State's Withdrawal Of Consent Will Not Impact Power To Investigate In 'Railway Areas' : CBI Tells Supreme Court

The Affidavit firstly submits that the SLP is devoid of any merit and therefore, liable to be dismissed. Further, reliance has been placed on the ratio of the Supreme Court in the case Ram Kishan Fauji v. State of Haryana by the Petitioners which, as per the CBI, will not apply squarely onto the facts and circumstances of the present case.

"….it was held in view of the peculiar facts and circumstances of the case, that no appeal under the Letters Patent Appeal shall lie to the Division Bench of the High Court from the order passed by the Single-Judge of the High Court exercising original criminal jurisdiction under Article 226 of the Constitution…"

Rejecting the contention that the proceedings before the Division Bench would be deemed infructuous, the Affidavit submits that the Letter Patent of Lahore is completely analogous to the Letters Patent for Calcutta High Court, and the corresponding clause 25 of the Letters Patent of Calcutta High Court has no application in the present case.

The Supreme Court bench headed by Justice DY Chandrachud had earlier observed that it will examine the issue if the Division Bench had jurisdiction to consider the appeal against the Single Bench decision as per the Letters Patent rules.

Additionally, Calcutta High Court is governed procedurally by separate rules for petitions under Article 226 which do not distinguish amongst Civil and Criminal Writs.

"It is submitted that as per the said Rules, there exists no distinction in the petitions filed under Article 226 [whether on the civil side or the criminal side] and the rules mandate that all petitions be registered and allocated the roster under the head of "Original Side"."

Secondly, the Affidavit submits that a conjoint reading of Sections 5 and 6 of the DSPE Act provides that no permission of the State Government is required for the registration of case carrying out an investigation in the Railway Area.

"It is pertinent that once the notification has been issued under Section 5(1) of the DSPE Act, including the State of West Bengal therein, the Railway Area which is part of the state is automatically included therein. If the same is read along with Section 6 of the DSPE Act, even if the concerned State has withdrawn the consent for investigation of the cases in terms of the DSPE Act, the same cannot be withdrawn with reference to Railway Areas".

The Affidavit then goes on to submit that the CBI did not require prior consent from the State in the instant case.

"It is submitted that the said withdrawal [of consent] has no bearing on the power of the CBI to register FIRs in relation to offences in 'railway areas' and take consequential steps in pursuance to such 'investigation'. It is submitted that the Respondent was well within the powers conferred to it, while initiating and continuing to conduct the instant investigation".

Conveying that in respect of offences committed in Railway Areas, the DSPE Act unequivocally grants the power to CBI to investigate whether or not the State Government accords its consent. The Affidavit then refers to Sections 4, 5 and 6 of the DSPE Act, as well as Entries 8, 22 and 80 in List I of Schedule VII of the Constitution, to delineate how exclusive power is conferred.

Further, as the individuals being investigated are Central Government employees, it is averred that the Centre does not need prior consent to investigate its own employees, irrespective of the fact whether the concerned employee is within the territorial jurisdiction of the CBI to investigate or not.

The Affidavit concludes on the note that being the foremost investigating police agency in India, CBI stands apart from the rest of the investigating agencies across the Country. Therefore, to ensure optimum transparency and efficiency, the CBI should be allowed to investigate in such matters.

Background

The case pertains to illegal mining and transportation of coal through Railways in connivance with officers of the Eastern Coalfield Limited, Railways, C.I.S.F. and some other private persons including the writ petitioner (Anup Majee).

A FIR was registered in the matter by CBI for offences of criminal conspiracy, criminal breach of trust by public servants and criminal misconduct by public servants by dishonestly or fraudulently misappropriating the property entrusted to them or any property under their control as public servants or allowing other persons to do so.

The Petitioner had impugned the FIR before a Single Bench of the Calcutta High Court which held that CBI's power to investigate beyond 'Railway Areas' was subject to the consent of the State.

In an appeal preferred by CBI, a Division Bench of the High Court stayed the Single Judge's order and allowed CBI to investigate the case without any hindrance. 

It observed, "Proper investigation cannot be carried out if the investigation in such cases is divided into parts, drawing lines on territories once the premier central agency is in the process of investigation. In case during the pendency of the present appeals, the investigation being carried out by the CBI is hampered, the process of investigation at this stage will certainly be prejudiced, which will not be in the interest of justice as any delay in the process may be fatal…"