Delhi High Court: While hearing upon the present bail application, the bench of Vipin Sanghi, J., discussed the legal issue of competence and jurisdiction of Anti Corruption Board (ACB) of the Government of National Capital Territory of Delhi (GNCTD) vis-à-vis Prevention of Corruption Act, with regard to the Delhi Police, and observed that, the applicant being a Delhi Police personnel serving the citizens of National Capital Territory of Delhi, therefore the functions of the Delhi Police personnel is substantially related to the affairs of the GNCTD. Thus the Court was of the view that the ACB has the jurisdiction to entertain and act upon any complaint under the Prevention of Corruption Act against a Delhi Police personnel.
In the present case, the applicant was caught red-handed by the officials of the ACB while accepting bribe from a small scale businessman. Counsel for the applicant N. Harihahran put forth the contention that ACB had no jurisdiction to act against the applicant by the virtue of Article 239-AA of the Constitution and the Notification by the Lieutenant Governor dated 08.11.1993, which was further amended by the Union Ministry of Home Affairs on 23.07.2014. Counsel for the State, Dayan Krishnan submitted that the legislative power of the Legislative Assembly and the executive power of the GNCTD in relation to investigation of crimes come from the Entries 1 and 2 of the Concurrent List of the Seventh Schedule of the Constitution.
Upon perusal of the contentions, the Court observed that, since the Union of India is not the party to the proceedings and the question involved is of major constitutional importance which has a bearing on the executive authority of the Union, therefore it is not appropriate for the Court to delved into the legality and complexities of the issue in a bail application involving the applicant’s personal liberty. The Legislative Assembly of the NCTD constituted by Article 239AA 2(a) is empowered by Article 239AA (3)(a), to make laws in respect of matters enumerated in, the concurrent list of the Seventh Schedule to the Constitution. Therefore, in respect of matters dealt with by Entries 1 and 2 of the Concurrent List, the Lieutenant Governor cannot act in his discretion. The Court further opined that the Notification issued by the Home Ministry on 23.07.2014 and subsequently on 21.05.2015, amending the 1993 Notification, can be termed as a suspect as the Union lacks the executive authority to act in respect of matters dealt with in Entries 1 & 2 of List III of the Seventh Schedule since the law made by Parliament, i.e. GNCTD Act, 1991 read with Article 239 AA puts restrictions on the executive authority of the President. Anil Kumar v. GNCT of Delhi, 2015 SCC OnLine Del 9633, decided on 25.05.2015