment dated November 27, 1996 the High Court of Kerala ~
dismissed the writ petitions on the ground that the matter of giving or
withholding of consent under Section 6 of the Act was an executive action
of the State Government and the said Act was not a piece of conditional
legislation. According to the High Court Section 21 of the General Clauses
G Act, 1897 applied to the notification in question and, therefore, the withdrawal
of the consent by Government of Kerala could not be said to be invalid.
Lastly, the Court observed that although there was no statutory requirement
for the State Police to obtain permission from the Court concerned to further
investigate into the matter, it should obtain such pern1ission in view of the
judgment of this Court in Ram Lal Narang v. State, [1979] SCC (Cr!.) 479.
H Summing up, the High Court recorded the following findings:-
K. CHANDRASEKHAR v. SATE OF KERA LA [M.K. MUKHERJEE,J.) 79
(i) The impugned notification being valid, the same cannot be quashed; A
and

(ii) The State Government has no jurisdiction to file a complaint before
a Court in respect of any offence under Sections 3, 4 and 5 of the Act in the
case.
B
11. The above judgment of the High Court is under challenge in these
appeals filed by the Director, C.B.l., the Union of India and the Six discharged
accused persons.

12. We have heard the learned counsel appearing for the parties at
length as also appellant Mr. D. Sasikumaran, who argued his case himself. and C
gone through the relevant materials on record.

13. Since it cannot be disputed · and it is not disputed before us- that
a prosecution for the offences alleged against the accused persons can be
instituted only by a complaint filed by or at the instance of the Central D
Government in view of Section 13(3) of the 1.0.S Act · and not the State
Government (as rightly held by the High Court) ·the only question that falls
for our determination in these appeals is whether the other finding of the High
Court that the notification withdrawing consent is valid, can be sustained or
not. To.answer this question it will be apposite to first refer to the preamble
and the relevant provisions of the Act. E
14. The Act was enacted to constitute a special police force in Delhi
for the investigation of certain offences in the Union Territories and to make
provisions for the superintendence and administration of the said force 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 F
2 of the Act entitles the Central Government to constitute such a police force,
notwithstanding anything in the Police Act, 1861, to be called the Delhi
Special Police Establishment, for the investigation of offences notified under
Section 3. The members of the said· establishment of or above the rank of Sub
Inspector are empowered, subject to any order which the Central Government G
may make in this behalf, to exercise any of the powers of the officer in charge
of a police station in the area in which he is for the time being, and when ·so
exercising such powers shall, subject to any such orders as aforesaid, be
deemed to be an officer in charge of a police station discharging the functions
of such an officer within the limits of his station. Section 3 empowers the
Central Government to specify the offence or offences or classes of offences H
80' SUPREME COURT REPORTS (1998] 3 S.C.R.

A which are to be investigated by the Delhi Special Police Establishment i.e.
C.B.I, by issuing notifications in the Official Gazette. Under Section 5, the
Central Government C~P. ~xtend the powers of the Delhi Special Police
Establishment to any other part of the country for the investi!Sation of any
offences or classes of offences specified in a notification issued under Section
B 3. Once such an order is made under sub-section ( 1) of Section 5 the members
of the establishment shall be deemed to be the members of the police force
of the extended area and will be vested with powers, functions and privileges
and be subject to the liabilities of a police officer belonging to that police
force. Under sub-section (3) thereof the members of the Delhi Special Police
Establishment of or above the rank of Sub Inspector shall also be deemed to
C be an officer in charge of that extended area while exercising such powers.
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.

15. Mr. Altaf Ahmad, the learned Additional Solicitor General, appearing
D for the C.B.I. and the Union oflndia (the appellants in Criminal Appeal Nos.
494-497 of 1997), submitted that the High Court failed to appreciate that
Section 21 of the General Clauses Act had no manner of application in the
instant case. In expanding his submission Mr. Altaf Ahmed argued that the
Act being a piece of conditional legislation the action taken or power exercised
E under Section 6 thereof was not reversible and, consequently the question
of applying the provisions of Section 21 of the General clauses Act, which
pertains to action taken or power exercised, which is reversible, could not
arise. According to Mr. Altaf Ahmad, the power conferred on the State
Government under Section 6 of the Act exhausted itself once it was exercised
by granting consent and nothing was left of it and resultantly, when the
F investigation was undertaken by C.B.I. pursuant thereto, by invoking Section
5 of the Act, it could not be rolled back by withdrawal, by the impugned
notification. In other words, according to Mr. Altaf Ahmad, the power under
Section 6 of the Act having exhausted itself nothing remained or reversing
the exercise of such a power.
G
16. Mr. Salve, appearing for S.K: Sharma ( the appellant in Criminal
Appeal No. 491 of 1997), first drew our attention to a notification being No.
7/5/55- AVD dated November 6, 1956 issued by the Government of India in
exercise. of its powers conferred by Section 3 of the Act, specifying the
offences and classes of offences to be investigated by Delhi Special police
H Establishment (Which include offences under the 1.0.S. Act, 1923) and a letter
K. CHANDRASEKHAR v. SATE OF KERALA [M.K. MUKHERJEE, J.] 81
dated December 14, 1956 addressed by the Chief Secretary of Government of A
Kerala to an Under Secretary of the Government of India, intimating that the
Government of Kerala had accorded their consent for the members of the
Delhi Special Police Establishment exercising powers and jurisdiction within
the State of Kerala in respect of the offences specified in the above notification,
and submitted that the notification dated December 2, 1994 granting consent B
( and for that matter withdrawal thereof) only for investigating into Crime No.
246/94 was redundant for by virtue of the earlier letter of general consent, the
C.B.I. was competent to Investigate into all offences mentioned in the
notification dated November 6, 1956 including the offences in question. His
main submission, however, was that once a consent was given by a State
Government empowering the C.B.I. to investigate into an offence, the former C
could not withdraw the same. In support of this contention he relied upon
the judgement of this Court in Kazi Lhendup Dorji v. Central Bureau of
Investigation, [1994] Supp. 2 SCC 116. His last submission was that the
withdrawal of the consent was clearly a malafide action on the part of the
Government of Kerala. To bring home this contention, he relied upon certain
facts and circumstances appearing on record, to which we will refer at the D
appropriate stage.
·•
17. The learned counsel appearing for the other accused -appellants,
and appellant D. Sasikumaran adopted and reiterated the submissions made
by Mr. Altaf Ahmad and Mr. Salve. E
18. In refuting the above contentions, Mr. Shanti Bhushan, the learned
counsel appearing for the State of Kerala along with its Advocate General,
submitted that the Act only enables C.B.I. to investigate into offences specified
as contemplated by Section 3, but does not in any way take away the right
of the State Police to investigate into those offences. He pointed out that the F
offences for which notifications have been issued under Section 3 include
offences under Sections 380 and 411 I.P.C. and submitted that it would be
absurd to suggest that the State Police was denuded of its powers to
investigate into those offences in accordance with Chapter XII of the Code
merely because the C.B.I. has been empowered to investigate into those G
offences. Ih elaborating this contention he submitted that the power to·
investigate a cognizable case is conferred on the officer-in-charge of a police
station under Section 156 (I) of the Code (appearing in Chapter XII) and in
exercise thereof he can investigate any such case which a Court having .
jursdiction over the local area within the limits of such station would have
power to inquire into or try under the provisions of Chapter XIII. He drew H
82 SUPREME COURT REPORTS [ 1998] 3 S.C.R.

A our/attention to Chapter XIII (which relates to the jurisdiction of the criminal
Co~rts in inquiries and trials) of the Code and argued that Sections 177 to
184 appearing therein would show that more than one Court have territorial
jurisdiction to inquire into and try the same offence. By way of illustration
he made a particular reference to Section 183 to contend that if a murder was
B committed in a train all the Courts, having territorial jurisdiction in the areas
through which the train was passing, would be competent to try the offence.
That, according to him, necessarily meant that each one of the Officers-in-
charge of the Police Stations through which the train passed would be
competent to investigate the offence of murder in view of the plain language
of Section 156 (1) of the Code and none of them could claim any exclusive
C jurisdiction to investigate. Of course, he added, if on the filing of charge-
sheets on completion of their respective investigations, Courts in different
States took cognizance of that offence the High Court would have to decide
under Section 186 of the Code as to which of those Courts would try the
offence. He contended that Section 186 of the Code clearly demonstrates that
while the law does not contemplate parallel trials for the same offence in
D different Courts it does clearly envisage parallel or simultaneous investigations
of the same offence by police officials of different States. He reiterated that
since the law does not prohibit simultaneous investigation by different )-

investigating agencies into the same offence if each one of them has been
conferred powers of investigation, the issuance of an order under Section 5( 1)
E of the Act along with the consent of the State Government under Section 6
thereof would only mean that the officers of the C.B.I. can also investigate
into that offence. To buttress his contention he drew our attention to the
judgment of his Court in A.C. Sharma v. Delhi Administration, [1973] 1 SCC
726. In that case the following question came up for consideration (as
formulated by this Court in paragraph 6 of the judgm~nt):-
F
"The short but important question with far reaching effect, if the
appellant's contention were to prevail, requiring our decision is, whether
with the setting up of the Delhi Special Police Establishment, the Anti
Corruption Branch of the Delhi Police had been completely deprived
of its power to investigate into the offences like the present or whether
G both the DSPE and the Anti Corruption Branch had power to
investigation it being a matter of internal· administrative arrangement
for the appropriate authorities to regulate the assignment of
investigation of cases according to the exigencies of the situation."
19. After referring to the scheme of the Act and its different provisions
H the Court answered the same as under:-"
K. CHANDRASEKHAR v. SA TE OF KERA LA (M.K. MUKHERJEE, J.] 83
The scheme of this Act does not either expressly or by necessary A
implication divest the regular police authorities of their jurisdiction,
powers and competence to investigate into offences under any other
competent law. As a general rule, it would require clear and express
language to effectively exclude as a matter of law the power of
investigation of all the offences mentioned in this notification from B
the jurisdiction and competence of the regular police authorities
conferred on them by Cr.P.C. and other laws and to vest this power
exclusively in the D.S.P.E. The D.S.P.E. Act seems to be only permissive
or empowering, intended merely' to enable the D.P.S.E. also to
investigate ·into the offences specified as contemplated by Section 3
without impairing any other law empowering the regular police C
authorities to investigate offences."

(emphasis supplied)

20. On the basis of the law so laid down, the last submission of Mr.
Shanti Bhushan on this point was that the power of C.B.I. to investigate into D
the offences in question was not exclusive but concurrent with the State
Police. In distinguishing the case of Kazi Lhendup Dorji (supra), Mr. Shanti
•
Bhushan submitted that that was a case where the consent was sought to be
withdrawn at a stage when the investigation was in progress, but in the ·
instant case, as the C.B.I. had already completed the investigation and
submitted its report in final form the State Government was fully justified in E
withdrawing the consent for making a proper investigation into the offence
in question.

21. In responding to the argument of the appellants based on Section
21 of the General Clauses Act he submitted that the said Section was applicable
to conferments of administrative power only and not to conferment of judicial F
or quasi judicial powers and· since grant of consent under Section 6 of the
Act was merely an administrative power withdrawal thereof would be
permissible under that section.

22. We are constrained to say that the entire argument of Mr. Shanti G
Bhushan centring round Section 156, read with Chapter XIII, of the Code is
fallacious; and the fallacy lies in the basic premise on which he sought to
build his argumentatious edifice. In the present appeals, we are not concerned
with the question of initiation of parallel or simultaneous investigations by
two different agencies, viz. C.B.l. and state police in two separate cognizable
cases registered at two different places over on and the same offence. We are H
84 SUPREME COURT REPORTS [1998] 3 S.C.R.

A also not concerned with the question whether both C.B.I. and Kerala Police
have/had jurisdiction to initiate investigation into the offences in questions
[answer to which has already been given in the case of A.C. Sharma, (supra)].
Indeed, the question that falls for our determination is altogether different:
and that is, when the investigation into an offence is transferred and entrusted
B to C.B.I. for investigation pursuant to consent given under Section 6 of the
Act and the C.B.I. has not only started but completed the investigation armed
with that consent and submitted its report under Section 173(2) of the Code
can the State Government withdraw the consent and, if so, what is the effect
thereof.

C 23. To answer the above question it will be appropriate to first refer to
the case of Kazi Lhendup Dorji, (supra) . In that case by a letter dated
October 20, 1976, addressed to the Deputy Secretary to the Government of
India ( Department of Personnel and Administration Reforms), the Chief
Secretary to the Government of Sikkim conveyed the consent of its Government
under Section 6 to the members of the Delhi Special Police Establishment in
D exercising powers and jurisdiction in the entire State of Sikkim for the
investigation of the offences punishable under various provisions of the
Indian Penal Code specified therein as well as offences under the Prevention •
of Corruption Act, 1947. Thereafter on May 26, 1984 a case was registered
by the C.B.I. against Shri Narbahadur Bhandari, erstwhile Chief Minister of
E Sikkim, for offences punishable under Section 5(2) read with 5(1)(e) of the
prevention of Corruption Act, 194 7 on the allegation that while acting as the
Chief Minister and thus being a public servant, he had acquired assets
disproportionate to his known sources of income. Another case was thereafter
registered by the C.B.I. on August 7, 1984 against Shri Bhandari and others
under Section 5(2) read with (5)(1) (d) of the same Act. After registering those
F two cases the C.B.I. started investigation; and when the cases were under
investigation Shri Bhandari reassumed the office of the Chief Minister on
March 19, 1985. While he was holding that office a notification was issued
on January 7, 1987 notifying that all consents of or on behalf of the State
Government earlier given under Section 6 of the Act for investigation of
G offence by C.B.l. are withdrawn and stand cancelled with immediate effect. As
a consequence of that notification, C.B.I. suspended further action in the
aforementioned two cases against Shri Bhandari, Shri Dorji, who also happened
to be a former Chief Minister of Sikkim, then filed a writ petition before this
Court under Article 32 of the ConstitutioQ of India contending that there was
no provision in the Act which empowered the State Government to withdraw
H the consent which had been accorded and consequently, the impugned
K. CHANDRASEKHAR v. SATE OF KERALA [M.K. MUKHERJEE, J.] 85
notification dated January 7, 1987, withdrawing the consent was in violation A
of the provisions of the Act. In contesting the petition Shri Bhandari (who
was arrayed as Respondent No. 4 therein) contended, inter alia, that the
consent given under Section 6 of the Act could be rescinded under Section
21 of the General Clauses Act, 1897. ln allowing the petition this court held:-

"Coming to the conclusion urged by Shri Jethmalani on merits it rhay B
be mentioned that Section 21 of the General Clauses Act does not
confer a power to issue an order having retrospective operation.
Therefore, even if we proceed on the basis that Section 21 of the
General Clauses Act is applicable to an order passed under Section
6 of the Act, an order revoking an order giving consent under C
Section 6 of the Act can have only prospective operation and would
not affect matters in which action has been initiated prior to the
issuance of the order of revocation. The impugned notification dated
7-1-1987, has to be construed in this light. If thus construed it would
mean that investigation which was commenced by CBI prior to
withdrawal of consent under the impugned notification dated 7-1- D
1987, had to be completed and it was not affected by the said
withdrawal of consent. In other words, the CBI was competent to
complete the investigation in the cases registered by it against
Respondent 4 and other persons and submit the report under Section
173 CrPC in the competent Court. On that view of the matter, it is E
not necessary to go into the question whether the provisions of
Section 21 of the General Clauses Act can be invoked in relation to
consent given under Section 6 of the Act."

(emphasis supplied)

In view of the law so laid down by a three Judge Bench of this Court, it must F
be held that an investigation started by C.B.I. with the consent of the State
Government concerned cannot be stopped midway by withdrawing the consent.

24. Since, in the present case, unlike that of Kazi Lhendup Dorji,
(supra), the consent was withdrawn after report under Section 173(2) Cr. P.C. G
was filed on completion of investigation as the State Government would like
to further investigate into the case, the question which still remains to be
answered is whether this distinguishing fact alters the principle laid down
_therein. To answer this question it will be necessary to refer to Section 173
of the Code which, so far as it is relevant for our present purposes, reads as
under:- H
86 SUPREME COURT REPORTS [ 1998] 3 S.C.R.

A "Report of Police Officer on completion of investigation. - (I) Every
investigation under this Chapter shall be completed without
unnecessary delay.

(2)(i) As soon as it is completed, the officer in charge of the police
station shall forward to a Magistrate empowered to take cognizance
B of the offence on a police report, a report in the form prescribed by
the State Government, stating -

(a) the names of the parties,

(b) the nature of the information;

C (c) the names of the persons who appear to be acquainted with the
circumstances of the case;

(d) whether any offence appears to have been committed and, if so,
by whom;

D (e) whether the accused has been arrested;
(t) whether he has been released on his bond and, if so, whether with
or without sureties;

(g) whether he has been forwarded in custody under Section 170.

E (ii) The officer shall also communicate, in such manner as may
be prescribed by the State Government , the action taken by him to
the person, if any, by whom the information relating to the commission
of the offence was first given.

(3) xxx xxx xxx
F
(4) xxx >
xxx xxx

(5) xxx xxx xxx ~
(6) xxx xxx xxx
G (7) xxx xxx xxx

(8) Nothing in this section shall be deemed to preclude further
investigation in respect of an offence after a report under sub-section
(2) has been forwarded to the Magistrate and, where upon such
investigation, the officer in charge of the police station obtains further
H evidence, oral or documentary, he shall forward to the Magistrate a
- K. CHANDRASEKHAR v. SA TE OF KERA LA [M. K. MUKHERJEE, J.] 87

further report or reports regarding such evidence in the fonn prescribed; A
and the provisions of sub-sections (2) to (6) shall, as far as may be,
apply in relation to such report or reports as they apply in relation to
a report forwarded under sub-section (2)"

25. From a plain reading of the above Section it is evident that even
after submission of police report under sub-section (2) on completion of B
investigation, the police has a right of 'further' investigation under sub-
section (8) but not 'fresh investigation' or 're-investigation'. That the
Government of Kerala was also conscious of this position is evident from the
• fact that though initially it stated in the Explanatory Note of their notification
dated June 27, 1996 (quoted earlier) that the consent was being withdrawn in C
public interest to order a 're-investigation' of the case by a special team of
State police officers, in the amendatory notification (quoted earlier) it made
it clear that they wanted a 'further investigation of the case' instead of 're-
investigation of the case'. The dictionary meaning of 'farther' (when used as
an adjective) is 'additional'; more; supplemental. 'Further' investigation
therefore is the continuation of the earlier investigation and not a fresh D
investigation or reinvestigation to be started ab-initio wiping out the earlier
investigation altogether. In drawing this conclusion we have also drawn
inspiration from the fact that sub-section (8) clearly envisages that on
completion of further investigation the investigating agency has to forward
to the Magistrate a 'further' report or reports - and not fresh report or reports- E
regarding the 'further' evidence obtained during such investigation. Once it
is accepted - and it has got to be accepted in view of the judgment in Kazi
Lhendup Dorji, (supra) - that an Investigation undertaken by CBI pursuant
to a consent granted under Section 6 of the Act is to be completed,
notwithstanding withdrawal of the consent, and that 'further investigation' is
a continuation of such investigation which culminates in a further police F
report under sub-section (8) of Section 173, it necessarily means that withdrawal
of consent in the instant case would not entitle the State Police, to further
investigate into the case. To put it differently, if any further investigation is
to be made it is the C.B.I. alone which can do so, for it was entrusted to
investigate into the case by the State Government. Therefore, the notification G
issued withdrawing the consent to enable the State Police to further investigate
into the case is patently invalid and unsustainable in law. In view of this
finding of ours we need not go into the questions, whether Section 21 of the
General Clauses Act applies to the c<.msent give_n under Section 6 of the Act
and whether consent given for investigating into Crime No. 246/94 was
redundant in view of the general consent earlier given by the State of Kerala. H
88 SUPREME COURT REPORTS [i 998] 3 S.C.R.

A 26. Even if it is assumed that the State Government had the requisite
power and authority to issue the impugned notification, still the same would
bt: liable to be quashed on the ground of malafide exercise of power. Eloquent
proof thereof being facts and circumstances on the record:-

(i) while requesting the Director General of Police, Thiruvananthapuram,
B to transfer the case to C.B.I. for investigation by his letter dated 30.11.94, Shri
Mathew, the Deputy Inspector General of Police (who, as noticed earlier,
impleaded himself as a respondent in the writ petitions filed by the accused
- appellants in the High Court) Stated as under:-

"(I) The incidents of this case are spread over the three states of
c Kerala, Tamilnadu and Karnataka and foreign locations like
Colombo and Male.

(2) There is reason to believe that strategically important information
about the IAF/Armed Forces (R & D Wing ) have been passed
D on by the espionage chain to unfriendly countries. The complicity
of senior military personnel is very likely. The State police may
not be able to question them, conduct search in their office, etc.

(3) There is information (not fully authenticated) about the involvement
of a senior officer.
E Due to the above mentioned reasons, I do not think the Special
Team now in charge of the case could be able to do full justice to
the case. This is a fit case to be transferred to the Central Bureau
of Investigation who are better equipped and also have the advantage
of being a Central Police Investigating outfit."
F (emphasis supplied)

That on the basis of the above letter the Director General of Police recommended
investigation by the CBI and the Government of Kerala in its turn issued the
notification dated December 2, 1994 (quoted earlier) would be evident from the
G explanatory note appended thereto. If the above formidable impediments
stood in the way of the State Government to get the case properly investigated
by its police and impelled it to hand over the investigation to the C.B.I. it is
hardly conceivable that the State Government would be able to pursue the
investigation effectively as those impediments would still be there. Mr. Shanti
Bhushan , however, contended, relying upon the following Statement made
H by Shri K. Dasan, an Additional Secretary to the Government of Kerala in his
K. CHANDRASEKHAR v. SATEOFKERALA [M.K. MUKHER.JEE,J.] 89
counter- affidavit (filed on February 20, 1997 in Criminal Appeal No. 489 of A
1997) :-

"Having regard to the question of public importance involved in this
matter the Government ordered that further investigation should be
taken by a Special team handed by senior officials of Kerala state
police assisted by senior Officials of the Intelligence Bureau, RAW B
and intelligence wing in the defence organisation of Govt. of India."

that there would be no difficulty in carrying on an effective and purposeful
investigation with the assistance of the related organisations of the Central
Government. Having regard to the stand taken by the Central Government
that they are satisfied with the report of investigation of the C.B.I. we are not C
prepared to accept the above statement, in absence of any supporting affidavit
on behalf of the Government of India or any of those organisations;

(ii) On a careful perusal of the police report submitted by the C.B.I. on
completion of the investigation (which runs through more than 100 pages) we D
find that it has made a detailed investigation from all possible angles before
drawing the conclusion that the allegations of espionage did not stand proved
and were found to be false. Mr. Shanti Bhushan, however, drew our attention
to certain passages from that report to contend that C.B.I. only 'Investigated
the Investigation' (to use the words of Mr. Shanti Bhushan), which had been
carried on for less than three weeks by the Kerala police and the Intelligence E
Bureau of the Central Government, in its (C.B.I. 's) anxiety to establish that the
statements of the accused - appellants recorded by the Kerala Police and the
Intelligence Bureau could not be accepted as correct. He also drew our
attention to pages 7 to 15 of the counter affidavit filed by Shri T.P. Sen Kumar,
Deputy Inspector General of Police, Kerala ( In Criminal Appeal No. 491 of F
1997) , wherein detailed reasons have been given for not accepting the police
report submitted by the C.B.I. and for the State Government's decision to
withdraw the consent. After having gone through the relevant averments
made in those pages we find that the main endeavour of Shri Sen Kumar has
been to demonstrate that the conclusions arrived at by the C.B. I. from the
materials collected during investigation were wrong and not that the G
investigation was ill directed or that the materials collected in course thereof
were insufficient or irrelevant. If the State Government found that the
conclusions drawn by the C.B.I. were not proper, the only course left to the
State Government, in cur opinion, was to ask the Central Government to take
a different view of the materials collected during investigation and persuade
it to lodge a complaint in accordance with Section 13 of the 1.0.S. Act. The H
90 SUPREME COURT REPORTS [1998] 3 S.C.R.

A contention of Mr. Shanti 8hushan that the C.8.1. only 'investigated into the
investigation' is also without any basis whatsoever for we find that keeping
in view the statements made by some of the accused appellants, the C.8.1.
sought for the assistance of INTERPOL and got a number of persons examined
by them in Srilanka and Maldives (besides a number of witnesses in India,
B who were examined by it (C.8.1.)). Further, we find that the State Government
did not canvass any satisfactory ground justifying further investigation,
while seeking permission of the Chief Judicial Magistrate for that purpose;

(iii) Though the investigation of the case centered round espionage
activities in l.S.R.O. no complaint was made by it to that effect nor did it raise
C any grievance on that score. On the contrary, from the police report submitted
by the C.8.1. we find that several scientists of this organisation were examined
and from the statements made by those officers the C.8.1. drew the following
conclusion:-

"The sum and substance of the aforesaid statements is that !SRO
D does not have a system of classifying drawings/documents. In other
words, the documents/drawings are not marked as Top Secret, Secret,
confidential or classified etc. Further, !SRO follows an open door
policy in regard to the issue of documents to scientists. Since !SRO,
is a research oriented organisation, any scientist wanting to study
any document is free to go to the Documentation Cell/Library and
E study the documents. As regards the issue of documents to various
Divisions, the procedure was that only the copies used to be issued
to the various divisions on indent after duly entering the same in the
Documentation Issue Registers. During investigation, it has been
revealed that Fabrication Divn. where accused Sasikumaran was
p working, various drawings running into 16,800 sheets were issued and
after his transfer to SAP, Ahmedabad on 7.11.1994, all the copies of
the drawings were found to be intact. Nambi Narayan being a senior
scientist, though had access to the drawings, but at no stage any
drawings/documents were found to have been issued to him. They
have also stated it was usual for scientists to take the documents/
-G drawings required for any meetings/discussions to their houses for
study purposes. In these circumstances, the allegation that Nambai
Narayan and Sasikumaran might have passed on the documents to a
third party, is found to be false."

It further appears that at the instance ofC.8.1, a committee of senior Scientists
H was constituted to ascertain whether any classified documents of the
K. CHANDRASEKHAR v. SATE OF KERA LA [M.K. MUKHERJEE . .I.] 91
organisation were stolen or found missing and their report shows that there A
was no such missing documents. There cannot, therefore, be any scope for
further Investigation in respect of purported espionage activities in that
organisation in respect of which only the Kerala police would have jurisdiction
to investigate;

(iv) The Government of India, by supporting the case of the writ B
petitioners ( the accused - appellants) in the High Court, and filing some of

.. these appeals in this Court and an affidavit in connection therewith has, in
no uncertain terms, made it abundantly clear that they are satisfied with the
investigation conducted by the C.B.I. and they strongly oppose any attempt
on the part of the State Government to further investigate into the matter by C
its police. Inspite thereof the State Government has had been pursuing the
matter zealously and strongly defending their action, knowing fully well that
a prosecution can be launched by or at the instance of Central Government
only: Having known the stand of the Government of India it was expected of
the Government of Kerala to withdraw the impugned notification, for in the D
ultimate analysis any further investigation by it would be an exercise in
futility; and

(v) Though, as held by this Court in Jamuna v. State of Bihar, AIR
(1974) S.C. 1822, the duty of the Investigating Agency is not merely to E
boister up a prosecution case with such evidence as may enable the Court
to record a conviction but to biing out the real unvarnished truth, yet the
kerala Government wants the instant case to be further investigated by a team
nominated by it with the avowed object of establishing that the accused -
appellants are guilty, even after the investigating agency of its choice, the
C.B.I., found that no case had been made out against them. This will be F
evident from the}ollowing passage from the Order dated December 13, 1996
passed by the Chief Judicial Magistrate, Thiruvananthapuram while granting
permission to the Kerala Police to further investigate :-

"The report submitted by the Director General of Police discloses the G
fact that he has got reliable information that the conclusions arrived
at by the C.B.I. during investigation were not correct. If the case is
further investigated more evidence can be collected which would
poinf"towards the quilt of the accused."

( emphasis supplied) H
92 SUPREME COURT REPORTS (1998] 3 S.C.R.

A and from the order of detention dated September 6, 1997 passed against the
appellant Mariyam Rashida by Mr. Mohan Kumar, Additional Chief Secretary,
Government of Kerala. The said order reads as under:-

"WHEREAS Smt. Mariyam Rasheeda who is a Maldivian National, a
foreigner, is an accused in Crime No. 246/94 of Vanchiyoor Police
B Station. Thiruvananthapuram

WHEREAS in the judgment dated 27-12-1996 in O.P. Nos.
12747/96, 14248/96, 15363/96 and 16358/96 the Hon'ble High Court of •
Kera la said that the order of Government of kerala to conduct further
investigation in the above crime case is valid.
c
WHEREAS the Government of Kerala have taken steps to obtain
the formal permission of the Chief Judicial Magistrate,
Thiruvananthapuram to conduct further investigation.

AND WHEREAS the Government of Kerala are satisfied that
D
there is sufficient evidence to proceed against the said Mariyam
Rasheeda for the offence u/s 3 and 4 of the official Secrets Act and "
for the purpose of further investigation, her continued presence in
India is absolutely necessary and that she is likely to abscond and
act in a manner prejudicial to the defence of India and the security of
E India, unless detained.

NOW THEREFORE the Government of Kerala hereby order that
the aforesaid Smt. Mariyam Rasheeda be detained under section 3(1)(a)
and (b) of the National Security Act, 1980 ( Act No. 65 of 1980) in the
Central Prison, Viyyoor, Thrissur."
F
(emphasis supplied)

If before taking up further investigation an opinion has already been
formed regarding the guilt of the accused and, that too, at a stage when the
commission of the offence itself is yet to be proved, it is obvious that the
G investigation can not and will not be fair and its outcome appears to be a
foregone conclusion.

27. From the above facts and circumstance we are constrained to say
that the issuance of the impugned notification does not comport with the
known pattern of a responsible Government bound by rule of law. This is
H undoubtedly a matter of concern and consternation. We say no more.
K. CHANDRASEKHAR v. SATEOFKERALA [M.K. MUKHERJEE, J.) 93
28. On the conclusions as above we allow these appeals and quash the A
impugned notification. We direct the Government of Kerala to pay a sum of
Rs. 1,00,000 (Rupees one lac) to each of the six accused- appellants as costs.

N.J. Appeals allowed.

B

.
'