In March this year, 8 states including West Bengal had withdrawn the general consent to the CBI to conduct investigation in states. 

Courtesy section 5 and section 6 of the Delhi Special Police Establishment Act, the general notion is that the CBI cannot proceed to investigate a particular matter unless the Central Government notifies the extension of jurisdiction to the officers of the CBI or a constitutional court gives directions in this regard. 

Last week, the Bombay High Court in State of Maharashtra had held that state has locus standi if the agency's investigation goes beyond the scope of the Court's order that authorised investigation in the absence of the state's consent.

Whether State’s consent is necessary to probe corruption cases against Central Government employees? 

Do the fundamentals of federalism disallow CBI to carry out investigation within a state?

Whether the investigation by CBI in respect of FIR which was subsequently registered, is valid and legal considering the government had withdrawn the notification according general consent to the CBI to conduct investigation in the state.

These questions came up for consideration before the Calcutta High Court on Wednesday.

Former TMC Leader Vinay Mishra involved in coal smuggling case

In the present case, the CBI was investigating former TMC Leader Vinay Mishra’s involvement in the coal smuggling case.

The crux of the allegations relates to cross-border cattle smuggling by evading customs duty and the Government Officials facilitating the same. The FIR and charge-sheet also reflect the involvement of the Government Officials along with certain individuals/beneficiaries who entered into conspiracy and manipulated the auction procedure in respect of the seized cattle thereby depriving the Government of India of its legitimate dues.

CBI lacks jurisdiction argue petitioners

The learned counsels representing the petitioner attacked CBI's lack of jurisdiction to investigate within the state of West Bengal after the withdrawal of consent on 16.11.2018.

State has absolute authority and exclusive domain over the police as per Entry 2 List 2 of Schedule VII under the Indian Constitution

Section 4 of the DSPE Act, 1946 read with Central Vigilance Commission Act, 2003 cannot take away the requirement of obtaining consent before initiation of investigation under Section 6 of the DSPE Act. 

General superintendence, Direction and Control of the government officials involved in this case vests in the Central Government: ASG Aman Lekhi

Responding to the arguments advanced by the learned senior counsels representing the petitioner,

ASG Aman Lekhi contended the executive power of the State, under the constitutional scheme, is susceptible of being controlled by the executive power of the Union. 

He placed reliance on paragraph 9 of the judgment in Union of India Vs. V. Sriharan to make his point. The said para makes it clear that where the interest of the Centre will be affected, the appropriate Government would be the Central Government.

He also argued that the general superintendence, direction and control of the government officials involved in this case vests in the Central Government as they belong to Border Security Force and Customs Department which are under the administrative control of the Ministry of Home. In this context, Mr Lekhi brought the attention of the Bench towards the notification under dispute and argued that restrictions under the said notification were in respect of officers of the State.

The learned ASG counter attacked the withdrawal notification dated 16.11.2018 on two counts. First, he argued  that State of West Bengal has failed to assign a reason for such withdrawal. 

He also contended that Centre having approached for consent, the State itself could not have withdrawn it without conforming with the Centre as this will be implicit in the applicability of Section 21 of General Clauses Act, 1977 which stipulates that rescinding of 22 an order is exercisable in the like manner and subject to the like sanction as the issuance of it. 

Amendments in DSPE Act coupled with withdrawal of consent notification has the effect of shielding corrupt Central Government Officials: Calcutta High Court

The Calcutta High Court did not find the premier investigating agency is interfering with the powers vested in the State by the Constitution after weighing the nature of allegations complained in the present case. The court also took into account officials involved in the case and the loss sustained to come to a reasonable conclusion.

The Calcutta High Court was of the view that the Central Government zealously regulates the conduct of the persons vested with the authority to enforce Central Legislations which includes Officials under the BSF Act and Customs Act. The interest so sought to be secured and achieved must have a rational nexus with desire of the Central Government for conducting an investigation in alleged offences of the nature complained of through a central agency. 

The Court drew attention towards para 70 of the Subramanian Swamy Judgement wherein it was held that,

“Every public servant against whom there is a reasonable suspicion of commission of a crime or there are allegations of an offence under the PC Act has to be treated equally and similarly under Law.”

“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. 

The Calcutta High Court also referred to the Supreme Court’s observation in  M/S Fertico Marketing & Ors. Vs. Central Bureau of Investigation wherein it was held that,

…. there are no pleadings by the public servants with regard to the prejudice caused to them on account of non obtaining of prior consent under Section 6 of the DSPE Act qua them specifically in addition to the general consent in force, nor with regard to miscarriage of justice.”

Judge Tirthankar Ghosh asserted that the offenders under the Prevention of Corruption Act are to be dealt with equally. As such, the public servants whose office location may be in different States, but are associated with the Central Government. In the same vein corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by the Central Government cannot be distinguished and/or discriminated because of the location of their offices being at different States and are to be hauled up for corruption in like and similar manner uniformly throughout the country. 

The Court also stated that the the amendments in the DSPE Act coupled with the withdrawal of consent notification has the effect of shielding corrupt Central Government Officials, thereby, deterring the CBI officers to investigate offences in respect of officers falling within the category of Section 8(2) of the CVC Act, 2003.