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General Consent: State Vs CBI

Daily or weekly, we frequently come across the news headlines regarding CBI. Its establishment is prominent and quintessential to our nation. CBI has made major contributions in solving some of the very big cases pertaining to national importance and security.

Lately, CBI has been making headlines for different reasons. It got stuck in the political friction between the center and the state. More on that later. First, let us start with a brief introduction of CBI before moving further.

General Consent: State Vs CBI

What is CBI

CBI (Central Bureau of Investigation) gained its statutory legitimacy through the Delhi Special Police Establishment Act, 1946. The Home Ministry of the Government of India named it on 1-4-1963 through resolution number 4/31/61-T/MHA.

Initially, the agency carried out investigations like frauds in Government Departments, PSUs and the breach of the Central fiscal laws, and other serious crimes. As per transformational needs in the agency, it evolved and so did its purview. Initially, in 1987 CBI comprised of two divisions; the Special Crimes division and the Anti-Corruption Division. However due to the enormous amount of workload in the bureau, related to cases of economic offenses and bank fraud, a third wing was installed, the economic offenses wing in 1994.

This is the CBI at present in a nutshell.

CBI has been vested with two categories of consents- general and specific.

Ratification of general consent by the state government implies that it is not required for the agency to seek permission every time it has to conduct a CBI investigation.

Specific consent comes with the withdrawal of general consent. If the state’s general consent is pulled back then the agency is supposed to file for fresh permission each time it enters that state for the execution of the CBI investigation.

Section 6 of the DSPE Act, states that the center can`t extend CBI`s jurisdiction without states’ consent. Hence it makes state government`s consent mandatory for any inquiry or investigation into any offense alleged and committed under the prevention of corruption act, 1988 within the concerned state.

Additionally, the CBI manual asserts that the center has the authority to extend the jurisdiction of CBI investigation but not without state governments consent. However, the Supreme Court and the high courts can order CBI investigation even without the consent of the state government.

Background of the Case

It all started when the two accused in the case M/S Fertico Marketing And Investment Pvt. Ltd. And Ors. Etc. V Central Bureau Of Investigation And Another Etc., [CRIMINAL APPEAL NOS. 760- 764 of 2020] filed an appeal to the Supreme Court challenging the judgment of the Allahabad High court.

The public officials were alleged to be involved in the black marketing of the coal by partnering with a few individuals of the company, as per the findings of the CBI raid. An FIR was also filed against them which led to the mentioning of their names in the charge sheet as well.

Consequently, the High court led to the opinion that the UP government has granted post-facto consent against the two public servants who, later, were named in the charge sheet. Therefore, sufficient for proceeding with the case.

An appeal in the Apex court

In the arguments, the appellants said that the CBI investigation happened on illegal grounds. The agency did not take states’ prior consent from the concerned authorities as per section 6 of the DSPE act.

The Supreme Court confirmed the High court order. The UP government has accorded the state’s general consent to CBI investigation. This awarded an extension of power and jurisdiction to DSPE members in 1989 under the Prevention of Corruption Act. Hence, the appeal rejected.

Court`s observation

In the landmark judgment, consisting of Justices A M Khanwilkar and B R Gavai. The court observed, that not getting prior consent from the state for the CBI investigation, it was not enough to claim the investigation irregular. The investigation carried out should suffice the fact that it caused prejudice to the accused and miscarriage of the justice.

It also noticed that though section 5 of the DSPE act allows the centre to extend the power and jurisdiction of the DSPE members of other states as well. However, under section 6 of the same Act, it is mandatory for the central government to obtain the prior consent of the state for the execution of the intended activity to take place.

In the light of the supreme court’s decision on CBI, states with the opposition party in power withdrew their general consent given for CBI probe. Rajasthan, Bengal, Jharkhand, Kerala, Maharashtra, Chhattisgarh, Punjab, and Mizoram have cancelled the permission in a similar fashion.

Maharashtra`s move came in as a result when the central agency took over the TRP scam case in UP state. Hence to avoid a similar construct in Maharashtra state because the Mumbai police have the issue in hand. They have alleged the four news channels’ involvement in the TRP scam.

Rajasthan, West Bengal, and Chhattisgarh had recently cancelled the blanket nod for the CBI investigation. The casewise permission has become mandatory each time, as according to section 6 of the DSPE act.

Mizoram has accorded the provision of the consent to the central agency. Although, it made mandatory to take state government`s consent, each time.

However, according to Calcutta High court, no prior consent is required for CBI investigation, if they have to investigate the officials of the central government in the state.

The aftermath of the Supreme Court’s decision

  • The agency has the authority to probe the cases assigned to them before the states withdrew the consent.
  • Furthermore, it will investigate the cases directed through court orders.
  • As per the provisions of the Code of Criminal Procedure (CrPC), CBI could approach a local court and get a search warrant. This way it can still conduct the probe in the intended state.

Final Words

The Supreme court’s decision and the collective reluctance of the states has given rise to speculation that indicates the interference of the center on how CBI functions. Politicians have referred to CBI as a parrot cage; there are instances on the behalf of the agency that it serves to its master’s command. Especially, when the courts are not directing the cases, filing of cases and CBI investigation is subject to bias. Manipulations are done on the basis of power and side. The author wonders whether this kind of status may hamper the due process and administration of justice.

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by apoorva_tripathi

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