Holding

The State of Madhya Pradesh gave valid consent under Section 6 of the Delhi Special Police Establishment Act, 1946; therefore the CBI’s prosecution was within jurisdiction.

Summary

M. Balakrishna Reddy, a Central Government employee, was charged by the CBI under the Delhi Special Police Establishment Act, 1946 for alleged cheating in a UPSC exam held in Bhopal, Madhya Pradesh. He challenged the CBI's jurisdiction, arguing that the State of Madhya Pradesh had not given the consent required under Section 6 of the Act and that the consent letter did not comply with the formalities of Article 166 of the Constitution. The High Court dismissed his revision, and the Supreme Court examined whether the conditions precedent under Sections 3, 5 and 6 of the Delhi Act were satisfied and whether the letter constituted valid consent. The Court held that the State had indeed given consent as envisaged by Section 6, that Article 166 is directory and substantial compliance suffices, and that the CBI’s prosecution was within jurisdiction. Consequently, the appeal was dismissed.

Issues considered

The Delhi Special Police Establishment Act, 1946 requires consent of the State Government under Section 6 for exercising jurisdiction in a State; was such consent obtained?
Does the letter dated 5 February 1957 constitute valid consent under Section 6 of the Delhi Act?
Is non‑compliance with the formalities of Article 166 of the Constitution fatal to the validity of the consent?
Were the conditions precedent under Sections 3 and 5 of the Delhi Act satisfied before invoking its provisions?

Legislation cited

Constitution of Indias. 166, s. 77
Delhi Special Police Establishment Act, 1946s. 3, s. 5, s. 6
Indian Penal Code, 1860s. 417, s. 418, s. 420, s. 467, s. 468, s. 471, s. 474, s. 511

Subjects

Delhi Special Police Establishment ActCBI jurisdictionState consentArticle 166Central vs State authorityCriminal procedureUPSC examinationSection 6 consent

Judgment

[2008] 4 S.C.R. 1154

A 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
c ;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
D
Pradesh gave consent to Central Government as required u/
s 6 to enable the latter to invoke provisions of Delhi 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 -
E 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
F 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.
G 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
H 1154
' M. BALAKRISHNA REDDY v. DIRECTOR, CBI,
NEW DELHI
1155

filed in the Court of Special Magistrate. Appellant raised
preliminary objection before the Magistrat~ that since the
A

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 B
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. c
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 D
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 E
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 F
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 G
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
H
1156 SUPREME COURT REPORTS [2008] 4 ·s.C.R.

A 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
B 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
C 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
D · 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
E
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
F State not being Union Territory or Railway. The plain
reading of s. 6 goes to show that for exercise of Jurisdiction
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:
G 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
H
• M. BALAKRISHNA REDDY v. DIRECTOR, CBI,
NEW DELHI

extending the powers and jurisdiction of Delhi Special
1157

A
Police Establishment to any State in respect of the
offences specified under Secti<?n. 3 (Section 5); and (iii)
Consent of the State Government must be obtained for
the exercise of powers ·by Delhi Special Police
Establishment in the State (Section 6). [Paras 14 and 15] B
[1164-G; 1165-B-E]
2. Bare reading of Clause (1) of Article 166 of the
Constitution of India, 1950 makes it clear that all executive
actions of the Government of a State shou.ld be expressed
to be taken in the name of the Governor. Clause (2) C
provides for the authentication of the orders and other
instructions made and execpted in the nam.e of the
Governor. Clause (3) enables the Governor to make rules
for the more convenient transaction of the Government
of the State and for the allocation of business among the D
Ministers, usually known as 'Rules of Business' or
'Business Rules'. [para 22] [1169-E-F]
3.1 In the instant case, the first two cond!tions have
been complied with and the requisite material is on record
of the case. A notification required to be issued by the . E
Central Government under s. 3 of the Delhi Act specifying
offences under IPC as also under several other Acts has
been issued on September 7, 1989 and has been placed
by ttie respondent" on record alorig with the affidavit-in-
reply filed by. the Superintendent of Police, CBI, Bhopal. F
The said notification covers inter alia, the. offences
punishable under ss. 417, 418, 420, 467, 468, 471, 474, 511,
IPC. Likewise, the Central Government passed an order
on February 18, 1963 as contemplated by Section 5 of the
Delhi Act extending the powers and jurisdiction of the G
members of Special Police Establishment to various
States including the State of Madhya Pradesh for the
investigation of offences specified in the Schedule
annexed to the said schedule. The Schedule specifies
various offences under IPC, the Prevention of Corruption H
1158 SUPREME COURT REPORTS [2008] 4 S.C.R. • ..
,l

A Act and various other enactments. Thus, section 3 and 5
.of the Delhi Act have .been complied with. [Para 16]
)., "'
[1165-F-H; 1166-A-B]
3.2 The decision produced by the respondent along
with the counter-affidavit filed by the Superintendent of
B 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 --4
from whom it was issued and communicated to the
concerned department of the Central Government.
c Therefore, it cannot be said that the State Government
had not granted consent under Section 6 of the Delhi
· Aet.[Para 69) [1190-8-C]
r
3.3 It would be an impermissible leap of logic to ~

deduce to .formulate a rule of law that consent can never·
D be accorded except by issuing a notification. [Para 70]
[1190-D] )- ;
3.4 Section 3 of the Act refers to 'notification' and
requires the Central Government to issue notification r-

E 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 )o
r
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
F of powers and jurisdiction of the Special Establishment
y
neither refers to 'notification' nor 'order'. It merely requires
consent of the State Government for the application of
the Delhi Act. Parliament advisedly and deliberately did
not specify the mode, method or manner for granting
G 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. Therefore, it depends on the facts of each case
H whether the consent required bys. 6 of the Act has or has
'
),
M. BALAKRISHNA REDDY v. DIRECTOR, CBI,
NEW DELHI

not been given by the State Government and no rule of A
universal application can be laid down. [Para 71]
1159

[1190-E-H; 1191-A]
3.5 There is no doubt that the State of Mad.hya
Pradesh has given consent as envisaged by s. 6 of the
Delhi Special Police Establishment Act, 1946 and B
prosecution instituted by CBI against the appellant cannot
be said to be without jurisdiction. There is no infirmity in
~-
the order passed by the trial Court and confirmed by the
,...
High Court. [Para 72] [1191-B]
Bachhittar Singh v. State of Punjab 1962 (3) SCR 713;
c
C. B. /. v. Ravi Shankar Srivastava 2006 (7) SCC 188 -
distinguished.
Ujgar Singh and Anr. v. State of Punjab 1952 SCR 756;
Dattatreya Moreshwar Pangarkar v. State of Bombay and Ors. D
1952 SCR 612; State of Bombay v. Purushottam Jog Naik
1 1952 SCR 674; P Joseph John v. State of Travancore-Cochin
1955 (1) SCR 1011; Swadeshi Cotton Mills Co. Lt<;J. v. State
':I
·• Industrial Tribunal, UP and Ors. 1962 (1) SCR 422; Major
E.·G. Barsay v. State ·of Bombay 1962 (2) SCR 195; R.
E
Chitralekha and Anr v. State of Mysore and Ors. 1964 (6) SCR
368; State of Uttar Pradesh v. Om Prakash Gupta 1969 (3)
SCC 775; Gulabrao Keshavrao Patil and Ors. v. State of Gujarat
and Ors. 1996 (2) SCC 26; J.P Bansal v. State of Rajasthan
ans Anr. 2003 (5) SCC 134 - referred to.
F
CRIMINAL APPELLATE JURISDICTION : Criminal

- '(
Appeal No. 491 of 2008.
From the Judgment and Order dated 2.1.2007 of the High
Court of Madhya Pradesh, Bench at Indore in Crl. Rev. No. 176/
2003. G

Dr. Rajeev Dhawan, D. Rama Krishna Reddy and D.
Bharathi Reddy for the Appellant.
~
A. Sharan, A.S.G., B.B. Singh, Amit Anand Tiwari and P.
Parmeswaran for the Respondent. H
1160 SUPREME COURT REPORTS [2008] 4 S.C.R.

A The Judgment of the Court was delivered by )--
1

C.K. THAKKER, J. 1. Leave granted.
2. The- present appeal is filed against an order passed by .
Special Magistrate, CBI, Indore, Madhya Pradesh on December
B 17, 2002 in Criminal Case No. 1.155of2002 and confirmed by
the High Court of Madhya Pradesh (Indore Bench) on January
2, 2007 in Criminal Revision No. 176 of 2003.
-i
3. Briefly stated the facts of the case are that the app.eHant
herein appeared in the examination conducted by the Union
C Public Service Commission ('UPSC' for short) in the year 1996 ·
at HamidiyaArts and Commerce College, Bhopal on November
1, 1996. It was alleged that the appellant was found to be in
'I
possession of prewritten answer sheets which were similar, if ~

'
not identical, to the answer sheets supplied by the Examination
D Board. The appellant was taken out of the hall and a statement
was recorded in which he confessed to have prewritten answer
sheets with him. The matter was then reported to UPSC Head
Office at New Delhi. A preliminary inquiry was instituted and on
being prima facie satisfied about the allegations levelled, the
· E 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 ofthe Indian Penal Code, 1860
('IPC' for short). A charge-sheet was filed in the Court of Special
Magistrate, Central Bureau of Investigation ('CBI' for short),
F Indore.
y
4. The appellant r~i~d a preliminary objection contending
that the alleged offences'h~d been committed at Bhopal in the
State of Madhya Pradesh and CBI had no power, authority or
jurisdiction to institute <;:rimina! proceedings. It was also
G contended that before initiating· proceedings under the Delhi ~
•
Special Police Establishment Act, 1-946. (hereinafter referred to '
as 'the Delhi Act'), consent of the State Government is required.
No such consent had been given by .the State of Madhya
Pradesh and the proceedih-gs initiated against the appellant by
H CBI were withoutjurtsdiction.
i M. BALAKRISHNA REDDY v. DIRECTOR, CBI, 1161
NEW DELHI [C.K. THAKKER, J.]

~
5. The learned Magistrate, by an order dated December A
17, 2002 rejected the preliminary objection. Being aggrieved
by the said order, the appellant preferred Revision under
Section 397 of the Code of Criminal Procedure, 1973 in the
High Court of Madhya Pradesh (Indore Bench), and as stated
above, the High Court dismissed the Revision Petition. The said 6
order is challenged by the appellant by filing the present appeal.
~ 6. On March 8, 2007, notice was issued by this Court. On
.... August 6, 2007, the Registry was directed to place the matter
for final hearing. That is how the matter has been placed before
us. c
7. We have heard learned counsel for the parties.
8. The learned counsel for the appellant raised several
contentions. It was submitted that the High Court was wrong in
holding that the proceedings against the appellant could have. D
been initiated by CBI. It was contended that the direction issued
by the High Court was ex facie erroneous. 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. It was also submitted E
that before invoking the provisions of the Delhi Act, consent of
the .State Government is mandatory and a condition precedent
for the exercise of power. The provision as. to consent of the
State Government must be complied with in letter and spirit and
t such consent should be in proper form as required by law. Since F
' y the consent required under the Act is of the 'Stete Government',
_... the prerequisites of Article 166 of the Cons~itution must be
observed. If the procedure laid down in the said Article is not
followed; the so called consent has no meaning. Such consent
cannot be said to be legal, valid and in consonance with law
G
and CBI does not' get jurisdiction in the matter. It was also
submitted that the High Court was wholly wrong in upholding
the contention of CBI that it could have initiated prosecution since
the alleged offence had been committed in conduct of UPSC
Examination which had been conducted by its Delhi office which
H
1162 SUPREME COURT REPORTS [2008] 4 S.C.R. • "

A is the Head Quarter of UPSC and, hence, the Delhi Act was
applicable. The High Court was again wrong in holding that since
)_
...
the appellant was selected in Indian Forest Services "'
{-
Examination conducted by UPSC and he was in Indian Forest
Services since 1993 and was an officer of Central Government,
B the Delhi Act would apply for cognizance of offences committed
by him as a Central Government employee and CBI had power ;~

to prosecute him. The High Court, according to the learned
~
counsel, was not right in holding that the letter dated February ,
""'~
5, 1957 by the Deputy Secretary to the Government of Madhya
c Pradesh to the Secretary to the Government of India, Ministry of
Home Affairs could be termed and treated as 'consent' within
the meaning of Section 6 of the Delhi Act. It was, therefore,
submitted that the appeal deserves to be allowed by setting
aside the orders passed by the Courts below and by quashing
the proceedings initiated by CBI
... against the appellant.
D
9. The learned counsel for the respondents, on the other .,....
)
hand, supported the· order passed by the trial Court and
confirmed by the Revisional Court. It was submitted that the High
Court had considered the order dated February 5, 1957 in its
E proper perspective and held that the State of Madhya Pradesh
had given consent as required by law (Section 6 of the Delhi
Act) and prosecution by CBI against the appellant under the
Delhi Act cannot be said to be without jurisdiction.
10. We have given anxious consideration to the rival ~
F submissions of the learned counsel of both. the sides. We have
also examined the relevant provisions of the Delhi Act, Article
'(
,,,,
~
166 of the Constitution and case law cited by both the' parties
and we are of the view that by rejecting the preliminary objection
raised by the appellant, the Courts below have not committed
G any illega.lity or error of law and the appeal deserves to be
dismissed.
11. At the outset, we must frankly admit that the two factors
weighed with the High Court, namely, (i) the Head Office of the ;...
UPSC is located at New Delhi; and (ii) the appellant is an
H ..,t
_.
• M. BALAKRISHNA REDDY v. DIRECTOR, CBI,
NEW DELHI [C.K. THAKKER, J.]

employee of Central Government and on those grounds, the
1163

A
,J
Delhi Act would be applicable have not impressed us. The said
grounds, in our opinion, do not confer jurisdiction on CBI to invoke
the Delhi Act. The main ground, therefore, which remains to be
considered is whether 'consent' as envisaged by Section 6 of
the Delhi Act has been given by the State Government of Madhya B
Pradesh to the Central Government so as to enable the latter to
invoke the provisions of the Delhi Act. For the said purpose, it
is necessary to bear in mind the relevant provisions of the Delhi
Act.
12. As the Preamble of the Act states, it is an Act to make c
provision for the constitution of a Special Police Force in Delhi
for the investigation of certain offences in the Union Territories
and for the extension to other areas of the powers and jurisdiction
of the members of the said force in regard to the investigation
of the said offences. Section 1 declares that the Act extends to D
~ the whole of India. Section 2 provides for constitution and powers
~
f
of Special Pol!ce Establishment. Section 3 enables the Central
Government to investigate offences by Special Police
Establishment. It reads thus:
3. Offences to be investigated by Special Police E
Establishment:- The Central Government may, by
notification in the official gazette, specify the offences or
classes of offences which are to be investigated by the
Delhi Special Police Establishment.
F
)' 13. Section 4 covers superintendence and administration
of Special Police Establishment. Section 5 empowers the
Central Government to extend the powers and jurisdiction of
Special Police Establishment to States. The said section is also
relevant and may be reproduced;
G
5. Extgnsion of powers and jurisdiction of Special
Police Establishment to other areas:-
(1) The Central Government may by order extend to any
area including railway areas in a State not being a Union
H
A
1164 SUPREME COURT REPORTS [2008] 4 S.C.R.

Territory, the powers and jurisdiction of members of the
• t-

...
Delhi Special Police Establishment for the investigation
of any offences or classes of offences specified in a
notification under Section 3.
(2) When by order under sub-section (1) the powers and
B jurisdiction of members of the said Police establishment
are extended to any such area, a member thereof may, i-
subject to any order which the Central Government may ~

make in this behalf, discharge the functions of a police ·""
officer in the area and shall, while so discharging such
c functions, be deemed to be a member of the police force
of thatarea and be vested with the powers, functions and
privileges and be subject to the liabilities of a police officer
belonging to that police force
(3) Where any such order under sub-section (1) is made
D
in relation to any area, then, without prejudice to the
provisions of sub-section (2), any member of the Delhi ~·
!f
Special Police Establishment of or above the rank of Sub-
Inspector may, subject to any orders which the Central
Government may make in this behalf, exercise the powers
E
of the officer-in-charge ·of a police station in that area and
when so exercising such powers shall be deemed to be
. an officer-in-charge of a police station in that area and
when so exercising such powers shall be deemed to be

F
an officer in charge of a police station discharging the
functions ofsuch an officer within the limits of his station.
.·- '
f
14. Section 6 is very important which requires consent of i'

State Government for exercising powers and jurisdiction under
the Act by Special Police Establishment to any area in a State
not being Union Territory or Railway. The said section, therefore,
G
may be quoted in extenso;
6. Consent of the State Government to exercise
powers and jurisdiction:- Nothing contained in Sec. 5
shall be deemed to enable any member of the Delhi Special
H Police Establishment to exercise powers and jurisdiction
• M. BALAKRISHNA REDDY v. DIRECTOR, CBI,
NEW DELHI [C.K. THAKKER, J.]
1165

in any area in a State, not being a Union Territory or A
railway area without the consent of the Government of
that State.
15. Plain reading of the above provisions goes to show
that for exercise of jurisdiction by the CBI in a State (other than
Union Territory or Railway Area), consent of the State Government B
is necessary. In other words, before the provisions of the Delhi
Act are invoked to exercise power and jurisdiction by Special
.... Police Establishment in any State, the following conditions must
be fulfilled;
c
(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 D
i extending the powers and jurisdiction of Delhi
l Special Police Establishment to any State in respect
of the offences specified under Section 3 (Section
5); and
E
(iii) Consent of the State Government must be obtained
for the exercise of powers by Delhi Special Police
Establishment in the State (Section 6).
16. Now, so far as the first two conditions are concerned,
they have been complied with and the requisite material is on F
'f record of the case. A notification required to be issued by the
Central Government under Section 3 of the Delh_i Act specifying
offences under the Indian Penal Code (IPC) as also under
several other Acts has been issued on September 7, 1989 and
has been placed by the respondent on record along with the
G
affidavit-in-reply filed by M.C .. Sahni, Superintendent of Police,
CBI, Bhopal. The said notification covers interalia, the offences
punishable under Sections 417, 418, 420, 467, 468, 471, 474,
511, IPC. Likewise, the Central Govenrment passed an order
on February 18, 1963 as contemplated by Section 5 of the Delhi
H
1166 SUPREME COURT REPORTS [2008] 4 S.C.R. •
A Act extending the powers and jurisdiction of the members of )..

Special Police Establishment to various States including -the
State of Madhya Pradesh for the investigation of offences ·r
specified in the Schedule annexed to the said schedule. The
Schedule specifies various offences under IPC including the
B offences referred to hereinabove, offences under the Prevention
of Corruption Act and various other enactments. Thus, Section
3 and 5 of the Delhi Act have been complied with. .j

17. The question, therefore, which has to be considered
is whether the consent contemplated by Section 6 of the Delhi
"'
c Act has been given by the State Government. According to the
appellant, no such consent has been given by the State of
Madhya Pradesh: The counter argument on behalf of the
respondent is that such consent has been given by the State
~.
Government which is reflected in the order dated February 5,
D 1957.
~· •
18. A copy of the letter addressed by the Deputy Secretary ~·
'
to the Government of Madhya Pradesh to the Secretary, Ministry
of Home Affairs, Government of India, New Delhi has been
placed on record by the appellant, which reads thus;
E
'To
The Secretary,
Ministry of Home Affairs,
Govt. of India,
F New Delhi.
(

Bhopal, dated 5th February, 1957
Sub: Consent of the State Government to the functioning
of the Special Police Establishment in the State.
G Sir,
In continuation of this d~partment letter No. 20/12(11)/Home
Police dated the 29th December, 1956 on the above
subject, I am directed to state that this State Government
have no objection to the members of the Delhi State Police
H
I M. BALAKRISHNA REDDY v. DIRECTOR, CBI, 1167
NEW DELHI [C.K. THAKKER, J.]

.... -{
Establishment exercising powers and jurisdiction within A
this state.
Yours faithfully,
Sd/-
P.N. MISHRA
B
DEPUTY SECRETARY TO THE GOVT."

19. The learned counsel for the appellant contended that
the above letter which purportedly records the consent of the
State Government to the exercise of powers and jurisdiction of
the Delhi State Police Establishment to the State of Madhya c
Pradesh is merely a letter and does not meet with the
requirements of Section 6 of the Delhi Act. The so called
'consent' reflected in the letter, hence, cannot be said to be
'consent' accorded by the State Government under the statute.
In other words, the contention is that the letter is in the nature of D
'inter-Departmental communication' by the Deputy Secretary to
the State of Madhya Pradesh to the Secretary to Central
Government and cannot be regarded as consent under Section
6 of the Act.
20. In the counter-affidavit filed by the Superintendent of E
Police, CBI, Bhopal, the deponent has stated that the consent
as required by Section 6 of the Delhi Act had been given by the
State of Madhya Pradesh to the Central Government. It was also
stated that the copy of the order, dated February 5, 1957
annexed to the Special Leave Petition by the petitioner F
i
(appellant herein) was not full and complete and did not contain
---/. file/reference number, name of the department and the authority
from whom it was issued. The order, however, contains all such
information. The deponent has annexed the order as one of the
annexures (Annexure IV) to his reply and the same reads thus; G
"SECRET TRUE COPY
NO. G97/ll-Home/Police
Government of Madhya Pradesh
Home (Police) Department H
1168 SUPREME COURT REPORTS [2008] 4 S.C.R. •
A From,
Shri RN. Mishra, IAS
Deputy Secretary to Govt.'
To,
The Secretary to the Govt. of India,
B Ministry of Home Affairs,
NEW DELHI.
Bhopal, dated 5th February, 1957

Subject: Consent of the State Government to the functioning
c of the Special Police Establishment in the State.
Sir,
In continuation of this department letter No. 20/12(11)/Home
Police, dated the 29th December, 1956 on the above
D subject, I am directed to state that this State
Government have no objection to the members of
the Delhi Special Police Establishment exercising
powers and jurisdiction within this State.
Yours faithfully,
E Sd/-
R.N. MISHRA
Deputy Secretary to the Gov~.

ATTESTED
F
(T.C. RAMANUJACHARI)
DEPUTY SECRETARY TO THE ;
I
GOVERNMENT OF INDIA"
(emphasis supplied)
G 21. The learned counsel for the appellant then submitted
that all executive actions of the Government of a State must be
taken in accordance with and as per the procedure laid down in
· Article 166 of the Constitution. Article 166 of the Constitution on
which strong reliance has been placed by the appellant reads
H thus;
• M. BALAKRISHNA REDDY v. DIRECTOR, CB_I,
NEW DELHI [C.K. THAKKER, J.]
1169

166. Conduct of business of the Government of a A
State.-
(1) All executive action of the Government of a State shall
be expressed to be taken in the name of the Governor.
(2) Orders and other instruments· made and executed in B
the name of the Governor shall be authenticated in such
manner as may be specified in rules to be made by the
Governor, and the validity of an order on instruction which
is so authenticated shall not be called in question on the
ground that it is not an order or instrument made or c
executed by the Governor.
(3) The Governor shall make rules for the more convenient
transaction of the business of the Government of the State,
and for the allocation among Ministers of the said business
· in so far as it is not business with respect to which the D
Governor is by or under this Constitution required to act jn
his discretion.
22. Bare reading of Clause (1) of Article 166 of the
Constitution makes it clear that all executive actions of the
Government of a State should be expressed to be taken in the E
name of the Governor. Clause (2) provides for the authentication
of the orders and other instructions made and executed in the
name of the Governor. Clause (3) enables the Governor to make
rules for the more convenient transaction of the Government of
the State and for the allocation of business among the Ministers, F
usually known as 'Rules of Business' or 'Business Rules'.
23. The learned counsel for the appellant contended that
Article 166 of the Constitution deals with 'Conduct of
Government Business' and mandates that such business should G
be performed in the manner laid down in Article 166. To put it
differently, according to the learned counsel, the provisions of
Article 166 are mandatory and before any action is taken, they
are required to be strictly complied with. If the procedure
prescribed by Article 166 is not followed, the business cannot H
1170 SUPREME COURT REPORTS [2008] 4 S.C.R.
''
A be said to be a 'business of the Government of the State' and
has no effect whatsoever.
24. The learned counsel for the respondents, on the other
hand, submitted that the provisions of Article 166 are directory
and even if there is no strict compliance, the action cannot be
8 held illegal or invalid and the same can be upheld provided there
is 'substantial' compliance. '
25. Now, let us see how the provision (Article 166 of the
Constitution) has been interpreted by this Court.
C 26. Article 166 came up for interpretation before this Court
immediately after the Constitution came into force and continued
to come up for consideration from time to time. Let us examine
few leading cases wherein this Court had an occasion to deal
with the said provision.
D
. 27. In Ujgar Singh & Anr. V State of Punjab, 1952 SCR
756, an order of detention was made against the petitioner under
the Preventive Detention Act, 1950. The detenu challenged it in
this Court by invoking Article 32 of the Constitution. One of the
contentions raised on his behalf was that the grounds of
E detention did not purport to state that the authority making the
order was the Governor of the State.
28. The Constitution Bench of this Court, however,
negatived the contention. Interpreting Article 166 of the
F Constitution, Chandrasekhara Aiyar, J. stated;
"Under section 3 of the Preventive Detention Act, the
authority to make the order is the State Government.
Section 166 ( 1) of the Constitution provides that all
executive action of the Government of a State shall be
G expressed to be taken in the name of the Governor. The
orders of detention expressly state that the Governor
of Punjab was satisfied of their necessity and that
they were made by his order. The orders are signed
no doubt by the Home Secretary, but this is no defect.
H The communication of the grounds need not be made
,, M. BALAKRISHNA REDDY v. DIRECTOR, CBI, 1171
NEW DELHI [C.K. THAKKER, J.]

directly by the authority making the order. Section 7 A
does not require this. The communication may be through
recognized channels prescribed by the administrative rules
of business".
(emphasis supplied)
B
29. In Dattatreya Moreshwar Pangarkar V State of
Bombay & Ors., 1952 SCR 612, the petitioner was detained
by an order passed by the District Magistrate, Surat in exercise
of powers conferred on him by the Preventive Detention Act,
1950. The petitioner moved this Court by filing a writ petition c
under Article 32 of the Constitution challenging the order of
detention. One of the contentions raised by the petitioner in this
Court was that the order of confirmation of detention by the State
Government was not in proper form inasmuch as it was not made
in the name of Governor as required by Clause (1) of Article D
166 of the Constitution.
30. The order passed by the Government read as under:
.
"Confidential letter
No. B. D. 11/1042-D (11) Home Department (Political) E
Bombay Castle, 28th April, 1951.
To
The District Magistrate,
Surat.
F
i Subject :- Preventive Detention Act, 1950 - Review of
detention orders issued under the -
Reference your letter No. Pol. 1187/P, dated the 23rd
February, 1951, on the subject noted above. ·
G
2. In accordance with section 9 of the Preventive Detention ·
Act, 1950, the case of detenu Shri Dattatreya Moreshwar
Pangarkar was placed before the Advisory Board which
has reported that there is sufficient cause for his detention:
Government is accordingly pleased to confirm the · H
1172 SUPREME COURT REPORTS [2008] 4 S.C.R. •>
A 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/-
B G. K. Kharkar,
for Secretary to the
Government of Bombay,
Home Department".
(emphasis supplied)
c
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
D
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
E 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.
F
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;
G
"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
H are imperative. When the provisions of statute relate to
M. BALAKRISHNA REDDY v. DIRECTOR, CBI, 1173
NEW DELHI [C.K. THAKKER, J.]

the performance of a public duty and the case is such that A
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 B
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; c
"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 D
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 E
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. F
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 G
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) H
1174 SUPREME COURT REPORTS [2008] 4 S.C.R.
,_
A 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
B 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,
c 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
D 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
E 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
F 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
G 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
H detached from the provision of clause (2). While clause
• M. BALAKRISHNA REDDY v. DIRECTOR, CBI,
NEW DELHI [C.K. THAKKER, J.]
1175

(1) relates to the mode of expression of an executive order A
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". B
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' C
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 D
or of the Constitution would be worthwhile, but the Court must
look into the 'substance' of Article 166 and not the 'form' of order.
36. The Court stated:
"The short answer in this case is that the order under E
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 F
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 G
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) H
1176 SUPREME COURT REPORTS [2008] 4 S.C.R.

A 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
B 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
C 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
E 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;
F
"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
G
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)
• M. BALAKRISHNA REDDY v. DIRECTOR, CBI,
NEW DELHI [C.K. THAKKER, J.]
1177

.. 40. In Swadeshi Cotton Mills Co. Ltd. v. State Industrial A
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: B
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. c
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 of the Government of Bombay addressed D
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
Establishment Act, 1946, the consent given for an indefinite E
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".
F
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
G
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
H
1178 SUPREME COURT REPORTS [2008] 4 S.C.R. •
A 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
c 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)
E
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
F 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
G 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
H is so authenticated shall not be C(illed in question on the
M. BALAKRISHNA REDDY v. DIRECTOR, CBI, 1179
NEW DELHI [C.K. THAKKER, J.)

ground that it is not an order or instrument made or A
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.
B
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 non-
compliance with Clause (1) of Article 77 inasmuch as the c
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 D
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 : E
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 F
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 G
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
of the Government of India is couched in terms similar H
1180 SUPREME COURT REPORTS [2008] 4 S.C.R. •
A 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.,
B (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
c 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;
D
"Sir,
Sub : Award of marks for the "interview" of the candidates
seeking admission to Engineering Colleges and Technical
Institutions.
E 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 ....... .

F Yours faithfully,
Sd/- S. NARASAPPA,
Under Secretary to Government,
Education Department."
(emphasis supplied)
G
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
H effect mentioned therein was issued by the Government and
• M. BALAKRISHNA REDDY v. DIRECTOR, CBI,
NEW DELHI [C.K. THAKKER, J.]
1181

there was substantial compliance with the provisions of Article A
166 of the Constitution.
51. In State of Uttar 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 B
... 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 c
& 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 D
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 F
1
when the Government in his individual discretion exercises
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
G
is duly authenticated as per Article 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
H
1182 SUPREME COURT REPORTS [2008] 4 S.C.R. •
A 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
B 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
c 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".
D 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;
E
"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).
F 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
G
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
H
• M. BALAKRISHNA REDDY v. DIRECTOR, CBI,
NEW DELHI [C.K. THAKKER, J.]
1183

to the mode of expression, clause (2) lays down the ways A
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 c
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 D
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 E
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 F
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 G
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) H
A
1184 SUPREME COURT REPORTS [2008] 4 S.C.R.

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
B 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
c 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.
E 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
F 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
G 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
H name of Governor. The case of the appellant himself was that
M. BALAKRISHNA REDDY v. DIRECTOR, CBI, 1185
NEW DELHI [C.K. THAKKER, J.]

the 'order' was 'orally' communicated to him by the Revenue A
-! 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. B

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; c
"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, D
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) of Art. 166 provides E
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 F
'(
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
G
i.e., of the Governor. In this connection we may refer tor.
25 of the Rules of Business of the Government of PEP SU
which reads thus :

"Except as otherwise provided by any other Rule,
cases shall ordinarily be disposed of by or under the H
1186 SUPREME COURT REPORTS [2008] 4 S.C.R.

A 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."
B 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
c 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
D 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;
E
"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.
F 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
G
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".

H (emphasis supplied)
M. BALAKRISHNA REDDY v. DIRECTOR, CBI, 1187
NEW DELHI [C.K. THAKKER, J.]

63. The Court concluded; A
"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
by the Rajpramukh of PEP SU provide, that the action must 8
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 C
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 D
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 E
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 F
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 G
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 H
1188 SUPREME COURT REPORTS [2008] 4 S.C.R.

A 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
B 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
C 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".
D
(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
E 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
F 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.
G
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.
H This Court, however, did not uphold the argument (:!nd
• M. BALAKRISHNA REDDY v. DIRECTOR, CBI,
NEW DELHI [C.K. THAKKER, J.]
1189

distinguished it on facts. For instance, in Chitralekha, the A
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 B
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 C
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 D
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 E
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 not1meet with the requirements of Article 166 of- F
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 G
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
H
1190 SUPREME COURT REPORTS [2008) 4 S.C.R. •
A 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
B 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.
c
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
D 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
E 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
F 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
G 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
H of each case whether the consent required by Section 6 of the
• M. BALAKRISHNA REDDY v. DIRECTOR, CBI,
NEW DELHI [C.K. THAKKER, J.)
1191

Delhi Act has or has not been given by the State Government A
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. B
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. c
N.J. Appeal dismissed.