Hon'ble Dr. Satish Chandra,J.
Written submission filed on behalf of respondent no.7 is taken on record. This petition has been filed by the father of missing child with the prayer that the investigation of case crime no. 262/2010 under Section-364 IPC be transferred to the Central Bureau of Investigation. The other prayer made is for quashing of the first information reports bearing case crime no. 144/2010 under Sections-307, 394, 504, 506 IPC and case crime no. 146/2010 under Sections- 452, 504 & 506 IPC lodged against the petitioner. We are of the considered opinion that there is no good reason to quash the first information report relating to case crime no. 144/2010 and Case Crime No. 146/2010. The first information reports disclose cognizable offence and therefore the prayer in that regard is rejected. So far as the first prayer is concerned we find that the son of the petitioner is alleged to have been abducted on 06.04.2010. Despite best effort the State agencies have not been able to trace out the missing child Raksham. We may record that the investigation of the offence was early handed over to S.T.F., but it also did not result in any successful recovery of the child. In the said circumstances since the child could not be recovered for more than 4 years as on date, the High Court vide order dated 26.07.2012 required the A.G.A. to inform the Court as to whether the State are willing to transfer the investigation to Central Bureau of Investigation (C.B.I.) or not. On the same date C.B.I. was also impleaded as one of the respondent to the present writ petition.
The State Government vide order dated 22.04.2012 took a decision to transfer the investigation of Case Crime No. 262 of 2010 to the C.B.I. The Joint Director, C.B.I., Lucknow vide letter dated 16.07.2012, however refused to investigate the crime on the ground that the C.B.I. is over worked and the State Government has alternative machinery for investigation namely C.B.C.I.D. The Court passed an order on 06.09.2012 requiring the counsel for the C.B.I. to inform the court as to whether even after issuance of a notification under Section-6 of the Delhi Special Police Establishment Act, 1946 by the State Government for investigation of the case crime no. 262/2010 by C.B.I. can its Joint Director refuse to investigate the crime on the ground that the C.B.I. was over worked.
In response to the aforesaid order an affidavit was filed by the Joint Director, C.B.I. stating therein that unless a notification under Section-5 of the Delhi Special Police Establishment Act, 1946 is reissued of the Case Crime No. 262 of 2010 by Central Government. The C.B.I. is not obliged to investigate the offence even after a notification under Section-6 of the Delhi Special Police Establishment Act, 1946 by the State Government. This Court after noticing the said stand issued notice to the Central Authority to clarify its stand on the issue.
The Under Secretary, Department of Personnel, Public Grievance & Pension, Government of India, New Delhi has filed an affidavit disclosing four reasons in para-7 of the affidavit for refusing to investigate the Case Crime No. 262 of 2010 despite notification of the State Government under Section-6 of the Delhi Police Establishment Act, 1946.
This Court was not satisfied with the stand taken and therefore proceed to hear the petitioner and the learned Additional Solicitor General of India on the said aspect of the matter.
A written submission has been filed on behalf of the Union of India by the Additional Solicitor General of India and in para-3 it is stated that presently C.B.I. is over burdened with the cases referred by the High Court as well as by the State Government it has to cope with the same with limited resources. The State Government has the option of getting the investigation of the case conducted by the C.B.C.I.D. which is an independent agency. In para-7 following four reasons have been stated for refusing investigation of Case Crime No. 262 of 2010 by the C.B.I. The reasons are quoted herein below:- "(i) That a final report has been submitted in this case and the case being more than two and a half years old it is very difficult for the C.B.I. to gather any fresh evidence about the disappearance or trace or recover Master Raksham.
(ii) That the present matter neither has any inter-state or international ramification nor involves any larger public interest or issue.
(iii) That the C.B.I. is over burdened with the cases referred by the Hon'ble High Court as well as State Governments and is trying to cope up with the same with limited resources.
(iv) That the State Government as another remedy of getting the investigation of the case conducted by the C.B.C.I.D. which is an independent agency."
Counsel for the C.B.I. has also referred to Section-2, 3, 4, 5 & 6 of the Act and it is submitted that it is with the exclusive power of the Central Government alone under Section-5 to extend the Delhi Special Police Establishment to any area of the another State. The word 'area' as mentioned is for the purpose to include a particular offence by the orders of the Central Government to be investigated in that area by C.B.I.
Reliance has been placed upon the judgement reported in 2010 (3) SCC 571 State of West Bengal & others Vs. Committee for Protection of Democratic Rights, West Bengal and others and 1998 (1) SCC 226 Vineet Narain & others Vs. Union of India & others . We at outset record that the stand which has been taken on behalf of Central Government and as have been canvassed by Sri R.B. Singhal, Additional Solicitor General of India on behalf of the Union is wholly misconceived. It is a clear case of misreading of the provisions of Delhi Special Police Establishment Act, 1946.
The Apex Court in the case of State of West Bengal & others Vs. Committee for Protection of Democratic Rights, West Bengal and others (Supra). In para-32, 33, 34, 35 & 36 after taking note of Sections-2, 3, 4, 5 & 6 of the Act has opined as follows:-
"..........Section 2 contains three sub sections. Subsection (1) empowers the Central Government to constitute a special police force to be called the Delhi Special police Establishment for the investigation of offences notified under Section 3 in any Union Territory; sub-section (2) confers upon the members of the said police establishment in relation to the investigation of such offences and arrest of persons concerned in such offences, all the powers, duties, privileges and liabilities which police officers of that Union Territory have in connection with the investigation of offences committed therein and subsection (3) provides that any member of the said police establishment of or above the rank of Sub-Inspector be deemed to be an officer in charge of a police station. Under Section 3 of the Special Police Act, the Central Government is required to specify and notify the offences or classes of offences which are to be investigated by the Delhi Special Police Establishment constituted under the Special Police Act, named "C.B.I." Section 4 deals with the administrative control of the establishment and according to sub-section (2), the "superintendent" of the establishment vests in the Central Government and the administration of the said establishment vests in an officer appointed in this behalf by the Central Government. Explaining the meaning of the word "superintendence" in Section 4(1) and the scope of the authority of the Central Government in this context, in Vineet Narain v. Union of India, a Bench of three Judges of this Court said: (SCC p. 261, para 40).
"40....The word 'superintendence' in Section 4(1) cannot be construed in a wider sense to permit supervision of the actual investigation of an offence by CBI contrary to the manner provided by the statutory provisions. The broad proposition urged on behalf of the Union of India that it can issue any directive to CBI to curtail or inhibit its jurisdiction to investigate an offence specified in the notification issued under Section 3 by a directive under Section 4(1) of the Act cannot be accepted. The jurisdiction of CBI to investigate an offence is to be determined with reference to the notification issued under Section 3 and not by any separate order not having that character.
34. Section 5 of the Special Police Act empowers the Central Government to extend the powers and jurisdiction of the Special Police Establishment to any area, in a State, not being a Union Territory for the investigation of any offences or classes of offences specified in a notification under Section 3 and on such extension of jurisdiction, a member of the Establishment shall discharge the functions of a police officer in that 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 toi that police force.
35. Section 6, the pivotal provision, 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.
(emphasis supplied) Thus, although Section 5(1) empowers the Central Government to extend the powers and jurisdiction of members of the Delhi Special Police Establishment to any area in a State, but Section 6 imposes a restriction on the power of the Central Government to extend the jurisdiction of the said Establishment only with the consent of the State Government concerned.
Para-33 of the judgment in the Case of Vineet Narain and others Vs. Union of India & others reproduced as under:-
"The decision in J.A.C. Saldanha is on Section 3 of the Police Act, 1861 and deals with the ambit and scope of State Government's power of "superintendence" thereunder. It was held in J.A.C. Saldanha that the power further investigation under Section 173(8) Cr.P.C. That was a case in which there was occasion to require further investigation because of the unsatisfactory nature of the investigation done earlier of a cognizable offence. Thus, in that case the power of superintendence was exercised for directing further investigation to complete an unsatisfactory investigation of a cognizable offence to promote the cause of justice and not to subvert it by preventing investigation. In our opinion, in the present context, that decision has no application to support the issuance of the Single Directive in exercise of the power of superintendence, since the effect of the Single Directive might thwart investigation of a cognizable offence and not promote the cause of justice by directing further investigation leading to a prosecution." "The word superintendence in Section 4(1) cannot be in a wider sense to permit the actual investigation of an offence by C.B.I. contrary to provide by the statutory provisions on behalf of Union of India that it can issue any direction to the C.B.I. to curtail its jurisdiction to investigate an offence specified in the notification issued under Section-3 by a directing under Section-4 of the Act cannot be accepted. The jurisdiction of the C.B.I. to investigate an offence is to be determined with reference to the investigation and not by any separate order not having that character."
And thereafter in para-35 it has been noticed that "Section-5 (1) empowers the Central Government to extend the powers and jurisdiction of the members of the Delhi Special Police Establishment to any area in the State. But Section 6 imposed a restriction on the power of the Central Government to extend the jurisdiction of the said establishment only with the consent of State Government concerned.
What follows from reading of judgement of the Apex Court in the case of Vineet Narain (supra) and the State of West Bengal (supra) is that the Central Government has the power under Section-5(1) to extend the jurisdiction of the Delhi Special Police Establishment Act to any area of the State and that the power of the Delhi Special Police, called C.B.I. to investigate the crime of part of the crime is confined to the offences which have been included in the notification issued under Section-3 by the Central Government. Subject to the consent of the State Government under Section 6 of the Act for the said crime being investigated by C.B.I.
In the facts it is not disputed that the offence as alleged in Case Crime No. 262 of 2010 is one of the offences included under the notification issued by the Central Government in exercise of powers under Section-3 and further that by a notification issued under Sections-4 & 5 the Central Government has extended the jurisdiction of the Delhi Special Police Establishment to the area of the State of Uttar Pradesh including Allahabad and lastly the State Government has granted its consent for investigation of the offence by C.B.I. of case crime no. 262/2010 as per the order dated 22.04.2012 already noticed above. Therefore, all the requirements of the Act stand satisfied and there is no further power with the Central Government or for that purpose with the Joint Director of C.B.I. to refuse to investigate the offence so referred to it by the State Government.
The stand taken to the contrary by the Joint Director, C.B.I. as well as Secretary, Department of Personnel, Public Grievance & Pension, Government of India, New Delhi is untenable in the eyes of law. We clarify that, if an offence to be investigated is found to be included the notification issued under Section-3 by the Central Government and that there is a notification under Section-5 extending the jurisdiction of Delhi Special Police Establishment Act, 1946 in respect of the area of the State and there is consent of the State Government as required under Section-6 for an investigation of the said offence by the C.B.I., then there is no power with any of the executive authority including the Joint Director to refuse to investigate the crime. Burden of the work cannot be the excuse for refusing to discharge the statutory duties. The Joint Director of C.B.I. could not have refused to investigate the offence once the notification dated 22.04.2012 was issued by the State Government.
The delay in the investigation in the facts of the case by C.B.I. has only been occasioned cause of the arbitrary stand taken by the Joint Director, C.B.I. as well as by the Union of India.
Even otherwise, if this Court had called upon the C.B.I. to investigate the crime in exercise of the power under Section-226 of the Constitution, there was little or no reason for the Joint Director, C.B.I., Lucknow or for that purpose with the Secretary, Department of Personnel, Public Grievance & Pension, Government of India, New Delhi to have refused to comply with the direction so issued.
We may refer to para-69 of the judgment of the Hon'ble Apex Court in the case of State of West Bengal & others Vs. Committee for Protection of Democratic Rights, West Bengal and others which reads as follows:- "In the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly."
We, therefore, issue a writ of mandamus directing the C.B.I. through its Joint Director, Lucknow to investigate the case crime No. 262/2010 and to complete the investigation preferably within six months from the date a certified copy of this order is produced before him.
Having regard to the interim order which was granted in the petition and which has counted till date as well as for the fact on record we further direct that the petitioner may not be arrested till the submission of the police report in Case Crime No. 144 of 2010 under Sections-307, 394, 504, 506 IPC and case crime no. 146/2010 under Sections-452, 504 & 506 IPC. With the aforesaid direction, the present writ petition is disposed of finally.
Order Date :- 21.4.2014 pp/Anurag