Can CBI Probe in Area Without State Govt's Permission?

In a significant ruling that goes to the heart of federalism, the Supreme Court has overruled the preliminary objections raised by the Union government against the maintainability of an original suit filed by the State of West Bengal over the registration of cases by the Central Bureau of Investigation (CBI) despite the state government having withdrawn the consent as far back as on November 16, 2018.

The state government has contended this act of the CBI is a constitutional overreach.

The CBI was constituted under the Delhi Special Police Establishment Act (DSPE), 1946. Under Section 6 of the DSPE Act, the powers and jurisdiction of the DSPE (CBI) can only be extended to an area of a state with the consent of the government of that State.

The CBI was constituted under the Delhi Special Police Establishment Act, 1946.

A division Bench of Justice B.R. Gavai and Justice Sandeep Mehta held that the suit raises the legal issue as to whether after the withdrawal of the consent under Section 6 of the DSPE Act, the CBI, through the defendant— the Union of India— can continue to register and investigate cases in an area in violation of the provisions of Section 6 of the DSPE Act.

What is the suit filed by the West Bengal government?

In 2021, the West Bengal government filed a suit under Article 131 of the Constitution seeking the following multifold reliefs against the defendant, the Union of India: 

• Pass a judgment and decree declaring that registration of cases by the defendant after withdrawal of notification under Section 6 of the DSPE Act by the plaintiff is unconstitutional and non-est. 
• Pass a judgment and decree restraining and forbearing the defendant from registering any case or investigating a case in connection with offences committed within the territory of West Bengal after withdrawal of the consent under Section 6 of the DSPE Act by the state.
• Pass a judgment and decree declaring that the action of the defendant in registering cases after withdrawal of notification under Section 6 of the DSPE Act by the plaintiff is violative of the Constitution of India as well the basic structure of the Constitution and the principle of federalism.
• Pass a judgment and decree thereby quashing all cases registered by the defendant after withdrawal of notification under Section 6 of the DSPE Act by the plaintiff and transmit those records to the plaintiff for registration of regular cases by the police force of the plaintiff. 
• Ad-interim Order restraining the defendant from proceeding with any investigation on any FIR and any proceeding arising therefrom, registered after November 16, 2018 when the consent under Section 6 of the DSPE Act was withdrawn by the plaintiff, other than investigation with respect to an FIR filed/registered on an Order of a competent court of law.
• Pass a judgment and decree granting such other and further reliefs that are deemed fit in the facts and circumstances of the case

Article 131 of the Constitution of India confers original jurisdiction on the Supreme Court to decide disputes between the federal government and the state governments.

Any dispute either between the government of India and one or more states; or between the government of India and any state or states on one side and one or more other states on the other; or between two or more states which involves a question on which the existence or extent of a legal right depends are decided under Article 131.

The Solicitor General of India Tushar Mehta, for the Union of India, resisted the suit raising a preliminary objection concerning the very maintainability of the suit.

Arguments against the maintainability of the suit

Mehta vehemently argued against the maintainability of the suit. His arguments ranged from the plaint not complying with Article 131 to the CBI being an independent agency and thus the Union government having no role to play in the registration of the cases.

Mehta argued that the provisions of Article 131 are subject to other provisions of the Constitution. On this basis, he argued that the issue raised in the plaint by the state government is also the subject matter of appeals pending before the Supreme Court under Article 136 of the Constitution.

Under Section 6 of the DSPE Act, the powers and jurisdiction of the CBI can only be extended to an area of a state with the consent of the government of that State.

He also argued that in various litigations filed either under Article 226 before the high court or under Article 136 before the Supreme Court, the state of West Bengal is a party, and hence the question with regards to the jurisdiction of the CBI to investigate cases within the state of West Bengal arises in those cases also.

Mehta submitted that it did not reveal any cause of action warranting a suit under Article 131 against the Union of India. He argued that all the reliefs sought are related to the CBI over which it has no jurisdiction concerning the registration of the cases.

On this basis, Mehta contended that even if the suit is decreed in favour of the plaintiff, the said decree will remain unenforceable against the Union government. Hence, the suit was liable to be dismissed on the grounds of misjoinder or nonjoinder of parties.

Arguing on the functioning of the CBI, Mehta submitted that the responsibility of superintendence over the CBI’s functioning is with the Central Vigilance Commission (CVC). He submitted that the CVC is an independent body appointed by an independent collegium. Mehta claimed that no control is vested with the Union government insofar as the CBI is concerned.

Mehta also accused the state government of suppressing facts. He submitted that most of the cases mentioned in the plaint had been registered on the directions of the high court.

Arguments in support of the maintainability of the suit

Senior advocate Kapil Sibal, for the state government, made fervent arguments to admit the suit and to negate the argument raised against its maintainability. He submitted that the averments made in the plaint reveal that a cause of action has been made out against the Union of India.

Referring to Section 2 of the DSPE Act, Sibal submitted that the Union government is empowered to constitute a special police force to be called the DSPE for the investigation of offences notified under Section 3.

That under Section 3, it is the Union government that specifies the offences or classes of offences that are to be investigated by the DSPE (CBI).

Referring to Section 4, Sibal submitted that the superintendence of the DSPE vests with the CVC only for the investigation of offences committed under the Prevention of Corruption Act, 1988.

He submitted that as per sub-Section (3) of Section 4, the administration of the said police establishment vests in an officer appointed on this behalf by the Union government and that such an officer, in respect of the CBI, is entitled to exercise powers exercisable by an inspector general of police in respect of the police force in a state.

In sum and substance, Sibal contended that as per the scheme of the DSPE Act, the CBI could not be said to be an instrumentality of a State by giving an expanded meaning to the term ‘State’ in Article 12 of the Constitution but is one of the organs of the Union of India through which it derives powers to investigate offences.

Referring to Section 6, Sibal submitted that the power available with the Union government for extension of the jurisdiction of CBI to other areas is subject to the consent of such state government. On this basis, Sibal contended that if consent is given by a state and subsequently withdrawn, then the CBI will not have jurisdiction to exercise the powers in that state.

Article 131 of the Constitution of India confers original jurisdiction on the Supreme Court to decide disputes between the federal government and the state governments.

Sibal submitted that the grant of consent under Section 6 of the DSPE Act is a privilege. It is the discretion of the state as to whether such a privilege is to be granted or not.

He submitted that the cause of action in the suit is that after the withdrawal of the consent which was granted under Section 6 of the DSPE Act by the plaintiff, the Union government has no jurisdiction to authorise the CBI to register cases in West Bengal.

Responding to the submission made by Mehta about the interpretation of Article 131, Sibal argued that the interpretation sought to be given by the defendant to the words “subject to the provisions of this Constitution” as appearing in Article 131 of the Constitution is incorrect.

He submitted that the correct interpretation would be that when there is some other provision in the Constitution prohibiting the Supreme Court from exercising its jurisdiction, then a suit under Article 131 of the Constitution would not be tenable.

He refers to Articles 262 and 279A(11) of the Constitution in this regard. He submits that the words “subject to the provisions of this Constitution” would not make the present suit non-maintainable.

Responding to the arguments by Mehta on Order XXVI Rule 6 of the Supreme Court Rules, Sibal submitted that the plaint can be rejected only when it either does not disclose a cause of action or where the suit appears from the statement in the plaint to be barred by any law.

With regard to the allegations regarding suppression, Sibal submitted that, out of so many instances listed in the plaint, only one or two cases are registered under the directions of the high court. Thus, there is no material suppression as alleged.

Ruling by the Supreme Court

Dealing with the argument of Mehta that the Union of India has no superintendence or control over the CBI, the Bench extensively went through the provisions of the DSPE Act. It found that it is the Union Government that is entitled to constitute a special police force to be called the DSPE for investigation of cases in any Union territory of offences notified under Section 3 of the DSPE Act.

Commenting on Section 4(1) of the DSPE Act, the Bench said that the superintendence of the DSPE vests with the CVC only with regard to the investigation of offences under the Prevention of Corruption Act.

Regarding other offences, the superintendence of the CBI vests with the Union government, as per the Bench.

According to Section 4(3), the administration of the DSPE is vested in an officer appointed on this behalf by the Union government who shall exercise, in respect of that police establishment, such of the powers exercisable by an inspector general of police in respect of the police force in a state as the Union government may specify in this behalf.

The Solicitor General of India Tushar Mehta, for the Union of India, resisted the suit raising a preliminary objection concerning the very maintainability of the suit.

The Bench also took note of Sections 5 and 6 of the DSPE Act. After surveying the scheme of the DSPE Act, the Bench held that the Union government is virtually connected to the CBI from its constitution to the issuance of notifications specifying the offences or classes of offences which are to be investigated by the DSPE, to the superintendence and administration of DSPE and the extension of powers and jurisdiction of DSPE to areas beyond Union territories.

Importantly, the Bench ruled that without the consent of the state government, the power and jurisdiction of the CBI cannot be extended to any area in a state, including railway areas.

The Bench thus rejected the argument of Mehta that the CBI cannot be equated to the term government of India as contemplated under Article 131 of the Constitution. The Bench categorically held that the establishment, exercise of powers, extension of jurisdiction and the superintendence of the DSPE, all vest with the government of India.

The Bench acknowledged that the powers of superintendence of the Union government would not relate to the superintendence of investigation of a particular case and the CBI would always be entitled to investigate the offences independently but this does not, in the opinion of the Bench, water down the administrative control and superintendence of the DSPE that vests with the Union government.

Dealing with the argument of Mehta about the term “subject to the provisions of this Constitution” used in Article 131 of the Constitution, the Bench ruled that it is only subject to any other provision in the Constitution which provides for entertaining a dispute between the parties mentioned therein.

Senior advocate Kapil Sibal, for the state government, made fervent arguments to admit the suit and to negate the argument raised against its maintainability.

The Bench cited an example of Article 262 which provides for the adjudication of disputes relating to waters of inter-state rivers or river valleys. It provides that Parliament may by law provide for the adjudication of such disputes or complaints excluding the jurisdiction of all courts including the Supreme Court.

The Bench thus explained that ordinarily, a dispute with respect to the use, distribution or control of the waters of, or in, any inter-state river or river valley between two states could have fallen under Article 131 of the Constitution but because of the words “subject to the provisions of this Constitution” used therein and in view of Article 262, such a dispute would not be entertainable under Article 131 of the Constitution.

The Bench added that the remedies under Articles 32 and 136 are general remedies available to “any party”.

“Merely because, in any of the proceedings initiated under Article 32 or Article 136 or even Article 226 of the Constitution, one of the parties is common, in our view, the pendency of such proceedings would not come in the way of a specific party mentioned in Article 131 of the Constitution to take recourse to the remedy available therein,” the Bench held.

On the allegations of the Union of India that there had been suppression of material facts in the suit inasmuch many first information reports (FIRs) mentioned in the plaint were registered under the directions of the high court under Article 226 of the Constitution, the Bench noted that the very reading of the plaint including the prayer clause and specifically Paragraph 13 of the plaint would reveal that the claim of the plaintiff is with regard to the investigations except with respect to the FIRs registered under the Order of a competent court of law. Thus, the Bench rejected the argument of suppression.

The Bench also rejected the argument of the suit having not disclosed any cause of action. The Bench noted that the averments in the plaint cannot be read in isolation but are to be read in their entirety.

Importantly, the Bench ruled that without the consent of the state government, the power and jurisdiction of the CBI cannot be extended to any area in a state, including railway areas.

“It is the case of the plaintiff that the CBI is established by the defendant, its exercise of powers is controlled by the defendant 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,” the Bench held.

In its conclusion, the Bench overruled the preliminary objection raised by the Union of India against the maintainability of the suit. It directed to list the suit on August 13 for framing of the issues.

Click here to read the order.