CBI v. R.R. Kishore (2023)

Case Summary: CBI v. R.R. Kishore (2023)

Case Stats

• Court: Supreme Court of India (Constitution Bench)

• Bench: Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S. Oka, Vikram Nath, and J.K. Maheshwari, JJ.
• Citations: (2023) 09 SC CK 0023
• Case Nos.: Criminal Appeal No. 377 of 2007; Criminal Appeal No. 2763 of 2023
• Date of Decision: 11-09-2023
• Disposition: Appeal allowed; declaration that DSPE §6A(1) unconstitutional applies retrospectively; proceedings to continue without prior approval requirement

[Judgment Source] https://www.courtkutchehry.com/Judgement/Search/t/2369306-cbi-vs-rr-kishore?s=&refine_search=&s_acts=

Key Prior / Referred Judgments

• Subramanian Swamy v. Director, CBI, (2014) 8 SCC 682 (DSPE §6A(1) struck down under Art. 14)
• H.N. Rishbud & Inder Singh v. State of Delhi, 1955 SCR 1150 (effect of illegality in investigation)
• Mubarak Ali v. State of Bombay, 1958 SCR 328 (irregular investigation—trial not vitiated)
• Transmission Corporation of A.P. v. Ch. Prabhakar, (2004) 5 SCC 551; (2010) 15 SCC 200 (Art. 20 question earlier referred)
• Keshavan Madhava Menon v. State of Bombay, 1951 SCR 228 (Art. 13 & void laws—prospectivity)
• Golaknath; and later jurisprudence on prospective overruling (contextual reference)

Facts of the Case

• CBI registered FIR on 16‑12‑2004 under the PC Act and laid a trap; respondent sought discharge citing absence of prior Central Govt approval under DSPE §6A(1).
• Special Judge rejected discharge (30‑04‑2006); Delhi High Court in revision (05‑10‑2006) held §6A(1) applicable and directed re‑investigation post‑approval, else closure; CBI appealed.
• While appeal was pending, Constitution Bench in Subramanian Swamy (06‑05‑2014) held DSPE §6A(1) violative of Article 14, but did not specify prospective/retrospective operation.
• Question framed for Constitution Bench: whether striking down §6A(1) operates retrospectively in light of Article 20(1), and impact on past investigations/prosecutions.

Law Points / Issues Raised

• Does the 2014 declaration of unconstitutionality of DSPE §6A(1) apply retrospectively to investigations conducted before 06‑05‑2014?
• Whether Article 20(1) (bar on ex post facto criminal laws and enhanced penalties) is attracted by removal of §6A(1)’s approval requirement.
• Effect of declaring a law unconstitutional under Article 13(2): void ab initio vs prospective overruling.
• Nature of §6A(1): procedural safeguard for investigation vs substantive right/‘immunity’.

Acts / Provisions / Articles Referred

• Constitution of India: Articles 13(1)–(2), 14, 20(1), 21, 142, 145(3), 249, 251, 254, 367.
• Delhi Special Police Establishment Act, 1946: Sections 6, 6A(1)–(2) (as inserted in 2003; §6A(1) struck down in 2014).
• Prevention of Corruption Act, 1988: Sections 7, 8, 17, 18; (1947 Act §5 referenced).
• Central Vigilance Commission Act, 2003: Section 26(c).
• General Clauses Act, 1897: Section 6 (effect of repeal).
• CrPC, 1973: Section 2(g), 2(h).

Obiter Dicta (Notable Observations)

• Striking down of a provision under Article 13 ordinarily renders it void ab initio unless the Court expressly limits the ruling prospectively (prospective overruling is an exception).
• Article 20(1) guards against ex post facto creation of offences or enhancement of penalties; it does not freeze investigative procedure or approval requirements.
• Investigative irregularities generally do not vitiate trial unless prejudice is shown; courts focus on admissibility and reliability of evidence.

Ratio Decidendi

• DSPE §6A(1) having been declared unconstitutional in Subramanian Swamy (2014) is inoperative ab initio; no prior approval was or is required for inquiries/investigations even for the interregnum before 06‑05‑2014.
• Article 20(1) is not attracted: removal of an investigative approval requirement neither creates a new offence nor enhances punishment; §6A(1) was procedural, not substantive immunity.
• Consequently, investigations/trials otherwise in accordance with law are not vitiated for want of §6A(1) approval.

Final Ruling / Disposition

• Appeal(s) allowed; High Court order set aside.
• CBI proceedings to continue from the stage of dismissal of discharge, without insisting on §6A(1) approval; no retrospective immunity survives.
• Clarification issued on retrospective effect of Subramanian Swamy (2014) and limited ambit of Article 20(1) in this context.

Key Paragraph Numbers for Quick Reference

• 1–7: Reference, background, and question framed (incl. 10‑03‑2016 order 7).
• Core holdings on Article 13, Article 20(1), and retrospective effect: concluding analysis section.
• Disposition directions: final paragraphs of the judgment.
• Subramanian Swamy 99 quoted for unconstitutionality of §6A(1).

Summary (One‑Paragraph)

Answering a long‑pending reference, the Constitution Bench held that its 2014 ruling in Subramanian Swamy striking down DSPE §6A(1)—which required prior Central approval to investigate senior officials under the PC Act—operates retrospectively. Because §6A(1) was a procedural provision and its invalidation under Article 13 renders it void ab initio, Article 20(1) is not implicated. Accordingly, the High Court’s contrary view was set aside and the CBI prosecution may proceed without the §6A approval requirement.

[Judgment Source] https://www.courtkutchehry.com/Judgement/Search/t/2369306-cbi-vs-rr-kishore?s=&refine_search=&s_acts=