INTRODUCTION
The recent order of the Calcutta High Court directing the Central Bureau of Investigation (CBI) to take over the probe into the Birbhum Violence, in which eight people were burnt alive allegedly in retaliation for the murder of a local Trinamool Congress leader in West Bengal, has put the spotlight back on the premier investigation agency of India.[1] The CBI, however, has been in the news for quite some time now. Recently, Meghalaya became the ninth state to withdraw consent to the CBI to investigate cases in the state. The agency is also at the centre of the tussle between the government and the opposition when raids and searches are conducted on premises belonging to opposition leaders or their kins. To its credit, the agency over the years by resolving high-profile cases has built a reputation for itself and won accolades from the general public. The agency however has its share of criticism. It has often been dubbed as the ‘agent’ of the central government by opposition parties and leaders. Even the Supreme Court of India in the year 2013 called the agency a ‘caged parrot speaking in its master’s voice’.[2] Critics also accuse the agency of being vulnerable to political pressure and point to the long delays caused by the agency in concluding investigations. Be that as it may, the state governments, courts, and even ordinary people still seek CBI’s investigation when they have no faith in the investigation of the state police or any other investigative agency for that matter. This brings forth the question of how and when does the agency takes up cases for investigation, what is its jurisdiction and what constraints does it face while taking up cases for investigation?
Origin of CBI
The CBI traces its origin to colonial India. During the Second World War, the Special Police Establishment (SPE) was set up in 1941 to investigate cases of corruption and bribery in the War and Supply Department as it was felt that the existing law enforcement agencies were not apposite to handle the situation. Its headquarters were then in Lahore. After the war got over, the need for a central investigative agency to probe corruption cases against central government employees was felt. So, in 1946, the Delhi Special Police Establishment Act was brought into force and the SPE was brought under the purview of the Home Department, and its mandate was expanded to investigative corruption cases of all departments of the Government of India. The SPE was renamed the Central Bureau of Investigation by the Home Ministry vide a notification in 1963, giving it the authority to investigate irregularities in all public sector entities as well as terrorism, murder, and other crimes. [3]
Jurisdiction
As per the provisions of the Delhi Special Police Establishment Act, 1946, the primary jurisdiction of the CBI extends only to Delhi and other Union Territories. Section 5 of the act however empowers the central government to extend the jurisdiction to any state, but with the consent of the respective state government (section 6). The consent of the state government to the CBI can be either general or case-specific.[4] States often give a general consent to assist the CBI in undertaking a seamless investigation of cases of corruption involving central government employees in their states. As of now total of nine states, with the latest one being Meghalaya, have withdrawn general consent given to the CBI. When states withdraw general consent, the agency needs to seek permission for investigating any case in the future in the concerned state. The withdrawal of the general consent by the state however applies prospectively not retrospectively. The same was held in the case of KaziLhendupDorji vs. Central Bureau of Investigation (1994). The Supreme Court in this case opined that the withdrawal of consent only applies prospectively and does not apply to cases that are under investigation at the time the withdrawal notification is sent.[5] Besides that, CBI can take up cases for investigation when the state government, with the consent of the Government of India, by issuing a case-by-case notification transfer the already registered case from the state police department to the CBI. States mostly transfer cases either due to the political sensitivity of the case or when there is a concern that the police investigation will not be impartial. Take for example the case of the Rajasthan government which requested the central government to hand over the probe of the BhanwariDevi Case to the central agency in the year 2011 after the opposition parties raised voices over the shoddy investigation done by the police department.[6] Even the Rajasthan High Court pulled up the state government for their snail-paced investigation and the court even admonished the police for not questioning the accused minister in the case. Recently, after the horrific gang-rape and murder of a Dalit woman in the state of Uttar Pradesh and after much uproar from the opposition parties, civil society organizations, and media, the state government of UP decided to hand over the case to the central agency and requested the central government to direct CBI to take over the case.[7] The role of UP Police and government after the incident took place drew public outrage. The police officials cremated the body of the victim at late night without seeking the permission of the family. The lapses in the police investigation also led to the loss of crucial evidence. The CBI also investigates cases when the Supreme Court or the High Court vide its order directs the agency to investigate the case afresh or transfer the case from the police of the concerned state to the agency. The apex court has however said that the transfer of cases to the CBI should not be a routine exercise and should only be done under exceptional circumstances. In a number of cases, the Supreme Court has overturned the decisions of the High Court directing CBI inquiry. The Supreme Court in the year 2019 set aside the order of the Punjab and Haryana High Court transferring the case from local police to CBI. The court said that “CBI is not God. They can’t know everything, crack every case.” The court further in its order asked the high courts not to send every other case to the CBI for investigation.[8] However, when it becomes necessary to provide a credible investigation and instil confidence among the general public regarding the fairness of the investigation the courts have not hesitated in ordering a probe by the CBI. Take for example the case of post-poll violence in West Bengal. In the aftermath of the violence, the Calcutta High Court while hearing a bunch of PILs seeking an independent probe into the alleged instances of murder, and rape, ordered a court-monitored CBI Investigation into the case. [9]
CONCLUSION
The investigation by the CBI is preferred over other state government agencies and people still repose confidence in its credibility. However, due to strain in centre-state relations, the functioning of the agency gets hampered. States many times withdraw general consent due to which the investigation of cases suffers. It becomes very cumbersome for the agency to seek permission for each and every case. CBI being the premier investigation agency of India must not get caught in such a quagmire. Too much dependence of the agency on state governments does not bode well. The need of the hour is a CBI Act on par with the Income Tax Act or the Customs Act so that CBI officers have independent investigating powers and can have pan-India jurisdiction.
Author(s) Name: Jaiverdhan Singh (Maharashtra National Law University, Nagpur)
References:
[1]Kumari, S., 2022. Birbhum violence: Calcutta HC orders CBI probe into TMC leader’s murder. [online] The Indian Express. Available at: <https://indianexpress.com/article/cities/kolkata/birbhum-violence-cbi-probe-calcutta-hc-7835601/> [Accessed 7 April 2022].
[2]Reporter, B., 2013. CBI a caged parrot speaking in its masters’ voice, observes SC. [online] Business-standard.com. Available at: <https://www.business-standard.com/article/current-affairs/cbi-a-caged-parrot-speaking-in-its-masters-voice-observes-sc-113050900032_1.html> [Accessed 7 April 2022].
[3]CBI. Central Bureau of Investigation. [online] Available at: <https://cbi.gov.in/about-us?search=who-we-are> [Accessed 7 April 2022].
[4]Pandey, D., 2018. Limits of CBI jurisdiction. [online] Thehindu.com. Available at: <https://www.thehindu.com/opinion/op-ed/limits-of-cbi-jurisdiction/article25559634.ece> [Accessed 7 April 2022].
[5]Datta, S., 2019. CBI vs Mamata Tussle: Both Sides on an Equally Sticky Wicket | NewsClick. [online] NewsClick. Available at: <https://www.newsclick.in/cbi-vs-mamata-tussle-both-sides-equally-sticky-wicket> [Accessed 8 April 2022].
[6]The Times of India. 2011. CBI registers case in Bhanwari Devi case | India News – Times of India. [online] Available at: <https://timesofindia.indiatimes.com/india/cbi-registers-case-in-bhanwari-devi-case/articleshow/10317669.cms> [Accessed 8 April 2022].
[7]WION. 2020. CBI takes over Hathras gang-rape case, begins probe. [online] Available at: <https://www.wionews.com/india-news/cbi-takes-over-hathras-gang-rape-case-begins-probe-334456> [Accessed 8 April 2022].
[8]Anand, U., 2019. CBI Isn’t God, Every Case Need Not Go to Premier Agency, Says Supreme Court. [online] News18. Available at: <https://www.news18.com/news/india/cbi-isnt-god-every-case-need-not-go-to-premier-agency-says-supreme-court-2326725.html> [Accessed 9 April 2022].
[9]Bhaumik, A., 2021. Calcutta High Court Orders CBI Probe Into West Bengal Post-Poll Violence Cases Of Murder &Rape. [online] Livelaw.in. Available at: <https://www.livelaw.in/top-stories/calcutta-high-court-west-bengal-post-poll-violence-cbi-investigation-nhrc-sit–179877> [Accessed 9 April 2022].
