CASE DETAILS v. R.R. KISHORE

13 S.C.R. 1 : 2023 INSC 817 CASE DETAILS CBI v. R.R. KISHORE (Criminal Appeal No. 377 of 2007) SEPTEMBER 11, 2023 [SANJAY KISHAN KAUL, SANJIV KHANNA, ABHAY S. OKA, VIKRAM NATH AND J.K. MAHESHWARI, JJ.] HEADNOTES Issues for consideration: Section 6A(1) of the Delhi Special Police Establishment Act, 1946 (DSPE Act) required approval of the Central Government to conduct inquiry or investigation into any off ence alleged to have been committed by senior Government offi cers under the Prevention of Corruption Act, 1988; and provided a kind of immunity to such offi cers. Whether there could 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, was the moot question that arose for determination in the present case. The question was whether the declaration made by a Constitution Bench of the Supreme Court, in the case of Subramanian Swamy vs.

Director, Central Bureau of Investigation and another, that Section 6A of the DSPE Act being unconstitutional, can be applied retrospectively in context with Article 20 of the Constitution. The following three corollary questions also arose for consideration namely: Whether Section 6A of the DSPE Act was part of procedure or it introduced a conviction or sentence; Whether Article 20(1) of the Constitution had any bearing or relevance in the context of declaration of Section 6A of the DSPE Act as unconstitutional and Whether the declaration of Section 6A of the DSPE Act as unconstitutional and violative of Article 14 of the Constitution would have a retrospective eff ect or would apply prospectively from the date of its declaration as unconstitutional. 1 2 SUPREME COURT REPORTS [2023] 13 S.C.R. Delhi Special Police Establishment Act, 1946 (DSPE Act) – s.6A – Nature of – A part of procedure or introduced a conviction or sentence.

Held: Section 6A of the DSPE Act does not lay down or introduce any conviction for any off ence – It is a procedural safeguard only which is enumerated in Section 6A of the DSPE Act with regard to making of an investigation or enquiry of an off ence under the Prevention of Corruption Act, 1988 – Section 6A of the DSPE Act also does not lay down any sentence nor does it alter any existing sentence for an off ence – s.6A of the DSPE Act is a part of the procedure only in the form of a protection to senior government servants – It does not introduce any new off ence nor it enhances the punishment or sentence. [Paras 23 and 24] Constitution of India – Art.20 – Applicability of, in context of s.6A of the Delhi Special Police Establishment Act, 1946. Held: Article 20(1) of the Constitution has no applicability either to the 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 have a retrospective eff ect or would apply prospectively from the date of its declaration as unconstitutional – Constitution of India – Art.

13(2) and Part III. Held: Once a law is declared to be unconstitutional, being violative of Part-III of the Constitution, then it would be held to be void ab initio, still born, unenforceable and non est in view of Article 13(2) of the Constitution and its interpretation by authoritative pronouncements – Thus, the declaration made by the Constitution Bench in the case of Subramanian Swamy will have retrospective operation – Section 6A of the DSPE Act is held to be not in force from the date of its insertion i.e. 11.09.2003. [Para 43] Constitution of India – Art.20(1) – Protection from retrospective Ex post facto law – Explained. Held: Sub-article (1) of Article 20 of the Constitution consists of two parts – The fi rst part prohibits any law that prescribes judicial punishment for violation of law with retrospective eff ect. Sub-article (1) to Article 20 of the Constitution does not apply to civil liability, as distinguished from punishment for a criminal off ence – Further, what is prohibited is conviction CBI v.

R.R. KISHORE 3 or sentence for any off ence under an ex post facto law, albeit the trial itself is not prohibited – Trial under a procedure diff erent from the one when at the time of commission of an off ence, or by a court diff erent from the time when the off ence was committed is not unconstitutional on account of violation of sub-article (1) to Article 20 of the Constitution – It may be diff erent, if the procedure or the trial is challengeable on account of discrimination under Article 14 of the Constitution or violation of any other fundamental right – The right under fi rst part of sub-article (1) to Article 20 of the Constitution is a very valuable right, which must be safeguarded and protected by the courts as it is a constitutional mandate.[Paras 27 and 28] Constitution of India – Art.13 – Word “void” – Interpretation and meaning of – Words and Phrases. Held: Under Article 13(1) all existing laws prior to the commencement of the Constitution, insofar as they are inconsistent with the provisions of Part-III, would be void to the extent of inconsistency – Further, according to Article 13(2), the State is prohibited from making any law which takes away or abridges the rights conferred by Part-III and further that any law made in contravention of this clause would be void to the extent of contravention – Article 13(2) prohibits making of any law so it would be relating to laws made post commencement of the Constitution, like the case at hand – In the present case, as it has been held that Section 6A of DSPE Act is violative of Article 14 of Part III of the Constitution, as such, the same would be void – The word “void” has been interpreted in a number of Supreme Court judgments beginning 1951 till recently and it has been given diff erent nomenclature such as ‘non est’, ‘void ab initio’ ‘still born’ and ‘unenforceable’. [Para 41] LIST OF CITATIONS AND OTHER REFERENCES Subramanian Swamy v.

Director, Central Bureau of Investigation and another (2014) 8 SCC 682: [2014] 6 SCR 873 – clarifi ed. Keshavan Madhava Menon v. The State of Bombay [1951] SCR 228; Behram Khurshed Pesikaka v. The State of Bombay [1955] 1 SCR 613; Rao Shiv Bahadur Singh and another v. State of Vindhya Pradesh [1953] SCR 1188; The State of Manipur & Ors. v. Surjakumar Okram & Ors. 2022 4 SUPREME COURT REPORTS [2023] 13 S.C.R. SCC Online SC 130; Mahendra Lal Jaini v. The State of Uttar Pradesh and Others AIR 1963 SC 1019:[1963] 1 Suppl. SCR 912; Deep Chand v. The State of Uttar Pradesh and Others [1959] 2 SCR Suppl. 8 and M.P.V. Sundararamier and Co. v. The State of Andhra Pradesh & Another [1958] SCR 1422 – relied on. Sajjan Singh v. The State of Punjab [1964] 4 SCR 630; Union of India v. Sukumar Pyne [1966] 2 SCR 34; Municipal Committee, Amritsar and others v. State of Punjab and Others (1969) 1 SCC 475 : [1969] 3 SCR 447; I.C. Golaknath & Ors. v.

State of Punjab and Anr. [1967] 2 SCR 762; Managing Director, ECIL, Hyderabad and Others v. B. Karunakar and Others (1993) 4 SCC 727 : [1993] 2 Suppl. SCR 576; M.A. Murthy v. State of Karnataka and Others (2003) 7 SCC 517 : [2003] 3 Suppl. SCR 327; Transmission Corporation of A.P. v. C.H. Prabhakar and Others (2004) 5 SCC 551 : [2004] 2 Suppl. SCR 759; Hardeep Singh v. State of Punjab (2014) 3 SCC 92 : [2014] 2 SCR 1; H.N. Rishbud and Inder Singh v. The State of Delhi [1955] 1 SCR 1150; Fertico Marketing and Investment Private Limited and Others v. Central Bureau of Investigation and Another (2021) 2 SCC 525 : [2020] 12 SCR 956; Rattiram and Others v. State of Madhya Pradesh (2013) 12 SCC 316 : [2013] 2 SCR 1003; State of Karnataka v. Kuppuswamy Gownder and Others AIR 1987 SC 1354 : [1987] 2 SCR 295; A.C. Sharma v. Delhi Administration (1973) 1 SCC 726 : [1973] 3 SCR 477; Ashok Kumar Gupta and Another v.

State of U.P. and Others (1997) 5 SCC 201 : [1997] 3 SCR 269; Assistant Excise Commissioner, Kottayam and Others v. Esthappan Cherian and Another 2021 (10) SCALE 308; Prabhu Dayal Deorah v. District Magistrate (1994) 1 SCC 103; Mohan Lal v. State of Punjab (2018) 17 SCC 627 : [2018] 9 SCR 1006; Varinder Kumar v. State of Himachal Pradesh (2020) 3 SCC 321 : [2019] 2 SCR 707; Rao Shiv Bahadur Singh v. State of Vindhya Pradesh (1953) 2 SCC 111 : [1954] SCR 1098; T. Barai v. Henry Ah Hoe, (1983) 1 SCC 177 : [1983] 1 SCR 905; Pratap Singh v. State of Jharkhand (2005) 3 SCC 551 : [2005] 1 SCR 1019; State of Bombay v. F.N. Balsara [1951] 1 SCR 682; Vineet Narain and Others v. Union of India and Another (1998) 1 SCC 226 : [1997] 6 Suppl. SCR 595; State of West Bengal v. S.K. Ghosh [1963] 2 SCR 111; Rattan Lal v. State of Punjab [1964] 7 SCR 676; G.P. Nayyar v. State (Delhi Administration) (1979) 2 SCC 593 : [1979] 2 SCR 816; CBI v. R.R. KISHORE 5