NDLI: Cbi Vs. R.r. Kishore

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	DSPE Act
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Case(s) Referred	Referred Case 0 Referred Case 1 Referred Case 2 Referred Case 3 Referred Case 4 Referred Case 5 Referred Case 6 Referred Case 7 Referred Case 8 Referred Case 9 Referred Case 10 Referred Case 11 Referred Case 12 Referred Case 13 Referred Case 14 Referred Case 15 Referred Case 16 Referred Case 17 Referred Case 18 Referred Case 19 Referred Case 20 Referred Case 21 Referred Case 22 Referred Case 23 Referred Case 24 Referred Case 25 Referred Case 26 Referred Case 27 Referred Case 28 Referred Case 29 Referred Case 30 Referred Case 31 Referred Case 32
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Matter Referred to Larger Bench
Headnote	Issues for consideration:Section 6A(1) of the Delhi Special Police Establishment Act,1946 (DSPE Act) required approval of the Central Governmentto conduct inquiry or investigation into any offence alleged tohave been committed by senior Government officers underthe Prevention of Corruption Act, 1988; and provided a kind ofimmunity to such officers. Whether there could be a deprivationof such immunity by a retrospective operation of a judgementof the Court, in the context of Article 20 of the Constitution ofIndia, was the moot question that arose for determination in thepresent case.The question was whether the declaration made by a ConstitutionBench of the Supreme Court, in the case of Subramanian Swamyvs. Director, Central Bureau of Investigation and another, thatSection 6A of the DSPE Act being unconstitutional, can be appliedretrospectively in context with Article 20 of the Constitution. Thefollowing three corollary questions also arose for considerationnamely: Whether Section 6A of the DSPE Act was part of procedureor it introduced a conviction or sentence; Whether Article 20(1)of the Constitution had any bearing or relevance in the contextof declaration of Section 6A of the DSPE Act as unconstitutionaland Whether the declaration of Section 6A of the DSPE Act asunconstitutional and violative of Article 14 of the Constitution wouldhave a retrospective effect or would apply prospectively from thedate of its declaration as unconstitutional.Delhi Special Police Establishment Act, 1946 (DSPE Act) – s.6A– Nature of – A part of procedure or introduced a convictionor sentence.Held: Section 6A of the DSPE Act does not lay down or introduceany conviction for any offence – It is a procedural safeguard onlywhich is enumerated in Section 6A of the DSPE Act with regardto making of an investigation or enquiry of an offence under thePrevention of Corruption Act, 1988 – Section 6A of the DSPE Actalso does not lay down any sentence nor does it alter any existingsentence for an offence – s.6A of the DSPE Act is a part of theprocedure only in the form of a protection to senior governmentservants – It does not introduce any new offence nor it enhancesthe punishment or sentence. [Paras 23 and 24]Constitution of India – Art.20 – Applicability of, in contextof s.6A of the Delhi Special Police Establishment Act, 1946.Held: Article 20(1) of the Constitution has no applicability either tothe validity or invalidity of Section 6A of the DSPE Act. [Para 36]Delhi Special Police Establishment Act, 1946 – s.6A –Declaration of s.6A as unconstitutional – Whether would havea retrospective effect or would apply prospectively from thedate of its declaration as unconstitutional – Constitution ofIndia – Art. 13(2) and Part III.Held: Once a law is declared to be unconstitutional, being violativeof Part-III of the Constitution, then it would be held to be voidab initio, still born, unenforceable and non est in view of Article13(2) of the Constitution and its interpretation by authoritativepronouncements – Thus, the declaration made by the ConstitutionBench in the case of Subramanian Swamy will have retrospectiveoperation – Section 6A of the DSPE Act is held to be not in forcefrom the date of its insertion i.e. 11.09.2003. [Para 43]Constitution of India – Art.20(1) – Protection from retrospectiveEx post facto law – Explained.Held: Sub-article (1) of Article 20 of the Constitution consists oftwo parts – The first part prohibits any law that prescribes judicialpunishment for violation of law with retrospective effect. Sub-article(1) to Article 20 of the Constitution does not apply to civil liability,as distinguished from punishment for a criminal offence – Further,what is prohibited is conviction or sentence for any offence underan ex post facto law, albeit the trial itself is not prohibited – Trialunder a procedure different from the one when at the time ofcommission of an offence, or by a court different from the timewhen the offence was committed is not unconstitutional on accountof violation of sub-article (1) to Article 20 of the Constitution – Itmay be different, if the procedure or the trial is challengeable onaccount of discrimination under Article 14 of the Constitution orviolation of any other fundamental right – The right under first partof sub-article (1) to Article 20 of the Constitution is a very valuableright, which must be safeguarded and protected by the courts asit is a constitutional mandate.[Paras 27 and 28]Constitution of India – Art.13 – Word “void” – Interpretationand meaning of – Words and Phrases.Held: Under Article 13(1) all existing laws prior to the commencementof the Constitution, insofar as they are inconsistent with theprovisions of Part-III, would be void to the extent of inconsistency– Further, according to Article 13(2), the State is prohibited frommaking any law which takes away or abridges the rights conferredby Part-III and further that any law made in contravention of thisclause would be void to the extent of contravention – Article 13(2)prohibits making of any law so it would be relating to laws madepost commencement of the Constitution, like the case at hand – Inthe present case, as it has been held that Section 6A of DSPE Actis violative of Article 14 of Part III of the Constitution, as such, thesame would be void – The word “void” has been interpreted in anumber of Supreme Court judgements beginning 1951 till recentlyand it has been given different nomenclature such as ‘non est’,‘void ab initio’ ‘still born’ and ‘unenforceable’. [Para 41]
Judge	Hon'ble Mr. Justice Vikram Nath
Neutral Citation	2023 INSC 817
Petitioner	Cbi
Respondent	R.r. Kishore
SCR	[2023] 13 S.C.R. 1
Judgement Date	2023-09-11
Case Number	377

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1	Ministry of Education (GoI), Department of Higher Education	Sanctioning Authority	https://www.education.gov.in/ict-initiatives
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Cbi Vs. R.r. Kishore

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Cbi Vs. R.r. Kishore

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