C.B.I. vs DR. R.R. KISHORE, 2023

C.B.I. vs DR. R.R. KISHORE, 2023

Case Title and Citation

CBI V. R.R. KISHORE Criminal Appeal No. 377 of 2007 (along with connected matters) Citation: 2023 INSC 817 Date of Judgment: September 11, 2023

Factual Background

The Central Bureau of Investigation (CBI) registered an FIR on December 16, 2004, for offenses under the Prevention of Corruption Act, 1988 (PC Act, 1988), following a trap wherein the respondent (R.R. Kishore) was allegedly caught accepting a bribe. The respondent applied for discharge, arguing that the trap (part of the investigation) was laid without obtaining the previous approval of the Central Government, a requirement mandated by Section 6A of the Delhi Special Police Establishment Act, 1942 (DSPE Act). The Special Judge rejected the discharge application, but the High Court, in revision, found that Section 6A(1) was mandatory and held the investigation illegal. The High Court then directed the file to remain pending while the CBI sought retrospective approval for investigation. The CBI challenged this High Court judgment. While the appeal was pending, a Constitution Bench in Subramanian Swamy v. Director, CBI (2014) declared Section 6A(1) of the DSPE Act unconstitutional and violative of Article 14 of the Constitution.

Issue(s)

1. Whether the declaration that Section 6A(1) of the DSPE Act is unconstitutional has a retrospective effect or applies only prospectively from the date of the judgment.
2. Whether Article 20 of the Constitution (protection against ex post facto laws) has any bearing on determining the retrospective applicability of the judgment invalidating Section 6A.

Decision of the Supreme Court

The Supreme Court held that the declaration of Section 6A of the DSPE Act as unconstitutional has retrospective operation. Section 6A of the DSPE Act is deemed not in force from the date of its insertion, which was September 11, 2003.

Reason for the decision

1. Section 6A is Procedural: The Court clarified that Section 6A was merely a procedural safeguard providing protection to senior government servants regarding inquiry or investigation. It was not a penal provision; it neither created a new offense nor altered or enhanced punishment.
2. Article 20(1) is Inapplicable: Article 20(1) of the Constitution prohibits conviction or sentence under ex post facto laws. Since Section 6A pertains purely to the procedure of investigation, the protection guaranteed under Article 20(1) against retrospective penal laws is not attracted. No person has a vested right in a particular course of procedure.
3. Violation of Article 14 Renders Law Void ab initio (Still Born): Section 6A was invalidated because it violated Article 14 (Equality). Under Article 13(2), any post-Constitution law made in contravention of fundamental rights (Part III) is void to the extent of the contravention. Previous authoritative judgments have established that post-Constitution laws that violate fundamental rights are void ab initio, still born, and a nullity from inception.
4. Retrospectivity Follows Nullity: Since Section 6A was void from its inception (September 11, 2003) due to constitutional violation, the judicial declaration of unconstitutionality necessarily operates retrospectively.

Conclusion

The Supreme Court determined that when a post-Constitution statute is held unconstitutional for violating fundamental rights (Article 14), it is void ab initio (non est). Therefore, the nullification of Section 6A of the DSPE Act, which required prior approval for investigating senior officials, applies retrospectively, dating back to its introduction on September 11, 2003.