M. BALAKRISHNA REDDY v. DIRECTOR, CBI, NEW DELHI

Citation: [2008] 4 S.C.R. 1154

Court: Supreme Court of India

Bench: C.K. THAKKER, DALVEER BHANDARI

Case summary

M. BALAKRISHNA REDDY v. DIRECTOR, CBI, NEW DELHI.pdf

Judgment text

[2008] 4 S. C. R. 1154 M. BALAKRISHNA REDDY v. DIRECTOR, CBI, NEW DELHI '(Criminal Appeal No. 491 of 2008) MARCH 14, 2008 8 [C. K. THAKKER AND DALVEER BHANDARI, JJ. ] ~ Delhi Special Police Establishment Act, 1946 - ss. 6, 5 ,.. and 3 - Consent of State Government to exercise powers and ;urisdiction - Examination conducted by UPSC having head office at Delhi - Commission of offence under the Penal Code by Central Government employee at Bhopal in State of Madhya Pradesh - Prosecution by CBI against employee under the Delhi Act - Challenge to, on the ground that consent not given by State - Held: State Government of Madhya Pradesh gave consent to Central Government as required u/ s 6 to enable the latter to invoke provisions ofDelhi Act- Thus, prosecution by CBI against employee under Delhi Act not Without jurisdiction - Order of trial court as upheld by High Court suffers from no infirmity - Constitution of India, 1950 - Article 166.

Constitution of India, 1950 - Article 166 - Conduct of the business of the Government of a State - Nature and scope of The Union Public Service Commission conducted examination in college at Bhopal. The appellant-Central Government Employee appeared and was allegedly found to be in possession of prewritten answer sheets, similar to the answer sheets supplied by the Examination Board. The confessional statement of the appellant was recorded. The matter was reported to UPSC Head Office at New Delhi. A preliminary inquiry was instituted. 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 IPC. Charge-sheet was ' NEW DELHI filed in the Court of Special Magistrate.

Appellant raised preliminary objection before the Magistrat~ that since the alleged offences had been committed at Bhopal in the State of Madhya Pradesh, CBI had no power, authority or jurisdiction to institute criminal proceedings; and that before initiating proceedings under the Delhi Special Police Establishment Act, 1946, the consent of the State Government was required which was not given by the State. The preliminary objection was rejected. Aggrieved appellant filed Revision. High Court dismissed the same. Hence the present appeal.

Appellant contended that the High Court was wrong · in holding that the proceedings against the appellant could have been initiated by CBI and that the Delhi Act would apply for cognizance of offences committed by him as a Central Government employee; that the direction issued by the High Court was ex facie erroneous; that -f 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; that before invoking the provisions of the Delhi Act, consent of the State Government is mandatory; that 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; that the consent required under the Act is of the 'State Government'; that the provisions of Article 166 of the Constitution are mandatory and before any action is taken, they are required to be strictly complied with and if the procedure laid down in the said Article is not followed, such consent cannot be said to be legal, valid and in consonance with law and CBI does not get jurisdiction in the matter; that the letter by the Deputy Secretary to the Government of Madhya Pradesh to the Secretary, Ministry of Home Affairs, Government of India, New Delhi which purportedly records the consent of the State Government to the exercise of.

powers and jurisdiction of the Delhi State Po. lice Establishment to the State of Mad. hya Pradesh is in the nat. u. re of 'inter-Departmental communic~tion' by the Deputy Secretary to the State of Madhya Pradesh tQ the Secretary to Central Government and cannot be regarded as consent under Sectioh 6 of the Act; and that the orders passed by the Courts below ' sho~ld b. e s~taside by quashing the pro. ceedirigs initiated · by CBI against the appellant. · · Respondents contended that the High Court considered the order dated 05. 02. 1957 in its proper p~rspective and held that the State of Madhya Pradesh had given consent as required by law under. section 6 of· the Delhi Act; that the prosecution by CBI against the appellant uhd~r the Delhi Act cannot be said to be without · jurisdicti. on;· and that th. e provisions of Article . 166 are directory and even if there is n. o strict compliance, the action cannot be held illegal or invalid and the same ca~ be upheld providec:I there is .

'substantial' compl. iance; · · . Dismis~in·g the a·ppeal, the Court HELD: .. 1. Section 6 of the Delhi Special Police· Establishment Act, 1946 ·requires consent ·of State· Government for exercising powers and jurisdiction under the Act by Special Police' Estabfishmerit to any area iri a State not being Union Territory or Railway. The plain reading of s. 6 goes to show that for exercise ofJurisdiction by the CBI in ·a State. (other. than l)nion Territory or Railway Area), co·nsent of the State Government is· necessary. Before ,the provisjons ·of the Delhi Act are invoked to: exe,rcise power and jurisdiction by Special Police Establishment-in any State, t,he 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 • NEW DELHI extending the powers and jurisdiction of Delhi Special Police Establishment to any State in respect of the offences specified under Secti 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 h. Ps to be given a formal expression, the whole governmental machinery would come to a standstill. 32. Accepting the argument, negativing the contention of r 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-Emperor, 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 ~ dutie~ are directory and those conferring private 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 ofanorderofdetention under Section 11 (1)thatActdoes not itself prescribe any particular form of expression of that executive decision. Article 166 directs all execu·tive 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- 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 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' ofArticle 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 cioes 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. 0 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 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 aqtion 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". H· (emphasis supplied) 40. In Swadeshi Cotton Mills Co. Ltd. v. State Industrial .. Tribunal, UP & 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 ofthe Government of Bombay addressed a letter to the Government of India on August 13, 1949 which read thus: "... I am directed to state that this Government re-affirms, with reference to Section 6 of the Delhi Special Police EstablishmentAct, 1946, the consent given for an indefinite period under its letter No.

5042/4-D, dated the 5th November, 1946 to the members of the Delhi Special Police Establishment exercising powers and jurisdiction in the area of the province of Bombay". i 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 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 -4, 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 8 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 0 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 lndia. -(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 C(illed 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 forthe allocation among Ministers of the said business. 46.

Article 77 relates to conduct of 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 noncompliance 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 ofthe Government ofIndia 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 "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 conforni 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 ofUttar 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: "...... Article 166(1) and (2) expressly envisage authentication of all the executive actions and shall be t 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 E' 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 1 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 perArticle 166(2) and the Business Rule 12, it is 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 ofthe authorised officers to communicate the decision of the Government. In Major E. G Barsay v. State o( 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 j in which the order is to 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 s 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 seNing as Assistant Consolidation Officer in the State of Pepsu was dismissed from seNice 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 0 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. I 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) ofArt. 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 tor.

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 I. 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 and then it has ~o 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 scqre 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 8 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, 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 responden~ that would not + prevent the Council from reconsidering the matter and coming to a contrary conclusioh 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 . J communicated to the person who would be affected by that orper 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 sec 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. Thjs Court held that m~rely 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 (:! nd • 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 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 Rajasthanf 66. Another decision heavily relied upon by the appellant is a recent case in C. 8. 1. 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- 1 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 ~otification.. 71. A closer scrutiny of the relevant provl~ions 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. N. J. Appeal dismissed.