The Central Bureau of Investigation is under the superintendence of the Union government as per the statutory scheme, the Supreme Court held on Wednesday while rejecting the Centre's objection to the maintainability of a lawsuit by West Bengal contesting the federal agency's action of pressing ahead with investigation of cases in the state despite withdrawal of general consent.
West Bengal had withdrawn the general consent allowing the CBI to probe cases or conduct raids in the state on November 16, 2018.
Referring to various provisions of the Delhi Special Police Establishment (DSPE) Act, 1946, the top court said, "We further find that the very establishment, exercise of powers, extension of jurisdiction, the superintendence of the DSPE, all vest with the Government of India."
"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," a bench of Justices B R Gavai and Sandeep Mehta said while ruling that the suit is maintainable.
It said a perusal of the entire scheme would reveal that right from the constitution of the special police force, which is called DSPE, issuance of notifications specifying the offences or classes of offences which are to be investigated by it, superintendence and administration of DSPE and extension of powers and jurisdiction of DSPE to areas beyond the Union territories, "it is the central government which is vitally concerned with".
"Not only that, only such offences which the central government notifies in the official gazette, can be investigated by the DSPE," the bench said in its 74-page verdict.
It said under section 4 of DSPE Act, except for the offences under the Prevention of Corruption Act in which superintendence will be with the Central Vigilance Commission, the superintendence of DSPE in all other matters would vest with central government.
The bench considered the contention of Solicitor General Tushar Mehta with regard to the Union of India having no superintendence or control over the Central Bureau of Investigation (CBI).
"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," the bench noted.
It said the statutory scheme makes it clear that extending such powers under section 5 of the DSPE Act cannot be done without the consent of the government of that state under section 6 of the Act.
"In that view of the matter, 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.
It said insofar as reliance placed by the solicitor general on two previous verdicts of the apex court was concerned, "No doubt that the powers of superintendence of the central government would not relate to the superintendence of investigation of a particular case and the investigating agency (CBI) would always be entitled to investigate the offences independently."
However, that would not water down the administrative control and superintendence of the DSPE that vests with the central government, the court said.
The West Bengal government had filed an original suit in the apex court against the Centre under Article 131 of the Constitution, alleging that the CBI has been filing FIRs and proceeding with investigation despite the state having withdrawn the general consent to the federal agency to probe cases within its territorial jurisdiction.
Article 131 deals with the Supreme Court's original jurisdiction in a dispute between the Centre and one or more states.
The bench said, in its opinion, Article 131 is a "special provision" which deals with the original jurisdiction of the apex court in case of a dispute between the federal government and the state governments.
"It provides for a special jurisdiction to this court to decide any question on which the existence or extent of a legal right depends," it said.
"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 said.
The bench also rejected the Centre's contention that the suit was liable to be dismissed on the ground of suppression of material facts.
Referring to the Centre's argument with regard to non-disclosure of cause of action against it, the bench said, "At the cost of repetition, it is only the averments in the plaint which can be gone into for considering as to whether the cause of action against the defendant (Union of India) arises or not."
Rejecting the Centre's preliminary objection regarding maintainability of the suit, the bench clarified its findings are for the purposes of deciding preliminary objection and will have no bearing on merits of the suit.
"The suit shall proceed in accordance with law on its own merits," it said and listed it for August 13 for framing of issues.
