The following questions arise for consideration:
1. What is the background with regard to Section 6A of the Delhi Special Police Establishment Act, 1946?
2. Did the CBI act in contravention of Section 6A(1)?
3. If yes, does it mean that the entire trial consequent upon an illegal investigation is vitiated?
Question No. 1: What is the background of Section 6A of the DSPE Act?
7. Section 6A was introduced into the DSPE Act with effect from 11.9.2003 by virtue of Section 26(c) of the Central Vigilance Commission Act, 2003. The pre-cursor to Section 6A was the Single Directive which was a consolidated set of instructions issued to the CBI by the various Ministries/Departments. It was first issued in 1969 and thereafter amended on many occasions. The Single Directive contained certain instructions to the CBI regarding modalities of initiating an inquiry or registering a case against certain categories of civil servants. Directive No. 4.7 (3) (i) was as under:
6A. Approval of Central Government to conduct inquiry or investigation - (1) The Delhi Special Police Establishment shall not conduct any inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 (49 of 1988) except with the previous approval of the Central Government where such allegation relates to -
(a) the employees of the Central Government of the level of Joint Secretary and above; and
10. Anyhow, the Supreme Court in Vineet Narain (supra) quashed the Single Directive essentially on the ground that the Single Directive was a mere executive order which created a classification when the law did not permit such a classification with regard to prior approval for investigation in respect of officers of a particular rank and above.
11. It is subsequent thereto that Section 6A has been inserted in the DSPE Act with effect from 11.9.2003. From the date of decision in Vineet Narain's case (supra) till the introduction of Section 6A in the DPSE Act w.e.f. 11.9.2003, there was no requirement of seeking previous approval for investigation except for the period 25.8.1998 to 27.10.1998 when ordinances were inforce.