Central Govt's Power To Investigate Its Official Cannot Be Interfered By State Even If The Offence Committed In State's Territory: Calcutta HC

In its judgment delivered on March 12, the court held that CBI's power to investigate and prosecute its own officials cannot be in any way impeded or interfered by the state even if the offences were committed within the territory of the state.

In the present case, a complaint was filed by the Central Government with the CBI alleging amassing by the petitioners of huge assets in their name and in the name of their family disproportionate to their own sources of income. Pursuant to this the Superintendent of Police, CBI, ACB, Kolkata registered an FIR under Section 109 of the IPC read with Section 7, 13(2), 13 (1)(b) of the Prevention of Corruption Act, 1988 .

However, by virtue of a November, 2018 notification, the state government has withdrawn the standing consent accorded under section 6 of the Delhi Special Police Establishment Act, 1946 to the CBI to exercise the powers & jurisdiction in the state of West Bengal.

The Petitioners, accordingly, moved an application for quashing the FIR, contending that Permission under Section 6 having been withdrawn, the CBI cannot investigate the offence. It was argued that Entry 2 of List II of the VIIth Schedule of the Constitution of India confers exclusive Jurisdiction on the State with regard to policing and Such exclusive jurisdiction of a state cannot be encroached upon by the centre through the CBI. The CBI investigation is, therefore, illegal as it has no jurisdiction to investigate on a subject matter that is within the exclusive jurisdiction of the State Government.

The High Court then proceeded to consider the true purport and scope of section 6 in the light of the Object and the Preamble of the Act, against the backdrop of Article 246 and the Seventh Schedule. Section 6 stipulates that nothing shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a state without the consent of the government of that state.

"The action of the Central Government in desiring investigation into the acts and omissions of its officer who functioned under a statute which central government has enacted must be outside the scope of Section 6 of the DSPE Act, 1946. Admittedly the EPF and MP Act 1952 was passed by the Central Legislature in the interest of the employees of establishments in the country as a whole. The said Act aims at conferring a uniform benefit to all such employees in the country irrespective of any state law to the Contrary...The Central Government thus has a national responsibility in zealously regulating the conduct of the persons vested with the authority to enforce Central Legislations in general including the said 1952 Act", the court observed.

"The national interest sought to be secured and achieved bears a rational nexus with desire of a Central Government conducting an investigation of this nature through a central agency. The consequences of the Acts and omissions sought to be investigated transcend boundaries of the State", was the court's opinion. 

The court went to the extent of taking the view that It would be seriously fallacious to question the investigation from the sole stand point of Entry 2 of List II of the VIIth Schedule of the Constitution and the question to be posed is why not the CBI.

Further, it noted that the withdrawal of general consent restricts the power of the Central Government and CBI from instituting new cases in the State concerned. The withdrawal of consent applies prospectively and, therefore, existing cases will be allowed to reach their logical conclusion. The CBI can also

seek or get specific consent in individual cases from the State government. "Admittedly the FIR was registered prior to the receipt of the communication from the State Government as regards withdrawal of consent under Section 6. The instant proceedings against the petitioner by the CBI are, therefore, not hit by the withdrawal of consent by the State dated 18th November, 2018", court held.