SPECIAL POLICE ESTABLISHMENTversusKAMTA PRASAD MISHRA AND OTHERS

                  [2026] 7 S.C.R. 113 : 2026 INSC 644

                    Special Police Establishment
                                  v.
                   Kamta Prasad Mishra and Others
                     (Criminal Appeal No. 3743 of 2024)
                                 15 June 2026
           [J.K. Maheshwari and Atul S. Chandurkar,* JJ.]


                            Issue for Consideration
       Issue arose whether the Special Police Establishment-SPE
       as constituted u/s.2(1) of the Madhya Pradesh Special Police
       Establishment Act, 1947 for investigating offences specified by the
       State Government u/s.3 of the Act of 1947 entitled to exemption
       from the application of the Act of 2005 by virtue of s.24(4) thereof,
       on the ground that it is an ‘intelligence and security’ organisation;
       and whether the Notification dated 25.08.2011 provides for a matter
       beyond the parent legislation or whether it is intra vires s.24(4)
       of the Act of 2005.

                                   Headnotes†
       Right to Information Act, 2005 – ss.8(1)(h), 24(4) – Exemption
       from disclosure of information – First respondent-Town
       Inspector implicated by the Special Police Establishment in
       a trap case – Registration of FIR – Sanction granted for his
       prosecution by the State Government – First respondent sought
       information under the 2005 Act, with regard to the decision
       making process in the grant of sanction, however, the request
       was rejected – State Information Commission rejected the
       appeal filed by the first respondent since he was not entitled to
       be supplied the said information in view of s.8(1)(h) – However,
       the High Court found that the investigation in the criminal
       proceedings was complete and thus, the first respondent could
       not be denied such information by relying upon s.8(1)(h), and
       directed the appellant-SPE to supply the information sought
       by the first respondent as per his application – Interference:
       Held: Absence of a prayer seeking declaration of invalidity of a piece
       of subordinate legislation by itself would not deter the Court from
       testing its validity – Such issue can be examined but after granting
       opportunity to the concerned authority to justify its validity – This
* Author
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       Court can examine the validity of the Notification dated 25.08.2011,
       especially when the same had not been challenged by the first
       respondent in his writ petition before the High Court – Offences
       or classes of offences to be investigated by the SPE are limited
       to those punishable under the Act of 1988 and u/ss.409, 420 and
       Chapter XVIII of the Penal Code – Insofar as issues of ‘intelligence’
       and ‘security’ are concerned, neither the Lokayukt nor the
       Up-Lokayukt under the Act of 1981 has been conferred jurisdiction to
       make any enquiry – Though s.24(4) states that the Act would apply
       to such ‘intelligence and security organisations’ established by the
       State Government as notified, the SPE though established by the
       State Government, not empowered to investigate any offences or
       classes of offences related to ‘intelligence’ and ‘security’ – Statutory
       scheme under which the SPE stands constituted coupled with
       the jurisdiction conferred on the Lokayukt or Up-Lokayukt clearly
       indicate that the SPE cannot be termed to be an ‘intelligence
       and security’ organisation when it assists the Lokayukt or
       Up-Lokayukt in matters specified by s.7 of the Act of 1981 – Thus,
       the Notification dated 25.08.2011 issued by the GAD of the State
       of Madhya Pradesh to the extent it seeks to exclude the SPE from
       the purview of the Act of 2005 in view of s.24(4) thereof set aside
       as being bad in law as it provides for matters not enumerated s.7
       of the Act of 1947 – SPE having been conferred jurisdiction only
       to investigate offences punishable under the Act of 1988, ss.409,
       420 and Chapter XVIII of the Penal Code, it cannot be termed to
       be an ‘intelligence and security’ organisation for the purposes of
       s.24(4) of the Act of 2005 – Notification dated 28.05.2011 does
       not conform to s.24(4), thus, excessive in nature – Thus, while
       maintaining the judgment of the High Court, the Notification dated
       25.08.2011 seeking to exclude the SPE from the applicability of
       the provisions of the Act of 2005 struck down – Madhya Pradesh
       Special Police Establishment Act, 1947 – Prevention of Corruption
       Act, 1988. [Paras 20-22]

                                 Case Law Cited
       Bihar Rajya Dafadar Chaukidar Panchayat (Magadh Division) v.
       State of Bihar and Others SLP(C) No. 18983 of 2023 decided
       on 02.04.2025; University and Another v. All India Council for
       Technical Education and Others, 2001 INSC 454 : [2001] Supp.
       3 SCR 253; Union of India and Others v. Manjurani Routray and
       Others, 2023 INSC 787; Indian Express Newspapers (Bombay)
[2026] 7 S.C.R.                                                             115

   Special Police Establishment v. Kamta Prasad Mishra and Others


     Private Ltd. and Others Etc. v. Union of India and Others Etc.
     1984 INSC 231 : [1985] 2 SCR 287; State of Tamil Nadu and
     Another v. P. Krishnamurthy and Others 2006 INSC 177 : [2006]
     3 SCR 396; Dr.Nutan Thakur v. State of U.P., Through Principal
     Secretary, Department of Vigilance, Misc. Case No. 1748 of 2013
     decided on 02.11.2017 – referred to.

                                List of Acts
     Prevention of Corruption Act, 1988; Right to Information Act,
     2005; Madhya Pradesh Lokayukt Evam Up-Lokayukt Adhiniyam,
     1981; Constitution of India; Code of the Criminal Procedure, 1973;
     Madhya Pradesh Special Police Establishment Act, 1947; Foreign
     Exchange Regulations Act, 1947; Foreign Exchange Management
     Act, 1999; Central Reserve Police Force Act, 1949; Border Security
     Force Act, 1968; Central Industrial Security Force Act, 1968; Penal
     Code, 1860; Lokpal and Lokayuktas Act, 2013; U. P. Lokayukt and
     Up-Lokayukt Act, 1975.

                             List of Keywords
     Special Police Establishment-SPE; Investigating offences;
     Exemption from the application of RTI Act; Intelligence and security’
     organisation; Notification dated 25.08.2011; Exemption from
     disclosure of information; Town Inspector; Trap case; Sanction;
     Decision making process in the grant of sanction; State Information
     Commission.

                            Case Arising From
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
     3743 of 2024
     From the Judgment and Order dated 20.12.2021 of the High Court
     of M.P Principal Seat at Jabalpur in WP No. 1575 of 2021

                         Appearances for Parties
     Adv. for the Appellant(s):
     Nishant Ramakantrao Katneshwarkar.
     Advs. for the Respondent(s):
     Prashant Singh, Advocate General, Sridhar Potaraju, Ms. Manisha
     T. Karia, D.S. Parmar, A.A.Gs., Rajeev Singh, Naveen Kumar
     Singh, Harmeet Singh Ruprah, Abhimanyu Singh Ga, Karan Singh.
116                                                            [2026] 7 S.C.R.

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                        Judgment / Order of the Supreme Court

                                         Judgment

       Atul S. Chandurkar, J.

1.     The appellant is aggrieved by the direction to supply information
       to the first respondent as regards details of the process of grant of
       sanction for his prosecution under the Prevention of Corruption Act,
       19881 as well as the response of the Lokayukt to the queries made
       by him on various points.
       According to the appellant, by virtue of Notification dated 25.08.2011
       issued by the General Administration Department2 of the State
       of Madhya Pradesh in exercise of power under Section 24(4) of
       the Right to Information Act, 20053 and in view of Section 8(1)(h)
       thereof, it could not have been directed to supply such information.
       On the other hand, according to the first respondent, the information
       sought is liable to be provided as there is no legal impediment in
       doing so.

       Background facts
2.     Bereft of unnecessary details, the first respondent while serving as
       Town Inspector, Police Station Madhav Nagar, Katni came to be
       implicated by the Special Police Establishment, Bhopal, Madhya
       Pradesh under the Act of 1988 in a trap case. A First Information
       Report was registered on 11.04.2017. The Home Department of
       the State Government on 20.05.2020 granted sanction for his
       prosecution. The first respondent desired information with regard
       to the decision making process in the grant of sanction and thus
       moved an application dated 01.07.2020 under Section 6(1) of the Act
       of 2005. The request for supply of information having been turned
       down, the proceedings reached the State Information Commission4
       at the behest of the first respondent which, however, rejected the
       appeal filed by him on 16.12.2020. According to the Commission, the


1    For short, ‘the Act of 1988’
2    For short, ‘GAD’
3    For short, ‘the Act of 2005’
4    For short, ‘the Commission’
[2026] 7 S.C.R.                                                           117

     Special Police Establishment v. Kamta Prasad Mishra and Others


       first respondent was not entitled to be supplied the said information
       in view of Section 8(1)(h) of the Act of 2005. Being aggrieved, the
       first respondent approached the High Court of Madhya Pradesh5.
       The Division Bench after hearing the first respondent found that
       the investigation in the criminal proceedings was complete and
       therefore the first respondent could not be denied such information
       by relying upon Section 8(1)(h) of the Act of 2005. The appellant
       was, accordingly, directed to supply the information sought by the
       first respondent as per his application dated 01.07.2020. Being
       aggrieved by this direction, the present appeal has been preferred.

       Submissions of parties
3.     Mr. Nishant Katneshwarkar, learned counsel appearing for the
       appellant submitted that the High Court erred in directing the appellant
       to supply the information sought by the first respondent. According to
       him, in view of the provisions of Section 8(1)(h) of the Act of 2005,
       the appellant was exempted from disclosing the information sought
       by the first respondent inasmuch as that information was likely to
       impede the process of investigation of the criminal proceedings that
       had been initiated against him. He further submitted that pursuant to
       Section 24(4) of the Act of 2005, the GAD of the State Government
       had issued a Notification on 25.08.2011 by virtue of which the Act
       of 2005 was not made applicable to the Madhya Pradesh Special
       Police Establishment of Lokayukt Organisation6. The investigation
       against the first respondent having been carried out by the SPE,
       it was not permissible to supply the information sought by him as
       the provisions of the Act of 2005 were inapplicable. The High Court
       failed to notice the provisions of Section 8(1)(h) of the Act of 2005
       and directed supply of such information. Reference was made to
       the Notification dated 25.08.2011 before the High Court but it was
       not taken into consideration. On a plain reading of the same, it was
       clear that the provisions of the Act of 2005 were not applicable to
       the SPE. It was, therefore, submitted that the impugned judgment
       of the High Court was liable to be set aside and the order passed
       by the Commission ought to be restored.



5    For short, ‘the High Court’
6    For short, ‘SPE’
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4.     Mr. Naveeen Kumar Singh, learned counsel appearing for the first
       respondent supported the impugned order. According to him, the
       provisions of Section 8(1)(h) of the Act of 2005 were not at all attracted
       to the facts of the present case inasmuch as the investigation of
       the offence registered against the first respondent under the Act of
       1988 was completed and a charge-sheet had been filed. The object
       behind the provisions of Section 8(1)(h) of the Act of 2005 was that
       information that was likely to impede the process of investigation
       or apprehension or prosecution of offenders was not liable to be
       furnished. The first respondent had merely sought information as
       to the manner in which sanction was granted to his prosecution
       and the communications exchanged in that regard. Supply of such
       information was not likely to impede the process of investigation.
       The High Court was, therefore, justified in directing supply of the
       information sought by the first respondent on 01.07.2020. No case
       was, thus, made out to interfere with the judgment of the High Court.

       Issue re: applicability of Notification dated 25.08.2011
5.     On behalf of the appellant, the issue as regards applicability of the
       Notification dated 25.08.2011 was argued. Relying heavily upon the
       same, it was urged that in view of the said Notification, the impugned
       order could not have been passed. During the course of hearing, the
       question whether the SPE while assisting the Lokayukt in carrying
       out functions assigned to it under Section 3 of the Madhya Pradesh
       Lokayukt Evam Up-Lokayukt Adhiniyam, 19817 could be treated as
       an ‘intelligence and security’ organisation arose for consideration.
       Applicability of the said Notification to the SPE in the absence of it
       being an ‘intelligence and security’ organisation for the purposes of
       Section 24 (4) of the Act of 2005 was, prima facie, doubted. There
       was no appearance on behalf of the State of Madhya Pradesh
       on 14.05.2026. With a view to have the response of the State
       Government, the following order insofar as it is material for the
       present adjudication was therefore passed:
               “1. In the instant case order impugned dated 20.12.2021
               passed by the High Court of Madhya Pradesh, Principal
               Bench at Jabalpur in Writ Petition No. 1575 of 2021 is


7    For short, ‘the Act of 1981’
[2026] 7 S.C.R.                                                              119

   Special Police Establishment v. Kamta Prasad Mishra and Others


           under challenge whereby the High Court directed that the
           order dated 17.08.2020 issued by the Assistant Public
           Information Officer and order dated 16.12.2020 of the
           Chief Information Commissioner are liable to be quashed.
           It was further directed that the respondent shall supply
           information as sought by the appellant as per his request
           dated 01.07.2020 within 30 days and imposed a costs of
           Rs. 5,000/-.
           2. The said order has been assailed in this appeal on the
           pretext that as per Notification of the State Government
           dated 25.08.2011 exemption is granted to Madhya Pradesh
           Special Police Establishment of Lokayukta Organisation,
           however, without taking note of the said notification
           directions have been issued.
           3. During the course of hearing, the provisions of Section
           24(1) of the Right to Information Act, 2005, (in short, “the RTI
           Act), applies to the intelligence and security organisation of
           the Central Government specified in the Second Schedule.
           In the Second Schedule, certain organisations have been
           specified which are of the Central Government.
           4. Sub-section (4) of Section 24 of the RTI Act further
           specifies that the provisions of the Act shall not apply to
           such intelligence and security organisations established
           by the State Government if notified in the Official Gazette.
           Thus, for issuance of the notification of exemption under
           Section 24(4), it is incumbent to understand how Lokayukta
           established is an intelligence and security organisation;
           but nothing has been brought on record. In absence, the
           notification dated 25.08.2011 is contrary to the spirit of
           Section 24(1) read with Section 24(4) of the RTI Act. The
           counter affidavit filed by the State is silent on this point,
           however, response of the State Government, if any, may
           be filed, otherwise such notification do not have any
           sanction of law.”
                                     xxxxxxxx
           “8. The Advocate General of the State may clarify about
           paragraph 4 above and to appear for argument on the
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            next date, if he wish to appear virtually, he is at liberty
            to do so. In absence of clarification, appropriate orders
            may be passed.”
6.     On 20.05.2026, Ms. Manisha Karia, learned Senior Advocate as
       well as Mr. Prashant Singh, learned Advocate General for the State
       of Madhya Pradesh were heard. It was submitted by them that the
       Notification dated 25.08.2011 had not been challenged by the first
       respondent in the writ petition preferred by him before the High
       Court. There were no pleadings whatsoever raised in that regard.
       In absence of any such material pleadings, it was submitted that the
       validity of the said Notification may not be examined for the first time
       by this Court. Without prejudice to the aforesaid, it was submitted
       that the State Legislature was competent to enact the Act of 1981.
       Reference was made to the Seventh Schedule to the Constitution of
       India and Entries 1 and 2 of List II to justify the exercise of power in
       this regard. Referring to the object behind enacting the Act of 1981,
       it was submitted that the Lokayukt was a statutory investigative
       authority vested with plenary powers of enquiry and its jurisdiction
       extended to allegations of corruption, misconduct and malfeasance
       by a public servant. The SPE functioned as an investigative arm
       under the superintendence of the Lokayukt. It was in this backdrop
       that the power conferred by Section 24(4) of the Act of 2005 had
       been exercised and the Notification dated 25.08.2011 had been
       issued keeping in mind the principle of institutional parity. The object
       behind Section 24 of the Act of 2005 would be defeated if the State
       Government was compelled to furnish information which was sought
       to be exempted by virtue of that provision. Reference was made to
       Section 207 of the Code of the Criminal Procedure, 1973 to urge
       that at the initial stage of investigation, material collected by the
       investigating agency could not be sought by an accused.
       It was, therefore, submitted that the view taken by the Commission
       was correct and the High Court was not justified in directing supply of
       information sought by the first respondent. In view of the Notification
       dated 25.08.2011, the impugned order was liable to be set aside.

       Consideration
7.     We have heard the learned counsel for the parties at length. We
       have also given due consideration to the relevant material on
[2026] 7 S.C.R.                                                            121

     Special Police Establishment v. Kamta Prasad Mishra and Others


      record as well as material furnished by the learned counsel for the
      parties. The High Court while allowing the writ petition preferred by
      the first respondent held that the information sought by him could
      not be denied by relying upon Section 8(1)(h) of the Act of 2005.
      Before this Court, the Notification dated 25.08.2011 was relied
      upon to urge that the High Court could not have directed supply
      of such information. It is in that context that the applicability of the
      Notification dated 25.08.2011 was debated. Besides its inapplicability,
      the question whether the SPE was an ‘intelligence and security’
      organisation for the purposes of Section 24(4) of the Act of 2005
      arose for consideration. It is true that the said Notification was not
      specifically challenged in the writ petition before the High Court. It
      is also a fact that the appellant had not specifically supported the
      order passed by the Commission by relying upon the same. The
      Notification was placed before this Court in the present proceedings
      and the impugned order was sought to be assailed by relying upon
      the Notification dated 25.08.2011. It was at this stage that the issue
      as regards applicability of the Notification dated 25.08.2011 arose. It
      would, therefore, be necessary to consider whether this Court should
      examine the validity of the Notification dated 25.08.2011, especially
      when the same had not been challenged by the first respondent in
      his writ petition before the High Court.

      Exercise of suo motu jurisdiction
8.    The exercise of suo motu jurisdiction by the Court in examining the
      validity of a subordinate piece of legislation has been the subject
      matter of consideration in various decisions. Recently, in Bihar Rajya
      Dafadar Chaukidar Panchayat (Magadh Division) Vs. State of
      Bihar and others8, it was observed in paragraph 33 as under:
             “33. …While not suggesting for a moment that the course
             of action which the Division Bench adopted in this case
             can routinely be adopted, we see no reason as to why
             the power to suo motu declare a subordinate legislation
             invalid, on the ground of its being manifestly contrary to a
             Fundamental Right read with binding precedents in terms
             of Article 141, should not be conceded to be within the vast


8    SLP(C) No.18983 of 2023 decided on 02.04.2025
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             reserve of powers of the Constitutional Courts. Though
             exercise of powers, suo motu, in an appropriate case in
             exercise of jurisdiction under Article 226 of the Constitution
             cannot be doubted, it is indubitable that such power has
             to be exercised sparingly and with due care, caution and
             circumspection. We are minded and do hold that, a writ
             court, when its finds its conscience to be pricked in a rare
             and very exceptional case by the patent unconstitutionality
             of a subordinate legislation connected with the issue it is
             seized of, may, upon grant of full opportunity to the State
             to defend the subordinate legislation and after hearing it,
             grant a declaration as to unconstitutionality and/or invalidity
             of such legislation. After all, as the sentinel on the qui vive,
             it is not only the duty of the writ courts in the country to
             enforce Fundamental Rights of individuals, who approach
             them, but it is equally the duty of the writ courts to guard
             against breach of Fundamental Rights of others by the three
             organs of the State. This power is a plenary power resident
             in all the Constitutional Courts. Should, in a given case, it
             be found that there has been an egregious violation of a
             Fundamental Right as a result of operation of a subordinate
             legislation and the issue I concluded by a binding decision
             of this Court, we consider it the duty of the writ courts to
             deliver justice by declaring the subordinate legislation void
             to safeguard rights of others who might not still have been
             affected thereby. We reiterate, it can only be done rarely
             and in cases which stand out from the ordinary.”
9.     Absence of a prayer seeking declaration of invalidity of a piece of
       subordinate legislation by itself would not deter the Court from testing
       its validity. Such issue can be examined but after granting opportunity
       to the concerned authority to justify its validity. We may in this regard
       refer to the decision in Bharathidasan University and another Vs.
       All India Council for Technical Education and others9. The issue
       related to examining the validity of a regulation duly framed. It was
       found that the regulation provided for a matter that was beyond its
       authority. In that context, the following observations are material for
       the present purpose:


9    2001 INSC 454
[2026] 7 S.C.R.                                                            123

   Special Police Establishment v. Kamta Prasad Mishra and Others


           “The AICTE cannot, in our view, make any regulation
           in exercise of its powers under Section 23 of the Act,
           notwithstanding sub-section (1), which though no doubt
           enables such regulations being made generally to carry out
           the purposes of the Act, when such power is circumscribed
           by the specific limitation engrafted therein to ensure them to
           be “not inconsistent with the provisions of the Act and the
           rules…..” So far as the question of granting approval, leave
           alone prior or post, Section 10(1)(k) specifically confines
           the limits of such power of AICTE only to be exercised
           vis-a-vis technical institutions, as defined in the Act and
           not generally. When the language is specific, unambiguous
           and positive, the same cannot be over-looked to give
           an expansive meaning under the pretext of a purposive
           construction to perpetuate an ideological object and aim,
           which also, having regard to the Statement of Objects
           and Reasons for the AICTE Act, are not warranted or
           justified. Therefore, the regulation insofar as it compels the
           universities to seek for and obtain prior approval and not
           to start any new department or course or programme in
           technical education (Regulation 4) and empower itself to
           withdraw such approval, in a given case of contravention
           of the regulations (Regulation 12) are directly opposed to
           and inconsistent with the provisions of Section 10(1)(k) of
           the Act and consequently void and unenforceable.
           The fact that the regulations may have the force of law or
           when made have to be laid down before the legislature
           concerned do not confer any more sanctity or immunity
           as though they are statutory provisions themselves.
           Consequently, when the power to make regulations are
           confined to certain limits and made to flow in a well defined
           canal within stipulated banks, those actually made or
           shown and found to be not made within its confines but
           outside them, the courts are bound to ignore them when
           the question of their enforcement arise and the mere fact
           that there was no specific relief sought for to strike down
           or declare them ultra vires, particularly when the party in
           sufferance is a respondent to the lis or proceedings cannot
           confer any further sanctity or authority and validity which
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             it is shown and found to obviously and patently lack. It
             would, therefore, be a myth to state that regulations made
             under Section 23 of the Act have “Constitutional” and legal
             status, even unmindful of the fact that anyone or more of
             them are found to be not consistent with specific provisions
             of the Act itself. Thus, the regulations in question, which
             the AICTE could not have made so as to bind universities/
             UGC within the confines of the powers conferred upon it,
             cannot be enforced against or bind an University in the
             matter of any necessity to seek prior approval to commence
             a new department or course and programme in technical
             education in any university or any of its departments and
             constituent institutions.”
                                             (emphasis supplied by us)

10. We are conscious of the fact that in Union of India and others vs.
    Manjurani Routray and others10, this Court has held that before
    any provision of law is struck down or any Rule is declared as ultra
    vires, specific pleadings raising a challenge and seeking of such relief
    is necessary. Therein, an original application was filed by a private
    respondent raising a challenge to the order of promotion issued to
    her juniors. The Central Administrative Tribunal directed the employer
    to indicate the reasons for non-promotion of the private respondent
    by assigning reasons in that regard. This order was challenged
    by the said respondent before the High Court. While deciding the
    writ petition, the High Court examined the vires of Rule 4(b) of the
    Ministry of Information Technology (in-situ Promotion under Flexible
    Complementing Scheme) Rules, 1998 and held the same to be
    invalid in law. The Union of India challenged the judgment urging
    that in absence of any specific challenge being raised by the private
    respondent to the vires of Rule 4(b), the High Court could not have
    entertained such challenge. In that context, this Court held that in
    absence of specific pleadings being raised for challenging the vires of
    Rule 4 (b), there would be no opportunity to the other side to justify
    the validity of such Rule. It was held that the High Court was not
    justified in declaring Rule 4(b) of the Ministry of Information Technology
    (in-situ Promotion under Flexible Complementing Scheme) Rules,


10   2023 INSC 787
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     Special Police Establishment v. Kamta Prasad Mishra and Others


       1998 as ultra vires. One of us (J. K. Maheshwari, J) was a party to
       the aforesaid decision.
       In the present case, it is true that there is no specific challenge
       raised by the first respondent to the Notification dated 25.08.2011.
       However, while assailing the order passed by the High Court, the
       Notification dated 25.08.2011 has been relied upon by the appellant
       to urge that the information sought by the first respondent could not
       be supplied to him as the SPE was an ‘intelligence and security’
       organisation that was excluded from the applicability of the Act of
       2005. The issue of applicability as well as validity of the Notification
       dated 25.08.2011 having arisen, due opportunity was granted to
       the State Government to justify the same. Time was granted to
       the learned Advocate General to place on record the stand of the
       State Government and also to substantiate the contention that the
       Notification dated 25.08.2011 was in consonance with Section 24(4)
       of the Act of 2005. The opportunity so granted was utilised and
       the State Government through Ms. Manisha Karia, learned Senior
       Advocate as well as Mr. Prashant Singh, learned Advocate General
       for the State of Madhya Pradesh were heard extensively. The State
       was also permitted to place on record its written submissions in that
       regard. The same have been accordingly filed.
       It is, thus, evident that sufficient opportunity was granted to the State
       Government to make its stand clear with regard to the Notification
       dated 25.08.2011 and also to justify its validity in the context of
       Section 24(4) of the Act of 2005.
11. In the present case, we are concerned with the aspect as to whether
    the SPE as constituted under Section 2(1) of the Madhya Pradesh
    Special Police Establishment Act, 194711 for investigating offences
    specified by the State Government under Section 3 of the Act of
    1947 is entitled to exemption from the application of the Act of 2005
    by virtue of Section 24(4) thereof. What requires examination is
    whether the SPE is an ‘intelligence and security’ organisation, given
    the nature of offences it can investigate. To put it differently, whether
    the SPE can seek exemption from the application of the Act of 2005
    on the ground that it is an ‘intelligence and security’ organisation. A
    pure question of interpretation of the relevant provisions of the Act


11   For short, ‘the Act of 1947’
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       of 1947 and the Act of 1981 in the context of Section 24 of the Act
       of 2005 arises. The issue whether the Notification dated 25.08.2011
       provides for a matter beyond the parent legislation or whether it is
       intra vires Section 24(4) of the Act of 2005 has to be examined. In
       absence of any factual adjudication being required to be undertaken
       and a pure question of interpretation having arisen, we are inclined
       to examine this legal question though it was not specifically raised
       before the High Court.

       Grounds for challenging subordinate legislation
12. It is by now well settled that a piece of subordinate legislation does
    not carry the same degree of immunity that is enjoyed by a statute
    passed by a competent legislature. Besides the grounds on which
    plenary legislation can be challenged, subordinate legislation can also
    be challenged on the ground that it fails to conform to the statute
    under which it is made or it exceeds the limits of authority conferred
    by the enabling statute. In Indian Express Newspapers (Bombay)
    Private Ltd. and others etc. Vs. Union of India and others etc.12,
    a three Judge Bench of this Court observed as under:
             “A piece of subordinate legislation does not carry the same
             degree of immunity which is enjoyed by a statute passed
             by a competent legislature. Subordinate legislation may
             be questioned on any of the grounds on which plenary
             legislation is questioned. In addition it may also be
             questioned on the ground that it does not conform to the
             statute under which it is made. It may further be questioned
             on the ground that it is contrary to some other statute.”
       This view has been consistently followed. In State of Tamil Nadu and
       another Vs. P. Krishnamurthy and others13, it was held as under:
             “There is a presumption in favour of constitutionality or
             validity of a subordinate legislation and the burden is upon
             him who attacks it to show that it is invalid. It is also well
             recognized that a subordinate legislation can be challenged
             under any of the following grounds:



12   1984 INSC 231
13   2006 INSC 177
[2026] 7 S.C.R.                                                            127

   Special Police Establishment v. Kamta Prasad Mishra and Others


           (a)   Lack of legislative competence to make the
                 subordinate legislation.
           (b)   Violation of fundamental rights guaranteed under the
                 Constitution of India.
           (c)   Violation of any provision of the Constitution of India.
           (d)   Failure to conform to the statute under which it is
                 made or exceeding the limits of authority conferred
                 by the enabling Act.
           (e)   Repugnancy to the laws of the land, that is, any
                 enactment.
           (f)   Manifest arbitrariness/unreasonableness (to an extent
                 where the court might well say that the legislature
                 never intended to give authority to make such rules).”

     Statutory scheme
13. For considering the aforesaid question, it would be necessary to refer
    to some relevant provisions of the Act of 2005. Section 3 recognises
    the right of all citizens to information. A request for obtaining
    ‘information’ as defined by Section 2(f) is required to be made under
    Section 6 of the Act of 2005. While such request has to be considered
    and disposed in accordance with Section 7, Section 8(1) exempts
    disclosure of information in certain contingencies. Section 8(1)(h)
    reads thus:
           “8. Exemption from disclosure of information.-
           (1) Notwithstanding anything contained in this Act, there
           shall be no obligation to give any citizen,-
           (h) information which would impede the process of
           investigation or apprehension or prosecution of offenders;”
     Since the appellant has relied upon the provisions of Section 24
     and especially Section 24(4) of the Act of 2005, the said provision
     is reproduced hereunder:
           “24. Act not to apply in certain organizations-(1) Nothing
           contained in this Act shall apply to the intelligence and
           security organisations specified in the Second Schedule,
           being organisations established by the Central Government
128                                                       [2026] 7 S.C.R.

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       or any information furnished by such organisations to that
       Government:
       Provided that the information pertaining to the allegations
       of corruption and human rights violations shall not be
       excluded under this sub-section:
       Provided further that in the case of information sought for
       is in respect of allegations of violation of human rights,
       the information shall only be provided after the approval of
       the Central Information Commission, and notwithstanding
       anything contained in Section 7, such information shall be
       provided within forty-five days from the date of the receipt
       of request.
       (2) The Central Government may, by notification in the Official
       Gazette, amend the Schedule by including therein any other
       intelligence or security organisation established by that
       Government or omitting therefrom any organisation already
       specified therein and on the publication of such notification,
       such organisation shall be deemed to be included in or, as
       the case may be, omitted from the Schedule.
       (3) Every notification issued under sub-section (2) shall
       be laid before each House of Parliament.
       (4) Nothing contained in this Act shall apply to such
       intelligence and security organisations, being organisations
       established by the State Government, as that Government
       may, from time to time, by notification in the Official
       Gazette, specify:
       Provided that the information pertaining to the allegations
       of corruption and human rights violations shall not be
       excluded under this sub-section:
       Provided further that in the case of information sought for
       is in respect of allegations of violation of human rights,
       the information shall only be provided after the approval
       of the State Information Commission and, notwithstanding
       anything contained in Section 7, such information shall be
       provided within forty-five days from the date of the receipt
       of request.
[2026] 7 S.C.R.                                                        129

   Special Police Establishment v. Kamta Prasad Mishra and Others


           (5) Every notification issued under sub-section (4) shall
           be laid before the State Legislature.”
     It is to the noted that Section 24(1) and Section 24(4) use the
     expression ‘intelligence and security organisations’. This would
     indicate that an organisation governed by the said provision ought
     to be empowered to go into aspects of ‘intelligence’ and ‘security’.
14. Section 24(1) of the Act of 2005 states that the provisions of the Act
    would not apply to ‘intelligence and security’ organisations specified
    in the Second Schedule to the Act of 2005. Perusal of the Second
    Schedule indicates reference to about twenty-six organisations
    concerned with ‘intelligence’ and ‘security’ that have been established
    by the Central Government. Section 24(4) states that nothing
    contained in the Act of 2005 would apply to such ‘intelligence and
    security’ organisations established by the State Government as
    notified in the Official Gazette. The exemption from application of the
    provisions of the Act of 2005 is, therefore, restricted to ‘intelligence
    and security’ organisations that have been established by the State
    Government by publishing Notification in the Official Gazette. The
    first proviso to Section 24(4) of the Act of 2005, however, does
    not exclude information pertaining to allegations of corruption and
    violation of human rights.
15. The expression ‘intelligence and security’ organisations found
    in Section 24 has not been defined in the Act of 2005. We may,
    therefore, consider the nature of various organisations established
    by the Central Government which are concerned with ‘intelligence
    and security’ that are referred to in the Second Schedule. For
    example, the Directorate of Enforcement (ED) was established on
    01.05.1956 for handling Exchange Control laws violations under
    the Foreign Exchange Regulations Act, 1947. One of its functions
    is to collect, develop and disseminate intelligence relating to the
    Foreign Exchange Management Act, 1999. The Central Reserve
    Police Force has been mentioned in the Second Schedule. As per
    the Central Reserve Police Force Act, 1949, it is an armed force
    maintained by the Central Government and is concerned with
    internal security. A member of the force has to execute all orders and
    warrants lawfully issued to him, detect and bring offenders to justice
    and also apprehend all persons whom he is legally authorised to
    apprehend. Then, the Border Security Force constituted under the
130                                                           [2026] 7 S.C.R.

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       Border Security Force Act, 1968 is an armed force of the Union for
       ensuring the security of the borders of India. Similarly, the Central
       Industrial Security Force is an armed force of the Union constituted
       under the Central Industrial Security Force Act, 1968 for better
       protection and security of industrial undertakings owned by the Central
       Government. The National Investigation Agency is also referred to
       in the Second Schedule. It is an investigation agency at the national
       level constituted to investigate and prosecute offences affecting the
       sovereignty, security and integrity of India.
       It is, thus, clear that organisations referred to in the Second Schedule
       to the Act of 2005 are specifically concerned with ‘intelligence’
       and ‘security’, having been constituted by the Central Government
       with that object in mind. On the other hand, the SPE has been
       clothed with limited jurisdiction to investigate offences punishable
       under the Act of 1988, Sections 409, 420 and Chapter XVIII of
       the Penal Code. The submission on behalf of the State of Madhya
       Pradesh that the principle of institutional parity was considered
       while issuing the Notification dated 25.08.2011 therefore cannot be
       accepted.

       Notification dated 25.08.2011
16. In exercise of the power conferred by Section 24(4) of the Act of 2005,
    the GAD of the State of Madhya Pradesh has issued Notification
    dated 25.08.2011 wherein it is stated that the provisions of the Act
    of 2005 would not apply to cases under investigation by the SPE
    and the State Bureau of Investigation of Economic Offences. The
    Notification dated 25.08.2011 reads as under:
            “Whereas the State Government considers that the
            disclosure of the information regarding names of
            informers or complainants in the economic offences
            under investigation in Madhya Pradesh Special Police
            Establishment of Lokayukta Organization and State Bureau
            of Investigation of Economic Offences under the Right
            to Information Act, 2005 (No. 22 of 2005) may likely to
            endanger the life or physical safety of such informers or
            complainants;
            And whereas the State Government also considered that
            the disclosure of the information in the economic offences
[2026] 7 S.C.R.                                                          131

   Special Police Establishment v. Kamta Prasad Mishra and Others


           under the investigation in the said organization would
           impede the process of investigation or apprehension or
           prosecution of offenders;
           And whereas Section 8(1) of the Right to Information
           Act, 2005 (No. 22 of 2005) provides for exemption from
           disclosure of information on certain grounds, whereas
           clause (g) provides that information, the disclosure of
           which would endanger the life of physical safety of any
           person or identify the source of information, and clause
           (h) provides that information which would impede the
           process of investigation or apprehension or prosecution
           of offenders shall be denied to any citizen;
           Now, therefore, in exercise of the powers conferred by
           sub-section (4) of Section 24 of the said Act, the State
           Government, hereby specify that the provisions of the
           said Act shall not apply with respect to the cases under
           investigation by the following organizations:-
           1.   Madhya Pradesh Special Police Establishment of
                Lokayukta Organization.
           2.   State Bureau of Investigation of Economic Offences.”

     SPE whether an ‘intelligence’ and ‘security’ Organization
17. It would now be necessary to consider whether the SPE is an
    ‘intelligence’ and ‘security’ organisation. For this purpose, relevant
    provisions of the Act of 1981 may be noticed. The Statement of
    Objects and Reasons behind enacting the Act of 1981 reads as under:
                     “Statement of Objects and Reasons
           Currently there is no mechanism in place to investigate
           into allegations of corruption, etc., against high ranking
           individuals such as the Chief Minister, other elected
           officials and senior officers under the control of the State
           Government and in order to maintain ethical standards
           in public life, there has been a need since long time to
           establish an independent mechanism for this purpose.
           Therefore, this Bill has been formulated to establish such
           a mechanism.
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            Hence, this Bill is presented.
            Bhopal:
            Date : 19 September 1980.
                                                       Arjun Singh
                                                     Member-in-Charge
            Recommended by His Excellency the Governor under
            Article 207 of the Constitution of India.”
       The Statement of Objects and Reasons indicates the absence of
       a mechanism to investigate into allegations of corruption against
       high ranking individuals and the need to establish such independent
       mechanism. The preamble of the Act of 1981 reads as under:
            “An Act to make provision for the appointment and functions
            of certain authorities for the enquiry into the allegations
            against [public servants] [Substituted by M.P.Act No.1
            of 1987 (w.e.f. 9-1-1987).] and for matters connected
            therewith.”
       Section 2(b) defines the expression ‘allegation’ which reads as under:
            “2. Definitions – In this Act, unless the context otherwise
            requires,-
            (b) “allegation” in relation to a public servant means any
            affirmation that such public servant,-
                 (i) has abused his position as such to obtain
                 any gain or favour to himself or to any other
                 person or to cause undue harm to any person;
                 (ii) was actuated in the discharge of his functions
                 as such public servant by improper or corrupt
                 motives;
                 (iii) is guilty of corruption; or
                 (iv) is in possession of pecuniary resources or
                 property disproportionate to his known source
                 of income and such pecuniary resources or
                 property is held by the public servant personally
                 or by any member of his family or by some other
                 person on his behalf.
[2026] 7 S.C.R.                                                              133

     Special Police Establishment v. Kamta Prasad Mishra and Others


              Explanation:– For the purpose of this sub-clause “family”
              means husband, wife, sons and unmarried daughters
              living jointly with him;”
      Section 7 of the Act of 1981 specifies the matters that may be enquired
      into by the Lokayukt or Up-Lokayukt. Section 7 reads as under:
              “1 4 [7. Matters which may be enquired into by Lokayukt
              or Up-Lokayukt-Subject to the provision of this Act, on
              receiving complaint or other information-
                      (i) the Lokayukt may proceed to enquire into
                      an allegation made against a public servant
                      in relation to whom the Chief Minister is the
                      competent authority;
                      (ii) the Up-Lokayukt may proceed to enquire into
                      an allegation made against any public servant
                      other than referred to in clause(i):
              Provided that the Lokayukt may enquire into an allegation
              made against any public servant referred to in clause (ii).]
              15
                [Explanation. – For the purposes of this section the
              expressions “may proceed to enquire”, and “may enquire,”
              include investigation by police agency put at the disposal of
              Lokayukt and Up-Lokayukt in pursuance of sub-section (3)
              of section 13.]”
18. The official website of Lokayukt Organisation, Madhya Pradesh at
    mplokayukt.nic.in gives the following information:
                                   “About Lokayukt Organization
              The Lokayuykt Organization in Madhya Pradesh came
              into existence in Feb.1982 after the Madhya Pradesh
              Lokayuykt and Up-Lokayukt Act, 1981 (hereinafter called
              the Act) was enacted by the State Legislature. Attempt
              to establish an independent Organization on the lines
              of “Ombudsman” started way back in mid 70’s after the
              State Administrative Reforms Commission recommended


14   Subs. by M.P. Act No.7 of 1982 (w.e.f. 28-1-1982)
15   Ins. By M.P. Act No.20 of 1984 (w.e.f. 16-5-1984)
134                                                         [2026] 7 S.C.R.

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            that the State Vigilance Commission, which was then
            functioning as an instrument to prevent/check corruption
            should be replaced by an organization with statutory
            base and powers. Examining the role and limitations of
            the State Vigilance Commission, the ARC had observed
            that in the absence of a constitutional or even statutory
            recognition of its position, the Vigilance Commission
            might act at best as a department of the Government to
            check corruption. In view of the above observations of
            the ARC and on the basis of various recommendations
            received from the Government of India, a bill was moved
            in the M.P. Legislative Assembly in the year 1975 which
            was sent for President’s assent after its passage by the
            Assembly. But due to certain rethinking at the level of
            the Union Government the bill was returned to the State
            Government for reconsideration and the same was passed
            in April 1981 with certain modifications. The bill so passed
            became the Act after it received the Presidential assent
            in September 1981.
            The Lokayukt Organization constituted under the Act
            replaced the Vigilance Commission. Having received the
            statutory base the Lokayukt Organization is totally free
            from the executive influence. Indeed, the organization
            functions as an instrument of control over the executive by
            the legislature as its annual reports are submitted to the
            Governor to be laid and discussed in the State Legislative
            Assembly.”
       Thus, even the Lokayukt Organisation states that it is an organisation
       that functions to prevent/check corruption. We may also refer to
       Section 63 of the Lokpal and Lokayuktas Act, 2013 which reads as
       under:
            “63. Establishment of Lokayukta.—Every State shall
            establish a body to be known as the Lokayukta for the
            State, if not so established, constituted or appointed, by a
            law made by the State Legislature, to deal with complaints
            relating to corruption against certain public functionaries,
            within a period of one year from the date of commencement
            of this Act.”
[2026] 7 S.C.R.                                                             135

     Special Police Establishment v. Kamta Prasad Mishra and Others


              Though this is a later central legislation, it is indicative
              of the fact that the Lokayukt of a State is a body to deal
              only with complaints relating to corruption against certain
              public functionaries.
19. The SPE has been established and constituted pursuant to the power
    conferred by Section 2(1) of the Act of 1947. The purpose behind its
    constitution is the investigation of offences notified under Section 3
    of the Act of 1947. Notification dated 01.11.1959 by which the SPE
    was constituted reads as under:
                         “the lst November 1959-Kartika 10, 1881
                                      NOTIFICATION
              No. 111-89-I(VI) 59.-In exercise of the powers conferred by
              sub-section (1) of section 2 of the Madhya Pradesh Special
              Police Establishment Act, 1947 (XVII of 1947), the State
              Government hereby constitutes a special police force to be
              called the Madhya Pradesh Special Police Establishment
              for the investigation of offences which may from time to
              time be specified under section 3 of the said Act.”
      Section 3 of the Act of 1947 empowers the State Government to
      specify the offences that can be investigated by the SPE. It reads
      as under:
              “3. Offences to be investigated by special police
              establishment:- The State Government may, by notification,
              specify the offences or classes of offences which are to
              be investigated by [Madhya Pradesh]16 Special Police
              Establishment.”
      On 01.11.1959, another Notification was issued under Section 3 of
      the Act of 1947 specifying the offences that could be investigated
      by the SPE. The same reads as under:
              “No. 113.89-I(VI)-59.-In exercise of the powers conferred
              by section 3 of the Madhya Pradesh Special Police
              Establishment Act, 1947 (XVIÍ of 1947), the State
              Government hereby specifies the following to be the
              offences or classes of offences which are to be investigated


16   Subs. By A.O. 1950, for Central Provinces and Berar
136                                                         [2026] 7 S.C.R.

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            by the Madhya Pradesh Special Police Establishment,
            namely:-
            (a) offences punishable under sections 161, 165 and 165-A
            of the Indian Penal Code, 1860 (XLV of 1860);
            (b) offences punishable under the Prevention of Corruption
            Act, 1947 (II of 1947);
            (c) offences under sections 409 and 420 and Chapter
            XVIII of the Indian Penal Code, when they are committed,
            attempted or abetted by public servants or the employees
            of a local authority or a statutory corporation, when
            such offences adversely affect the interests of the
            State Government or the local authority or the statutory
            corporation, as the case may be; and
            (d) attempts, abetment and conspiracies in respect
            of offences mentioned in items (a) and (b) above, by
            whomsoever committed.”
       The subsequent Notification dated 28.11.1989 issued under Section 3
       of the Act of 1947 reads as under:
            “Bhopal, the 28th November 1989
            No.F.15-2(I)-89-XLIC-10.- In Exercise of the powers
            conferred by Section 3 of the Madhya Pradesh Special
            Police Establishment Act, 1947 (XVII of 1947), the State
            Government hereby specifies the following to be the
            offences of classes or offences which are to be investigated
            by the Madhya Pradesh Special Police Establishment,
            namely :-
            a)   Offences punishable under the Prevention of
                 Corruption Act, 1988 (No.49 of 1988);
            b)   Offences under Sections 409 and 420 and Chapter
                 XVIII of the Indian Penal Code, 1860 (XLV of 1860)
                 when are committed, attempted or abetted by public
                 servants or the employees of a local authority or a
                 statutory corporation, when such offences adversely
                 affect the interests of the State Government or the
                 local authority or the status corporation, as the case
                 may be; and
[2026] 7 S.C.R.                                                           137

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           c)    Conspiracies in respect of offences mentioned in
                 items (a) above.
           2.    (1) The General Administration Department Notification
                 No.113-89-1 (VI)-59, dated the 1st November, 1959
                 is hereby repealed.
           (3)   Notwithstanding such repeal, any investigation or legal
                 proceeding pending on the date of commencement of
                 the prevention of Corruption Act, 1988 (No.49 of 1988)
                 shall be continued as if the repealing Notification had
                 not been issued.
           By order and in the name of the Governor of Madhya
           Pradesh.”
     Thereafter, on 14.09.2000 the earlier Notification dated 28.11.1989
     was superseded and a fresh Notification was published in the Official
     Gazette. The Notification dated 14.09.2000 reads as under:
           “Notification No.F.15(1)(1)-2000-I-10 dated the 14th
           September, 2000.-In exercise of the powers conferred
           by Section 3 of the Madhya Pradesh Special Police
           Establishment Act, 1947 (No.17 of 1947) and in
           supersession of this Department Notification No.15(2)
           (1) 89-1-49-10 dated the 28th November, 1989, the State
           Government, hereby specify the following offences to
           be the offences of class of offences which are to be
           investigated by the Madhya Pradesh Special Police
           Establishment, namely :-
           (a) Offences punishable under the Prevention of Corruption
           Act, 1988 (No.49 of 1988) :
           (b) Offences under Section 409 and 420 and Chapter XVIII
           of the Indian Penal Code, 1860 (No.XLV of 1860) when they
           are committed, attempted or abetted by Public Servants or
           employees of a local authority or a statutory corporation,
           when such offences adversely affect the interests of the
           State Government or the local authority or the statutory
           corporation, as the case may be;
           (c) Conspiracies in respect of offences mentioned in item
           (a) and (b) above; and
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            (d) Conspiracies in respect of offences mentioned in
            item (a) and (b) shall be charged with simultaneously in
            one trial under the provisions of Criminal Procedure Code,
            1973 (No.2 of 1974).
            [Published in M.P. Rajpatra (Asadharan) dated 14-9-2000
            Pages 1099-1100]”
       Yet again on 03.05.2001, the GAD issued a fresh Notification after
       superseding the earlier Notification dated 14.09.2000. The Notification
       dated 03.05.2001 reads as under:
            “No.15-(1)-(1)-2000-I-10.- In exercise of powers
            conferred by Section 3 of the Madhya Pradesh Special
            Police Establishment Act, 1947 (No.17 of 1947) and in
            supersession of this Department Notification No.15-(1)-
            (1)-2000-I-10, dated 14th September, 2000, The State
            Government hereby specify the following offences to be the
            offences or class of offences which are to be investigated
            by the Madhya Pradesh Special Police Establishment
            namely :
            (a) Offences punishable under the Prevention of Corruption
            Act, 1988 (No.49 of 1988);
            (b) Offences under Section 409 and 420 and Chapter
            XVIII of the Indian Penal Code, 1860 (No.XLV of 1860)
            when they are committed, attempted or abetted by Public
            Servants or employees of a local authority or a statutory
            corporation, when such offences adversely affect the
            interest of the Government or the local authority or the
            statutory corporation, as the case may be;
            (c) Conspiracies in respect of offences mentioned in item
            (a) and (b), above, and;
            (d) Conspiracies in respect of offences mentioned in
            item (a), (b) and (c) shall be charged with simultaneously
            in one trial under the provisions of Criminal Procedure
            Code, 1973 (No.2 of 1974).”
20. From the Notification dated 03.05.2001, it becomes clear that offences
    under the Act of 1988 as well as offences under Sections 409, 420
[2026] 7 S.C.R.                                                          139

     Special Police Establishment v. Kamta Prasad Mishra and Others


      and Chapter XVIII of the Indian Penal Code, 186017 committed or
      attempted or abetted by public servants or employees of a local
      authority or a statutory corporation adversely affecting the interest
      of the Government or a local authority or a statutory corporation, as
      the case may be, have to be investigated by the SPE. Conspiracies
      in respect of aforesaid offences are also to be investigated by the
      SPE. Thus, offences or classes of offences to be investigated by the
      SPE are limited to those punishable under the Act of 1988 and under
      Sections 409, 420 and Chapter XVIII of the Penal Code. The Act of
      1988 seeks to prevent corruption involving public servants. Section
      409 of the Penal Code provides for punishment for criminal breach
      of trust by a public servant or by a banker, merchant or agent while
      Section 420 provides for punishment for cheating and dishonestly
      inducing delivery of property. Chapter XVIII of the Penal Code relates
      to offences concerning documents and property marks. Considering
      the nature of offences covered by the aforesaid provisions, the
      jurisdiction of the SPE is clearly limited. This is for the reason that
      under the Act of 1981, the Lokayukt has been conferred a limited
      jurisdiction to enquire into an ‘allegation’ as defined by Section 2(b)
      when made against a public servant. It is, thus, clear that insofar
      as issues of ‘intelligence’ and ‘security’ are concerned, neither the
      Lokayukt nor the Up-Lokayukt under the Act of 1981 has been
      conferred jurisdiction to make any enquiry. The various Notifications
      issued by the State Government under Section 3 of the Act of 1947
      from time to time are limited to offences punishable under the Act
      of 1988, Sections 409, 420 and Chapter XVIII of the Penal Code.
      Though Section 24(4) of the Act of 2005 states that the Act would
      apply to such ‘intelligence and security organisations’ established by
      the State Government as notified, the SPE though established by the
      State Government, it is not empowered to investigate any offences or
      classes of offences related to ‘intelligence’ and ‘security’. The sphere
      of operation of the SPE constituted under the Act of 1947 would be
      governed and guided only by matters that may be enquired into by
      the Lokayukt or Up-Lokayukt under Section 7 of the Act of 1981.
      The jurisdiction, in that sense, is limited to an allegation in relation
      to a public servant in the context of the Act of 1988. The statutory


17   For short, ‘the Penal Code’
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        scheme under which the SPE stands constituted coupled with the
        jurisdiction conferred on the Lokayukt or Up-Lokayukt clearly indicate
        that the SPE cannot be termed to be an ‘intelligence and security’
        organisation when it assists the Lokayukt or Up-Lokayukt in matters
        specified by Section 7 of the Act of 1981.
21. We may note that the Allahabad High Court in Dr.Nutan Thakur
    vs State of U.P., through Principal Secretary, Department of
    Vigilance18 considered the validity of Notification dated 03.08.2012
    issued by the Principal Secretary Vigilance, Government of U.P.
    through which the Lokayukt agency was brought out of the purview of
    the Act of 2005 in view of Section 24(4) of that Act. After considering
    the matter in detail, it was found that the office of the Lokayukt had
    been constituted in view of the U. P. Lokayukt and Up-Lokayukt Act,
    197519. It was mainly concerned with the issue of corruption of public
    servants as defined under the Act of 1975. In the context of Section
    24(4) of the Act of 2005, it was held that the office of Lokayukt was
    not concerned with the issues of ‘intelligence and security’. It was,
    thus, held that the Notification dated 03.08.2012 issued by the State
    Government by which the office of Lokayukt and Up-Lokayukt was
    sought to be brought out of the purview of the Act of 2005 was
    illegal and it travelled beyond the provisions of Section 24(4) of the
    Act of 2005.

        Conclusion
22. Thus, having considered the entire matter, we are of the considered
    opinion that the Notification dated 25.08.2011 issued by the GAD of
    the State of Madhya Pradesh to the extent it seeks to exclude the
    SPE from the purview of the Act of 2005 in view of Section 24(4)
    thereof is liable to be set aside as being bad in law as it provides
    for matters not enumerated under Section 7 of the Act of 1947. The
    SPE having been conferred jurisdiction only to investigate offences
    punishable under the Act of 1988, Sections 409, 420 and Chapter
    XVIII of the Penal Code, it cannot be termed to be an ‘intelligence
    and security’ organisation for the purposes of Section 24(4) of the
    Act of 2005. The Notification dated 28.05.2011 does not conform to
    Section 24(4) of the Act of 2005 and is, thus, excessive in nature.


18    Misc. Case No.1748 of 2013 decided on 02.11.2017
19   For short, ‘the Act of 1975’
[2026] 7 S.C.R.                                                           141

   Special Police Establishment v. Kamta Prasad Mishra and Others


     Thus, while maintaining the judgment of the High Court dated
     20.12.2021 in W.P. No.1575 of 2021, the Notification dated 25.08.2011
     issued by the GAD seeking to exclude the SPE from the applicability
     of the provisions of the Act of 2005 is struck down. It is clarified that
     we have not examined the applicability of the said Notification vis-
     a-vis the State Bureau of Investigation of Economic Offences and
     therefore, the said Notification shall continue to operate to that extent.
     Subject to aforesaid, the Criminal Appeal is dismissed. Pending
     interlocutory applications are also disposed of.

     Result of the case: Appeal dismissed.




     †
         Headnotes prepared by: Nidhi Jain