ITEM NO.101 COURT NO.6 SECTION II/IIA
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CRIMINAL APPEAL NO. 377/2007
C.B.I. APPELLANT(S)
VERSUS
R.R. KISHORE RESPONDENT(S)
(WITH APPLN. (S) FOR DIRECTIONS AND PERMISSION TO FILE ADDITIONAL
DOCUMENTS)
WITH
SLP(CRL) NO. 4364/2011
(WITH APPLN.(S) FOR DIRECTIONS AND PERMISSION TO FILE ADDITIONAL
DOCUMENTS AND OFFICE REPORT)
Date : 10/03/2016 These cases were called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE RANJAN GOGOI
HON'BLE MR. JUSTICE PRAFULLA C. PANT
For parties (s)
CRL.A.377/07 Mr. Rana Mukherjee, Sr. Adv.
Ms. Meenakshi Grover, Adv.
Ms. Daisy Hannah, Adv.
Ms. Binu Tamta, Adv.
Ms. Sushma Suri, Adv.
Mr. Rajiv Nanda, Adv.
Mr. Kapil Rastogi, Adv.
Mr. Rajiv Singh, Adv.
Ms. Nikita Shrivastava, Adv.
Mr. B. V. Balaram Das, AOR.
SLP(CRL) 4364/11 Mr. Arvind P. Datar, Sr. Adv.
Mr. Ankur Chawla, Adv.
Mr. D.N. Ray, Adv.
Mr. Bhanusood, Adv.
Mr. Rahul Pratap, AOR
Mr. R.R. Kishore, in-person
Mr. Senthil Jagadeesan, AOR.
Mr. Arvind Kumar Sharma,Adv.N/P
Signature Not Verified
Digitally signed by
VINOD LAKHINA
Date: 2016.03.11
12:31:42 IST
Reason:
2
UPON hearing the counsel the Court made the following
O R D E R
The provisions of Section 6A(1) do indicate that for
officers of the level of Joint Secretary and above a kind
of immunity has been provided for. Whether there can be a
deprivation of such immunity by a retrospective operation
of a judgment of the Court, in the context of Article 20 of
the Constitution of India, is the moot question that arises
for determination in the present case.
For the aforesaid reasons and having regard to the
provisions of Article 145(3) of the Constitution of India,
we refer the aforesaid question to a larger bench for which
purpose the papers may now be laid before the Hon'ble the
Chief Justice of India on the administrative side.
VINOD LAKHINA ASHA SONI
COURT MASTER COURT MASTER
SIGNED ORDER IS PLACED ON THE FILE
1
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 377/2007
C.B.I. ...APPELLANT
VERSUS
R.R. KISHORE ...RESPONDENT
WITH
SPECIAL LEAVE PETITION (CRIMINAL) NO.4364
OF 2011
ORDER
1. A prosecution under the Prevention
of Corruption Act, 1988 was sought to be
questioned by the respondent accused on the
basis of the provisions contained in
Section 6A(1) of the Delhi Special Police
Establishment Act, 1946 which was brought
in by an amendment in the year 2003.
Section 6A(1) of the Delhi Special Police
Establishment Act, 1946 is in the following
terms:
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"6A. Approval of Central
Government to conduct inquiry or
investigation.-(1) The Delhi
Special Police Establishment shall
not conduct any inquiry or
investigation into any offence
alleged to have been committed
under the Prevention of Corruption
Act, 1988 (49 of 1988) except with
the previous approval of the
Central Government where such
allegation relates to-
(a) the employees of the Central
Government of the Level of
Joint Secretary and above;
and
(b) such officers as are
appointed by the Central
Government in corporations
established by or under any
Central Act, Government
companies, societies and
local authorities owned or
controlled by that
Government."
2. The Delhi High Court before whom
the challenge was brought answered the
question by holding that the respondent
accused was entitled to the benefit of the
3
said provision. Accordingly, the High
Court took the view that the matter
required fresh consideration for grant of
previous approval under Section 6A(1) of
the Delhi Special Police Establishment Act,
1946. Aggrieved, the C.B.I. is in appeal
before us.
3. We have heard the learned counsels
for the parties as also the respondent who
appears in person.
4. The provisions of Section 6A(1) of
the Delhi Special Police Establishment Act,
1946 has been held to be unconstitutional
being violative of Article 14 of the
Constitution of India by a Constitution
Bench of this Court in Subramanian Swamy
versus Director, Central Bureau of
Investigation and another (2014) 8 SCC
682. The judgment of the Constitution
Bench is however silent as to whether its
4
decision would operate prospectively or
would have retrospective effect. Though a
large number of precedents have been cited
at the Bar to persuade us to take either of
the above views, as would support the case
of the rival parties, we are of the
considered view that this question should
receive the consideration of a Constitution
Bench in view of the provisions of Article
145(3) of the Constitution of India.
5. In fact, in Transmission
Corporation of A.P. versus Ch. Prabhakar
and others (2004) 5 SCC 551, the precise
question that has arisen before us had been
referred to a Constitution Bench.
Paragraphs 15 and 21 dealing with the said
question read as follows:
"15. Whether constitutional
guarantee enshrined in clause (1)
of Article 20 is confined only to
prohibition against conviction
for any offence except for
violation of law in force at the
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time of commission of the act
charged as an offence and
subjection to a penalty greater
than that which might have been
inflicted under the law in force
at the time of commission of
offence or it also prohibits
legislation which aggravates the
degree of crime or makes it
possible for him to receive the
same punishment under the new law
as could have been imposed under
the prior law or deprives the
accused of any substantial right
or immunity possessed at the time
of the commission of the offence
charged is a moot point to be
debated.
(underlining is ours)
21. However, as the
interpretation of Article 20 as
to its scope and ambit is
involved in these proceedings, we
refer the question formulated in
para 15 of this order to a larger
Bench for consideration."
However, the Constitution Bench in
Transmission Corporation of A.P. versus
Ch. Prabhakar and others (2010) 15 SCC
200 declined to answer the question as in
the meantime there were certain amendments
to the statute in question and, therefore,
the issues referred were understood to have
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become academic. The very same issues have
been cropped up before us in the present
proceedings.
6. We have considered it necessary to
make the present reference for the reason
that in the case of Transmission
Corporation of A.P. versus Ch. Prabhakar
and others (2004) 5 SCC 551 one of the
questions referred is whether the scope and
ambit of Article 20 of the Constitution of
India is to be understood to be protecting
the substantial rights or the immunity
enjoyed by an accused at the time of
commission of the offence for which he has
been charged.
7. The provisions of Section 6A(1),
extracted above, do indicate that for
officers of the level of Joint Secretary
and above a kind of immunity has been
provided for. Whether there can be a
7
deprivation of such immunity by a
retrospective operation of a judgment of
the Court, in the context of Article 20 of
the Constitution of India, is the moot
question that arises for determination in
the present case.
8. For the aforesaid reasons and
having regard to the provisions of Article
145(3) of the Constitution of India, we
refer the aforesaid question to a larger
bench for which purpose the papers may now
be laid before the Hon'ble the Chief
Justice of India on the administrative
side.
....................,J.
(RANJAN GOGOI)
...................,J.
(PRAFULLA C. PANT)
NEW DELHI
MARCH 10, 2016