CBI works under Centre; says SC; holds as “maintainable’ Bengal Govt’s suit against CBI lodging cases despite withdrawal of ‘general consent’

“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,” says a Bench led by Justice BR Gavai

Satya Prakash

New Delhi, July 10

Holding that the CBI worked under the Central Government, the Supreme Court on Wednesday ruled that the West Bengal Government’ original suit against the probe agency registering cases despite withdrawal of ‘general consent under Section 6 of the Delhi Special Police Establishment (DSPE) Act, 1946 was “maintainable”.

“In our considered opinion, the contentions raised by the defendant ((Union of India), do not merit acceptance…The preliminary objection is, therefore, rejected,” a Bench Justice BR Gavai and Justice Sandeep Mehta said.

The Bench, however, clarified that the findings were for deciding preliminary objections and will have no bearing on the merits of the suit.

Amid allegations of misuse of central probe agencies against opposition leaders, the Centre had on May 2 asserted before the top court that the CBI was not under its “control” and that it can’t supervise the registration of FIRs or probes by the agency

However, after analysing various provisions of the DSPE Act, it said, “We… find that the very establishment, exercise of powers, extension of jurisdiction, the superintendence of the DSPE, all vest with the Government of India.”

The top court rejected Solicitor General Tushar Mehta’s argument that the CBI was an independent agency. “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,” it said.

“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,” it noted.

“We find that the contention of the Solicitor General 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, in our view, holds no water,” the Bench said.

Holding that the West Bengal Government’s plaint disclosed a cause of action, the Bench posted the matter for framing of issues on August 13.

The final outcome of the case is likely to have wider ramifications for Centre-state relations in India.

The West Bengal Government had on November 16, 2018, withdrawn the “general consent” given to the CBI to conduct probes or carry out raids in the state.

Alleging misuse of the CBI against political opponents and opposition-ruled states, the West Bengal Government has filed an original suit under Article 131 of the Constitution, contending that the cases filed by the CBI in the state after withdrawal of general consent by it were illegal and without jurisdiction.

Article 131 deals with the Supreme Court’s original jurisdiction in a dispute between the Centre and one or more states; or a dispute between two or more states.

On behalf of the West Bengal Government, senior counsel Kapil Sibal had submitted that once the state withdrew its consent on November 16, 2018, the Centre could not have allowed the CBI to enter the state for any probe. He contended that continuation of the registration of cases and exercise of powers by the CBI after withdrawal of the consent was “an act of constitutional overreach”.