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| High Court dismisses pleas challenging CBI’s jurisdiction in J&K | | |
Early Times Report
Jammu, Feb 2: Justice Sanjay Dhar of Jammu & Kashmir and Ladakh High Court has held that the Central Bureau of Investigation (CBI) is empowered with general consent to investigate offences in the erstwhile State of J&K.
While dismissing the bunch of petitions, Justice Sanjay Dhar observed that a common question of law as to whether the Central Bureau of Investigation is vested with jurisdiction to investigate offences committed within the territorial jurisdiction of erstwhile State of Jammu and Kashmir prior to its bifurcation into two Union Territories, has arisen in all these petitions.
Besides laying challenge on the ground of jurisdiction of the CBI to investigate the offences, certain other grounds of challenge to the prosecution launched by Central Bureau of Investigation against the petitioners, which are peculiar to individual cases have also been raised by the petitioners. The petitions have been clubbed together on account of the fact that a common question of law has arisen as regards the jurisdiction of Central Bureau of Investigation to investigate offences committed in the erstwhile State of Jammu and Kashmir, as such for the present, by virtue of this judgment/order, it is proposed to deal with the said question of law only.
It has been contended by counsels appearing for the petitioners that the Central Bureau of Investigation lacks jurisdiction to investigate the FIRs which have been impugned in these petitions because no consent in terms of Section 6 of the Delhi Special Police Establishment Act (hereinafter referred to as DSPE Act) has been accorded by the erstwhile State of Jammu and Kashmir to the investigation of the instant cases.
According to the petitioners, the Central Bureau of Investigation, before undertaking investigation of the impugned FIRs, was bound to obtain consent of the State Government in individual cases in terms of Section 6 of the DSPE Act and because the same has not been done, as such, the CBI lacks inherent jurisdiction to investigate the impugned FIRs and to file challan against the petitioners.
Justice Sanjay Dhar after hearing battery of lawyers for the petitioners whereas Advocate General DC Raina for the UT whereas TM Shamsi for the UOI, observed that a bare perusal of the contents would reveal that the Government of Jammu and Kashmir has accorded a general consent to CBI exercising its jurisdiction in the State of Jammu and Kashmir for investigation of offences mentioned in the aforesaid letter.
The court further observed that mere filing of affidavits in the court proceedings by officers of the State Government contending that there was no general consent given by the State Government would not nullify the effect of the communications already addressed by the competent authorities of the State Government to the Government of India according consent to the jurisdiction of CBI to investigate certain offences in the State of Jammu and Kashmir. The giving of consent by the State Government is exercise of the executive power of the Government.
It has been contended that once fresh notification under Section 3 or order under Section 5 is issued, there has to be a fresh consent by the State Government in terms of Section 6, which in the instant case, according to learned counsel for the petitioners, is missing. The argument raised is without any merit for the reason that it would be contrary to all the principles to take the view that the State Government has to go on issuing new letters of consent merely because the Central Government chooses to issue a new notification under Section 3. In fact the State Government may refuse to issue a new letter of consent on the ground that it wants that the consent be restricted to the offences already notified only. By superseding notifications or orders, the Central Government may desire to include additional offences, to which the State Government may not wish to accord the consent. The letter of consent issued by the State Government remains valid until it is withdrawn in the manner provided under Article 166(2) of the Constitution and the same remains valid in respect of the offences to which the consent pertains.
Justice Sanjay Dhar further observed that the language of the two consent letters issued by the Government of Jammu and Kashmir, which admittedly have not been withdrawn, clearly suggests that a general consent was accorded by the State Government to the jurisdiction of CBI to investigate certain offences in the erstwhile State of Jammu and Kashmir. There are instances when the State Government has accorded consent to investigation of cases by CBI on case to case basis, but most of these cases pertain to matters involving transfer of investigation from local Police to CBI or the cases referred by Constitutional Courts to the CBI. (JNF) |
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