New Delhi: Solicitor General Tushar Mehta, representing the Centre, on Thursday told the Supreme Court that the CBI is not under the "control of the Union of India”. Mehta raised preliminary objections before a bench, comprising justices BR Gavai and Sandeep, on a lawsuit filed by the West Bengal government on the agency going ahead with its probe in several cases without the prerequisite nod from the state. The West Bengal government in November 2018, withdrew the 'general consent' accorded to the CBI to conduct a probe or carry out raids in the state.
Mehta said, "It is suppressed that the cases were registered by the CBI under the orders of the high court and this is my case, and it is a very smartly drafted suit filed by the West Bengal government. I am ready to make a statement that I will not file any case with respect to the state of West Bengal. I mean the Union of India."
He continued, "It is submitted that Union of India has neither registered any case, neither can it register any case, nor has been investigating any case, yet as evident from the prayers extracted above. Each and every prayer in the suit is directed either at restraining Union of India from investigating or quashing cases where Union of India has allegedly registered FIRs”.
The Solicitor General added, “On the other hand, as per the pending proceedings, it is the CBI which has registered FIR and is investigating the cases. However, the CBI is not made a party to the suit as obviously cannot be made party to the suit considering the mandate of Article 131. It may be pertinent to mention that if the present suit is decreed in favour of the plaintiff and against the defendant by this court, the said decree would remain enforceable against the present defendant. The decree may not have the ultimate outcome or conclusion."
Mehta stressed "CBI is not under the control of the Union of India" and said that the cases referred to in the state's suit have not been filed by the Union of India. The hearing in the matter is in progress now.
The West Bengal government has 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alleging that the CBI has been filing FIRs and proceeding with its investigation, despite the state having withdrawn the general consent to the federal agency to probe cases within its territorial jurisdiction.
During the hearing, Mehta reiterated that the CBI is an independent body and not under the Centre and therefore, the Centre cannot be sued in the matter. Mehta said that the same issues and same questions of law are already pending in the apex court and the high court, and pending litigation cannot be re-litigated under Article 131.
Senior advocate Kapil Sibal, representing the West Bengal government, said the CBI cannot probe cases concerning his client without the state government's general consent. He said once the CBI gets a foothold in a state, soon after the Enforcement Directorate also enters the state for investigating the predicate offence.
"It has a huge ramification on the polity of this country," said Sibal, adding that CBI cannot be viewed as an independent "statutory" authority merely because it comes under the Delhi Special Police Establishment (DSPE) Act.
Relying on Section 4(2) of the DSPE Act, Sibal submitted that the CBI comes under the superintendence of the Centre, and the government can be made a defendant to the present suit filed by the state government.
Sibal reiterated that general consent of the state is necessary before the CBI enters the state and the Act impacts on the federal structure. Sibal said that the CBI is an arm of the Union government and the police are the investigative arm of the state government, and they are regulated by statute.
Sibal denied Centre's allegation that the West Bengal government was conducting multiple litigations on the same issue. He said that besides the suit, the other appeal assails a Calcutta High Court order, regarding a CBI probe into post-poll violence. The apex court will continue to hear the matter on May 9.
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