The Jammu and Kashmir and Ladakh High Court held that the Central Bureau of Investigation (CBI) is vested with the jurisdiction to investigate offences that are committed within the territorial jurisdiction of the erstwhile State of J&K in terms of general consent given by the government in the years 1985 and 1963.

The UT administration had taken a stand that even if consent has been granted for extension of jurisdiction of CBI to the State, the same has been done on case to case basis and there is no general consent accorded by the State Government.

The Court was dealing with a batch of petitions filed by the petitioners contending that the CBI lacks jurisdiction to investigate the FIRs as no consent in terms of Section 6 of the Delhi Special Police Establishment Act (DSPE Act) has been accorded by the erstwhile State of Jammu and Kashmir to the investigation of the instant cases

A Single Bench of Justice Sanjay Dhar asserted, “… once a member of the CBI is vested with jurisdiction to investigate offences under the Jammu and Kashmir Prevention of Corruption Act in the State of Jammu and Kashmir, he would exercise the same powers and privileges as are available to an officer of Vigilance Organization. … I do not find any reason to depart from the consistent view taken by this Court that the erstwhile State of J&K has accorded a general consent to the exercise of jurisdiction of CBI to investigate certain classes of offences in the erstwhile State of Jammu & Kashmir and that the contention that CBI lacks jurisdiction to investigate these classes of offences in the erstwhile State of J&K, is without any merit.”

The Bench further said that the argument of the counsel for the petitioner is without any merit and that specific consent may also be required in a case in which the subject matter of investigation is an offence that is not mentioned in the consent letter and the order issued under Section 5 of the DSPE Act.

Senior Advocate Pranav Kohli appeared on behalf of the petitioner while Advocate General D.C. Raina and DSGI T.M. Shamsi appeared for the respondents.

In this case, the petitioners alleged that the CBI before undertaking an investigation of the FIRs was bound to obtain the consent of the State Government in all the cases as per Section 6 of the DSPE Act because the same was not done.

The question for consideration before the Court was whether the CBI was having jurisdiction with regard to the investigation of the offences committed within the territorial jurisdiction of the erstwhile J&K State prior to its bifurcation into two Union Territories.

The High Court while dealing with the aforesaid question noted, “… the Government of Jammu and Kashmir has accorded a general consent to CBI exercising its jurisdiction in the State of Jammu and Kashmir for investigation of offences mentioned in the aforesaid letter. Had it been a case of consent on case to case basis then the particulars of the case, the particulars of the FIR or the facts of the case regarding which the consent was accorded would have been mentioned in the said communication which is not the case.”

The Court also said that it appears that on February 10, 1961, an order under Section 5(1) of the DSPE Act was issued by the Central Government whereby the jurisdiction of CBI to investigate offences in the State of Jammu and Kashmir in respect of certain offences under RPC and J&K State Prevention of Corruption Act, 2006 was extended.

“There may be a couple of instances where even in cases which have been directly registered by the CBI, the State of Jammu and Kashmir has accorded specific consent, but the same is superfluous in view of the fact that a general consent has been accorded by the Government as has been indicated herein before. A specific consent may also be required in a case in which subject matter of investigation is an offence which is not mentioned in the consent letter and the order issued under Section 5 of the Act”, the Court observed.

It was also observed by the Court that once a member of the CBI is vested with jurisdiction to investigate offences under the Jammu and Kashmir Prevention of Corruption Act in the State of Jammu and Kashmir, he would exercise the same powers and privileges as are available to an officer of Vigilance Organization.

“… the Central Bureau of Investigation has jurisdiction to investigate the offences mentioned in the aforesaid two consent letters read with notification dated 01.04.1964 and order dated 01.04.1964”, the Court held.

The Court directed the Registries of both the Wings of the High Court to delink all the petitions and list the same separately before the roster Bench for consideration on other legal grounds raised in the petitions on an individual basis.

The Court, therefore, listed the matter before the Registrar Judicial, Jammu, and Registrar Judicial, Srinagar on February 20, 2023, for fixing of dates in the individual cases.

Cause Title- Kumar Avinav v. Union of India th. Commissioner/Secretary to Government Ministry of Home Affairs, New Delhi and others

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Jammu & Kashmir & Ladakh High CourtJustice Sanjay DharCBI

Swasti Chaturvedi