Maha Govt says CBI now must seek its nod for probe in cases, Delhi HC ruling states otherwise

@prashanthamine

Mumbai: With Maharashtra Home Minister Anil Deshmukh on Thursday announcing that henceforth the Central Bureau of Investigation (CBI) will have to seek prior permission for inquiry into cases in Maharashtra, the stage is all set for a legal showdown between the countrys premier investigation agency and the state government.

Deshmukh cited provisions of section 5 and section 6 of the Delhi Special Police Establishment Act, 1946 (DSPE Act, 1946), The Prevention of Corruption Act, 1988 and the Supreme Court judgment in the Kazilhendup Dorji – vs – Central Bureau of Investigation case of March 29, 1994.

Investigations done by thenews21 reveal Deshmukh is right when he says while citing the SC judgment that “the pre-consent orders withdrawn by the state government would not be applicable to cases pending before the CBI for investigation”.

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Deshmukh added that “in the state of Maharashtra order dated 22/02/1989 passed to the Central Bureau of Investigation giving general consent to investigate cases related to the Prevention of Corruption Act, 1988, (PCA 1988) as well as other types of cases”.

The Maharashtra Home Minister further stated that “the Supreme Court in its judgments in some cases made it clear that under Section 6 of the Delhi Special Police Act, 1946, the Central Bureau of Investigation could not exercise this power without the prior consent of the State Government”.

Deshmukh further contended that, “Rajasthan, West Bengal and some other states have issued orders / notifications to the Central Bureau of Investigation to withdraw the general consent / prior permission given to the state inquiry”.

Thenews21 investigations have revealed that states like Andhra Pradesh, West Bengal, Nagaland, Sikkim, Chhattisgarh and Karnataka have in the past withdrawn such general consent given to the CBI.

But according to the judgment of the Delhi High Court of October 8, 2018 in the Anand Agarwal – vs – Union of India & Others case of corruption in Chhattisgarh, the court ordered that “the CBI could probe the case without prior consent of the Chhattisgarh government, since the case was registered in Delhi”. The court further said that “the CBI could probe anyone in the state that has withdrawn general consent, if the case is not registered in the state”.

The CBI had filed its First Information Report (FIR) in the alleged TRP Scam in New Delhi based on the complaint filed by one Kamal Sharma at Hazratganj police station in Lucknow on October 20, 2020. The Maharashtra government order withdrawing the general consent given to the CBI was issued on October 21, 2020. In the Sushant Singh Rajput case, the CBI had filed an FIR in New Delhi on August 6, 2020. Whereas the case was first registered in Patna, Bihar.

Meanwhile, Union Minister of State (Independent Charge) Development of North-Eastern Region (DoNER), MoS PMO, Personnel, Public Grievances & Pensions, Atomic Energy and Space, Dr Jitendra Singh had in written reply to a question in Rajya Sabha on February 7, 2019 had commented on the jurisdiction of the CBI to investigate cases.

The Union Minister in his written reply had stated “Once general or specific consent is granted under Section 6 of DSPE Act, 1946 by the State Government where the case is registered; or when the case is entrusted by the Constitutional courts, the powers and jurisdiction of members of the DSPE (CBI) may extend for investigation as stipulated under Section 5 of DSPE Act, 1946”.

He further added “Withdrawal of consent, if any, by a State Government can be affected prospectively and not retrospectively. Further, in the cases which are referred by the Constitutional Courts, the entry of CBI cannot be denied by that State as these do not require the consent of the State”.

As per the rulings in the various court cases, the withdrawal of general consent may not apply in – “any case where a High Court or the Supreme Court of India hands over the probe to the CBI; existing cases and in Central Government matters within a state, such as corruption case against a senior central government bureaucrat posted in that state or a central Public Sector Undertaking (PSU) under the Prevention of Corruption Act, 1988”.

In respect of the withdrawal of general consent granted by Andhra Pradesh and West Bengal on November 19, 2018, “the withdrawal of the general consent would only bar the CBI from registering the case within the jurisdiction of that state. The CBI can still file cases in New Delhi and continue to probe people inside the two states”.