'Union Govt Has No Control Over CBI, West Bengal's Suit Not Maintainable' : AG Tells Supreme Court

The Attorney General for India argued before the Supreme Court on Tuesday that the original suit  filed by the State of West Bengal under Article 131 of the Constitution of India against the CBI registering FIRs in relation to offences in the state despite the revocation of general consent was not maintainable.

"The Defendant (Union of India) is not concerned under any of these issues. There is a Special Act called the DSPE Act and the officials of the Delhi Special Police Establishment are required to register the cases," AG KK Venugopal told the Top Court.

The Attorney General submitted that the Union Government has no control over the CBI in matters relating to registration of FIRs, as it was an autonomous body. He submitted that CBI's autonomy was statutorily maintained and that even Central Government could not interfere in the manner in which the CBI investigated its cases.

"Therefore registering FIR is purely by an autonomous body. Union of India has no control. I'm (Union of India) not registering any case or investigating any case", the AG added. Therefore, he submitted that the suit against the Union of India was not maintainable.

The bench of Justices LN Rao, BR Gavai and BV Nagarathna while adjourning the matter for two weeks, asked the Union of India to file its Vakalatnama to enter appearance.

Courtroom Exchange

When the matter was called for hearing, the bench while remarking that the case Anup Majee v. CBI was listed before the bench headed by Justice DY Chandrachud which dealt with similar issues, said that it would hear the matter on some other day.

"Mr Luthra we're informed that SLP's filed against the Calcutta HC today are listed before Justice Chandrachud. Some issues related to Central Government Employees, territories etc are listed today. Let them hear the same. We'll have the matter later," Justice Rao remarked.

To persuade the bench to hear the matter today, Senior Advocate Siddharth Luthra for the State of West Bengal submitted that the issue in Anup Majee dealt with whether the CBI had power to investigate illegal mining and transportation of coal through Railways in West Bengal, without the State's consent.

"They are related to matters pertaining to coal. These are cases related to a gentleman called Anup Majee, which has nothing to do with which your lordship is concerned. There is an issue here with regards to consent in non-railway areas," Senior Counsel added.

The bench again while expressing its inclination to hear the matter next week again remarked that, "Mr.Luthra we're only asking you one simple question. Do you want to argue here or before Justice DY Chandrachud? There are issues that are overlapping. We'll benefit from that judgement also."

"Mr Luthra, we're seeing that item 4 has been passed over. What happened in that?" asked the bench.

Solicitor General at this juncture entered appearance and submitted that the cases listed before the bench of Justice DY Chandrachud were adjourned by mutual consent of the parties by 2 weeks.

"Let us hear the AG on maintainability and then after that we'll decide if we have to allow your IA or not. In any case if the issue of maintainability arises, we'll have to hear first. He has an objection to the maintainability of your suit," the bench remarked.

"This suit should be allowed, there is complete mockery of the rules that the other side has made. The suit will have to be allowed. No written statement has been made until now and there is no appearance. I won't stand in AG's way, but look at the rules," Senior Advocate Siddharth Luthra at this juncture submitted.

Entire Claim And Relief Of State Of West Bengal Is Against CBI: Attorney General For India KK Venugopal

Appearing for the Union, Attorney General for India KK Venugopal commenced his submissions by submitting that the suit filed by the State of West Bengal was ex facie not maintainable and that CBI has not been made a party to the suit.

Drawing attention on the prayer sought by the State in the suit, AG made specific responses to each of the prayers sought in the suit:

• First prayer in the suit wherein relief had been sought for declaring the registration of cases by the defendant after withdrawal of notification u/s 6 of the DSPE Act by the plaintiff as unconstitutional and non est - The AG submitted that the Union of India had neither registered a single case nor it had the jurisdiction to register a case.
• Second prayer wherein relief had been sought for restraining and forbearing the Defendant from registering any case and/or investigating a case in connection with offences committed within the territory of the State of West Bengal after withdrawal of the consent under Section 6 of the DSPE Act by the State - AG submitted that the Union had nothing to do with the registration or investigation of the cases.
• Third prayer of declaring the Defendant's action in registering cases after withdrawal of Notification under Section 6 of the DSPE Act by the Plaintiff as violative of Constitution of India as well as violative of the basic structure of the Constitution and the principle of federalism -  AG submitted that the Union had nothing to do with registration of criminal cases u/s 6 of the DSPE Act
• Fourth prayer of quashing all cases registered by the Defendant after withdrawal of Notification u/s 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 - AG submitted that the Union had not registered any case after withdrawal of notification u/s 6 of the DSPE Act.

"The Defendant (Union of India) is not concerned under any of these issues. There is a Special Act called the DSPE Act and the officials of the Delhi Special Police Establishment are required to register the cases," AG further added.

To further argue on the maintainability, AG during the course of his submissions referred to Article 131 of the Constitution of India which deals with Original Jurisdiction of the Supreme Court and relied on the Top Court's judgement in State of Rajasthan v Union of India 1977(3) SCC 592.

"Article 131 jurisdiction is only b/w state & UOI. His entire claim and relief is against the CBI. He knows that if he asks against CBI, the suit will not be maintainable. I cannot grant him the relief," AG submitted in this regard.

Relying on the section 8 of the Central Vigilance Commission Act, 2003 under which the CVC exercises power of superintendence over the functioning of DSPE (in so far as it relates to investigation offences alleged to have been committed under the Prevention of Corruption Act, 1988), Attorney General submitted that CBI's autonomy was statutorily maintained and that even Central Government could not interfere in the manner in which the CBI investigated its cases.

"Therefore registering FIR is purely by an autonomous body. Union of India has no control. I'm (Union of India) not registering any case or investigating any case. This is the only device by which he could approach the Supreme Court. They will have to go to the High Court," AG also submitted.

Relying on Order 27 Rule 6 of the Supreme Court Rules, 2013 as per which,

"Defendant is required to enter appearance by filing in the Registry a memorandum in writing containing the name and place of business of his Advocate on Record, if any and in default of appearance being entered within the time mentioned in the summons or as in hereinafter provided, the suit may be heard ex parte," Senior Advocate Siddharth Luthra submitted that the reply filed by the Union was a "non-est reply", as the Union has not entered appearance yet by filing vakalath.

"The office report may be seen which is dated 30th September. Till date no entry of appearance. Please see order 27," Senior Counsel added.

"We appeared, we sought time and we filed a reply," Solicitor General Tushar Mehta submitted at this juncture.

"If they don't do it within a stipulated time, can they at all file it? Today the procedure that they're following is not unheard of. Today there's no question of Written Statement. Its case of non traverse," Senior Advocate Siddharth Luthra argued while submitting that the Union had no right of audience.

To counter Senior Advocate's submissions, the Attorney General for India relied on the Top Court's order passed in the In Re: Cognizance For Extension Of Limitation to say that the limitation period has been extended for filings.

Senior Advocate Bishwajit Bhattacharya appearing for the State while relying on Section 2, 3 and 5 of the DSPE Act submitted that the entire existence of the CBI was because of Central Government and that CBI and Central Government was intertwined.

In its reply affidavit, the Central Government had told the Supreme Court that State of West Bengal's claim that it had the competence to undertake a blanket withdrawal of all powers of investigation from the CBI was without substance.

Case Title: State of West Bengal v Union of India | Original Suit No.4/2021.

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