CBI versus R.R. KISHORE

Citation: [2023] 13 S.C.R. 1 · Decided: 11-09-2023 · Supreme Court of India · Bench: SANJAY KISHAN KAUL · Disposal: Matter referred to larger bench

Cited by 1 judgment(s) · cites 23 · see the full citation network in Lexace

Judgment (excerpt)

[2023] 13 S.C.R. 1 : 2023 INSC 817
1
CASE DETAILS
CBI
v.
R.R. KISHORE
(Criminal Appeal No. 377 of 2007)
SEPTEMBER 11, 2023
[SANJAY KISHAN KAUL, SANJIV KHANNA, 
ABHAY S. OKA, VIKRAM NATH AND 
J.K. MAHESHWARI, JJ.]
HEADNOTES
Issues for consideration:
Section 6A(1) of the Delhi Special Police Establishment Act, 1946 
(DSPE Act) required approval of the Central Government to conduct 
inquiry or investigation into any off ence alleged to have been committed 
by senior Government offi  cers under the Prevention of Corruption Act, 
1988; and provided a kind of immunity to such offi  cers. Whether there 
could be a deprivation of such immunity by a retrospective operation of 
a judgment of the Court, in the context of Article 20 of the Constitution 
of India, was the moot question that arose for determination in the 
present case.
The question was whether the declaration made by a Constitution 
Bench of the Supreme Court, in the case of Subramanian Swamy vs. 
Director, Central Bureau of Investigation and another, that Section 6A 
of the DSPE Act being unconstitutional, can be applied retrospectively in 
context with Article 20 of the Constitution. The following three corollary 
questions also arose for consideration namely:  Whether Section 6A of the 
DSPE Act was part of procedure or it introduced a conviction or sentence; 
Whether Article 20(1) of the Constitution had any bearing or relevance in the 
context of declaration of Section 6A of the DSPE Act as unconstitutional and 
Whether the declaration of Section 6A of the DSPE Act as unconstitutional 
and violative of Article 14 of the Constitution would have a retrospective 
eff ect or would apply prospectively from the date of its declaration as 
unconstitutional.
SUPREME COURT REPORTS 
[2023] 13 S.C.R.
2
Delhi Special Police Establishment Act, 1946 (DSPE Act) – s.6A – 
Nature of – A part of procedure or introduced a conviction or sentence.
Held: Section 6A of the DSPE Act does not lay down or introduce 
any conviction for any off ence – It is a procedural safeguard only which 
is enumerated in Section 6A of the DSPE Act with regard to making of an 
investigation or enquiry of an off ence under the Prevention of Corruption 
Act, 1988 – Section 6A of the DSPE Act also does not lay down any 
sentence nor does it alter any existing sentence for an off ence – s.6A of 
the DSPE Act is a part of the procedure only in the form of a protection to 
senior government servants – It does not introduce any new off ence nor it 
enhances the punishment or sentence. [Paras 23 and 24]
Constitution of India – Art.20 – Applicability of, in context of s.6A 
of the Delhi Special Police Establishment Act, 1946.
Held: Article 20(1) of the Constitution has no applicability either to 
the validity or invalidity of Section 6A of the DSPE Act. [Para 36]
Delhi Special Police Establishment Act, 1946 – s.6A – Declaration 
of s.6A as unconstitutional – Whether would have a retrospective 
eff ect or would apply prospectively from the date of its declaration as 
unconstitutional – Constitution of India – Art. 13(2) and Part III.
Held: Once a law is declared to be unconstitutional, being violative 
of Part-III of the Constitution, then it would be held to be void ab initio, 
still born, unenforceable and non est in view of Article 13(2) of the 
Constitution and its interpretation by authoritative pronouncements – Thus, 
the declaration made by the Constitution Bench in the case of Subramanian 
Swamy will have retrospective operation – Section 6A of the DSPE Act is 
held to be not in force from the date of its insertion i.e. 11.09.2003. [Para 43]
Constitution of India – Art.20(1) – Protection from retrospective 
Ex post facto law – Explained.
Held: Sub-article (1) of Article 20 of the Constitution consists of two 
parts – The fi rst part prohibits any law that prescribes judicial punishment 
for violation of law with retrospective eff ect. Sub-article (1) to Article 20 
of the Constitution does not apply to civil liability, as distinguished from 
punishment for a criminal off ence – Further, what is prohibited is conviction 
3
or sentence for any off ence under an ex post facto law, albeit the trial itself is 
not prohibited – Trial under a procedure diff erent from the one when at the 
time of commission of an off ence, or by a court diff erent from the time when 
the off ence was committed is not unconstitutional on account of violation of 
sub-article (1) to Article 20 of the Constitution – It may be diff erent, if the 
pr

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