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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.

Signature Not Verified

Digitally signed by
Mr. Arvind Kumar Sharma,Adv.[N/P]
VINOD LAKHINA
Date: 2016.03.11
12:31:42 IST
Reason:
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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]

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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

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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

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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

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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