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CASE NO.: Appeal (crl.)  491 of 2008

PETITIONER: M. BALAKRISHNA REDDY

RESPONDENT: DIRECTOR, CBI, NEW DELHI

DATE OF JUDGMENT: 14/03/2008

BENCH: C.K. THAKKER & DALVEER BHANDARI

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.  491 OF 2008 ARISING OUT OF SPECIAL LEAVE PETITION (CRL) NO. 1125 OF 2007

C.K. THAKKER, J.

1.              Leave granted. 2.              The present appeal is filed against an  order passed by Special Magistrate, CBI,  Indore, Madhya Pradesh on December 17, 2002 in  Criminal Case No. 1155 of 2002 and confirmed by  the High Court of Madhya Pradesh (Indore Bench)  on January 2, 2007 in Criminal Revision No. 176  of 2003. 3.              Briefly stated the facts of the case  are that the appellant herein appeared in the  examination conducted by the Union Public  Service Commission (’UPSC’ for short) in the  year 1996 at Hamidiya Arts and Commerce  College, Bhopal on November 1, 1996. It was  alleged that the appellant was found to be in  possession of prewritten answer sheets which  were similar, if not identical, to the answer  sheets supplied by the Examination Board. The  appellant was taken out of the hall and a  statement was recorded in which he confessed to  have prewritten answer sheets with him. The  matter was then reported to UPSC Head Office at  New Delhi. A preliminary inquiry was instituted  and on being prima facie satisfied about the  allegations levelled, the Secretary, UPSC,  lodged a Criminal Case against the appellant  for offences punishable under Sections 420,  471, 474, 467, 468 and 417 read with Section  511 of the Indian Penal Code, 1860 (’IPC’ for  short). A charge-sheet was filed in the Court  of Special Magistrate, Central Bureau of  Investigation (’CBI’ for short), Indore. 4.              The appellant raised a preliminary  objection contending that the alleged offences  had been committed at Bhopal in the State of  Madhya Pradesh and CBI had no power, authority  or jurisdiction to institute criminal  proceedings. It was also contended that before  initiating proceedings under the Delhi Special  Police Establishment Act, 1946 (hereinafter  referred to as ’the Delhi Act’), consent of the

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State Government is required. No such consent  had been given by the State of Madhya Pradesh  and the proceedings initiated against the  appellant by CBI were without jurisdiction. 5.              The learned Magistrate, by an order  dated December 17, 2002 rejected the  preliminary objection. Being aggrieved by the  said order, the appellant preferred Revision  under Section 397 of the Code of Criminal  Procedure, 1973 in the High Court of Madhya  Pradesh (Indore Bench), and as stated above,  the High Court dismissed the Revision Petition.  The said order is challenged by the appellant  by filing the present appeal. 6.              On March 8, 2007, notice was issued by  this Court. On August 6, 2007, the Registry was  directed to place the matter for final hearing.  That is how the matter has been placed before  us. 7.              We have heard learned counsel for the  parties. 8.              The learned counsel for the appellant  raised several contentions. It was submitted  that the High Court was wrong in holding that  the proceedings against the appellant could  have been initiated by CBI. It was contended  that the direction issued by the High Court was  ex facie erroneous. When alleged offence was  committed by the appellant in Bhopal in the  State of Madhya Pradesh, Police Authorities of  the State alone could have initiated  proceedings against the accused. It was also  submitted that before invoking the provisions  of the Delhi Act, consent of the State  Government is mandatory and a condition  precedent for the exercise of power. The  provision as to consent of the State Government  must be complied with in letter and spirit and  such consent should be in proper form as  required by law. Since the consent required  under the Act is of the ’State Government’, the  prerequisites of Article 166 of the  Constitution must be observed. If the procedure  laid down in the said Article is not followed,  the so called consent has no meaning. Such  consent cannot be said to be legal, valid and  in consonance with law and CBI does not get  jurisdiction in the matter. It was also  submitted that the High Court was wholly wrong  in upholding the contention of CBI that it  could have initiated prosecution since the  alleged offence had been committed in conduct  of UPSC Examination which had been conducted by  its Delhi office which is the Head Quarter of  UPSC and, hence, the Delhi Act was applicable.  The High Court was again wrong in holding that  since the appellant was selected in Indian  Forest Services Examination conducted by UPSC  and he was in Indian Forest Services since 1993  and was an officer of Central Government, the  Delhi Act would apply for cognizance of  offences committed by him as a Central  Government employee and CBI had power to  prosecute him. The High Court, according to the  learned counsel, was not right in holding that

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the letter dated February 5, 1957 by the Deputy  Secretary to the Government of Madhya Pradesh  to the Secretary to the Government of India,  Ministry of Home Affairs could be termed and  treated as ’consent’ within the meaning of  Section 6 of the Delhi Act. It was, therefore,  submitted that the appeal deserves to be  allowed by setting aside the orders passed by  the Courts below and by quashing the  proceedings initiated by CBI against the  appellant. 9.              The learned counsel for the  respondents, on the other hand, supported the  order passed by the trial Court and confirmed  by the Revisional Court. It was submitted that  the High Court had considered the order dated  February 5, 1957 in its proper perspective and  held that the State of Madhya Pradesh had given  consent as required by law (Section 6 of the  Delhi Act) and prosecution by CBI against the  appellant under the Delhi Act cannot be said to  be without jurisdiction. 10.             We have given anxious consideration to  the rival submissions of the learned counsel of  both the sides. We have also examined the  relevant provisions of the Delhi Act, Article  166 of the Constitution and case law cited by  both the parties and we are of the view that by  rejecting the preliminary objection raised by  the appellant, the Courts below have not  committed any illegality or error of law and  the appeal deserves to be dismissed. 11.             At the outset, we must frankly admit  that the two factors weighed with the High  Court, namely, (i) the Head Office of the UPSC  is located at New Delhi; and (ii) the appellant  is an employee of Central Government and on  those grounds, the Delhi Act would be  applicable have not impressed us. The said  grounds, in our opinion, do not confer  jurisdiction on CBI to invoke the Delhi Act.  The main ground, therefore, which remains to be  considered is whether ’consent’ as envisaged by  Section 6 of the Delhi Act has been given by  the State Government of Madhya Pradesh to the  Central Government so as to enable the latter  to invoke the provisions of the Delhi Act. For  the said purpose, it is necessary to bear in  mind the relevant provisions of the Delhi Act. 12.             As the Preamble of the Act states, it  is an Act to make provision for the  constitution of a Special Police Force in Delhi  for the investigation of certain offences in  the Union Territories and for the extension to  other areas of the powers and jurisdiction of  the members of the said force in regard to the  investigation of the said offences. Section 1  declares that the Act extends to the whole of  India. Section 2 provides for constitution and  powers of Special Police Establishment. Section  3 enables the Central Government to investigate  offences by Special Police Establishment. It  reads thus: 3. Offences to be investigated by  Special Police Establishment:- The

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Central Government may, by notification  in the official gazette, specify the  offences or classes of offences which  are to be investigated by the Delhi  Special Police Establishment.

13.             Section 4 covers superintendence and  administration of Special Police Establishment.  Section 5 empowers the Central Government to  extend the powers and jurisdiction of Special  Police Establishment to States. The said  section is also relevant and may be reproduced; 5.      Extension of powers and  jurisdiction of Special Police  Establishment to other areas:-  

(1)     The Central Government may by  order extend to any area including  railway areas in a State not being a  Union Territory, the powers and  jurisdiction of members of the Delhi  Special Police Establishment for the  investigation of any offences or  classes of offences specified in a  notification under Section 3.

(2)     When by order under sub-section  (1) the powers and jurisdiction of  members of the said Police  establishment are extended to any such  area, a member thereof may, subject to  any order which the Central Government  may make in this behalf, discharge the  functions of a police officer in the  area and shall, while so discharging  such functions, be deemed to be a  member of the police force of that  area and be vested with the powers,  functions and privileges and be  subject to the liabilities of a police  officer belonging to that police force

(3)     Where any such order under sub- section (1) is made in relation to any  area, then, without prejudice to the  provisions of sub-section (2), any  member of the Delhi Special Police  Establishment of or above the rank of  Sub-Inspector may, subject to any  orders which the Central Government  may make in this behalf, exercise the  powers of the officer-in-charge of a  police station in that area and when  so exercising such powers shall be  deemed to be an officer-in-charge of a  police station in that area and when  so exercising such powers shall be  deemed to be an officer in charge of a  police station discharging the  functions of such an officer within  the limits of his station.

14.             Section 6 is very important which  requires consent of State Government for  exercising powers and jurisdiction under the

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Act by Special Police Establishment to any area  in a State not being Union Territory or  Railway. The said section, therefore, may be  quoted in extenso; 6.      Consent of the State Government to  exercise powers and jurisdiction:-  Nothing contained in Sec. 5 shall be  deemed to enable any member of the  Delhi Special Police Establishment to  exercise powers and jurisdiction in  any area in a State, not being a Union  Territory or railway area without the  consent of the Government of that  State.

15.             Plain reading of the above provisions  goes to show that for exercise of jurisdiction  by the CBI in a State (other than Union  Territory or Railway Area), consent of the  State Government is necessary. In other words,  before the provisions of the Delhi Act are  invoked to exercise power and jurisdiction by  Special Police Establishment in any State, the  following conditions must be fulfilled; (i)     A notification must be issued by the  Central Government specifying the  offences to be investigated by Delhi  Special Police Establishment (Section 3); (ii)     An order must be passed by the Central  Government extending the powers and  jurisdiction of Delhi Special Police  Establishment to any State in respect of  the offences specified under Section 3  (Section 5); and (iii)   Consent of the State Government must be  obtained for the exercise of powers by  Delhi Special Police Establishment in  the State (Section 6). 16.             Now, so far as the first two  conditions are concerned, they have been  complied with and the requisite material is on  record of the case. A notification required to  be issued by the Central Government under  Section 3 of the Delhi Act specifying offences  under the Indian Penal Code (IPC) as also under  several other Acts has been issued on September  7, 1989 and has been placed by the respondent  on record along with the affidavit-in-reply  filed by M.C. Sahni, Superintendent of Police,  CBI, Bhopal. The said notification covers inter  alia, the offences punishable under Sections  417, 418, 420, 467, 468, 471, 474, 511, IPC.  Likewise, the Central Govenrment passed an  order on February 18, 1963 as contemplated by  Section 5 of the Delhi Act extending the powers  and jurisdiction of the members of Special  Police Establishment to various States  including the State of Madhya Pradesh for the  investigation of offences specified in the  Schedule annexed to the said schedule. The  Schedule specifies various offences under IPC  including the offences referred to hereinabove,  offences under the Prevention of Corruption Act  and various other enactments. Thus, Section 3  and 5 of the Delhi Act have been complied with.

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17.             The question, therefore, which has to  be considered is whether the consent  contemplated by Section 6 of the Delhi Act has  been given by the State Government. According  to the appellant, no such consent has been  given by the State of Madhya Pradesh. The  counter argument on behalf of the respondent is  that such consent has been given by the State  Government which is reflected in the order  dated February 5, 1957. 18.             A copy of the letter addressed by the  Deputy Secretary to the Government of Madhya  Pradesh to the Secretary, Ministry of Home  Affairs, Government of India, New Delhi has  been placed on record by the appellant, which  reads thus; "To The Secretary, Ministry of Home Affairs, Govt. of India, New Delhi.

Bhopal, dated 5th February, 1957

Sub: Consent of the State Government  to the functioning of the  Special Police Establishment in  the State.

Sir,

     In continuation of this  department letter No. 20/12(II)/Home  Police dated the 29th December, 1956 on  the above subject, I am directed to  state that this State Government have  no objection to the members of the  Delhi State Police Establishment  exercising powers and jurisdiction  within this state.

                                Yours faithfully,

                                          Sd/-                                         P.N. MISHRA             DEPUTY SECRETARY TO THE GOVT."

19.             The learned counsel for the appellant  contended that the above letter which  purportedly records the consent of the State  Government to the exercise of powers and  jurisdiction of the Delhi State Police  Establishment to the State of Madhya Pradesh is  merely a letter and does not meet with the  requirements of Section 6 of the Delhi Act. The  so called ’consent’ reflected in the letter,  hence, cannot be said to be ’consent’ accorded  by the State Government under the statute. In  other words, the contention is that the letter  is in the nature of ’inter-Departmental  communication’ by the Deputy Secretary to the  State of Madhya Pradesh to the Secretary to  Central Government and cannot be regarded as  consent under Section 6 of the Act. 20.             In the counter-affidavit filed by the

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Superintendent of Police, CBI, Bhopal, the  deponent has stated that the consent as  required by Section 6 of the Delhi Act had been  given by the State of Madhya Pradesh to the  Central Government. It was also stated that the  copy of the order, dated February 5, 1957  annexed to the Special Leave Petition by the  petitioner (appellant herein) was not full and  complete and did not contain file/reference  number, name of the department and the  authority from whom it was issued. The order,  however, contains all such information. The  deponent has annexed the order as one of the  annexures (Annexure IV) to his reply and the  same reads thus; "SECRET                  TRUE COPY NO. G97/II-Home/Police Government of Madhya Pradesh Home (Police) Department

From, Shri R.N. Mishra, IAS Deputy Secretary to Govt.

To, The Secretary to the Govt. of India, Ministry of Home Affairs, NEW DELHI.

Bhopal, dated 5th February, 1957

Subject: Consent of the State Government  to the functioning of the  Special Police Establishment in  the State.

Sir,

       In continuation of this department  letter No. 20/12(II)/Home Police,  dated the 29th December, 1956 on the  above subject, I am directed to state  that this State Government have no  objection to the members of the Delhi  Special Police Establishment  exercising powers and jurisdiction  within this State.

                               Yours faithfully,

                                         Sd/-                                    R.N. MISHRA              Deputy Secretary to the Govt.

ATTESTED

(T.C. RAMANUJACHARI) DEPUTY SECRETARY TO THE GOVERNMENT OF INDIA" (emphasis supplied)

21.             The learned counsel for the appellant  then submitted that all executive actions of  the Government of a State must be taken in  accordance with and as per the procedure laid

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down in Article 166 of the Constitution.  Article 166 of the Constitution on which strong  reliance has been placed by the appellant reads  thus; 166. Conduct of business of the  Government of a State.-  

(1) All executive action of the  Government of a State shall be  expressed to be taken in the name of  the Governor.  

(2) Orders and other instruments made  and executed in the name of the  Governor shall be authenticated in  such manner as may be specified in  rules to be made by the Governor, and  the validity of an order on  instruction which is so authenticated  shall not be called in question on the  ground that it is not an order or  instrument made or executed by the  Governor.  

(3) The Governor shall make rules for  the more convenient transaction of the  business of the Government of the  State, and for the allocation among  Ministers of the said business in so  far as it is not business with respect  to which the Governor is by or under  this Constitution required to act in  his discretion.

22.             Bare reading of Clause (1) of Article  166 of the Constitution makes it clear that all  executive actions of the Government of a State  should be expressed to be taken in the name of  the Governor. Clause (2) provides for the  authentication of the orders and other  instructions made and executed in the name of  the Governor. Clause (3) enables the Governor  to make rules for the more convenient  transaction of the Government of the State and  for the allocation of business among the  Ministers, usually known as ’Rules of Business’  or ’Business Rules’. 23.             The learned counsel for the appellant  contended that Article 166 of the Constitution  deals with ’Conduct of Government Business’ and  mandates that such business should be performed  in the manner laid down in Article 166. To put  it differently, according to the learned  counsel, the provisions of Article 166 are  mandatory and before any action is taken, they  are required to be strictly complied with. If  the procedure prescribed by Article 166 is not  followed, the business cannot be said to be a  ’business of the Government of the State’ and  has no effect whatsoever. 24.             The learned counsel for the  respondents, on the other hand, submitted that  the provisions of Article 166 are directory and  even if there is no strict compliance, the  action cannot be held illegal or invalid and

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the same can be upheld provided there is  ’substantial’ compliance. 25.             Now, let us see how the provision  (Article 166 of the Constitution) has been  interpreted by this Court. 26.             Article 166 came up for interpretation  before this Court immediately after the  Constitution came into force and continued to  come up for consideration from time to time.  Let us examine few leading cases wherein this  Court had an occasion to deal with the said  provision. 27.             In Ujgar Singh & Anr. V. State of  Punjab, 1952 SCR 756, an order of detention was  made against the petitioner under the  Preventive Detention Act, 1950. The detenu  challenged it in this Court by invoking Article  32 of the Constitution. One of the contentions  raised on his behalf was that the grounds of  detention did not purport to state that the  authority making the order was the Governor of  the State. 28.             The Constitution Bench of this Court,  however, negatived the contention. Interpreting  Article 166 of the Constitution, Chandrasekhara  Aiyar, J. stated; "Under section 3 of the Preventive  Detention Act, the authority to make  the order is the State Government.  Section 166 (1) of the Constitution  provides that all executive action of  the Government of a State shall be  expressed to be taken in the name of  the Governor. The orders of detention  expressly state that the Governor of  Punjab was satisfied of their  necessity and that they were made by  his order. The orders are signed no  doubt by the Home Secretary, but this  is no defect. The communication of the  grounds need not be made directly by  the authority making the order.  Section 7 does not require this. The  communication may be through  recognized channels prescribed by the  administrative rules of business".                                             (emphasis supplied)

29.             In Dattatreya Moreshwar Pangarkar V.  State of Bombay & Ors., 1952 SCR 612, the  petitioner was detained by an order passed by  the District Magistrate, Surat in exercise of  powers conferred on him by the Preventive  Detention Act, 1950. The petitioner moved this  Court by filing a writ petition under Article  32 of the Constitution challenging the order of  detention. One of the contentions raised by the  petitioner in this Court was that the order of  confirmation of detention by the State  Government was not in proper form inasmuch as  it was not made in the name of Governor as  required by Clause (1) of Article 166 of the  Constitution. 30.             The order passed by the Government  read as under:

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"Confidential letter  No. B. D. II/1042-D (11) Home  Department (Political) Bombay Castle,  28th April, 1951.  To The District Magistrate, Surat. Subject :- Preventive Detention Act,  1950 - Review of detention orders  issued under the -  Reference your letter No. Pol. 1187/P,  dated the 23rd February, 1951, on the  subject noted above.  2. In accordance with section 9 of the  Preventive Detention Act, 1950, the  case of detenu Shri Dattatreya  Moreshwar Pangarkar was placed before  the Advisory Board which has reported  that there is sufficient cause for his  detention. Government is accordingly  pleased to confirm the detention order  issued against the detenu. Please  inform the detenu accordingly and  report compliance.  3. The case papers of the detenu are  returned herewith.  Sd/- G. K. Kharkar, for Secretary to the Government of Bombay, Home Department".                                                 (emphasis supplied)

31.             It was urged on behalf of the detenu  that the order of confirmation extracted  hereinabove had not been made in proper legal  form and hence could not be said to be in  consonance with Article 166 (1) i.e. in the  name of the Governor. Learned Attorney General,  on the other hand, submitted that the omission  to make and authenticate an executive decision  in the form mentioned in Article 166 (1) of the  Constitution did not make the decision illegal.  It was argued by the Attorney General that  there is distinction between the taking of an  executive decision and giving formal expression  to the decision so taken. It was stated that  usually executive decision is taken on the  office files by way of notings or endorsements  made by the Minister in charge and if every  executive decision has to be given a formal  expression, the whole governmental machinery  would come to a standstill. 32.             Accepting the argument, negativing the  contention of the detenu, holding the provision  directory and relying on a decision of the  Federal Court in J. K. Gas Plant Manufacturing  Co. (Rampur) Ltd. & Ors. v. King\026Emperor, 1947  FCR 141, S.R. Das, J. stated;  "In my opinion, this contention of  the learned Attorney- General must  prevail. It is well settled that  generally speaking the provisions of  statute creating public duties are  directory and those conferring private

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rights are imperative. When the  provisions of statute relate to the  performance of a public duty and the  case is such that to hold null and  void acts done in neglect of this duty  would work serious general  inconvenience or injustice to persons  who have no control over those  entrusted with the duty and at the  same time would not promote the main  object of the legislature, it has been  the practice of the Courts to hold  such provisions to be directory only,  the neglect of them not affecting the  validity of the acts done".                                            (emphasis supplied)

33.             His Lordship proceeded to say; "Strict compliance with the  requirements of Article 166 gives an  immunity to the order in that it  cannot be challenged on the ground  that it is not an order made by the  Governor. If, therefore, the  requirements of that Article are not  compiled with, the resulting immunity  cannot be claimed by the State. This,  however, does not vitiate the order  itself. The position, therefore, is  that while the Preventive Detention  Act requires an executive decision,  call it an order or an executive  action for the conformation of an  order of detention under Section 11  (1) that Act does not itself prescribe  any particular form of expression of  that executive decision. Article 166  directs all executive action to be  expressed and authenticated in the  manner therein laid down but an  omission to comply with those  provisions does not render the  executive action a nullity. Therefore,  all that the procedure established by  laws requires is that the appropriate  Government must take a decision as to  whether the detention order should be  confirmed or not under Section 11 (1).  That such a decision has been in fact  taken by the appropriate Government is  amply proved on the record. Therefore,  there has been, in the circumstances  of this case, no breach of the  procedure established by law and the  present detention of the petitioner  cannot be called in question".                                                 (emphasis supplied) 34.             Agreeing with Justice Das, Mukherjea,  J. said: "The other contention raised by the  learned Attorney-General involves  consideration of the question as to  whether the provision of article  166(1) of the Constitution is  imperative in the sense that non-

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compliance with it would nullify or  invalidate an executive action. The  clause does not undoubtedly lay down  how an executive action of the  Government of a State is to be  performed; it only prescribes the mode  in which such act is to be expressed.  The manner of expression is ordinarily  a matter of form, but whether a rigid  compliance with a form is essential to  the validity of an act or not depends  upon the intention of the legislature.  Various tests have been formulated in  various judicial decisions for the  purpose of determining whether a  mandatory enactment shall be  considered directory only or  obligatory with an implied  nullification for disobedience. It is  unnecessary for our present purpose to  discuss these matters in detail.

In my opinion, article 166 of the  Constitution which purports to lay  down the procedure for regulating  business transacted by the Government  of a State should be read as a whole.  Under clause (3) the Governor is to  make rules for the more convenient  transaction of such business and for  allocation of the same among the  Ministers in so far as it does not  relate to matters in regard to which  the Governor is required to act in his  discretion. It is in accordance with  these rules that business has to be  transacted. But whatever executive  action is to be taken by way of an  order or instrument, it shall be  expressed to be taken in the name of  the Governor in whom the executive  power of the State is vested and it  shall further be authenticated in the  manner specified in the rules framed  by the Governor. Clauses (1) and (2)  of article 166 in my opinion are to be  read together. Clause (1) cannot be  taken separately as an independent  mandatory provision detached from the  provision of clause (2). While clause  (1) relates to the mode of expression  of an executive order or instrument,  clause (2) lays down the way in which  such order is to be authenticated; and  when both these forms are complied  with, an order or instrument would be  immune from challenge in a court of  law on the ground that it has not been  made or executed by the Governor of  the State".

35.             Again, in State of Bombay v.  Purushottam Jog Naik, 1952 SCR 674, a similar  view has been taken by one more Constitution  Bench of this Court. There also, the Court was

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concerned with an order of detention which was  confirmed by the State. There also, there was  no mention that the ’Governor’ of Bombay was  pleased to take the action as required by  Clause (1) of Article 166 of the Constitution.  The Constitution Bench clarified that it did  not wish to encourage laxity of expression, nor  to suggest that ingenious experiments regarding  the permissible limits of departure from the  language of a statute or of the Constitution  would be worthwhile, but the Court must look  into the ’substance’ of Article 166 and not the  ’form’ of order. 36.             The Court stated: "The short answer in this case is that  the order under consideration is  ’expressed’ to be made in the name of  the Governor because it says ’By order  of the Governor’. One of the meanings  of ’expressed’ is to make known the  opinions or the feelings of a  particular person and when a secretary  to Government apprehends a man and  tells him in the order that this is  being done under the orders of the  Governor, he is in substance saying  that he is acting in the name of the  Governor and, on his behalf, is making  known to the detenu the opinion and  feelings and orders of the Governor.  In our opinion, the Constitution does  not require a magic incantation which  can only be expressed in a set formula  of words. What we have to see is  whether the substance of the  requirements is there".                                   (emphasis supplied)

37.             It is profitable to refer at this  stage, to a decision of larger Bench of seven  Judges of this Court in P. Joseph John v. State  of Travancore-Cochin, (1955) 1 SCR 1011. In  Joseph John, a civil servant was removed from  service after holding a departmental inquiry  wherein the charges leveled against him were  proved. The order of removal was upheld by the  High Court. The delinquent approached this  Court. One of the contentions raised by the  employee was that the show cause notice issued  to him was not in consonance with the  provisions of Article 166 of the Constitution  since it was not expressed to have been made in  the name of Raj Pramukh. The notice was issued  on behalf of the Government and was signed by  the Chief Secretary of the United State of  Travancore-Cochin who had under the Rules of  Business framed by Rajpramukh was in charge of  the portfolio of "Service and Appointments" at  the Secretariat level in the State. 38.             The Court referred to Dattatreya  Moreshwar, wherein clauses (1) and (2) of  Article 166 were held to be directory and it  was observed that non-compliance with them did  not result in the order being invalid. It was  further held that in order to determine whether

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there was compliance with those provisions all  that was necessary to be seen was whether there  had been ’substantial compliance’ of the  provisions of the Article. 39.             Reiterating the law laid down in  earlier case, (Dattatreya Moreshwar), the Court  stated; "In the present case there can be no  manner of doubt that the notice signed  by the Chief Secretary of the State and  expressed to be on behalf of the  Government and giving opportunity to  the petitioner to show cause against  the action proposed to be taken against  him was in substantial compliance with  the provisions of the article. The  petitioner accepted this notice and in  pursuance of it applied for further  time to put in his defence. He was  twice granted this time".                               (emphasis supplied) 40.             In Swadeshi Cotton Mills Co. Ltd. v.  State Industrial Tribunal, U.P. & Ors., (1962)  1 SCR 422, a Constitution Bench of this Court  held that where certain conditions precedent  have to be satisfied before an authority may  pass an order, it is not necessary that the  satisfaction of those conditions should be  recited in the order itself unless the statute  specifically requires it. Though it is  desirable that it should be so reflected, but  even where the recital is not there on the face  of the order, the order will not become illegal  or void ab initio. Only a burden is thrown on  the authority passing the order to satisfy the  Court by other means that conditions precedent  were complied with. 41.             In Major E.G. Barsay v. State of  Bombay, (1962) 2 SCR 195, the question was  whether statutory consent was required for  every individual member of the Delhi Police  Establishment or a general consent was enough.  In that case, the Home Department of the  Government of Bombay addressed a letter to the  Government of India on August 13, 1949 which  read thus: "\005I am directed to state that this  Government re-affirms, with reference  to Section 6 of the Delhi Special  Police Establishment Act, 1946, the  consent given for an indefinite period  under its letter No. 5042/4-D, dated  the 6th November, 1946 to the members  of the Delhi Special Police  Establishment exercising powers and  jurisdiction in the area of the  province of Bombay".

42.             Though the Court was not directly  deciding the question whether a letter could be  treated as valid consent, but whether separate  consent was required for every individual  member of the Delhi Police Establishment or  general consent was enough. The Court  nonetheless held the consent valid as general

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consent was all that was required by law.  Though it did not remark on the form in which  such consent should be given, i.e. the letter,  was correct or not, the fact that it could find  nothing wrong with the consent raises a strong  presumption in favour of the argument that a  letter can be a means of granting consent by  the State Government under Section 6. 43.             Another important aspect of the case  was construction of Article 77 of the  Constitution. In Major Barsay, the appellant  was a public servant who was prosecuted for an  offence under the Prevention of Corruption Act,  1947. Section 6 of the said Act required  sanction of the Central Government. The  sanction accorded by the Government read thus; "Now, therefore, the Central  Government doth hereby accord sanction  under section 197 of the Criminal  Procedure Code (Act V of 1898) and  section 6(1)(a) of the Prevention of  Corruption Act, 1947 (II of 1947) to  the initiation of proceedings to  prosecute in a Court of competent  jurisdiction the said Major E. G.  Barsay and Shri H. S. Kochhar in  respect of the aforesaid offences and  other cognate offences punishable  under other provisions of law.  Sd. M. Gopala Menon, Deputy Secretary to the Govt.of ndia."                    (emphasis supplied) 44.             The requisite sanction thus had been  granted by the Central Government and was  signed by the Deputy Secretary to the  Government of India in the Ministry of Home  Affairs. The contention of the appellant,  however, was that the provisions of Article 77  of the Constitution were not complied with. 45.             Article 77 of the Constitution reads  thus; 77. Conduct of business of the  Government of India.\027(1) All executive  action of the Government of India  shall be expressed to be taken in the  name of the President.

(2) Orders and other instruments made  and executed in the name of the  President shall be authenticated in  such manner as may be specified in  rules to be made by the President, and  the validity of an order or instrument  which is so authenticated shall not be  called in question on the ground that  it is not an order or instrument made  or executed by the President.

(3) The President shall make rules for  the more convenient transaction of the  business of the Government of India,  and for the allocation among Ministers  of the said business.

46.             Article 77 relates to conduct of

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business of the Government of India and is  similar to Article 166 of the Constitution  which relates to conduct of business of the  Government of a State. It was contended that  there was non-compliance with Clause (1) of  Article 77 inasmuch as the executive action of  granting sanction was not expressed to have  been taken in the name of the President. The  sanction was, therefore, void. 47.             The Court noted that Article 77 was  corresponding to Article 166 which was subject  to judicial scrutiny by the Court in various  cases. Then referring to those cases and  rejecting the contention, the Court said; "The foregoing decisions  authoritatively settled the true  interpretation of the provisions of  Art. 166 of the Constitution. Shortly  stated, the legal position is this :  Art. 166(1) is only directory. Though  an impugned order was not issued in  strict compliance with the provisions  of Art. 166(1), it can be established  by evidence aliunde that the order was  made by the appropriate authority. If  an order is issued in the name of the  Governor and is duly authenticated in  the manner prescribed in Cl.(2) of the  said Article, there is an irrebuttable  presumption that the order or  instrument is made or executed by the  Governor. Any non-compliance with the  provisions of the said rule does not  invalidate the order, but it precludes  the drawing of any such irrebuttable  presumption. This does not prevent any  party from proving by other evidence  that as a matter of fact the order has  been made by the appropriate  authority. Art. 77 which relates to  conduct of business of the Government  of India is couched in terms similar  to those in Art. 166 and the same  principles must govern the  interpretation of that provision".                            (emphasis supplied)

48.             In R. Chitralekha & Anr. v. State of  Mysore & Ors., (1964) 6 SCR 368, a Constitution  Bench of this Court again had an occasion to  consider a letter signed by the Under Secretary  to the Government, Education Department of the  State of Mysore to a Selection Board  communicating the decision of the Government to  prescribe interviews for admission into  colleges. Validity of the said letter was  challenged on the ground that it did not  conform to the requirements of Article 166 of  the Constitution as it was not expressed in the  name of the Governor. 49.             The letter sent by the Education  Department to the Selection Committee reads  thus; "Sir,  Sub : Award of marks for the

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"interview" of the candidates seeking  admission to Engineering Colleges and  Technical Institutions.  With reference to your letter No.  AAS.4.ADW/63/2491, dated the 25th  June, 1963, on the subject mentioned  above, I am directed to state that  Government have decided that 25 per  cent of the maximum marks........  Yours faithfully,      Sd/- S. NARASAPPA,    Under Secretary to Government,  Education Department." (emphasis supplied) 50.             Referring to earlier cases and holding  the letter valid and the decision of the State  Government, the majority observed that though  the letter did not conform to the provisions of  Article 166 of the Constitution, it ex facie  stated that an order to the effect mentioned  therein was issued by the Government and there  was substantial compliance with the provisions  of Article 166 of the Constitution. 51.             In State of Uttar Pradesh v. Om  Prakash Gupta, (1969) 3 SCC 775, this Court  observed that it had been repeatedly held that  provisions of Article 166 (1) and (2) were  ’directory’ and ’substantial’ compliance with  those provisions was sufficient. In that case,  the order impugned was made in the name of the  State Government but was signed by the Chief  Secretary. The order was held valid. 52.             In Gulabrao Keshavrao Patil & Ors. v.  State of Gujarat & Ors., (1996) 2 SCC 26, the  question of interpretation of Article 166 of  the Constitution came up for consideration in a  matter under the Land Acquisition Act, 1894.  The Court considered previous cases and said: "\005\005Article 166(1) and (2) expressly  envisage authentication of all the  executive actions and shall be  expressed to be taken in the name of  the Governor and shall be  authenticated in such manner specified  in the rules made by the Governor.  Under Article 166(3), the Governor is  authorised to make the rules for the  more convenient transaction of the  business of the Government of the  State, and for the allocation among  Ministers of the said business insofar  as it is not business with respect to  which the Governor is by or under the  Constitution required to act in his  discretion. In other words, except in  cases when the Government in his  individual discretion exercises his  constitutional functions, the other  business of the Government is required  to be conveniently transacted as per  the Business Rules made by Article  166(3) of the Constitution. If the  action of the Government and the order  is duly authenticated as per Article  166(2) and the Business Rule 12, it is

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conclusive and irrebuttable  presumption arises that decision was  duly taken according to Rules. The  letter of the Section Officer is not  in conformity with Rule 12 and Article  166(1) and (2), though under Rule 13  he is one of the authorised officers  to communicate the decision of the  Government. In Major E.G. Barsay v.  State of Bombay this Court held that  if an order is issued in the name of  the President and is duly  authenticated in the manner prescribed  in Article 77(2), there is an  irrebuttable presumption that the  order is made by the President.  Whereby the order does not comply with  the provisions of Article 77(2), it is  open to the party to question the  validity of the order on the ground  that it was not an order made by the  President and to prove that it was not  made by the Central Government. Where  the evidence establishes that the Dy.  Secretary on behalf of the Central  Government made the order a delegate,  the order cannot be questioned.  Therefore, it is necessary to show  whether decision of the Government is  according to Business Rules".

53.             In J.P. Bansal v. State of Rajasthan &  Anr., (2003) 5 SCC 134, this Court held that no  particular formula of words were required by  Clause (1) of Article 166 of the Constitution.  It is enough if the requirement is  substantially complied with. 54.             Referring to several earlier  decisions, this Court stated; "Clause (1) requires that all  executive action of the State  Government shall have to be taken in  the name of the Governor. Further,  there is no particular formula of  words required for compliance with  Article 166(1). What the Court has to  see is whether the substance of its  requirement has been complied with. A  Constitution Bench in R. Chitralekha  v. State of Mysore held that the  provisions of the article were only  directory and not mandatory in  character and if they were not  complied with, it could still be  established as a question of fact that  the impugned order was issued in fact  by the State Government or the  Governor. Clause (1) does not  prescribe how an executive action of  the Government is to be performed; it  only prescribes the mode under which  such act is to be expressed. While  clause (1) (sic) in relation to the  mode of expression, clause (2) lays  down the ways in which the order is to

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be authenticated. Whether there is any  government order in terms of Article  166, has to be adjudicated from the  factual background of each case.  Strong reliance was placed by learned  counsel for the appellant on L.G.  Chaudhari to contend that for all  practicable purposes the decision of  the Cabinet has to be construed as a  government order, because three of the  decisions taken by the Cabinet have  been implemented. As noted above,  learned counsel for the State took the  stand that neither in the writ  petition nor before the High Court,  the Cabinet decision itself was  produced. In fact, the Cabinet  memorandum and the order of the  Cabinet show that no decision was  taken to pay any compensation. In this  connection reference is made to the  Cabinet memorandum dated 18-3-1993 and  Decision 57 of 1999. It was further  submitted that even if it is conceded  for the sake of argument that such  decision was taken, the same cannot be  enforced by a writ petition. We need not delve into the disputed  question as to whether there was any  Cabinet decision, as it has not been  established that there was any  government order in terms of Article  166 of the Constitution. The  Constitution requires that action must  be taken by the authority concerned in  the name of the Governor. It is not  till this formality is observed that  the action can be regarded as that of  the State. Constitutionally speaking,  the Council of Ministers are advisers  and as the Head of the State, the  Governor is to act with the aid or  advice of the Council of Ministers.  Therefore, till the advice is accepted  by the Governor, views of the Council  of Ministers do not get crystallised  into action of the State. (See: State  of Punjab v. Sodhi Sukhdev Singh and  Bachhittar Singh v. State of Punjab.)  That being so, the first plea of the  appellant is rejected".                                                 (emphasis supplied)

55.             We must, however, closely refer to two  decisions of this Court on which strong  reliance was placed by the learned counsel for  the appellant. 56.             In Bachhittar Singh v. State of  Punjab, (1962) 3 SCR 713, the Constitution  Bench of this Court held that before Article  166 of the Constitution is invoked, essential  ingredients laid down therein must be complied  with. 57.             In Bachhittar Singh, the appellant,  who was serving as Assistant Consolidation

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Officer in the State of Pepsu was dismissed  from service after a departmental inquiry  wherein it was proved that he was not ’above  board’. Against the said order, he preferred an  appeal to the State Government. He, however,  submitted an advance copy to the Revenue  Minister of Pepsu. The Minister called for the  record of the case immediately and wrote on the  file that instead of dismissal, he should be  reverted to his original post of Qanungo. On  the next day, the State of Pepsu merged in the  State of Punjab. It was the case of the  appellant that the remarks amounted to an order  which was orally communicated to him by the  Revenue Minister. 58.             After the merger, the file was put up  before the Revenue Minister of Punjab who  remarked that the charges were serious and put  up a note: "C.M. may kindly advise". The Chief  Minister opined that the order of dismissal  should be maintained. The said order was then  communicated to the appellant who challenged it  by filing a petition in the High Court which  was dismissed. The appellant approached this  Court. 59.             It was, inter alia, contended by the  appellant that the order passed by the Revenue  Minister of Pepsu reducing punishment from  dismissal to reversion could not have been  reviewed by the successor Government. The  record revealed that there was noting by the  Revenue Minister of Pepsu. Whether the noting  could be said to be ’remarks’ or ’order’ but it  was not in dispute that it was never formally  communicated to the appellant apart from the  fact that it was not expressed in the name of  Governor. The case of the appellant himself was  that the ’order’ was ’orally’ communicated to  him by the Revenue Minister. 60.             The question before the Court was  whether the ’noting’ made by the Revenue  Minister could be said to be an ’order’, and  whether the provisions of Article 166 of the  Constitution could be said to have been  complied with. 61.             Dismissing the appeal and drawing  distinction between the noting, remarks or  opinion expressed by a Minster on file and an  order made by the Government, the Constitution  Bench stated; "What we have now to consider is the  effect of the note recorded by the  Revenue Minister of PEPSU upon the  file. We will assume for the purpose  of this case that it is an order. Even  so the question is whether it can be  regarded as the order of the State  Government which alone, as admitted by  the appellant, was competent to hear  and decide an appeal from the order of  the Revenue Secretary. Art. 166(1) of  the Constitution requires that all  executive action of the Government of  a State shall be expressed in the name  of the Governor. Clause (2) of Art.

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166 provides for the authentication of  orders and other instruments made and  executed in the name of the Governor.  Clause (3) of that Article enables the  Governor to make rules for the more  convenient transaction of the business  of the Government and for the  allocation among the Ministers of the  said business. What the appellant  calls an order of the State Government  is admittedly not expressed to be in  the name of the Governor. But with  that point we shall deal later. What  we must first ascertain is whether the  order of the Revenue Minister is an  order of the State Government i.e., of  the Governor. In this connection we  may refer to r. 25 of the Rules of  Business of the Government of PEPSU  which reads thus :  "Except as otherwise provided  by any other Rule, cases  shall ordinarily be disposed  of by or under the authority  of the Minister incharge who  may by means of standing  orders give such directions  as he thinks fit for the  disposal of cases in the  Department. Copies of such  standing orders shall be sent  to the Rajpramukh and the  Chief Minister."  According to learned counsel for the  appellant his appeal pertains to the  department which was in charge of the  Revenue Minister and, therefore, he  could deal with it. His decision and  order would according to him, be the  decision and order of the State  Government. On behalf of the State  reliance was, however, placed on r. 34  which required certain classes of  cases to be submitted to the  Rajpramukh and the Chief Minister  before the issue of orders. But it was  conceded during the course of the  argument that a case of the kind  before us does not fall within that  rule. No other provision bearing on  the point having been brought to our  notice we would, therefore, hold that  the Revenue Minister could make an  order on behalf of the State  Government". 62.             The Court proceeded to consider;  "The question, therefore, is whether  he did in fact make such an order.  Merely writing something on the file  does not amount to an order. Before  something amounts to an order of the  State Government two things are  necessary. The order has to be  expressed in the name of the Governor  as required by clause (1) of Art. 166

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and then it has to be communicated. As  already indicated, no formal order  modifying the decision of the Revenue  Secretary was ever made. Until such an  order is drawn up the State Government  cannot, in our opinion, be regarded as  bound by what was stated in the file.  As along as the matter rested with him  the Revenue Minister could well score  out his remarks or minutes on the file  and write fresh ones".                                   (emphasis supplied)  63.             The Court concluded; "The business of State is a  complicated one and has necessarily to  be conducted through the agency of a  large number of officials and  authorities. The Constitution,  therefore, requires and so did the  Rules of Business framed by the  Rajpramukh of PEPSU provide, that the  action must be taken by the authority  concerned in the name of the  Rajpramukh. It is not till this  formality is observed that the action  can be regarded as that of the State  or here, by the Rajpramukh. We may  further observe that, constitutionally  speaking, the Minister is no more than  an adviser and that the head of the  State, the Governor or Rajpramukh, is  to act with the aid and advice of his  Council of Ministers. Therefore, until  such advice is accepted by the  Governor whatever the Minister or the  Council of Ministers may say in regard  to a particular matter does not become  the action of the State until the  advice of the Council of Ministers is  accepted or deemed to be accepted by  the Head of the State. Indeed, it is  possible that after expressing one  opinion about a particular matter at a  particular stage a Minister or the  Council of Ministers may express quite  a different opinion, one which may be  completely opposed to the earlier  opinion. Which of them can be regarded  as the "order" of the State  Government? Therefore, to make the  opinion amount to a decision of the  Government it must be communicated to  the person concerned. In this  connection we may quote the following  from the judgment of this Court in the  State of Punjab v. Sodhi Sukhdev  Singh, AIR 1961 SC 493.   Mr Gopal Singh attempted to  argue that before the final  order was passed the Council  of Ministers had decided to  accept the respondent’s  representation and to  reinstate him, and that,

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according to him, the  respondent seeks to prove by  calling the two original  orders. We are unable to  understand this argument.  Even if the Council of  Ministers had provisionally  decided to reinstate the  respondent that would not  prevent the Council from  reconsidering the matter and  coming to a contrary  conclusion later on, until a  final decision is reached by  them and is communicated to  the Rajpramukh in the form of  advice and acted upon by him  by issuing an order in that  behalf to the respondent.

Thus it is of the essence that the  order has to be communicated to the  person who would be affected by that  order before the State and that person  can be bound by that order. For, until  the order is communicated to the  person affected by it, it would be  open to the Council of Ministers to  consider the matter over and over  again and, therefore, till its  communication the order cannot be  regarded as anything more than  provisional in character".                               (emphasis supplied) [See also State of Bihar & Ors. V.  Kripalu Shankar & Ors., (1987) 3 SCC  34]

64.             In our considered opinion, Bachhittar  Singh has no application to the facts of the  present case. As is clear, in Bachhittar Singh,  there was merely a ’noting’ made by the  Minister on the file. This Court held that  merely writing something on file does not  amount to an ’order’. No formal order reducing  the punishment was ever made. Until such an  order is drawn up by the State Government, it  could not take the character of Order since the  Minister could change his mind and delete the  remarks. Moreover, the decision must also be  communicated to the person concerned which was  absent in the case. To us, therefore, ratio  laid down in Bachhittar Singh does not help the  appellant. 65.             It is also interesting to note at this  stage that in subsequent cases, Bachhittar  Singh was relied upon for the proposition that  in that case, the Constitution Bench of this  Court held the provisions of Article 166 of the  Constitution mandatory. This Court, however,  did not uphold the argument and distinguished  it on facts. For instance, in Chitralekha, the  Constitution Bench held Article 166  ’directory’. As to Bachhittar Singh, the  majority observed that in that case, the order

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signed by the Revenue Minister was never  communicated to the party and, therefore, it  was held that there was no effective order.  (See also State of Bihar v. Kripalu Shankar;  Gulabrao Keshavrao Patil v. State of Gujarat;  J.P. Bansal v. State of Rajasthan). 66.             Another decision heavily relied upon  by the appellant is a recent case in C.B.I. v.  Ravi Shankar Srivastava, (2006) 7 SCC 188. In  that case, CBI instituted criminal proceedings  against the accused. The accused challenged the  First Information Report (FIR) in the High  Court by invoking Section 482 of the Code of  Criminal Procedure, 1973 inter alia contending  that the consent given by the State Government  under Section 6 of the Delhi Act for  investigation of offences by Delhi Special  Police Establishment and for operation of the  Delhi Act to the State was withdrawn by the  State and CBI had no power to initiate criminal  proceedings. The High Court upheld the  contention. CBI approached this Court. 67.             Allowing the appeal and setting aside  the order of the High Court, this Court held  that there was no notification revoking the  earlier one granting the consent. The letter on  which great emphasis had been laid by the  accused did not indicate as to under what  authority such letter had been written. It was  also not established that the person was  authorized to take such decision. It did not  meet with the requirements of Article 166 of  the Constitution and could not, even  conceptually be said to be a notification. 68.             To us, Ravi Shankar has no application  to the case on hand. In a particular ’fact  situation’, this Court held that there was no  withdrawal of consent by the State Government.  For coming to such conclusion, the Court  referred to several factors, such as, it was  merely a letter; it did not indicate the  authority; there was nothing to show that the  person was authorized to take such decision,  and as such, it did not meet with the  requirement of Article 166 of the constitution. 69.             In the present case, the decision  produced by the respondent along with the  counter-affidavit filed by the Superintendent  of Police, CBI, Bhopal clearly sets out all the  particulars required by Section 6 of the Delhi  Act. It refers to the file/reference number,  name of the department, the authority from whom  it was issued and communicated to the concerned  department of the Central Government. It,  therefore, cannot be said that the State  Government had not granted consent under  Section 6 of the Delhi Act. 70.             In Ravi Shankar, consent was granted  by a notification. This Court, therefore, held  that it could not have been revoked by a  letter, authenticity of which was not  established and was in cloud. In our judgment,  it would be an impermissible leap of logic to  deduce to formulate a rule of law that consent  can never be accorded except by issuing a

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notification. 71.             A closer scrutiny of the relevant  provisions of the Delhi Act also add credence  to the view which we are inclined to take.  Section 3 refers to ’notification’ and requires  the Central Government to issue notification  specifying offences or class of offences to be  investigated by Special Police Establishment.  Section 5 uses the term ’order’ and enables the  Central Government to extend powers and  jurisdiction of Special Police Establishment to  other areas not covered by the Act. Section 6  which speaks of consent of State Government for  the exercise of powers and jurisdiction of the  Special Establishment neither refers to  ’notification’ nor ’order’. It merely requires  consent of the State Government for the  application of the Delhi Act. Parliament, in  our considered opinion, advisedly and  deliberately did not specify the mode, method  or manner for granting consent though in two  preceding sections such mode was provided. If  it intended that such consent should be in a  particular form, it would certainly have  provided the form as it was aware of different  forms of exercise of power. It, therefore,  depends on the facts of each case whether the  consent required by Section 6 of the Delhi Act  has or has not been given by the State  Government and no rule of universal application  can be laid down. 72.             On the facts stated hereinabove, there  is no doubt that the State of Madhya Pradesh  has given consent as envisaged by Section 6 of  the Delhi Act and prosecution instituted by CBI  against the appellant cannot be said to be  without jurisdiction. We see no infirmity in  the order passed by the trial Court and  confirmed by the High Court. The appeal, hence,  deserves to be dismissed and we accordingly do  so. 73.             The appeal is dismissed accordingly.