New Delhi:The Supreme Court on Wednesday said the CBI is an organ or a body which is established by and which is under the superintendence of the government of India in view of the statutory scheme as enacted by the Delhi Special Police Establishment (DSPE) Act.
A bench of Justices B R Gavai and Sandeep Mehta declined to accept preliminary objections made by the Centre that an original suit filed by the West Bengal government, under Article 131 of the Constitution, questioning the CBI investigations despite withdrawal of consent, would not be maintainable against it.
"In our view, the CBI is an organ or a body which is established by and which is under the superintendence of the government of India in view of the statutory scheme as enacted by the DSPE Act," said the bench, in its 74-page order.
In his defence, Solicitor General Tushar Mehta relied on judgments of the apex court in the cases of Vineet Narain and State of West Bengal and others v. Committee for Protection of Democratic Rights, West Bengal and others. The Centre argued that CBI was an independent body and does not work under it, therefore it cannot be sued before the court.
Justice Gavai, who authored the judgment on behalf of the bench, said that no doubt that the powers of superintendence of the central government would not relate to the superintendence of investigation of a particular case and the investigating agency (CBI) would always be entitled to investigate the offences independently. “However, that would not water down the administrative control and superintendence of the DSPE that vested with the central government. In that view of the matter, we find that the contention in that regard needs to be rejected", said Justice Gavai.
The apex court observed that the plaintiff is raising the legal issue as to whether after withdrawal of the consent under Section 6 of the DSPE Act, the CBI via the defendant – Union of India can continue to register and investigate cases in its area in violation of the provisions of Section 6 of the DSPE Act. It was attacked by the Union of India by raising various contentions challenging the maintainability of the suit.
"In our considered opinion, the contentions raised by the defendant, do not merit acceptance and for the reasons given hereinbefore, are rejected. The preliminary objection is, therefore, rejected. However, we clarify that the aforesaid findings are for the purposes of deciding preliminary objections and will have no bearing on the merits of the suit. The suit shall proceed in accordance with law on its own merits", said Justice Gavai.
West Bengal's Contention Before The Apex Court
The apex court noted that it is the case of the plaintiff that unless the three conditions under Sections 3, 5 and 6 of the DSPE Act are fulfilled, the CBI cannot exercise its powers in any state. The state said after withdrawal of the consent by it on November 16 2018, the CBI could not have continued to register cases and exercise its powers under the DSPE Act. The state government submitted that continuation of the registration of cases and exercise of powers after withdrawal of the consent is an act of constitutional overreach.
The West Bengal government said the CBI was established by the defendant, its exercise of powers is controlled by the defendant, Union of India, and its functioning is also under the superintendence of the defendant. Therefore, it cannot be said that the plaintiff has not made out any cause of action against the defendant, it added.
Senior advocate Kapil Sibal, representing the West Bengal government, had argued that despite withdrawal of the consent given by the plaintiff under Section 6 of the DSPE Act, the CBI has registered cases and has been exercising its powers under the DSPE Act in an unconstitutional manner. The plaintiff gave a list of the cases and stated that the CBI exercised its powers under the DSPE Act without the requisite consent of the state, and claimed that it not only violated Section 6 of the DSPE Act but also usurped and ousted the state police’s statutory jurisdiction.
Scheme of the DSPE Act
Mehta vehemently argued before the court that the central government hadno superintendence or control over the CBI. The apex court noted that it is clear that the DSPE is entitled to investigate only such offences or classes of offences which are specified by the central government by issuing a notification in the official gazette.
The top court found the superintendence of the CBI in all matters vested with the Centre, except in those cases registered under the Prevention of Corruption Act, which are supervised by the Central Vigilance Commission. “Under Section 4 of the DSPE Act, except the offences under the PC Act in which the superintendence will be with the CVC, the superintendence of the DSPE in all other matters would vest with the Central Government”, said Justice Gavai.
Mehta had argued that even if the CBI, being an independent agency, is considered to be an instrumentality of the state under Article 12 of the Constitution, it cannot be equated to the term government of India as contemplated under Article 131 of the Constitution. The apex court said, in its view, this contention "holds no water".
The Supreme Court said the scheme reveals that right from the constitution of the special police force, which is called DSPE, issuance of notifications specifying the offences or classes of offences which are to be investigated by the DSPE, superintendence and administration of DSPE and the extension of powers and jurisdiction of DSPE to the areas beyond the union territories, it is the central government which is vitally concerned with.
The bench noted that if the powers and jurisdiction of the members of the DSPE are to be extended to any area including railway areas, in a state not being a Union Territory, the same cannot be done unless the central government passes an order in that regard.
"The statutory scheme makes it clear that, for extending such powers under Section 5 of the DSPE Act, it cannot be done without the consent of the Government of that State under Section 6 of the DSPE Act," said the bench.
Crucial arguments during the hearing
Mehta had vehemently argued that the CBI is not under the Centre and stressed that it is an independent body and as a result, the central government cannot be sued in the matter. Mehta said the state government is attempting to litigate on the same in two different cases before the apex court.
Sibal said the DSPE Act impacts the federal structure of the country and general consent is necessary before they get entry in the state. Sibal stressed that after CBI gets its foot in the door, soon it is followed by the Enforcement Directorate for investigating the predicate offence. "All of this has enormous implications for the Indian polity," he said.
The West Bengal government had filed an original suit against the Centre under Article 131 of the Constitution, alleging that the CBI has been filing FIRs and proceeding with its investigation, despite the state having withdrawn the general consent to the federal agency to probe cases within its territorial jurisdiction. The apex court has listed the matter for framing of issues on August 13 and the hearing on the suit is likely to begin in September.
