The West Bengal government had filed an original suit before the Supreme Court raising the issue of continuous registration of FIRs by the Central Bureau of Investigation (CBI) in the state despite the fact that the state government had withdrawn permission three years ago in this regard. The centre, however, responded by saying that the “state’s power to withhold consent to the CBI is not absolute,” in its response to the suit.
The matter was heard by the bench, comprising Justices L Nageswara Rao and BR Gavai, and a notice was issued to the centre to file its response. In its response, the centre filed an affidavit and countered the plea raised by the state that the CBI cannot file FIRs without the prior permission of the state on the grounds that the agency is only entitled to interrogate/investigate cases having pan-India impact and those that are being carried out against the central government employees, irrespective of whether the concerned employee is within the territorial jurisdiction of the CBI to investigate upon or not.
Rahul Singh, joint secretary, department of personnel and training, government of India, filed the affidavit on behalf of the Union of India and raised the question about the maintainability of the suit on the basis that it is barred by several provisions of the Code of Civil Procedure and sought its dismissal. He even criticised West Bengal for not including the CBI as a party in the suit despite the fact that all the issues raised involve the CBI and not Union of India. “Union of India has not registered any case in the State of West Bengal, nor has it been investigating any case,” the affidavit said.
The centre also submitted that for the purpose of discharging the responsibilities entrusted to Central Vigilance Commission, it can give directions to the Delhi Special Police Establishment (i.e, the CBI) under Section 8(1)(b) of the Delhi Special Police Establishment (DSPE) Act which provides that “the Commission shall not exercise powers in such a manner so as to require the Delhi Special Police Establishment to investigate or dispose of any case in a particular manner.”
Thus it is clear that the autonomy of the CBI is statutorily maintained and cannot be interfered with even by the central government in regard to the manner in which the CBI investigates a case. Further, the Union government called upon the plaintiff—West Bengal—to show the procedure followed and the reasons, if any, recorded by the state government while passing an order, dated 16.11.2018 (taking back the permission) which appears to be an omnibus order de hors the effects of any particular case.
Regarding legal provisions under which the CBI has the power to register cases and investigate, the centre submitted in its affidavit that Entries 8, 22 and 80 in List I of Schedule VII to the Constitution of India confers the exclusive power to investigate on such subject matter upon the CBI as the same falls outside the scope and purview of powers conferred upon the state government/its investigation agencies.
Section 6 of the Delhi Special Police Establishment Act, 1946, requires consent of the state government for exercising powers and jurisdiction to any area in a state not being Union Territory or Railways. It says that “nothing contained in Section 5 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a State, not being a Union Territory or railway area, without the consent of the Government of that State.”
However, it may also be noted that the Ministry of Home Affairs, via a resolution, dated April 1, 1963, clearly mandated that “cases in which public servants under the control of the Central Government are involved either themselves or along with State Government servants and/or other persons” would be investigated by the DSPE (read CBI). It was submitted that the present cases are, undoubtedly, liable to be investigated by the CBI.
The centre said that from a combined reading of the Constitution, the relevant entries in the List I, List II and List III, the DSPE Act, and the relevant precedents of the apex court, it cannot be stated that there is a complete embargo on any investigation by DSPE in all situations irrespective of the factual situation. It added that even if the consent is withdrawn by the state government, the power of the DSPE Act to investigate the offences relating to Railway areas continues to apply.
The centre in support of its argument quoted a judgment passed by the apex court in Aspi Jal vs Khushroo Rustom Dadyburjor, (2013) 4 SCC 333, wherein the Court held that the basic purpose and the underlying object of Section 10 of the Code is to prevent the courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause of action, same subject matter and the same relief. It is to pin down the plaintiff to single litigation so as to avoid the possibility of contradictory verdicts by two courts in respect of the same relief and is aimed to protect the defendant from multiplicity of proceedings.
The centre stated that the CBI stands apart from rest of the investigating agencies across the country and has a set of Standard Operating Procedures (SOPs) in every aspect of investigation. These SOPs ensure the conduct of investigation in a just manner. Thus, it is important to note that there is a multi-layered supervision over the investigation and overall functioning of the CBI so as to ensure optimum transparency and efficiency in the conduct of investigations.
The CBI is one of the chief investigating police agencies in India established as a Special Police Force, under the Delhi Special Police Establishment Ordinance, 1946. The agency is considered as an arm of the central government that carries out investigation regarding corruptions, scams or serious crimes having an impact over national and international matters, maintaining and disseminating crime statistics and other criminal information. The CBI can be said to have police powers when it comes to its functioning and authority as officers are given authority as that of the officer in-charge of the police station while investigating a case.
The CBI has its primary jurisdiction over Delhi and Union Territories, but it also has a pan-India jurisdiction. That is to say the jurisdiction of the CBI is somewhat limited when it comes to matters of states outside the Union Territories.
The CBI, while functioning in Union Territories, has the power to take up cases in a suo motu fashion under Section 2 of the DSPE Act. These include registered FIRs and cases registered directly with CBI. When it comes to cases that occur within the territories of states, CBI requires prior consent from the state to be able to carry out their investigation, as laid down by Section 6 of the Act.
In support of its contention, the centre also mentioned the details of some cases filed by the CBI. One of the very prominent cases is of the accused Anup Majhi who is running a multi-state racket of pilferage, smuggling and sale of scarce natural resources i.e. coal from the central government-owned coal mines through the Railways. Majhi had challenged the said FIR before the Calcutta High Court. The single judge bench passed an order in favour of Majhi, but later, the division bench of the Calcutta High Court stayed the order of the single judge bench, resulting in the continuance of the CBI investigation. And this particular point shows that the judicial authority of the state has affirmed the validity of the FIR filed by the CBI.
However, it is pertinent to state here that Majhi and the state of West Bengal have filed SLPs before the Supreme Court against the order passed by the division bench of the Calcutta High Court. The SLPS are still pending before the top court and there is no stay on the investigation. The centre in an attempt to prove the validity of its contentions submitted in its affidavit that since the offence, which is the subject matter of the FIR filed against Majhi, has ramifications in West Bengal, Uttar Pradesh, Jharkhand and other states and coal is a national asset, it establishes the jurisdiction of the CBI to investigate.
In another case, Ramesh Chandra Singh vs Union of India, Ramesh Chandra Singh, who was working as an assistant provident fund commissioner, has been accused of possessing assets to the tune of Rs 56,47,789 disproportionate to his known sources of income. He has filed a petition in the Calcutta High Court for quashing the FIR on the ground of absence of the consent. However, the petition was dismissed by the Court which stated: “This Court is, therefore, of the view that, the Central Government/CBI’s power to investigate and prosecute its own officials cannot be in any way impeded or interfered by the State even if the offenses were committed within the territory of the State.”
—By Divyanshee Singh and India Legal News Service