CBI Was Sufficiently Empowered To Investigate Cases In Erstwhile State of J&K In Terms Of General Consent: J&K&L High Court

The pronouncement came from a bench of Justice Sanjay Dhar while answering a common question of law raised in a a batch of petitions seeking an answer to the issue as to whether the CBI was vested with jurisdiction to investigate offences committed within the territorial jurisdiction of erstwhile State of Jammu and Kashmir.

In their pleas, the petitioners had submitted that the CBI lacked the jurisdiction to investigate the FIRs which had been impugned in these petitions because no consent in terms of Section 6 of the Delhi Special Police Establishment Act had been accorded by the erstwhile State of J&K to the investigation of the instant cases.

The petitioners further contended that CBI, 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.

Adjudicating upon the matter, Justice Dhar observed that from the perusal of the record it appears that the Central Government had 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.

Justice Dhar said that a bare perusal of the aforesaid communications clearly reveals that the Government of Jammu and Kashmir had 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.

"Had it been a case of consent on case to case basis then the particulars of the case, the particulars of the FIR or the facts of the case regarding which the consent was accorded would have been mentioned in the said communication which is not the case. Merely because the Government of Jammu and Kashmir wants to read this communication in a particular manner does not mean that it conveys the said meaning," the court said.

Elaborating further on the matter,  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.

“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 maintained.

Expounding on the mandate of CBI and its officials while undertaking investigations, that court said that once the CBI is entrusted with the investigation of a case registered with a local police station its members discharge the functions of the Police Officer Incharge of the Police Station, in order to avoid any difficulty in investigation due to concurrent jurisdiction exercised by the local Police as well as the CBI.

Dealing with the argument of the petitioners that the members of the CBI are not vested with jurisdiction to investigate offences under Jammu and Kashmir Prevention of Corruption Act as a specialized agency in the form of State Vigilance Organization has been created for investigation of offences, the court said once an order under Section 5 of the DSPE Act is issued extending the powers of CBI for investigation of any offences, a member of the CBI discharging functions of a Police Officer in that State, is deemed to be a member of the Police Force of that area and he is vested with powers, functions and privileges etc. of a Police Officer belonging to that Police Force.

"Thus, once a member of the CBI is vested with jurisdiction to investigate offences under the Jammu and Kashmir Prevention of Corruption Act in the State of Jammu and Kashmir, he would exercise the same powers and privileges as are available to an officer of Vigilance Organization," Justice Dhar explained.

Accordingly the court directed the Registries of both the Wings of this High Court 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.

Case Title: Kumar Avinav Vs State of J&K.

Citation: 2023 LiveLaw (JKL) 14

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