Srinagar: Central Bureau of Investigation (CBI) has been vested with jurisdiction to investigate offences in erstwhile State of J&K by ‘general consent’ given around six decades back by the government, the High Court of Jammu and Kashmir and Ladakh ruled on Thursday.
A single bench of Justice Sanjay Dhar also termed as “superfluous” the instances where government has given “specific consent” against ‘general consents’ given on 7th May, 1958 and 8th December 1963 by the government.
“There may be a couple of instances where even in cases which have been directly registered by the CBI, the State of Jammu and Kashmir has accorded specific consent, but the same is superfluous in view of the fact that a general consent has been accorded by the Government,” the court said, adding, “A specific consent may also be required in a case in which subject matter of investigation is an offence which is not mentioned in the consent letter and the order issued under Section 5 (of the Delhi Special Police Establishment Act (DSPE Act)).”
The court also rejected the argument that the individual notification in respect of every case under Section 6 of the DSPE Act is necessary to provide the CBI with power and jurisdiction to investigate the cases in the erstwhile State, noting that when a case is registered by local Police and the State Government intends to transfer the investigation of the case to CBI there has to be a specific consent by the State Government to empower the CBI to investigate the case. “This is to avoid parallel proceedings in respect of the very same offences,” the court said, adding, “Once the CBI is entrusted with the investigation of such a case its members discharge the functions of the Police Officer Incharge of the Police Station, as such, in order to avoid any difficulty in investigation due to concurrent jurisdiction exercised by the local Police as well as the CBI a specific consent notification has to be issued by the State Government.”
The court made the ruling while answering a common question of law, raised in a number of petitions, as to whether the CBI 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.
For the CBI, which is an agency constituted under Section 2 of the DSPE Act, to exercise its jurisdiction to undertake investigation in a particular State, the court said, there has to be a notification under Section 3 specifying the offences regarding which the CBI is authorised to undertake investigation, then there has to be an order under section 5 of the Act extending the powers of CBI to undertake investigation in specified offences to a particular State and there has also to be a consent of the concerned State Government for exercise of powers by the CBI in the particular State.
“It appears that the Central Government has issued notification under Section 3 specifying the offences to be investigated by the CBI, firstly on 6th November 1956 and then on 9th April, 1958,” the court said, adding, “After the issuance of these two notifications it appears that the Government of Jammu and Kashmir has accorded consent to the investigation of certain offences by CBI in terms of its communication dated 7th May, 1958. These offences include some of the offences under RPC as also the offences under Jammu and Kashmir State Prevention of Corruption Act.”
Further the court said that it appears that on 10th February, 1961 an order under Section 5(1) of the DSPE Act has been issued by the Central Government whereby jurisdiction of CBI to investigate offences in the State of Jammu and Kashmir in respect of certain offences under RPC and J&K State Prevention of Corruption Act, 2006 has been extended.
“It also appears that the Central Government felt a need for inclusion of certain more offences in the notification under Section 3 as also in order under Section 5 of DSPE Act and accordingly the State Government was approached vide communication dated 22nd July, 1963 and consent of the State Government was sought regarding inclusion of these additional offences, so that fresh notifications/orders in terms of Section 3 and 5 can be issued,” the court said, adding, “The consent, it seems, has been accorded by the Government of Jammu and Kashmir in terms of its letter dated 18th December, 1963 where-after a fresh notification under Section 3 was issued on 1st of April, 1964 and a fresh order in terms of Section 5 was also issued on the same date”.
“The Registries of both the Wings of this High Court are directed to delink all these petitions and list the same separately before the roster Bench for consideration on other legal grounds raised in the petitions on individual basis,” the court said, “Since the stay of proceedings before the Trial court was granted primarily on the ground of jurisdiction of the CBI to investigate the impugned FIRs, as such, having regard to the answer rendered by this Court to the said question of law, the stay of proceedings before the Trial court shall stand vacated.” The matters be listed before the Registrar Judicial, Jammu and Registrar Judicial, Srinagar on 20.02.2023 for fixing of dates in individual cases, it added.